Case: Hanskumar Kishanchand Vs. The Union Of India(And Connected Appeal)

in Secretary of State for India v. Chelikani Rama Rao, 43 Ind App 192 : (A I R 1916 P C 21) (G). There, the question arose with reference to certain provisions of the Madras Forest act, 1882. That Act provides that claims to lands which are sought to be declared reserved forests by the Government are to be enquired into by the Forest Settlement Officer, and an appeal is provided against his decision to the District Court. The point for decision was whether the decision of the District Court was open to further appeal under the provisions of the Code of Civil Procedure. The contention was that the reference to the District Court under the Act was to it not as a Court but as arbitrator, and that therefore its decision was not open to appeal on the principle laid down in 39 Ind App 197 (P C) (A). In repelling this contention, Lord Shaw observed that under the Land Acquisition Act the proceedings were "from beginning to end ostensibly and actually arbitration proceedings", but that the proceedings under the Forest Act were essentially different in character. "The claim was", he said,"the assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seised of a dispute of that character, it would require, in the opinion of the Board; a specific limitation to exclude the ordinary incidents of litigation."14. The principles being thus well-settled, we have to see in the present case whether an appeal to the High Court under S. 19 (1) (f) of the Act comes before it as a Court or as arbitrator. Under S. 19 (1) (b), the reference is admittedly to an arbitrator.He need not even be a Judge of a Court. It is sufficient that he is qualified to be appointed a Judge of the High Court. And under the law, no appeal would have lain to the High Court against the decision of such an arbitrator. Thus, the provision for appeal to the High Court under S. 19 (1) (f) can only be construed as a reference to it as an authority designated and not as a Court. The fact that, in the present case, the reference was to a District Judge would not affect the position. Then again, the decision of the arbitrator appointed under S. 19 (1) (b) is expressly referred to in S. 19 (1) (f) as an award. Now, an appeal is essentially a continuation of the original proceedings, and if the proceedings under S. 19 (1) (b) are arbitration proceedings, it is difficult to see how their character can suffer a change, when they are brought up before an appellate tribunal.The decisions in I L R 37 Bom 506 (B), 17 Cal W N 421 ( P C) (C), I L R 41 Mad 943 : (A I R 1919 Mad 626) (D), and 58 Ind App 259 : (A I R 1931 P C 149) (E), proceed all on the view that an appeal against an award continues to be part of, and a further stage of the original arbitration proceedings.In our view, a proceeding which is at the inception an arbitration proceeding must retain its character as arbitration, even when it is taken up in appeal, where that is provided by the statute.15. The question whether an appeal under S. 19 (1) (f) is of the nature of arbitration proceedings, and whether the decision given therein is an award came up directly for consideration in Kollegal Silk Filatures Ltd. v. Province of Madras, ILR (1948) Mad 490 (A I R 1949 Mad 39) (H) before a Bench of the Madras High Court consisting of Patanjali Sastri and Chandrasekhara Aiyar, JJ, and it was held by them that the word "arbitration" in S. 19 (1) (g) of the Act covered the entire proceedings from their commencement before the arbitrator to their termination in the High Court on appeal where an appeal had been preferred, and the High Court in hearing and deciding the appeal acted essentially as an arbitration tribunal. We agree with this decision that the appeal under S. 19 (1) (f) is an arbitration proceeding.We must, therefore, hold that the decision of the High Court in the appeal under that provision is not a judgment, decree or order either within Ss. 109 and 110, Civil P. C. or Cl. 29 of the Letters patent of the Nagpur High Court, which corresponds to Cl. 39 of the Letters Patent of the Calcutta, Madras and Bombay High Courts, and that, therefore, the present appeals are incompetent.16. Mr. Achhru Ram finally contended that even if no appeal lay under Ss. 109 and 110, Civil P. C. or Cl. 29 of the Letters Patent, it was, nevertheless, within the competence of this Court to grant leave to appeal, and that this was a fit case for the grant of such leave. He argued that the Privy Council had the power to grant leave to appeal against the decision of the Nagpur High Court in the appeal under S. 19 (1) (f), that under S. 3 (a) (ii) of the Federal Court (Enlargement of Jurisdiction) Act I of 1948 that power became vested in the Federal Court, and under Art. 135 it has devolved on this Court, and that in the exercise of that power we should grant leave to appeal against the decision now under challenge.It is sufficient answer to this contention that the Federal Court had power under S. 3 (a) (ii) to grant leave only when the proposed appeal was against a judgment, and that, under the definition in S. 2 (b), meant a judgment, decree or order of a High Court in a civil case; and that on our conclusion that the decision in the appeal under S. 19 (1) (f) is not a judgment, decree or order but an award, no order could have been passed granting special leave under S. 3 (a) (ii).

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It may be noted that it was the use of the work "arbitration" in the title to the Act that furnished the ground for the contention that the proceedings before the Commission were of the nature of arbitration. But that description, however, could not alter the true character of the reference under the Act, which was in terms to the Commission as a Court of record. In fact, there was no element of arbitration in the proceedings. It is true that under that Act there could be a reference only by agreement of parties. That, however, could not make any difference in the character of the proceedings before the Commission, as a statute can provide for the jurisdiction of the Court being invoked as a Court on the agreement of parties, as for example, on a case stated under Order 36 of the Code of Civil Procedure. There is thus nothing in 1913 A C 546 (F), which can be said to conflict with the law as laid down in 39 Ind App 197 (P C) (A), that when the reference is to a Court as arbitrator, its decision is not open to appeal.The principles being thus well-settled, we have to see in the present case whether an appeal to the High Court under S. 19 (1) (f) of the Act comes before it as a Court or as arbitrator. Under S. 19 (1) (b), the reference is admittedly to an arbitrator.He need not even be a Judge of a Court. It is sufficient that he is qualified to be appointed a Judge of the High Court. And under the law, no appeal would have lain to the High Court against the decision of such an arbitrator. Thus, the provision for appeal to the High Court under S. 19 (1) (f) can only be construed as a reference to it as an authority designated and not as a Court. The fact that, in the present case, the reference was to a District Judge would not affect the position. Then again, the decision of the arbitrator appointed under S. 19 (1) (b) is expressly referred to in S. 19 (1) (f) as an award. Now, an appeal is essentially a continuation of the original proceedings, and if the proceedings under S. 19 (1) (b) are arbitration proceedings, it is difficult to see how their character can suffer a change, when they are brought up before an appellate tribunal.The decisions in I L R 37 Bom 506   (B), 17 Cal W N 421 ( P C) (C), I L R 41 Mad 943   : (A I R 1919 Mad 626) (D), and 58 Ind App 259 : (A I R 1931 P C 149) (E), proceed all on the view that an appeal against an award continues to be part of, and a further stage of the original arbitration proceedings.In our view, a proceeding which is at the inception an arbitration proceeding must retain its character as arbitration, even when it is taken up in appeal, where that is provided by the statute.15. The question whether an appeal under S. 19 (1) (f) is of the nature of arbitration proceedings, and whether the decision given therein is an award came up directly for consideration in Kollegal Silk Filatures Ltd. v. Province of Madras, ILR (1948) Mad 490 (A I R 1949 Mad 39) (H) before a Bench of the Madras High Court consisting of Patanjali Sastri and Chandrasekhara Aiyar, JJ, and it was held by them that the word "arbitration" in S. 19 (1) (g) of the Act covered the entire proceedings from their commencement before the arbitrator to their termination in the High Court on appeal where an appeal had been preferred, and the High Court in hearing and deciding the appeal acted essentially as an arbitration tribunal. We agree with this decision that the appeal under S. 19 (1) (f) is an arbitration proceeding.We must, therefore, hold that the decision of the High Court in the appeal under that provision is not a judgment, decree or order either within Ss. 109 and 110, Civil P. C. or Cl. 29 of the Letters patent of the Nagpur High Court, which corresponds to Cl. 39 of the Letters Patent of the Calcutta, Madras and Bombay High Courts, and that, therefore, the present appeals areis sufficient answer to this contention that the Federal Court had power under S. 3 (a) (ii) to grant leave only when the proposed appeal was against a judgment, and that, under the definition in S. 2 (b), meant a judgment, decree or order of a High Court in a civil case; and that on our conclusion that the decision in the appeal under S. 19 (1) (f) is not a judgment, decree or order but an award, no order could have been passed granting special leave under S. 3 (a) (ii).