' MUNIR A SHAIKH J.--This judgment will also dispose of Civil Miscellaneous No, 263 of 1993 in Writ Petition No,6450 of 1992 and Civil Miscellaneous No, 352 of 1993 in Writ Petition No,6451 of 1992 as questions of law and facts are common in all of them.
2. The facts giving rise to these applications shortly stated are that the petitioner was awarded a contract for collection of Exit Tax by Zila Council for the period from 1-7-1990 to 30-6-1991 having offered highest bid of Rs,6,55,00,000 (Rupees six crore fifty-five lac only). After the expiry of the term of this contract the petitioner was again awarded a similar contract for collection of Exit Tax for the period from 1-7-1991 to 30-6-1992 against his highest offer of Rs,7 crore and 55 lac. During the currency of the term of this agreement this Court declared in another case that Export Tax could not be levied itemwise/piecewise and the same was only recoverable on the basis of weight which judgment was subsequently reversed by the Supreme Court in the case reported as Zila Council, Sheikhupura v. Mian Tyre and Rubber Co. (PLD 1994 SC 212). As a consequence of the aforementioned judgment of this Court the present petitioners made representation for reduction of the amount of contract money. The reduction in the contract money claimed by the present petitioner was to the tune of Rs,2 crore 50 lac. These representations were not accepted. The petitioner filed Writ Petition No,5268 of 1992. The prayer made in this Constitutional petition is reproduced below in extenso:-- "It is, therefore, respectfully prayed that order dated 30-5-1992 of respondent No,2 may be declared to have been made illegally and without lawful authority and appropriate orders/directions may be issued to the respondents for refund of Rs,2,50,00,000.
' It is further prayed that respondent No,2 may be restrained from interfering with the collection of export tax by the petitioner till the decision of the case.
' Any other order/direction/relief found appropriate in the facts and circumstances of the case may also granted."
' On 28-6-1992 this Court passed an order in the stay application for maintenance of status quo. On 15-7-1992 when the writ petition came up for hearing, learned counsel for the parties jointly made The following statement which was recorded by the Court: "We have been authorised by the respondents to accept the offer made by the learned counsel for the petitioner and have no objection to the matter being decided through arbitration of the Secretary, Local Government and Rural Development, Government of Punjab, Lahore. It be, however, made clear that the decision rendered by the Secretary shall be binding on the parties. We also pray that the present arrangements in terms of order dated 28th of June, 1992, passed by Honourable Mr. Justice Raja Afrasiab Khan may be allowed to continue."
' After recording the above statement the learned Single Judge passed the following order:- "The statements of the learned counsel for the parties have been recorded. As agreed by them, the dispute raised in this petition is referred for decision through arbitration by the Secretary, Local Government and Rural Development, Government of Punjab, Lahore, which shall be binding on them. In the meantime, with the consent of the parties, it is directed that the order passed by my learned brother Raja Afrasiab Khan, J., on 28th of June, 1992, shall remain in operation, provided the petitioner continues depositing the instalments and the dues in terms of the previous agreement between the parties.
(2) The parties shall appear before the Secretary concerned on 21st of July, 1992.
' This petition stands disposed of in the above terms."
3. Pursuant to the above reference, the Secretary to the Local Government and Rural Development, Government of the Punjab, Lahore on 13-8-1992 gave an award. The said Arbitrator although came to the conclusion that neither under the rules nor the termsi and conditions of the contract the petitioner was entitled to claim any refund but since he had suffered a loss therefore respondent No,2 i.e Zila Counsil should pay him Rs,1,00,00,000 (Rupees one crore). The petitioner made an application under sections 14, 16 and 17 of the Arbitration Act before the Civil Judge, Lahore for filing Award in the Court and remit the same to the arbitrator for considering his claim for the remaining amount and making it rule of the Court. Alongwith the said application the petitioner also made an /application for obtaining interim order to restrain Zila Counsil from interfering in the collection of export tax by the petitioner during the pendency of the said main application under section 14 etc. The Civil Court rejected the application for grant of interim relief through order dated 17-8-1992.
This order was challenged by the petitioner before this Court in Civil Revision No,1286 of 1992 in which an order was passed by this Court for issuance of pre-admission notice to the respondents and the learned Judge in Chamber also granted temporary injunction as prayed for on 18-8-1992.
The said interim order passed by this Court was challenged in C.P.S.LA. No,857/L of 1992 before the Supreme Court and the Supreme Court through order dated 9-9-1992 suspended the operation of the said interim order, It was however observed by the Supreme Court that this Court was free to pass any suitable interim order after hearing the parties. The petitioner filed fresh miscellaneous application in the said Civil Revision before this Court for passing the interim order. This miscellaneous application as also the Civil Revision was disposed of by the learned Single Judge on the basis of consent on 20-9-1992. The order passed in the said revision petition in pursuance of consent, by this Court is reproduced below:-- "Today, both the learned counsel state that the parties have arrived at a compromise in accordance with which they are agreed that the petitioner may receive the Export Tax till such time the amount of Rs,1,00,00,000 awarded by the Secretary and another sum of Rs,37,00,000 which has been deposited by the petitioner with the respondent has been recovered. It is further stated by them that out of daily recoveries made by the petitioner, he shall pay half of the amount to the respondent and adjust the other half towards the payment of the amounts due to him. After the amount of Rs,1,37,00,000 has been received by the petitioner in the aforesaid manner, the petitioner shall cease to recover the Export Tax, which shall be taken over by the respondent.
' Both the main petition as also C.M. No,3/C/1992 are disposed of in the above terms."
4. During the pendency of petitioner's application under sections 14, 16 and 17 of the Arbitration Act before the learned Civil Judge, Lahore, the petitioner moved the present similar Civil Miscellaneous application before this Court in Writ Petition No,5268 of 1992 and withdrew the said petition on 21-2- 1993 pending before the learned Civil Judge, Lahore. The petitioner also moved Civil Miscellaneous No,347 and Civil Miscellaneous No, 656 of 1993 before this Court which were disposed of yet another consent order by the learned Single Judge through order dated 29-6-1993 which is to the following effect:-- "It is stated by the Chairman, Zila Council and learned counsel for the parties that they have arrived at a compromise, so far as C.M. Nos.347 and 656/1993 are concerned, which is to the following effect:--
(1) that during the pendency of the proceedings before this Court, the petitioner shall be allowed to receive the export tax in accordance with the terms and conditions contained in the previous agreement between the parties except that he shall be liable to pay the lease money alongwith 10% increase in the same manner as in the previous agreement;
(2) that the petitioner shall pay salary to the staff regularly;
(3) that security lying with the respondent shall not be released till further order of this Court; and
(4) that during the pendency of the proceedings before this Court, no further rebate shall be claimed by the petitioner on any ground whatsoever.
2. This arrangement shall remain in force till such time the main petition is decided by this Court.
' In view of the statements made by learned counsel for the parties, and of the Chairman, Zila Council, these Civil Miscellaneous are disposed of."
4-A. The learned Single Judge observed in the order dated 24-4-1994 that the objection as to maintainability of this petition has been raised by the respondents on the ground that the same did not lie before this Court but should have been filed before the Civil Court and that an objection as to the validity of the reference has also been raised. The learned Single Judge also observed that there appears to be no decided case from the Supreme Court or this Court on these points which are not free from difficulty. Any decision rendered therein is likely to effect large number of cases. The following two questions were framed by the learned Single Judge which according to his opinion deserved to be referred for answer to a larger Bench subject to the orders of the Hon'ble Chief Justice:--
(i) Whether dispute in a Constitutional petition can at all be referred to arbitration?
(ii) If the answer to the first question is in affirmative, whether an application under section 14/17 as also under sections 30/33 of the Arbitration Act, 1940 for filing of the award or setting aside the same, as the case may be, would lie before this Court or before a Civil Court having territorial jurisdiction over the matter?
' The office was directed to place all the cases before the Hon'ble Chief Justice for such orders as he may deem fit.
5. Civil Misc No, 1386 of 1994 was moved by the respondents for recalling the interim consent order dated 29-6-1993 on the ground that the same had been obtained by practising fraud on the Court and without hearing Government of the Punjab which was also a party in the case. It was contended that the said order had the effect of extending- the lease period up to the financial year 1993-94. It was also prayed that order dated 24-4-1994 through which the abovementioned two questions were referred to a larger Bench should also be reviewed as the petitioner had accepted the award and no lis was pending in which reference could be made for deciding the said two questions. The petitioner also moved Civil Misc Application No, 1512 of 1994 in which it was pleaded that respondent Zila Council had received from him a sum of Rs,1,50,00,000 (Rupees one core fifty lac only) in the form of Call Deposit for grant of lease rights for the next year commencing from 1- 7-1994 up to 30th June, 1995. This application was contested by Zila Council on the ground that though the Call Deposit Receipt in the sum of Rs,1,50,00,000 had been handed over to the Receipt Clerk but the same was without any authority or permission from the Zila Council on account of which it did not amount to acceptance of payment by the Zila Council, Lahore. It was pointed out that the Zila Council had no intention to retain the said amount for which reason the said Call Deposit Receipt had neither been encashed nor deposited in the account of Zila Council. It was contended that the petitioner could at the most claim to remain incharge of the Export Tax Posts till 30-6-1994 for which payment had already been received by the Zila Council.
6. Both these Civil Miscellaneous applications were disposed of through order dated 12-6-1994 by the learned Single Judge which was to the following effect:-
(a) the order dated 29-6-1993 was modified to the extent that the arrangement mentioned therein would remain effective till the stay matter was decided by this Court. It was directed that the petitioner would cease to collect export tax as from 1st July, 1994.
(b) Order dated 24-4-1994 was re-called in the interest of justice so as to decide afresh as to whether there was any live issue in which reference should be made to a larger Bench.
(c) The petitioner was not entitled to recover export tax from 1-7-1994 to 30- 6-1995.
7. This order was challenged by the petitioner before the Supreme Court in C.P.No, 644/L/1994 which was converted into an appeal and partly accepted through judgment dated 29-6-1994 to the extent of that part of the said order dated 12-6-1994 through which order dated 29-6-1993 was modified. As regards findings of the learned Single Judge that the petitioner was not entitled to recover export tax for the next financial year 1994-1995 on account of mere handing over of Call Deposit Receipt was upheld. No mention was however made as regards the part of the said order for re-calling order dated 24-4-1994 through which the abovementioned two questions were referred to the larger Bench.
8. The petitioner moved Civil Miscellaneous No,1753/1994 under Article 190 of the Constitution of Islamic Republic of Pakistan, 1973, requiring this Court to act in aid of the order of the Supreme Court dated 29-6-1994 and ensure compliance of the same by respondents 3 to 5. Learned Single Judge (our brother Malik Muhammad Qayyum, J.) through order dated 7-7-1994 disposed of the said application by observing that counsel for both the parties had agreed that the effect of the order of the Supreme Court was that the consent arrangement as incorporated in the Order dated 29-6-1993 which in turn refers to the lease agreement between the parties, a copy of which was available as Annexure 'B' to the writ petition must be adhered to and acted upon. This petition (C.M.
No,346/1993) came up for hearing before our learned brother Mushtaq Ahmed Khan, J. As our learned brother (Malik Muhammad Qayyum, J.) was not available. An objection was taken by Dr. A.
Basit, Advocate, learned counsel for the petitioner that since the Supreme Court in its judgment dated 29-6-1994 had held that this petition shall be expeditiously decided by the learned Judge in Chamber therefore the same could be dealt with by the same learned Judge (Malik Muhammad Qayyum, J.) who passed the orders impugned in the appeal before Supreme Court. This objection was overruled through order dated 1-9-1994 and it was held that the expression the learned Judge in Chamber used in the said judgment of the Supreme Court did not mean that the same learned Judge should hear the case. It was however observed that since by that time our learned brother (Malik Muhammad Qayyum, J.) was available therefore, it was appropriate that the case be placed before him.
9. Our learned brother Malik Muhammad Qayyum, J., passed an order on 20-9-1994 with reference to his earlier order dated 20-4-1994 through which the said two questions were referred to a larger Bench that in view of the nature of controversy involved it was desirable that the matter be heard by a larger Bench subject to the orders of the Hon'ble Chief Justice.
10. In pursuance of the said order the learned Chief Justice through order dated 10-10-1994 constituted the present larger Bench to hear the case.
11. Dr. A. Basit, Advocate, learned counsel for the petitioner objected to the hearing of this petition by this larger Bench on the grounds:--
(a) That order dated 24-4-1994 through which my learned brother (Malik Muhammad Qayyum, J.) framed the abovementioned two questions and referred the case to the learned Chief Justice for constitution of a larger Bench stands re-called in review through order dated 12-6-1994;
(b) The Supreme Court in the judgment dated 29-6-1994 passed in appeal directed that the case be heard by the learned Judge in Chamber expeditiously. His argument was that neither the said two questions any longer stand referred to a larger Bench for decision nor any learned Judge other than my learned brother (Malik Muhammad Qayyum, J.) could hear the petition.
12. While raising these contentions, learned counsel altogether ignored that in the order dated 12-6- 1994 passed in review it was clearly observed by my learned brother (Malik Muhammad Qayyum, J) that the decision as to whether the matter should be referred to a larger Bench would be taken afresh after considering the argument of learned Advocate-General as to whether there was any live issue in which reference should be made subsequently through order dated 20-9-1994 the said learned Single Judge came to the conclusion that the matter should be heard by a larger Bench and the case was referred to the learned Chief Justice for considering the desirability of constitution of a larger Bench. In my view this petition stands referred to a larger Bench as a whole for decision merits therefore, while deciding the same this Bench is to decide all the objections as regards its maintainability on any ground including the grounds which are the subject-matter of the said two questions framed earlier, therefore, it pales into insignificance as to whether the said two questions in particular otherwise stand referred to the larger Bench or not. Besides, the argument that no learned Judge other than my brother (Malik Muhammad Qayyum, J.) could hear the case after remand in terms of the judgment of the Supreme Court has already been repelled through order dated 1-9-1994 passed by my learned brother (Mushtaq Ahmed Khan, J.) before whom at one stage the case was fixed for hearing in which it was held that the term Judge in Chamber used in the judgment of the Supreme Court did not mean the same learned Judge who earlier dealt with the case but any Judge of this Court. This order admittedly remained unchallenged. The objections raised by Dr. A. Basit, Advocate, learned counsel for the petitioner are therefore repelled.
13. The maintainability of this petition has been questioned by Mian Abdus Sattar Najam, learned Advocate-General on the following grounds:--
(i) This Court while exercising constitutional jurisdiction under Article 199 cannot refer the matter to the Arbitrator as this Court while exercising such jurisdiction is not a Court as defined in section 2(c) of the Arbitration Act;
(ii) In these cases it was a private Arbitration without the intervention of the Court and the only Court vested with the jurisdiction to entertain any application for making the awards rule of the Court after filing the same in the Court or an application objecting to the validity of the award is the Court as defined in section 2 (c) of the Arbitration Act therefore the remedy of any party if any lies in approaching the said Court.
(iii) In this particular case the parties having settled the matter through compromise in Civil Revision No, 1286 of 1992 in full and final settlement of the dispute therefore, so far as the present petitioner is concerned he has no right to maintain the petition.
(iv) Even otherwise the writ petition having been disposed of after recording the statements of the parties through order dated 15-7-1992 that they had decided to get the dispute resolved through arbitration as such no lis is pending and the petition is liable to be dismissed whereas in the other cases the same should be returned for seeking the remedy before the Court of competent jurisdiction as mentioned above.
14. Before entering upon a discussion on the merits of these objections raised by learned Advocate-General it is necessary to survey and examine in detail the provisions of the Arbitration Act, 1940, which is a complete and exhaustive code in the matters of Arbitration because every Court is to act in accordance with the provisions of the said Act in relation to Arbitration matters.
Under this act through written agreement the parties may submit present or future differences to Arbitration. According to the scheme of this act there are three modes of Arbitration, which are as under:-- .
(a) Arbitration with the intervention of the Court where there is no suit pending (section 20).
(b) Arbitration in a suit pending before a Court (section 21).
(c) Arbitration without the intervention of the Court.
15. In the cases of first category the parties to an Arbitration agreement may apply to the Court under section 20 of the Arbitration Act having jurisdiction in the matter to which the agreement relates for filing the agreement in the Court in which the Court may make an order of reference to the Arbitrator.
16. In the case of Arbitration in a pending suit the parties interested may approach the Court where the civil suit is pending for an order of reference to the Arbitrator. In the third category of cases the parties may themselves agree to refer the matter to an Arbitrator and to this kind of Arbitration Chapter Second of the Arbitration Act has been made applicable. In case any dispute' arises as regards appointment of arbitrator between the parties to an agreement or failure of the appointed Arbitrator to enter upon reference or any of the parties to appoint its Arbitrator or failure of the Arbitrators to appoint umpire as the case may be the Court would intervene on an application by any of the parties to make an order in respect thereto. In case of any dispute as regards existence or legality of an Arbitration agreement or the Award, the same is to be decided by the Court under section 33 of the Arbitration Act and validity of the award could be challenged on any of the grounds mentioned in section 30 thereof. The Court has the jurisdiction to make an order for filing the award in the Court and may remit the same to the Arbitrator for determination of any question left undecided. It can make the same the rule of the Court under section 17 of the Act after rejecting the objections if any made against the award in which event a decree has to be passed in accordance with the award.
17. The Court which has the jurisdiction to pass order for making reference of Arbitration in all these cases has been defined in section 2(c) of the Act which reads as under:-- "Section 2(c).--"Court" means a civil Court having jurisdiction to decide the question forming the subject-matter of the reference if the same had been the subject-matter of a suit, but does not, except for the purpose of Arbitration proceedings under section 20, include a Small Cause Court."
It is manifest from this definition that only a Civil Court which but for arbitration agreement would have had jurisdiction to entertain and decide a suit in respect of a dispute has the jurisdiction to make a reference in a case of Arbitration through intervention of the Court where no suit is pending. In a case where a civil suit is already pending only that Court in which such suit is pending can make reference to the Arbitrator if the parties interested approach the said Court for the said purpose. The view that a civil Court as defined in section 2(c) of the Arbitration Act is the Court competent to make reference and deal with Arbitration matters arises therefrom in all the three modes of Arbitrations as mentioned above, finds support from reported judgment Province of Punjab through Secretary to Government of Punjab Housing and Physical Planning Department, Lahore and another v. District Judge, Lahore and 3 others (PLD 1984 Lah, 515) relied upon by learned Advocate-Genaral.
18. The term civil Court used in section 2(c) of the Arbitration Act has not been defined in the act itself therefore the expression civil Court would mean a civil Court of general jurisdiction competent under the law to decide civil suit. Under section 3 of the West Pakistan Civil Courts Ordinance, 1962 the following classes of civil Courts have been established.
(i) The Court of the District Judge;
(ii) The Court of the Additional District Judge;
(iii) The Court of the Civil Judge.
' Needless to add that the High Court while exercising ordinary original civil jurisdiction to i,e, jurisdiction to try a suit and while hearing an appeal arising from a suit which has always been held to be a continuation of the suit itself, would also fall within the ambit of the terms civil Court. Section 9 of the said Ordinance defines the pecuniary limit of jurisdiction of civil Judge whereas territorial jurisdiction of such Judges has been defined in section 10 of the Act. The expression civil Court having jurisdiction in the matter as used in section 2(c) of the Arbitration Act refers to both the pecuniary as well as territorial jurisdiction of the civil Courts as defined in these provisions of the civil Courts Ordinance, 1962.
19. Since according to learned counsel for the petitioner in the present cases it was an Arbitration through intervention of the Court in a pending lis therefore the question which arises for determination is whether this Court while exercising Constitutional jurisdiction could make reference to Arbitrator for decision of the disputes raised in the Constitutional petition and if not, what is the legal position of the Arbitration proceedings taken by the Arbitrator, the awards delivered and as to which Court can deal with the questions regarding validity or otherwise of the award and the Arbitration agreement.
20. The question that while dealing with a petition under Article 199 of the Constitution what is the nature of jurisdiction, which this Court is to exercise, came up for consideration in a case Hussain Bakhuh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) in relation to a question whether this Court was vested with the jurisdiction to review any order and judgment passed by it in those proceedings. It was held that under Article 199 of the Constitution the Court exercises constitutional jurisdiction and if it relates to a matter of civil nature the same may the termed as civil original jurisdiction and by virtue of section 117 of the C.P.C. It was held that the Court was vested with the power of review under section 114 of the C.P.C. Which had been made applicable expressly to proceedings of civil nature.
21. It is clear from this judgment that under Article 199 the Court exercises Constitutional jurisdiction and not ordinary original civil jurisdiction i,e, jurisdiction to try a regular civil suit as such it is not a civil Court as defined in section 2(c) of the Arbitration Act.
22. Under section 21 of the Arbitration Act, on the agreement of interested parties , the civil Court seized with the civil suit could only make reference for decision of the dispute by the Arbitrator. As observed above, since the case of the petitioner was that it Was an arbitration in a pending lis, therefore, a further question arises as to whether a constitutional petition could be treated as or equated with a civil suit. The word "suit" came up for consideration before Privy Council in a case Hans Raj Gupta v. Dehra Dhun Mussoori Electric Tramway Co (AIR. 1933 PC 63) and Prem Nath v.
Prem Nath (AIR 1963 Punjab p.62), It was held that the word suit has been in section 21 of the Arbitration Act not in its generic sense but in its restricted sense of judicial proceedings instituted by presentation of a plaint. Dr. A. Basit, Advocate, learned counsel for the petitioner was not able to persuade us as to how section 21 of the Arbitration Act could be pressed into service if the case of the petitioner is considered to be a case of arbitration through intervention of the Court in a pending lis because such an arbitration was possible if the lis was pending before a civil Court in the form of a suit and not otherwise.
23. It was faintly argued that since in the Constitutional petition disputes of civil nature have been raised by virtue of which the proceedings were of civil nature, therefore, the matter could be referred to Arbitration for resolution of these disputes. The support for this argument was sought that since Supreme Court in the case (PLD 1970 SC 1) has held that C.P.C. To such proceeding would be applicable and even otherwise under section 141 the provisions of the C.P.C. Were applicable in all proceedings of civil nature, therefore, the provisions of Arbitration Act should also be held to be applicable. This argument appears to have been raised on the erroneous assumption that in all disputes of civil nature, irrespective of the nature of the jurisdiction which the Court exercises in relation thereto, the Arbitration Act would be applicable and the Court dealing with the same would be empowered to refer the matter to Arbitration. In my view it is the nature of the jurisdiction which the Court exercises in respect of a matter pending before it which is the determining factor to decide whether the said Court falls within the ambit of Court as defined in section 2(c) of the Arbitration Act and as such competent to make a reference. Even a civil Court while executing a decree has been held to be not a Court as defined in section 2(c) of the Act and competent to make reference of any dispute regarding execution proceedings as the said Court is not vested with the jurisdiction to pass decree. There are a number of other reported judgments wherein a similar view has been expressed, some of which are as follow:--
(a) Ch. Haq Nawaz v. Tariq Azam (1994 CLC 1530).
(b) Hashmat Ali v. Muhammad Ali (1982 CLC 2377).
(c) Asmatun Nisa v. Arju (PLD 1967 Dacca 603).
(d) Allah Bakhsh v. Mst. Shamshad Begum (1990 MLD 1937)
24. Learned Advocate-General has also referred to the judgment reported as M/s. Combined Enterprises v. WAPDA (PLD 1988 SC 39) to contend that a revisional Court was not a Court as defined in section 2(c) of the Arbitration Act. From the rule laid down in this judgment it is difficult to hold that this Court while exercising constitutional jurisdiction is a Court as defined in section 2(c) of the Arbitration Act, and can make a reference.
25. The proceedings before a Rent Controller under the Rent Restriction Ordinance though are of civil nature but keeping in view the nature of jurisdiction which the Rent Controller exercises in relation to proceedings under the said Ordinance it was held in judgment reported as Masood Hussain Anwar v. Muhammad Amin (1982 CLC 777) that matters could not be referred to Arbitration.
26. In all cases in which the Court dealing with a matter brought before it whether it is a special Court or a Court of general jurisdiction is to form an opinion to decide as to whether discretion should be exercised in such matter, it was held that such matters could not be referred to Arbitrator, such as insolvency proceedings Ladha Singh v. Bagh Ali (AIR 1916 Lah. 170) and Mangi Lal v. Devi Charan (AIR 1949 Nagpur 110) and suit for dissolution of marriage, Haji Muhammad Suleman and another v. Kadir Bux and another (PLD 1965 (W.P. Karachi 326), suit for restitution of conjugal rights Ishar Das v. Mst. Veran Bai (AIR 1930 Lah. 707) and Malka v. Sardar (AIR 1929 Lah. 394).
27. It was also held in judgment reported as Mahadeo Prasad v. Bindeshri Prasad ILR 1908 (30) 137 that Guardian Judge in the matter of appointment of Guardian could not refer the matter to Arbitration.
28. There are other reasons also to hold the view that the dispute in the Constitutional petition could not be referred to arbitration through intervention of the Court which is to the effect that if the award is delivered the Court has to invite objections and after framing issues, and recording evidence has to decide the same and thereafter pass decree under section 17 of the Arbitration Act. All this exercise is not within, the scope of Constitutional jurisdiction in which it has been held time and again by the superior Courts that this Court in its Constitutional jurisdiction cannot embark upon an inquiry into the disputed questions of facts furthermore. In such jurisdiction the Court is not to pass decree.
29. Dr. A. Basit, Advocate, learned counsel referred to judgment reported as Chettiar v. Chettiar (AIR 1960 SC 307) and Thakur Prasad v. Baleshwar Ahir and others (AIR 1954 Patna p.106) to contend that the word suit used in section 21 of the Arbitration Act should be given the generic meanings so as to include all types of proceedings which fall within the jurisdiction of any Court to adjudicate upon it therefore, reference could be made to Arbitration in a petition under Article 199 in the same manner, as it could be made in a suit pending before the Civil Court. I am afraid this argument cannot be accepted without doing violence to the express provisions of the Arbitration Act as examined earlier. If parties to a Constitutional petition want to get the dispute resolved through Arbitration it is open to then to inform the Court and get the same resolved through private arbitration and get the writ petition disposed of on the ground that they have decided to seek other remedy under the general law. There is no bar to such course of action. There are no compelling circumstances to involve the Court in such matters in particular where the jurisdiction to make the reference through intervention of the Court does not exist.
30. Dr. A. Basit, Advocate, learned counsel for the petitioner then maintained that if in a Constitutional petition the question as to governance in accordance with the Constitution and administration of constitution is raised the same could certainly not be referred to arbitration but in a case where adjudication of civil rights and liabilities of the. Parties are to be adjudicated upon and declaration sought that the functionary of the State had not decided the same in accordance with law, the option should be left open to the parties to get the dispute resolved through arbitral mode i,e, through Arbitration. The argument as presented, though it appears to be ingenious, but is not tenable on close and detailed scrutiny of law as undertaken above. As observed above there can be no cavil with the proposition that in such a case the parties are at liberty to agree to appoint an arbitrator for settlement of disputes which can be done through the private arbitration without intervention of the Court. If the parties want Arbitration through intervention of the Court, this Court in that case will not have jurisdiction to refer the matter, not being a civil Court as defined in section 2(c) of the Arbitration Act.
31. Dr. A. Basit, Advocate, learned counsel for the petitioner in order to meet the objection that Arbitration proceedings were not within the scope of Constitutional jurisdiction maintained that in an arbitration in Constitutional petition the provisions of Chapters Second and Third in which sections 14 and 17 fall would stand excluded and provision of Chapter V of the Act would be applicable as such the concept that after making award rule of the Court a decree has to be passed would not be applicable and under section 33 the Court could adjudicate upon the question of validity or otherwise of the award and make declaration in accordance therewith. He submitted that though the petition has been made under sections 14, 16 and 17 of the Arbitration Act but the same may be treated as a petition under section 33 thereof which is the section applicable and the Court is bound to apply the correct law irrespective of the reference to wrong provision of law under which the parties made the application.
32. Sections 26 to 38 fall in Chapter V of the Arbitration Act. According to section 26, save as otherwise provided in the Act the provisions of this Chapter shall apply to all arbitrations. It is clear from the express provision of this section that whole of Chapter V has been made applicable to all the three modes of Arbitrations provided in the earlier Chapters. Section 30 provides that an award could be challenged on the grounds mentioned therein whereas petition to challenge the award or Arbitration agreement is to be made under section 33 of the Act. Section 17 expressly refers to objection against the award on the rejection of which a decree is to be passed, therefore, provisions of Chapter V cannot be pressed into service in isolation and independently from the provisions of the earlier Chapter.
33. Dr A. Basit, Advocate, learned counsel for the petitioner then placed reliance on sections 46 and 47 of the Arbitration Act and submitted that the award delivered by the Arbitrator in this case should be dealt with by this Court and may be taken as compromise in the Constitutional petition as envisaged by provision of section 47 and given effect accordingly.
34. Section 46 only provides that the provisions of the Arbitration Act would be applicable to statutory arbitration assuming that the provisions in the special statute providing arbitration shall be taken as Arbitration Agreement. It does not help Dr. A. Basit, Advocate, in any manner. Section 47 has rather reiterated of the legal position that provisions of the Arbitration Act would be applicable in respect to all arbitrations and to all proceedings thereunder and it does not have the effect of conferring jurisdiction on any Court or Tribunal to make reference in a pending proceeding which otherwise does not exist.
35. Apart from what has been discussed hereinbefore it may be observed that under Article 199 of the Constitution it is the prerogative of this Court to make an order in respect of any act done or proceedings taken by the public functionaries and is vested with discretion to make any order it deems fit in relation thereto. It is a requirement of the Constitution that a High Court is to satisfy itself as regards the validity or otherwise of such acts and proceedings challenged before the Court. This is the command of the Constitution and in my opinion the Constitutional jurisdiction thus exercisable by this Court cannot be abdicated in favour of any person or authority. Dr A. Basit, Advocate, learned counsel for the petitioner when questioned as to whether this Court would be left with any discretion to ignore the award of the arbitrator and decline to pass an order in terms thereof though the same may not be liable to set aside under section 30 of the Arbitration Act, but the Court otherwise finds that it would not be in the interest of justice to act upon it stated that in that case the Court would be left with no discretion but to pass judgment in accordance with the award.
36. The upshot of the above discussion is that according to law as examined above this Court while exercising its Constitutional jurisdiction is not a Court as defined in section 2(c) of the Arbitration Act, therefore, the dispute raised in Constitutional petition could not be referred to arbitration with the intervention of the Court.
37. Having held that there could be no arbitration with the intervention of the Court in these cases the next question which falls for consideration is as to what is the legal efficacy of the arbitration proceedings, award made by the Arbitrator and the remedies of the parties with regard thereto and as to which Court is competent to adjudicate upon the matter regarding validity or otherwise of the award.
38. It is clear from order dated 15-7-1992, passed in writ petition by the learned Single Judge in which the statements of the parties regarding their agreement to refer the matter to arbitration were recorded that they decided to get the dispute as regards their civil rights resolved through arbitration. Since it has been held that petition under Article 199 of the Constitution is neither a civil suit nor proceedings in the same could be treated to be proceeding in a civil suit nor this Court while exercising Constitutional jurisdiction was a Court as defined in section 2(c) of the, Arbitration Act as such it could not make order for reference therefore, in these circumstances for all purposes it shall be deemed to be a private arbitration without the intervention of the Court by the parties.
The legal consequence flowing from the statements of the parties recorded by learned Single Judge was that the petitioner informed the Court that he had decided to seek other adequate remedy instead of pursuing the same in the Constitutional jurisdiction. There could possibly be no objection to this course adopted by the parties as the proposition that there could be no arbitration in a pending civil suit except with the order of the Court in which the suit was pending was not applicable as the writ petition has been held not to be a suit.
' The learned Single Judge passed the order for referring dispute to the Arbitrator appointed by the Court according to their desire and disposed of the writ petition itself, therefore, the writ petition itself is no longer pending. The view that if a Court which does not have the jurisdiction to refer the matter to arbitration refer it on the request of the parties the same could be treated to be Arbitration without intervention of the Court finds support from judgment reported as Ch. Haq Nawaz v. Tariq Azam (1994 CLC 1530).
' Dr. A. Basit, Advocate, learned counsel for the petitioner, submitted that had the parties themselves approached the Secretary, he might not have accepted his appointment as arbitrator, therefore, it should be treated to be a case of Arbitration through the intervention of the Court for the arbitrator acted as arbitrator because this Court referred the matter. There is no legal justification for assuming that the appointed Arbitrator would not have accepted the assignment.
Since he acted as arbitrator and delivered the awards, therefore, there can possibly be no objection to deal with the same as an award delivered in private arbitration with intervention of the Court.
39. In this particular case the petition is not maintainable on the additional ground also that: ' The parties on the basis of the award, settled the dispute through a compromise in Revision Petition No, 1286 of 1992, according to which the petitioner agreed to be satisfied with the refund of an amount of Rs,1,00,00,000 (Rupees one crore only) and the other amount of 1/10th of the lease money deposited by him under the agreement.
' Dr. A. Basit, Advocate submitted that the said compromise was limited only to the extent of claim of Rupees one crore and not for the remaining claim of Rs,1,50,00,000 for which remittance of the case to the Arbitrator had been sought. There is nothing in the order passed in the revision petition to that effect which implicitly shows that it was in full and final settlement of the dispute that the compromise was made because the petitioner agreed not only to the refund of Rupees one crore but also got the refund of 1/10th of the lease money deposited in advance and agreed not to claim right to collect exit tax with effect from a particular date. The argument of Dr. A. Basit, Advocate, that the award should be given effect as compromise between the parties under the proviso to section 47 of the Arbitration Act in these proceedings does not arise as the parties had already given effect to it in the Civil Revision. Learned Advocate-General submitted that though according to the respondents the petitioner was not entitled to refund of any amount either under the contract of lease or the rules the Government settled the dispute in order to bring the controversy to an end.
40. Dr. A. Basit, Advocate, learned counsel submitted that the order for disposal of the writ petition after recording the statement of the parties did not amount to decision of the writ petition, therefore, the writ petition shall be deemed , to be pending. This gives rise to a question as to what are the meanings of the word disposed of. The term "dispose" has been defined in Corpus Juris Secundum Volume 27 as under:-- "Dispose" is also defined to mean to collect, finish with, get rid of, put away by any means, or remove; and is further defined as meaning to destroy by use, or to use up."
' In view of this, there is no scope for argument that notwithstanding the disposal of the writ petition the matter could still be deemed to be pending.
41. Dr. A. Basit, Advocate, learned counsel for the petitioner lastly argued that under section 31 of the Arbitration Act it is only this Court in which further proceedings can be taken in regard to the award delivered by the Arbitrator as the reference was made by this Court and in no other Court. This argument is equally devoid of force in view of the finding that the arbitration in this case is to be construed as arbitration without the intervention of the Court. Even otherwise the prerequisite for application of section 31 of Arbitration Act as envisaged by the provisions of this section itself is that the reference should have been made by the Court competent to make it, that further proceedings are to be taken in that Court.
42. For the foregoing reasons C.M. No,346 of 1993 is hereby dismissed whereas C.M. No,263 of 1993 in Writ Petition No, 6450 of 1992 and C.M. No,352 of 1993 in Writ Petition No,6451 of 1992 are ordered to be returned to the petitioner for presentation of the same to a Court of competent jurisdiction under the Arbitration Act for adjudication.
43. Reverting to Civil Miscellaneous No, 2437 of 1994 through which petitioner has sought implementation of interim order dated 29-6-1993 as upheld by the Supreme Court in Appeal which was to continue till the disposal of the main petition (C.M. No,346 of 1993). The question of implementation of the said order was raised during the hearing of the case. After hearing the learned counsel for both the parties as is also manifest from order dated 7-7-1994 passed by the learned Single Judge in Civil Miscellaneous No,1753/1994 earlier filed by the petitioner under Article 190 of the Constitution that learned Advocate-General had been expressing throughout that the respondents were ready to give effect to the said order, in accordance with terms of agreement.
There was dispute between the parties as to the amount of lease money which the petitioner was liable to pay under the lease agreement which was kept alive under the interim order and the parties were governed by the terms and conditions of the same even for the purpose of giving effect to the said interim order one of which was that the petitioner was bound to raise the lease money proportionate to the increase in the rates on the goods in the schedule of rates during the tenure of the original agreement as also for future till the said interim order was to continue i,e, till the disposal of Civil Misc No, 346 of 1993. The petitioner's case it appears had throughout been that under the said interim order he was liable to pay the lease money as originally settled alongwith 10% in addition thereto as directed in the interim order whereas according to the orders lease money was to be increased under clause 18 of the agreement and proportionate to the rates in the schedule of rates and 10% in addition thereto was also to be paid. It was on 19-10-1994 that Dr. A.
Basit, Advocate learned counsel for the petitioner conceded that the petitioner was liable to pay the increased lease money under the said clause and 10% in addition thereto as directed in the interim order. A Chartered Accountant was appointed as Local Commissioner to determine as to what would be the amount of lease money which according to the said Formula the petitioner would be liable to pay, because the parties were not in agreement on that issue. The Local Commissioner submitted an interim report that unless it was known as to what was the quantity of goods regarding which there was increase in the rates it was not possible to make a determination. An order was passed that he should calculate the amount keeping in view the increase in the rates in the schedule of rates on average basis and not with reference to quantity of goods. He submitted his report on 8-1-1995. According to his report the petitioner was liable to pay an amount of Rs,98,430,860 which was inclusive of 10% for the year 1991-1992, for the year 1992-1993, Rs,215,335,224 and for the year 1993-1994 it was Rs,236,868,746.
44. An application Civil Miscellaneous No,3374 of 1994 was made by the petitioner in which Formula was suggested according to which the increase in the lease money should be calculated. He made another application (C.M. No,107/95) in which it was prayed that Civil Miscellaneous No, 3374/1994 may be treated as objections against the report of the Local Commissioner dated 8-1- 1995. He made still another application (C.M. No,119/95) praying that the petitioner should be given the right to collect the export tax forthwith and as regards the export tax already collected the same may be adjusted against the lease money determined by the Local Commissioner/Chartered Accountant for the year 1993-1994 and entry to that effect in the books be made subject to decision on the objections of the petitioner.
45. As observed earlier that according to the petitioner there is no dispute regarding the increase in the lease money prior to 1-7-1994 and he wants that whatever has already been collected by the respondents from 1-7-1994 uptil today the same may be adjusted against the lease money determined by the Local Commissioner/Chartered Accountant for the year 1993-1994 and the remaining amount be paid to him by making entries in the books. This is his plea as to the enforcement and implementation of the interim order dated 29-6-1993.
46. I am afraid the plea as raised by the petitioner is wholly untenable. When the interim order was passed on 29-6-1993 the lease year of 1992-1993 had not yet expired as the same was to expire on 30-6-1993. According to this interim order the lease agreement as a whole was kept alive and the parties were bound to abide by the terms and conditions of the same out of which one of the condition was that the lease money shall continue to be increased in proportion to the increase in the rates in the schedule of rates. The petitioner was liable to pay to the respondents as lease money after increasing the same and 10% in addition thereto whereas he had been paying the lease money as originally fixed. Unless he pays the increased lease money as determined by the Local Commissioner up to the year 1993-1994 he shall not be deemed to have performed his part of the agreement and does not qualify for asking implementation of order dated 29-6-1993 unilaterally from 1-7-1994- The right to collect export tax was to accrue from 1-7-1994 onward under the said order on the deposit of 1/10th of the increased lease money in advance and the petitioner having already recovered the 1/10th amount which he earlier deposited through compromise in Civil Revision No, 1286/1992 therefore, his right to collect export tax from 1-7-1994 did not accrue. Since right to collect export tax from 1-7-1994 as observed above had never accrued, therefore, there is no question of adjusting the increased lease money against the export tax already collected from 1-7-1994 as prayed for by the petitioner.
47. Learned counsel for the petitioner submitted that the respondents never raised any claim regarding increase in the money. This argument ignores the fact that the respondents made Civil Miscellaneous application in which they demanded Rupees fifty-six crore from the petitioner on account of the lease money. Apart from this since the petitioner was to derive benefit from the interim order therefore he was not absolved from his responsibility to approach the respondents for determination of the lease money to perform his part of the contract. The petitioner had throughout been disputing the rights of the respondents to increase the lease money and it was only on 19-10-1994, that he conceded that lease money was to be increased in proportion to increase in the rates in the schedule of rates.
48. Learned counsel for the petitioner submitted that the petitioner deposited 1/10th of the lease money and claimed the right to collect export tax from 1-7-1994 which was not accepted by the respondents. This deposit was made on the basis of lease money already fixed in the agreement.
The petitioner claimed the right to collect export tax on the basis of this deposit unilaterally made by him from 1-7-1994, which was disallowed by the learned Single Judge through order dated 12-6- 1994. The petitioner challenged this part of the order by way of an appeal before the Supreme Court which was dismissed and it was held that on the basis of the said deposit he could not claim any right to collect export tax from 1-7-1994.
49. The objections raised against the report of Local Commissioner/Chartered Accountant as contained in Civil Miscellaneous No,3374 of 1994 are without any substance. According to the agreement increase in the lease money was to be determined on the average basis on the increase of rates in the schedule of rates and not on the basis of quantity of goods on which the rates had been increased. The Local Commissioner correctly calculated and determined the lease money which the petitioner was liable to pay for these years mentioned in his report without the deposit of which he was not entitled to claim enforcement and implementation of interim order from 1-7-1994. It is not open to the petitioner to accept one part of the order which suits him and decline to act upon the same when the question of liability to pay export tax arises.
50. The interim order was to remain in force till the disposal of Civil Miscellaneous No,346 of 1993.
The said Civil Miscellaneous having now been disposed of therefore, there is no question of now allowing the petitioner to deposit 1/10th of the increased lease money in advance to entitle him to collect the export tax thereafter.
51. For the foregoing reasons Civil Miscellaneous No,2437 of 1994 and all other Civil. Miscellaneous applications regarding the implementation of the interim order are hereby rejected.
(Sd.)
' MUNIR A. SHAIKH, J.
' For the reasons so elaborately and ably set out by my learned brother Munir A. Shaikh, J, I agree with him that C.M. No,346/1993 is not maintainable before this Court which is not a 'Court" as defined by section 2(c) of the Arbitration Act, 1940 and further that the arbitration in question shall be deemed to be arbitration without the intervention of the Court.
2. However, as regards implementation of the order passed by the Supreme Court of Pakistan, I had my own views on the subject but as the order dated 28th rune, 1993 or this Court was to remain operative till the decision of C.M. No,346/1993 which is being decided today, C.M. No,2437/1994 has become infructous and is disposed of as such.
(Sd.)
' MALIK MUHAMMAD QAYYUM, J.
' I also agree with main judgment, rendered in an illustrious way by my learned brother, Munir A.
Shaikh J, principally concurred in and fractionally differed with by another learned brother, Malik Muhammad Qayyum, J., final result substantially being the same.
' If the interim reliefs, being prayed for by the petitioner, in terms of successive C.Ms. Submitted in the course of hearing of the leading petitions, could be regarded as having any amount of validity or defensibility, the same obviously would lose all significance, as also tenability, with the dismissal of the main matters, and could no longer legitimately be asked for nor could the same competently be conceded.
(Sd.)
' MIAN GHULAM AHMAD, J.
' I had the advantage of going through the judgment proposed to be delivered by my learned brother, Munir A. Shaikh, J. And I agree with him.
(Sd.)
' CH. KHURSHID AHMAD, J ' I have had the benefit of reading the judgment proposed to be delivered by my learned brother Munir A. Shaikh, J. I agree entirely with the reasonings advanced and the conclusions drawn by him.
(Sd.)
' MUHAMMAD ASIF JAN, J