P L D 1966 Dacca 133 (PLP)

SIKANDAR ALI, J.‑As the facts involved and the points of law which arise for consideration are common, these two petitions have been heard together and are disposed of by this judgment. Both the petitions are directed against an order dated 25‑5‑64 passed in the following terms by Mr. M. Ahmed, Subordinate Judge, appointed Arbitrator under section 7 (b) of the East Bengal (Emergency) Requisition of Property Act, 1948 in place of the previous Arbitrator Mr.. Najabuddin Ahmed, then a Subordinate Judge, on his promotion as Additional District Judge:‑-- "25‑5‑64, Parties file Hazira. The case is taken up for hearing arguments. It appears that in this case the deposition was recorded by Mr. Najabuddin Ahmed, the P. O. of this Court. But consequent on his transfer the reference to him was cancelled, and fresh reference has been made to me. I am therefore of opinion that the case should be proceeded with de novo in order to avoid future controversy. The case is accordingly adjourned to 8‑6‑64 for fresh evidence along with Case No. 23/63." This order to proceed de novo is sought to be impeached as illegal. The alternative claim made by the petitioners is that the act of the respondent No. 1, i.e. the Province of East Pakistan, in recalling the reference from Mr. N. Ahmed and assigning the same to Mr. M. Ahmed, is void and as such the latter has no jurisdiction to proceed with the reference. The material facts leading up to these petitions may be briefly stated as follows:‑-- The petitioners Messrs H. M. Siddique and sons in Petition No. 273 of 1964 and the petitioners S. M. Noor in Petition No. 274 of 1964 are owners respectively of c. s. plot No. 213 and c. s. plot No. 834 of Mouza Shahar, Dacca. These plots together with the structures thereon were requisitioned on 8‑10‑60 and finally acquired by requisition and acquisition on Case No. 16 of 1961 for the purpose of "Students and Teachers Centre of the Dacca University." Possession was then taken and awards also were prepared in due course. The petitioners however were not satisfied with the awards. Accordingly on their applications the Provincial Government referred the disputes under section 7 (aa) of the East Bengal (Emergency) Requisition of Property Act, 1948 (hereinafter called the Act) to Mr. Najab uddin Ahmed, Sub‑Judge of the Additional Court at Dacca, for making award on determination of the just and fair valuation of the properties involved. The cases were thereafter taken up for hearing on various dates and evidence both oral and documentary recorded and ultimately these were set down for hearing arguments on 30‑5‑

64. In the meantime however Mr. Najabuddin Ahmed appears to have been promoted as Additional District and Sessions Judge and left the station to join his new posting and in his place the present Arbitrator, namely, Mr. M. Ahmed, appointed by the Provincial Government. Thereafter when the cases came up before Mr. M. Ahmed on 25‑5‑64 he passed the impugned order as already quoted above. It is in these circumstances that the petitioners claim that the said impugned order is illegal and that the order of the Provincial Government recalling the reference and assigning the same to Mr. M. Ahmed is void and as such Mr. M. Ahmed has no jurisdiction in the matter. An affidavit‑in‑opposition has been filed on behalf of the respondents, i.e.. (1) Province of East Pakistan represented by Secretary, Revenue (Requisition), and (2) Additional Subordinate Judge and Arbitrator of Dacca. In this affidavit, affirmed by Mr. Abdul Halim Choudhury, Additional Land Acquisition Officer, Dacca, it has been stated that in these cases (which appear to have been dealt with together) the depositions were recorded by Mr. Najabuddin Ahmed but consequent upon his transfer on promotion, Government, in exercise of the power vested in it, cancelled his appointment and appointed Mr. M. Ahmed, who was exclusively placed by the High Court for this purpose under rule 9 (2) of the Rules made under the Act. It has further been stated that the order for de novo trial passed by the new officer is not bad in law and that all Courts have inherent power to hear cases which are transferred to such Courts from the very beginning for the sake of justice and equity. The first point taken by Mr. Asrarul Hossain, as we have already seen, is that the order passed by Mr. Ahmed for de novo trial instead of proceeding with the matter from the stage in which it was left by Mr. N. Ahmed is illegal. Section 7 (b) provides for appointment of a person as an Arbitrator on an application from any interested person who has not accepted the assessment of compensation made by the relevant authority. Under rule 9 (1) of the East Bengal (Emergency) Requisition of Property Rules, 1948 such appointment is made by the Provincial Government. As to procedure according to which the Arbitrato is to regulate his business, sub‑rule (4) provides that the Arbitration shall have the like powers and shall follow the like procedure as the Court has and follows in exercise of its ordinary civil jurisdiction under the Code of Civil Procedure. The relevant provision in the said Code as to power to deal with evidence taken before another Judge is to be found in Order XVIII, rule 15, sub‑rule (1) which reads:‑ "(1) Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it." In our view this is an enabling provision and clearly leaves it to the discretion of the Judge, in the instant case the Arbitrator, whether he is to proceed with the matter from the stage in which it was left by his predecessor or he should hear the matter from the beginning. It was however argued that in any event the Arbitrator in this case cannot be said to have acted in accordance with the established juridical procedure in that de novo trial in the present instance was not wanted by either party. We are however not impressed by this argument. It is, in our view, for the Judge or Arbitrator, as the case may be, to take his decision on a consideration of the facts and circumstances of each case and if on such consideration he finds it necessary or advisable to start de novo, he can hardly be said to have acted improperly, far less illegally. In this connection it may also be worthwhile to bear in mind that under the rules the parties are at liberty to adduce evidence in support of their respective cases and also bound, if so required by the Arbitrator, to examine themselves on oath or affirmation and produce all relevant documents in their possession (vide rules 10 and 11) but the Arbitrator is not required to make a record of the same in extenso. The rule on the point, being rule 10, lays down that the Arbitrator shall keep a record of the proceedings but such record need not be a verbatim record. Thus having regard to all these we are not convinced that the impugned order setting down the cases for de novo trial is illegal or improper so as to call for interference under Article 98 of the Constitution. The second and the only other point that Mr. Hossain seeks to urge in the alternative, i.e. in case the first point taken by him fails to find favour, is that Government had no power to recall the reference from Mr. M. Ahmed and assign to Mr. M. Ahmed, i.e. the Arbitrator appointed on his transfer. To this end he relies upon rule 9, sub‑rule (2) which provides for contingencies which a dispute pending before one Arbitrator may be assigned to another in his place. This subsection lays down‑

"(2) If the, Arbitrator neglects or refuses to act, or is incapable of acting or dies, the Provincial Government shall appoint some other person in his place." The learned counsel points out that out of the four contingencies the first and fourth, that is, neglect and death, can safely be ruled out in the present context while the other two also, he contends, cannot cover or justify the impugned unilateral action of the Government. Proceeding he has argued that the mere fact that the previous Arbitrator left to join his new posting cannot be said to have rendered him incapable or unfit for the job particularly when what is required under 4he relevant rules is that the Arbitrator shall be a judicial officer not below the rank of a Subordinate Judge. In order to support this argument he has drawn our attention to the interpretation of the terms "refusal to act" and "incapable of acting" in the Law of Arbitration by Russel 7th Edn. 219 and also cited the authorities In re: Arbitration between Wilson & Son and The Eastern Counties Navigation and Transport Co. ((1892) 1 9 B 81) and Burikett Sharp & Co. v. East Chep Dried Fruit Co. and Perera Lloyd's List Law Reports, 1962. Vol. 1, p.

267. Having. regard to these authorities as well as the ordinary contentions of the .relevant expressions we are inclined to agree that impugned action cannot be said to be covered by rule 9, sub‑rule (2). The question however is whether this Rule is exhaustive in. the sense that an arbitrator already appointed and another arbitrator except under one or other of, the contingencies specified therein cannot replace dealing with the cases referred to him. To start with it is important to bear in mind that appoint ment of Arbitrator under the Act is always a unilateral action. That is done by the Provincial Government on their own, the parties having no choice or say at all. Such appointment again is exclusively restricted by the statute itself, to a particular class of officers, to wit, judicial officers of a prescribed standing, who are, as is well‑known, liable to transfer in the exigencies of public service and whose places falling vacant by reason of transfer are filled up by other officers transferred thereto. Can it be said that this power of the appointing authority is taken away by rule 9 (2) with respect to a judicial officer who may be appointed Arbitrator under the Act? We are unable to read anything like that therein. In our view rule 9 (2) authorises they Government to replace an arbitrator by another officer so appointed should any of the contingencies contemplated thereby occur but cannot be construed to mean that an Arbitrator, though a judicial officer liable to transfer, cannot be transferred except under those contingencies. In other words, it does not affect the general power of replacing an officer by another in the ordinary course of transfers. In this view of the matter the new appointee in place of the Arbitrator transferred is evidently the successor‑in‑office of latter and as such competent, as we have already made clear, either to proceed with the case from the stage in which it has been left by his predecessor or set it down for de novo hearing under the provision of Order XVIII, rule 15, to which reference has already been made above, and which is fully applicable to arbitration proceedings. In this connection it is also interesting to note that the above contention, as we have already observed, has been urged in the alternative and as a matter of fact the parties also actually appeared before the new arbitrator and were willing to go on with the matters before him provided he was agreeable to proceed from the stage at which these were left by Mr. N. Ahmed instead of setting them down for de novo hearing. Having regard to all these we feel that the petitioners have failed to make out any a case for our interference under Article

98. We accordingly discharge the Rules, but having regard to the facts of the cases, leave the parties to bear their own costs. SATTAR, J.‑I agree. K. B. A. Rules discharged.