P L D 1967 Dacca 831 (PLP)

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5. After the submission of report by the Arbitrators and the implementation thereof, the above matters will be disposed of accordingly'. The parties referred to above pray that your Lordships may be graciously pleased to record this compromise and dispose of the matter accordingly and may further be pleased to order that this petition of compromise be made part of the final order/decree and pass such other order or orders as to your Lordships may seem fit and proper." The Court accordingly passed the following order dated the 15‑2‑66:‑ "There are two applications by the parties praying for disposal of the appeal and the subject‑matter of the Writ Petition in accordance with the award that may be passed by the three Arbitrators named in the petition. Having in view the subject‑matter in dispute we think it proper and desirable to allow their prayer in terms of the prayers (a), (b), (c) and (d) in paragraph 3 of the petition. The Arbitrators are to file the award within six weeks as prayed for. The School authorities are to bear the costs of the Arbitrators. The parties are permitted to take back the documents filed in this connection in the appeal and re‑file them along with the award made by the Arbitrators. The appeal and the petition No. 131 of 1965 be put up for disposal as soon as the award is received." The arbitrators filed the award in this Court on the 27‑5‑66 pursuant to the Court's order dated the 15‑2‑

65. The award is in these terms:‑ "(a) That the School do get the disputed lands (i.e. 3'76 acres in the new site) and also the lands of the old site which are necessary for the Tarail Model High School buildings, Office‑cum‑library buildings, Science Laboratories, Chemistry Laboratories, Boarding Houses, Gymnasium, Play‑ground, Tank or swimming pool, etc. (b) That the fair valuation of the disputed land is deter?mined at Rs. 350 per Katta ('10 acres) totalling to Rs. 13,160 for 3'76 acres. (c) That the old site being required for the School as aforesaid, no question of plaintiff's' getting the said land or any portion thereof does arise and as such no valuation is assessed for the said land." The petitioner having felt aggrieved by this award has put in an application objecting to the award on several grounds. In support of this application objecting to the award Mr. Debesh Chandra Bhattacharjee and Mr. K. Hussain have appeared and they have contended that the award is illegal inasmuch as the Arbitrators have travelled beyond the scope of the reference. It has been argued that in accordance with the agreement between the parties as evidenced by the joint application to record a compromise the arbitrators were asked to determine how much of 3'76 acres of the disputed lands was necessary to meet the present and future requirements of the school so as not to exceed its total requirements of 3'76 acres taking into consideration both the lands at the old and the new site. It has been further contended that inasmuch as the Arbitrators have held that the school required the entire lands both at the old and new site, namely, the disputed land comprising 3'76 acres as well as the old site which is alleged to comprise '63 acre they have exceeded their jurisdiction. On the contrary it has been con?tended by Mr. T. H. Khan, learned Advocate appearing on behalf of the school authorities that the Arbitrators kept them?selves within the terms of the reference and never travelled outside their jurisdiction to make the award. We reproduce below paragraph 3(b) of the joint application for the compromise for a proper appreciation of the scope of the reference:‑ "(b) The Arbitrators shall have to go to the locality namely, Tarail, where the land in question is situated and are to find out how much of the land in the new site (i.e. 3'76 acres of land in suit or the subject‑matter of acquisition) is necessary for the Tarail Model ‑Secondary High School (under Bi‑lateral Development Scheme) for the School buildings, Office‑cum?-Library buildings, Science Laboratories, Chemistry Laboratories, Boarding houses, Gymnasium, Play‑ground, Tank or Swimming Pool etc., to be housed in a compact area, if possible. In arriving at a finding in this behalf both old and new site may be taken into consideration." The award shows that the Arbitrators have interpreted this reference to mean that they are to take into consideration the entire lands situated at the old site as well as at the new site to determine whether the requirements of the school will be met by the entire lands of the two sites or by any lesser area. It appears to us that such construction is not unwarranted and we are therefore unable to find fault with the award. We may add. that even if the agreement is susceptible of two constructions, namely, the one that has been accepted by the Arbitrators and the other that has been contended for on behalf of the petitioner, the award is not vitiated merely because the arbitrators have preferred one construction to the other. Section 30 of the Arbitration Act provides that an award shall not be set aside except on one or more of the following grounds, namely: (a) that an arbitrator or umpire has misconducted himself or the proceedings; (b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35; (c) that an award has been improperly procured or is otherwise invalid. No allegation of misconduct against the arbitrators has been made. All that Mr. Bhattacharjee has argued is that the arbit?rators have committed a judicial misconduct by traveling outside the scope of the reference. We have already found that there is no substance in this contention. It has next been contended that the valuation put by the arbitrators has not been arrived at on the basis of the aforesaid agreement namely, that the Arbitrators are to determine a fair valuation of the land in question (referred to above) as required by the school, with reference to the price prevailing in or about September 1964, in its original character or quality. The award determined the fair valuation of the disputed land at Rs. 350 per Katta ('10 acres) totalling to Rs. 13,160 for 3'76 acres. The Arbitrators have stated in their award that they went to the locality on two days and they inspected the land in dispute and made enquiries, heard the parties and their witnesses and perused the papers and thereafter gave the award. It is not the petitioner's case that the Arbitrators refused to consider any document having relevance to the valuation of the land that was produced before them and we are, therefore, unable to hold that the arbitrators did not keep the aforesaid basis in mind while deter?mining the price of the land. It may be of interest to mention here that in course of the petitioner's suit in the trial Court a pleader Commissioner had valued the disputed lands at Rs. 10,

340. The petitioner, of course, valued the land at Rs. 30,

000. The trial Court however, felt itself unable to accept the valuation put on the land either by petitioner or by the school authorities and ultimately awarded costs in the suit on the basis of valuation of Rs. 22,500 approximately. It may, be noted that the trial Court of course learned in favour of the petitioner so far as the valuation of the land is concerned in view of the fact that he had actually paid court‑fees on the basis of valuation of Rs. 30,

000. But the fact is that trial Court never decided the actual valuation of the land. For the reasons stated above, we do not think that the petitioner has succeeded in making out a case for setting aside the award and we, therefore, reject his application for setting aside the award. We pass a judgment in terms of the award fled by the Arbitrators and direct that the award shall form, part of the decree. The school Authorities are directed to deposit the price of land in the trial Court on or before the 15th of July 1967 and plaintiff respondents in First Appeal No. 34 of 1965 are directed to execute the conveyance within a fortnight of the deposit of the price, and present the same for registration immediately thereafter. In default of deposit of the price of land as directed, the decree in terms of the award shall stand vacated; the appeal shall stand dismissed and the Rule nisi shall become absolute and further the Rule will appear before this Court for necessary, direction. If the plaintiffs respondents fail to execute the conveyance as directed, the School authorities shall be entitled to have the conveyance executed and registered by the trial Court on behalf of the plaintiff respondents. The Rule and the appeal are disposed of accordingly. In the facts and circumstances of the case we direct each party to bear his own cost. ABDUL HAKIM KHAN, J.‑I agree. S. Q. Order accordingly.