P L D 1959 (W (PLP)

Date of hearing : 4th December 1958. This order will dispose of the objections raised by the defendants in their application under section 30 of the Arbitration Act dated 21‑12‑1954. The plaintiffs in this matter were granted Coal Mining Lease No. 165 in Machh, Baluchistan, for a period of thirty years under lease deed dated 22‑2‑1945. According to Clause 1, Part V of the Lease Deed the plaintiffs had to pay Rs.‑ 20 as fixed half yearly rent on the first day of January, and July every year. The said rent for the half year ending 31st December 1952, payable on the 1st of January 1953, was not paid by the plaintiffs within the prescribed period of six months i.e., by the 30th of June 1953. 1n addition to this the plaintiffs also failed to pay surface rent of annas six for the half year ending 31st December 1952, payable on 1st January 1953. In view of these defaults the defendants cancelled the lease in favour of the plaintiffs by their letter dated the 23rd of December 1953. The plaintiffs by their letter dated 26‑12‑1953, admitted that they bad committed the breach and asked for condonation. The defendants refused to do so. The plaintiffs by their letter dated 18‑1‑1954, informed the defendants that they would like to refer the matter to arbitration under Clause 13 of Part IX of the Coal Mining Lease executed between the parties. The defendants refused to take any action in the matter. On the 5th of May 1954, the plaintiffs invoked Rule 80 of the Pakistan Mining Concession Rules, 1949 and informed the defendants that they have appointed Mr. Castellino as their Arbitrator and called upon them to appoint an Arbitrator on their behalf in accordance with the terms of the said rule. The Government did not take any action and challenged the appoint ment of the Arbitrator, by the plaintiffs. In spite of this Mr. Castellino was appointed as sole Arbitrator on the 27th of May 1954. He proceeded with the matter and gave an award in favour of the plaintiffs on 6‑8‑1954, for a sum of Rs. 75,000 for the loss suffered by them on account of cancellation of the lease. The defendants have challenged the award on the ground that the matter could not be referred to arbitration under rule 80 of the Pakistan Mining Concession Rules, 1949, but only to the Chief Commissioner of Baluchistan or the agent to the Governor -General under the terms of the lease deed. The question, therefore, for determination in this case is whether the appointment of an Arbitrator by the plaintiffs in this case was in accordance with the terms agreed upon between the parties. Mr. Jamiatrai, the learned counsel for the plaintiffs, had not been able to satisfy me as to how Rule 80 of the Pakistan Mining Concession Rules of 1949 is applicable to the facts of this case. Admittedly the lease in this case was executed in February 1945.1 when these rules were not in existence. There is no provision) in these rules which makes them applicable to leases executed prior to 1949. It is therefore obvious that the plaintiffs in this case A fell into an error by referring the matter to arbitration under Rule 80 of the said Rules. The matter in dispute could only be referred under Clause 13 of Part IX of the Lease Deed. The form usually used for this Lease Deed has been produced by the parties. Clause 13 of, the said Part of the Lease Deed reads as under :‑ "

13. If and whenever any question or dispute shall arise in regard to the construction meaning, or effect of these presents or any clause or thing herein contained or in regard to the manner or sufficiency of the observance or performance by‑the lessee/lessees of any covenant or agreement herein contained or in regard to the mode of working of the said minerals or the maintenance or condition of any works in or upon the said lands or in regard to any valuation to be made under these presents or in regard to the amount or payment of any rent, royalty compensation or other money payable by the lessee/ lessees or in regard to any other matter or thing relating to or arising out of these presents, such question or dispute shall be determined by the Hon'ble the Agent to the Governor‑General, Resident and Chief Commissioner, in Baluchistan whose decision thereon shall be final and binding on the parties hereto. Provided always that any dispute as regards the price to be paid under clause 21 (c) of Part VII of this Schedule shall be determined by two arbitrators one to be nominated by the Hon`ble the Agent to the Governor‑General, Resident and Chief Commissioner in Baluchistan and the other by the lessee/ lessees or in case of disagreement between the arbitrators by an umpire to be appointed by the arbitrators by writing under their hands before proceeding with the arbitration and the deci sion of such arbitrators or umpire as the case may be shall be final and binding on the parties hereto." The matter in dispute was not referred under this clause to arbitration. I am therefore of the opinion that the reference to arbitration in the present case was not in accordance with the terms agreed upon between the parties. The award is therefore without jurisdiction and cannot be sustained. I therefore set aside the award. The plaintiffs to bear the costs of this suit. K. B. A. Award set aside.