' Since identical questions of law and facts arise in the three appeals namely, R. S. A. Nos. 78, 79 and 80 of 1975, they are being disposed of together by this Single judgment.
2. Allah Ditta, Sohna and Roshan defendants-respondents, according to the facts stated, were allotted in the year 1956 the disputed state land under the Grow More Food Scheme. As the allottees were said to have failed to comply with some of the terms and conditions of the Scheme, the grant was resumed by the Collector in 1962. Being dissatisfied with the resumption order they filed the appeal and the same was accepted by the Additional Commissioner, but pursuant to the general scrutiny holding the respondents ineligible to acquire proprietary rights of the land in dispute, the Collector cancelled the allotment and resumed the land. The land in dispute was made available for further allotment, and it was therefore given over to Mst. Resham Jan, Raja Karam Dad, Rehmat Khan and Muhammad Suleman plaintiffs-appellants under the Resettlement Scheme for the displaced persons of Islamabad. The respondents went in appeal before the Additional Commissioner but with no success. They therefore filed a civil suit but the same was dismissed for want of jurisdiction.
3. It was alleged that after a period of about 4 years the respondents discovered a device to invoke clause 27 of the Punjab Government Notification No, 2664/C, dated 22-9-1944 relating to a reference to arbitration if dispute would arise in connection with the resumption of land. The Commissioner, on the application of the respondents, acted as an arbitrator and gave an award on 21-11-1970 declaring that the respondents were lawful allottees, and that they had wrongly been deprived of possession, which they were entitled to get it back. It needs to be pointed out here that the appellants applied for being impleaded as parties to the arbitration proceedings, but their prayer was disallowed. Against the award the plaintiffs-appellants filed a suit for declaration that they were allotted the land in dispute in a legal manner and that the award in respect thereof was against law, void and ineffective against their rights. They also asked for perpetual injunction restraining the respondents from interfering with their possession. The respondents in their pleadings, besides contesting the averments of the appellants, raised objections to the jurisdiction of the civil Court and the maintainability of the suit.
4. The trial Court decreed the suit holding that section 36 of the Colonization of Government Lands (Punjab) Act (V of 1912) did not bar the jurisdiction of the civil Court to try the instant suit. It observed that the award was illegal and because it was passed without joining the appellants as parties, it was not binding on them. The suit was decreed, but in appeal the learned Additional District Judge formed a different view. He accepted the appeal, set aside the decree of the trial Court and found that the suit was barred under sections 32 and 33 of the Arbitration Act (X of 1940) as well as under section 36 of the Colonization of Government Lands (Punjab) Act. Hence this appeal.
5. Before me the legal position arising out of Issues Nos. 1 and 2 only has been agitated. Section 36 of Act V of 1912 bars the jurisdiction of the civil Court only in the manner of which the Collector.Is empowered by the Act to dispose, and the civil Court is divested of the power to take cognizance of the matter in which the Provincial Government, Board of Revenue or Collector or any other Revenue Officer exercises any power vested in it or in him by or under the said Act. It is now well settled that exclusion of jurisdiction of civil Courts is not to be readily inferred, for such exclusion must either be explicitly expressed or clearly implied. Section 36 excludes the jurisdiction of civil Courts in matters which the Collector is empowered by the Act to dispose. The said Act does not empower any of these authorities to act as an arbitrator and give an award, nor does it lay down a special procedure or the manner in which the arbitrator is to perform his duty and .Take proceedings. The arbitration clause in the terms and conditions of the Scheme has arisen out of a contractual obligation between the parties and not under th e Act. Section 36 therefore has no application because the Authority, while acting as an arbitrator, technically speaking, does not act under the Colonization of Government Lands (Punjab) Act, but under the special provisions of the Arbitration Act. It is laid down in Khadim Hussain and others v. Ata Muhammad and others (1) that section 36 of the Colonization of Government Lands (Punjab) Act did not apply inasmuch as the grant of proprietary rights to the petitioner was on the basis of the land being private property. Secondly, if the land was attached to the graveyard and dedicated to a charitable and religious purpose, the order granting proprietary rights to the petitioner was bad in law and amenable to the jurisdiction of the civil Courts. The trial Court was therefore right in concluding that the civil Courts would ordinarily have jurisdiction to decide whether or not the act purporting to have been done in the exercise of the powers conferred by the Act could be validly done under the Act, and on the plain language of section 36 of the Act, it cannot be held that jurisdiction had been taken away from the civil Courts by that section. Relying on Jiwana v. Mst. Sahbi (2) the trial Court was justified in its jurisdiction to adjudicate what legal effect the order of a Revenue Officer validly passed under the Act will have on the rights of the parties.
6. Section 32 of the Arbitration Act bars the suit contesting arbitration agreement or award.
Notwithstanding any law for the time being in force, it lays down that no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act. Section 33 lays down a procedure how arbitration agreement or award is to be contested. It envisages that any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits.
7. Section 32 becomes applicable only when a suit relates to the' existence or non-existence, or validity or invalidity, or the determination of the effect of or for cancellation either or the arbitration agreement or th award. The section does not apply to a case where no relief is sought in respect of an agreement of reference to arbitration or the award. It means therefore that if the arbitration agreement is found to be non-existent o to be invalid, the alleged award goes with the agreement itself. Thu where a suit is brought by the appellants that the award in respect of the property belonging to them having been made in their absence is not binding on them, section 32 of the Arbitration Act is not a bar to such a suit.
8. It is evident from the record that the appellants had an interest in the land in dispute, but to their complete exclusion the arbitration agreement was entered into by the respondents on the one hand, and the Provincial Government through the Collector on the other. The appellants, being persons interested in the result of the award, did make an application to the arbitrator to implead them as parties, but their prayer was turned down. It makes the matter clear that the appellants were neither parties to the agreement nor to the award. With reference to a recital in the award it was however urged on behalf of the respondents that the appellants were heard during the arbitration proceedings and (1) 1970 SCMR 121 (2) PLD 1954 Lah. 253 the award was thus binding on them. It was further urged, in the alternative, that appellants having obtained rights from the Provincial Government were duly represented by it, and they could not say that they should have been treated and heard as independent parties to the proceedings. I do not agree with this argument. The prayer that the appellants be made parties to the agreement and the arbitration proceedings was not allowed, and in the absence of a formal permission to join the dispute, the appellants by their simple presence, as remarked by the arbitrator, could not be deemed to have participated in the proceedings. They were not afforded with an opportunity of being heard, nor were they allowed to lead evidence nor rebut the allegations. The arbitrator had therefore acted illegally when he made his observation that the appellants were present and they were duly heard.
It is also not correct to say that the appellants were represented by the Provincial Government. The Collector and the Provincial Government, after allotting and making over the property to the appellants, were divested of the rights which they had transferred to the appellants. They could not therefore represent the transferees in respect of rights not vested in them. A similar position arose in Deep Narain Singh and others v. Mst. Dhanesh Wad and others (1) and it was decided that where all the persons interested in the matter of dispute were not parties to the Arbitration agreement, and when an agreement was not consented to by all, such an agreement is invalid and could not give the arbitrator jurisdiction to decide the dispute, and the award given on the strength of such void reference was not valid. It is therefore made out that the award passed upon such invalid reference does not bind even the consenting parties as it is void from the very inception. On the basis of a void award; it is thus open to a D person not a party to an agreement to challenge the existence of an arbitration agreement. It is laid down in Badri Narayan Agarwala v. Messrs Pak Jute Balers Ltd. (2) that the fact that a party denies to have signed the contract will not disentitle him to challenge it under section 33 as the words "any party to an arbitration agreement" in that section include a party who is alleged to be a party to an agreement but who challenges the existence thereof. It means that the fact that a party denies to have signed the contract will not disentitle himself to challenge it under section 33, and there is no reason why he should not show that he has not signed the agreement and therefore the arbitration clause is non-existent. It is also pointed out in Nathuni Pandey v. Peras Pandey (3) that where a suit is brought for redemption of mortgage executed in favour of a person not a party to some arbitration proceedings by a person who became entitled to the mortgagor's interest in the property subject to the mortgage, section 32, Arbitration Act is not a bar to a civil suit. It is held in Naorolbam Bara Singh and others v. Waikhom Leirenjeo Singh and others (4) that a party to dispute to whom no notice is issued and is not made a party to proceedings before the arbitrator is not bound by the award and is entitled to declaration to that affect.
9. It is however rightly observed by the trial Court that the award was worth cancellation on the short ground that arbitration could not be invoked when the party to the arbitration had already taken steps in respect of the dispute. In this respect reference was made to the provisions of section 34, Arbitration Act. It was pointed out that the matter could not be referred to the arbitrator, as the respondents, before applying for {{TABLE}}
(1) AIR 1960 Pat. 201 (2) PLD 1970 SC 43
(3) AIR 1957 Pat. 129 (4) AIR 1958 Manipur 38 {{TABLE}} arbitration had preferred appeals, revisions and even a civil suit in respect of the same dispute.
10. In respect of this matter (R, S. A. No, 80 of 1975) it has been urged that the appeal filed on 18-2- 1975 by one Syed Ali Akbar Shah as the alleged attorney of Resham Jan was not duly instituted in this Court because the power of the said Syed Ali Akbar Shah to act as an attorney had since been cancelled by a registered document dated 13-1-1971. The provisions of rule 4 of Order III, C. P. C.
Besides some case-law, have been invoked in this respect. I find that the respondents themselves had on 7-4-1973 filed an appeal before the learned Additional District Judge against Mst. Resham Jan through Syed Ali Akbar Shah, showing him as her general attorney, and it was Syed Ali Akbar Shah who had accepted notice on behalf of Mst. Resham Jan, and made appearance several times before the Court, but none had raised an objection that he was not the proper person to represent the lady, in spite of the fact that the power of attorney in his favour, according to the respondents, had by then been cancelled. In such state of affairs there is no mistake which may appear fatal. It is not made out that the alleged document of cancellation dated 13-1-1971 was executed by the lady or that it was ever acted upon. Since the respondents have themselves acquiesced in the correctness of the power of attorney, they are estopped from raising the objection in second appeal.
11. For the reasons aforementioned I am inclined to accept the appeal and the same is accepted, the judgment and decree of the learned Additional District Judge are set aside and the suit of the appellant is decreed with costs throughout.