Y.P. Garg and Co. vs State of Himachal Pradesh

T.U. Mehta, J.—In all these matters the arbitrator, one Shri Bachan Singh, Chief Conservator of Forests, Himachal Pradesh, has filed his award as regards the disputes between the parties referred to him, u/s 14 of the Arbitration Act, 1940. The award in each case is dated 1-10-1975 any by this award he has awarded financial relief of different amounts in favour of each of the claimants in these suits. Notices were thereafter issued to the claimants as well as to the State of Himachal Pradesh. The claimants have not filed any objection to the awards but the State has challenged the awards on certain grounds which will be stated hereafter. This is how all these matters are registered as suits in which the claimants are shown as Plaintiffs and the State of Himachal Pradesh as Defendant.

Short facts forming the background of these matters are that the claimants in all these matters are timber merchants having their saw mills at Yamunanagar. On 9-7-1975 auction of timber known as "Samudha (sic) logs" had taken place at Yamunagar. In this auction the claimants gave their bids and purchased the timber comprised by different lots.

Evidence shows that thereafter on 8-8-1975 further auction of the same type of timber was arranged by the Forest Department. Several merchants including these claimants went to attend that auction but informed the officers concerned that none of them was prepared to give any bid in view of the fact that the timber sold at the time of the previous, auction, which was held on 9-7-1975, was not found to be of samudha quality as it contained rot and damage to the extent of 30 to 40 per cent when the logs were sawed. On hearing this complaint one Shri D.P. Gupta. Deputy Conservator of Forests, and Shri Swaran Singh Chahal, Conservator of Forests, went to the saw mills of two of the claimants with a view to verify whether the allegation made by the claimants regarding the quality of timber auctioned on 9th July, was correct or not. Evidence reveals that after going to the saw mills of the claimants M/s. Crown Timber and M/s. Andhra Enterprise they actually got certain logs of the auctioned lot sawed, and found that it contained damage to "the extent of 30 to 40 percent.

By this time they also came to know that the Chief Conservator of Forest, Shri R.C. Kaushik, who is claimants'' witness No. 1 in this case, had been to Yamunanagar on a visit, and was at the Rest House. The parties thereafter approached Shri Kaushik and appraised him about the damage which they had noticed in the logs of timber auctioned on 9th July, 1975, Shri Kaushik thereafter assured the claimants that if they made proper representation, their grievances would be looked into.

The claimants thereafter made the representation and approached the Chief Minister who was incharge of the Forest Department. They ventilated their grievances to the Chief Minister who directed them to file a written representation and assured them that the matter would be looked into properly with a view to do justice to them. The Chief Minister also directed the claimants to see the Secretary, Forest Department. Evidence also reveals that at this time Secretary, Forest Department was also present.

Evidence further reveals that by this time the Government had already obtained the report of the Chief Conservator of Forests of Shri Kaushik. Mr. Kaushik reveals in his deposition that one of the proposals which he had made, in his report to the Government was to settle the dispute raised by the claimants by arbitration.

After the Chief Minister directed the claimants to approach the Secretary, Forest Department, the claimants did so and, according to the evidence given by one of the claimants Shri Mela Singh, (C.W. 2), the Forest Secretary told the claimants that an arbitrator commonly agreed to by the parties would be appointed to decide the dispute raised by the claimants, and for that purpose Conservator of Forests one Shri Swaran Singh Chahal would be authorised by the Government to execute the arbitration agreements. He also enquired from the claimants whether they would be agreeable to the name of another Chief Conservator of Forests, named Bachan Singh to act as the sole arbitrator. The claimants agreed to the said name.

Eventually on 4-9-1975 the Secretary Forest Department of the Government of Himachal Pradesh addressed the following letter to the Chief Conservator of Forests:

Subject: Timber auction held on 9th July, 1975 at Yamunanagar Depot.

Sir,

I am directed to refer to your Memorandum No. 509/RA(S) dated the 3rd September, 1975 on the subject mentioned above and to say that it has been decided that the matter should be referred to a mutually acceptable, arbitrator for arbitration on the following points:

Whether the timber sold was smuda or not;

In case it was not what amount of relief should be provided to the party.

That pending report of the arbitrator, the date of cash discount should also be extended till the finalization of the award.

I am also to stress upon you that as tar as possible the arbitration award should be finalised within a week.

This may kindly receive your personal attention.

Yours faithfully,

Sd/- R. Sahni Jt. Secretary (Forest) to the Government of Himachal Pradesh".

This letter is found at Ex. D-l. Below the letter, there is an endorsement made by the Chief Conservator of Forests Shri Kaushik in the following terms:

Dated Simla 171001, the 4th September, 1975, Copy forwarded to C. F. Simla for information and necessary action. The parties have agreed to the arbitration by Shri Bachan Singh, IFS, CCF (N) HP. The agreement deed may kindly be drawn accordingly. The Govt, case will, be presented by you. The time and venue of hearing will be intimated by the arbitrator to your direct.

Sd/- R.C. Kaushik C.C.F.H.P. (South).

The above referred endorsement refers to "C.F." which means Conservator of Forests. It is an admitted position that this Conservator of Forests Simla was Shri Swaran Singh Chahal.

Thereafter, on the same date, that is, on 4-9-1975, the parties executed the agreements to refer the disputes to arbitration of Shri Bachan Singh as found at Ex. D-2. These agreements are executed by Shri Swaran Singh Chahal on behalf of the Government, and are entered into in the name of the Governor Himachal Pradesh. The agreements refer to the same two questions for arbitration as already referred to in the above quoted letter of the Secretary, Forest Department, addressed to the Chief Conservator of Forests.

The arbitrator Shri Bachan Singh thereafter proceeded with his work. During the course of the proceedings that took place before him, he examined the quality of the timber supplied to the claimants as a result of the auction which took place on 9th July, 1975, by sawing the logs belonging to the lot which was auctioned in favour of each of the claimants. On sawing he found that the timber sold contained rot and other damages to the extent of 30 to 40 per cent and, therefore could not be classified as Samudha timber. It is further found that during the course of the proceedings which were undertaken before him, he had been to Pathankot with a view to ascertain from the market there as to what type of timber could be classified as Samudha. During this inquiry at Pathankot he is found to have recorded certain statements.

As a result of these arbitration proceedings the aabitrator has come to the cynclusion that the timber sold to these claimants was not of Samudha quality and, therefore, all the claimants were entitled to financial relief of different amounts. These amounts are mentioned by the arbitrator in his award and for our purpose it is not necessary to repeat them.

The Government of Himachal Pradesh now feeling aggrieved by this award has preferred objections. These objections are the same in case of each of the claimants.

The objections are:

That there was no valid agreement of arbitration entered into on behalf of the State by Shri Swaran Singh Chahal and that being so the appointment of the arbitrator Shri Bachan Singh and the award given by him are vitiated in each case.

This award is also vitiated inasmuch as the arbitrator is found to have misconducted himself by testing the quality of the timber auctioned not by visual test but by looking to the inner condition of the log and by recording evidence at Pathankot without informing the parties, and at their back.

In their reply to these objections the claimants have contended that the objections are barred by time, that they should be struck out as they are not properly stamped, that they are not properly verified, and that the Government is estopped from filing the same.

As a result of these pleas raised by the parties with regard to the awards given by the arbitrator, this Court has framed the following issues on 1-9-1976:

Whether the objections are barred by time? (OP claimants)

Whether the objections are not stamped at all, if so, what is its effect? (OP Parties).

Whether the objections have not been properly verified and supported by an affidavit, if so, what is its effect? (OP Claimants)

Whether the objectors are estopped from filing the objection? (OP Claimants).

Whether the agreement signed by Shri S.S. Chahal, Conservator of Forests is void, if so, what is its effect? (OP Objector).

Whether the award given by the arbitrator suffers from vice of misconduct on the part of the arbitrator as also the misconduct of the proceedings (OP Objector)

Relief.

Evidence was thereafter recorded on these issues. During the course of these proceedings, the State has led the evidence of two witnesses named Shri T.C. Nag, Depot Officer, Yamunanagar and Shri D.P. Gupta, Deputy Conservator of Forests, while the claimants have examined their two Witnesses named Shri R.C. Kaushik, Chief Conservator of Forests and Shri Mela Singh, who is one of the claimants named M/s. Crown Timbers. On agreement between the parties, evidence is recorded only in civil suit No. 20 of 1976 and the parties have further agreed that this evidence should be treated and read as evidence in all these cases.

So far as the first three issued are concerned they arise on account of certain contentions raised by the claimants with regard to the objections filed by the Government. The learned Advocate of the claimants, however, stated that he did not want to press these pleas. Under the circumstances, issues Nos. 1, 2 and 3 are not pressed, and do not require any decision.

For the sake of convenience I will first take up for my consideration issue No. 5 which is with regard to the authority of Shri Swaran Singh Chahal to execute the arbitration agreements on behalf of the State. In this connection it may be noted that the objection which is raised by the Government is in the following terms:

There is no valid agreement deed between the parties as Shri Swaran Singh Chahal I.F.S. Conservator of Forests, Simla Circle was not authorised to ececute or sign the arbitration agreement on behalf of the Governor of the State. The whole proceedings of the arbitration as such are abinitiovoid.

To substantiate this contention the learned Advocate General has put reliance upon the Law Department notification No. L.R. 107-468/54 III dated 25-1-1971 which was issued in exercise of the powers conferred by Clause (1) of Article 299 of the Constitution of India. This notification as issued in the name of the Governor of Himachal Pradesh. Clause (1) of Article 299 says that all contracts made in exercise of the executive power of a State shall be expressed to be made by the Governor of the State and all such contracts made in exercise of that power shall be executed on behalf of the Governor by such persons and in such manner as he may direct or authorise.

Now the contention of the learned Advocate General was that by the above referred notification issued by the Law Department under the above referred Clause (1) of Article 299 of the Constitution, contracts and other instruments relating to matters connected which the business of the Forest Department exceeding the value of Rs. one lakh connot be entered into on behalf of the Government by a person of the status of Conservator of Forests. In this connection he has drawn my attention to the following portion of the said notification:

Contracts and other instruments relating to matters connected with administration of forests and the business of the forest department, but not relating to the purchase or sale or permanent acquisition of land:

(a) If the amount or value does not exceed Rs. 4,000/- by the Divisional Forest Officer;

(b) If the amount or value does not exceed Rs. 1,00,000/- by the Conservator of Forests; and

(c) If the amount or value exceeds Rs. 1,00,000/- but not Rs. 2,00,000/- by the Chief Conservator of Forests.

Relying upon this part of the notification the learned Advocate General contended that when Shri Chahal executed the arbitration agreements in all the matters he was working as Conservator of Forests and was, therefore, not authorised to execute such agreements on behalf of the Government in the cases in which the subject matter of the contract was more than Rs. one Lakh. He pointed out that in C.S. No. 17 of 1976 the subject matter of the contract was Rs. 1,74,642/-; in C.S. No. 19 of 1976 it was Rs. 1,87,064/-; in C.S. No. 20 of 1976 it was Rs. 6,23,897/- and in C.S. No. 21 of 1976 it was Rs. 7,35,643/-. Therefore, according to the learned Advocate General, so far as these four suits are concerned, the valuation of the subject matter of the contract was more than rupees one lakh, and that being so, Shri Chahal had no authority to enter into arbitration agreements on behalf of the Government, and if that be so, the appointment of Shri Bachan Singh as the arbitrator was void ab initio and the award given by him in these four maters cannot be taken as legal or valid.

So far as other suits are concerned, it is an admitted position that Shri Chari Chahal did not lack any authority to execute the arbitration agreements on behalf of the Government.

In view of the above contention raised on behalf of the learned Advocate General, the first point which requires to be considered is whether the appointment of Shri Bachan Singh as arbitrator in the above referred four suits was illegal on the footing that Shri Chahal had no authority to execute the arbitration agreements on behalf of the Government.

Now if in this connection, a reference is made again to the provisions f Article 299 of the Constitution, if will be found that in all contracts on agreements which re made in exercise of the executive power of a State three things are required to be scrutinised; namely

(1) Whether the contract or the agreement is expressed to be made by the Governor.

(2) Whether these contracts and agreements are executed on behalf of the Governor, and

(3) Whether the person executing these contracts or the agreements is either directed or authorised by the Governor to execute the same.

So far as the first two of these requirements are concerned, they are admittedly satisfied in these cases. The contention of the learned Advocate General, however, is that in view of the above referred notification of the Law Department which has been issued under Article 299(1) of the Constitution, Shri Chahal had no authority to execute the agreements in case where the valuation of the subject matter was more than rupees one lakh. So the only question is whether the third requirement of Article 299, which is mentioned above, is satisfied in this case or not.

It should be emphasised here at this stage that the third requirement of Article 299(1) is the requirement as regards either the "authority" or the "direction". The article makes a specific reference not merely to the authorisation but also to direction by the Governor in the alternative. The result, therefore, is that the person executing the contract or the agreement on behalf of the Governor should be found to have either an authority or direction to do so.

Another important fact to be noticed with regard to this third requirement of Article 299(1) is that it does not prescribe any specific mode or manner in which the person concerned should be directed or authorised. This direction, therefore, can be in writing, and it can as well be oral. Similarly authorisation also can be either in writing or oral. When direction or authorisation is in writing it can assume the from of a notification or it can as well assume the form of a letter. Nonetheless, direction or authorisation must be by the Governor, that is, by the Government.

In this connection it would be recessary to refer to the decision given by the Supreme Court in, The State of Bihar Vs. Karam Chand Thapar and Brothers Ltd., wherein exactly this point arose for consideration. The question before their Lordships of the Supreme Court in that case was whether proper direction or authorisation contemplated by Sub-section (3) of section 175 of the Government of India Act, 1935, the provisions of which were pari-materia with the provisions of Article 299(1) of the Constitution was given or not.

Before stating the ratio of that case it would be necessary to refer briefly to the short facts which their Lordships considered in that case. There it was the State of Bihar which challenged the arbitration agreement between the parties, and it approached the Supreme Court as an Appellant. The Respondent was a Company registered under the Indian Companies Act. It had entered into three contracts for construction and subsequently there arose a dispute between the parties with regard to these contracts. By an agreement dated 6-2-1948 the parties referred that dispute to the arbitration of one Col. Smith. The arbitration agreement was executed on behalf of the State of Bihar by one of its Executive Engineers.

The Government of Bihar had issued a notification under Sub-section (3) of Section 175 of the Government of India Act, 1935 by virtue of which only Secretaries and Joint Secretaries to the Government were authorised to execute on behalf of the Government deeds and instruments relating to any matters other than those specified in previous heads of the same notification. The courts found that the arbitration agreement which was executed by the Executive Engineer was covered by this residuary clause of the notification and, therefore, the Executive Engineer was not the person who was authorised by that notification of the Bihar Government to execute the arbitration agreement, on behalf of the Government. The contention which was raised on behalf of the State of Bihar before the Supreme Court was, therefore, that the arbitration agreement was void ab initio as it failed to comply with the requirement of Section 175(3) of the Government of India Act, 1935 and hence the award given by the arbitrator legally fell through and was not binding on the parties.

The Supreme Court considered this contention of the State of Bihar and rejected the same observing that Section 175(3) of the Government of India Act, 1935 did not prescribe any particular mode in which the authority to execute a contract or agreement must be conferred. In this connection the Supreme Court is found to have observed as under:

It was further argued for the Appellant that there being a Government notification of a formal character, we should not travel outside it and find authority in a person who is not authorised thereunder. But Section 175(3) does not prescribe any particular mode in which authority must be conferred. Normally, no doubt, such conferment will be by notification in the official Gazette, but there is nothing in the section itself to preclude authorisation being conferred ad-hoc on any person, and when that is established, the requirements of the section must be held to be satisfied.

Having thus said that the issuance of a notification is not the only mode of directing or authorising a person to execute contracts and agreements on behalf or the Government, the Supreme Court also considered other materials on the record of the case to know whether there was any such direction or authorisation as was contemplated by Section 175(3) of the Government of India Act, 1935. Reference to paragraphs 2 and 3 of the reported judgment shows that the Supreme Court was of the opinion that the correspondence that took place between the parties was clear enough to suggest that the Government had authorised Col. Smith to act as an arbitrator for the purpose of solving the dispute between the parties. It is not necessary here to repeat the nature of the correspondence which the Supreme Court considered in the case. But it would be sufficient to note that the Supreme Court has accepted the principle that the necessary direction or authorization contemplated by Section 175(3) of the Government of India Act can be spelled out from any material whatever.

Now applying that the test to the facts of the present case I find that the record of this case contains sufficient material to show not only that the Government had itself made the choice of the arbitrator Shri Bachah Singh and had formulated the disputed questions which were required to be referred to him, but had also specially autdorised Shri Chahal to execute the arbitration agreements in all these cases on behalf of the Governments. I will presently refer to this part of the evidence recorded in the case.

One of the claimants Shri Mela Singh who is C.W. 2, has given all the necessary details to show how Shri Chahal was specially authorised by the Government to execute the arbitration agreements on its behalf in all these matters. I have briefly referred to these facts in the foregoing portion of this judgment at the time of introducing the facts. But so far as witness Mela Singh is concerned, he describes all these facts in details as under:

Thereafter we met the Chief Minister in this connection at Simla. The Chief Minister was also holding the portfolio of the Forest Department. We informed the Chief Minister about everything and requested him to take the goods back. The Secretary (Forest) of the Department was also present there at that time. The Chief Minister then told us to state our grievances in writing. Thereafter, on behalf of our Association we gave the representation to the Chief Minister in writing. The Chief Minister then assured us that he would send for the necessary reports and would do justice to us. Then he sent for the report from the Chief Conservator of Forests and also called us. We then again saw the Chief Minister and at that time, the Chief Conservator of Forests as well as the Secretary (Forest) Department were present. The Chief Minister then told us that he had received the report of the Chief Conservator of Forests and that the matter should be referred to the arbitration and he would see to it that the arbitrator decides the matter soon. He also instructed us to go to the office of the Secretary Forest Department and to agree to the name of the arbitrator as suggested by him without any delay. The Secretary Forest Department then told us in his office that this matter should be bandied by some responsible officer of the Forest Department and, therefore, such an officer should be appointed as arbitrator. Then the Secretary told us that since Mr. Kaushik had also submitted his report in the matter, Sardar Bachan Singh would be appointed as an arbitrator. We agreed to that. He then told us that the agreement for arbitration will be executed on behalf of the Government by Sardar Swaran Singh Chahal Conservator of Forests, and he would also represent the Government''s case before the arbitrator. Thereafter, Mr. Chahal signed all the agreements for arbitration and we also signed the same.

There is nothing in the cross-examination of this witness to challenge this statement of the witness. On the contrary I find that the witness gets sufficient corroboration from the deposition of the Chief Conservator of Forests Shri Kaushik himself who informs the court as under in his deposition:

It is to my knowledge that thereafter these Plaintiffs had seen the Chief Minister in this connection. I do not know whether at that time the Secrerary, Forest Department, was also present. These merchants had not seen the Chief Minister at any time in my presence. It is true that on the representation of the Plaintiffs the Government had asked for my report. In my report I gave necessary facts and said that there are three alternatives for the Government namely (1) the Government should take adminstrative decision, (2) the Government may face the civil litigation and (3) the dispute may be settled through arbitration. It is true that ultimately. The Government agreed to the third alternative that is settlement of dispute through arbitration. The Government thereafter conveyed that the matter be referred to mutually acceptable arbitrator for arbitration. The Government also specified the terms of reference. These terms of reference are:

Whether the timber sold was Samdha or not.

In case it was not what amount of relief should be provided to the parties.

Then I requested my colleague Mr. Bachan Singh to arbitrate in this matter and he greed. The parties also verbally agreed before me. Thereafter Mr. Chahal was asked to execute the arbitration agreements. As it is, arbitration agreement can be executed only if the person concerned is competent. The competency is according to the valuation of the subject matter of the contract. Mr. Chahal had power to execute arbitration agreements having the valuation of Rs. one lakh.

From this evidence few important facts emerge. They are:

That the claimants had gone to the Chief Minister and had made their grievances about the quality of timber supplied to them and that the Secretary of the Forest Department was present at the said meeting.

The Chief Minister assured the claimants to do justice to them and referred the claimants to the Secretary, Forest Department.

When the claimants met the Secretary Forest Department, the latter suggested the name of Shri Bachan Singh as the sole arbitrator and also informed the claimants that Shri Swaran Singh Chahal will not only execute the arbitration agreements but also will present the case of the Government before the arbitrator.

That accordingly Shri Bachan Singh was finally appointed as arbitrator at the behest of the Government and that the arbitration agreements making the said appointment were signed on behalf of and at the behest of the Government by Shri Swaran Singh Chahal.

That even the points which were required to be referred to the arbitrator were formulated by the Government.

It is in this background that we have now to appreciate the above quoted latter addressed by the Secretary (Forest) to the Chief Conservator of Forests on 4-9-1975. This letter makes a specific reference to the appointment of an arbitrator who was "mutually acceptable". The endorsement made by the Chief Conservator of Forests at the foot of that letter further shows that this "mutually acceptable" arbitrator was Shri Bachan Singh and this endorsement also shows that it was only at the instance of the Government that the Conservator of Forests Shri Swaran Singh Chahal had executed the arbitration agreements.

All this evidence reveals that the choice of Shri Bachan Singh as the sole arbitrator was made by the Government and the claimants had merely agreed to it. In effect, therefore, the appointment of Shri Bachan Singh as the sole arbitrator was the appointment made by the Government itself. The authorisation of Shri Chahal to execute the agreements was, therefore, a mere formality because the points for arbitration were required to be in writing. The facts further show beyond any doubt that inspite of the Law Department''s notification dated 25-1-1971 by which the authority of a Conservator of Forests to execute agreements on behalf of the Government was limited, the Government, acting through the Secretary, Forest Department, made a special authorisation in favour of Shri Chahal to execute the arbitration agreements with regard to all these agreements. If once it is believed that Article 299(1) does not contemplate any specific method or manner in which authorisation to enter into an agreement on behalf of the Government is required to be made, as held by the Supreme Court in the above referred case, then the facts of this case are eloquent enough in showing that Shri Chahal was specially appointed by the Government of Himachal Pradesh to execute the arbitration agreements, with regard to the disputes in all these cases. In my opinion, even if Shri Chahal was not authorised to sign the arbitration agreements on behalf of the Government, the facts are clear enough to show that Shri Bachan Singh was appointed as arbitrator directly by the Government itself. In view of this, I find that there is no substance in the contention raised on behalf of the Government with regard to issue No. 5.

Issue No. 4 is with regard to the claimants'' contention that the Government having led the claimants to believe the reference to arbitrator Shri Bachan Singh was proper, and the Government having participated in the arbitration proceedings before Shri Bachan Singh, they are now estopped from objecting to the award given by Shri Bachan Singh on the ground that there was no valid reference to him. In support of this contention the claimants put reliance upon the decision given by the Supreme Court in N. Chellappan Vs. Secretary, Kerala State Electricity Board and Another, The learned Advocate Generral on the other had contended that in case wherein the mandatory provisions of Article 299(1) are not complied with, no question of estopple comes to be considered and he put reliance for this proposition on a decision of a Division Bench of this Court given in Smt. Rajkumari Soni Vs. State of Himachal Pradesh, . I find that on the question of estopple we have to consider two cases of the Supreme Court namely Mulamchand Vs. State of Madhya Pradesh, and another decision of the same court in Union of India v. Anglo Afghan Agencies AIR 1968 SC 718. In view of my findings on issue No. 5 to the effect that all the requirements Article 299(1) are satisfied. I do not find it necessary to go into this question of estopple.

This leaves me with issue No. 6 which seeks to enquire whether the award given by the arbitrator suffers from the vice of the misconduct on his part. As already stated above, the contention of the Government on this issue is two-fold. According to the learned Advocate General the evidence which is recorded in this Court shows that the only test to determine whether a particular timber is Samudha timber or not is the visual test and, therefore, if from the visual test of the log of timber, it is found that it does not contain any rot or any other defect, then it should be taken as samudha timber. It is contended that in order to determine whether the quality of a particular log of timber is samudha or not, it is never open to the parties concerned to examine the inner condition of the log by sawing it. The learned Advocate General, therefore, contended that in view of this evidence, the arbitrator had no authority to check the inner condition of the logs of timber auctioned on 9-7-1975 by getting them sawed at Yamunanager. The second leg of the contention of the learned Advocate General was that at any rate, the arbitrator has misconducted himself in going to Pathankot without informing the parties and in recording evidence there at the back of the parties. It is, therefore, now necessary to consider how far these contentions of the learned Advocate general and acceptable.

It is true that the arbitrator is found to have checked the quality of the timber sold by getting them sawed, and that, on sawing, he came to the conclusion that these logs contained rot and damage to the extent of 30 to 40 per cent, and could, therefore, never be classified as Samudha timber. The question is whether this procedure adopted by the arbitrator could be considered as his misconduct which would vitiate the award.

In this connection it is again necessary to refer to the points of reference made to the arbitrator. I have already quoted these points. The first point of refeference was "whether the logs sold were samudha or not". It is thus apparent that the parties had asked the arbitrator to find out whether the logs which were auctioned to the claimants were the logs of samudha timber or not. The parties have not confined the arbitrator only to a particular mode of enquiry. It was, therefore, for the arbitrator to decide what test should be applied for finding out whether the timber sold was samudha timber or any other timber. It should be recalled here that the arbitrator Shri Bachan Singh was not a lay man. At the relevant time he was functioning as a Chief Conservator of Forests belonging to the Indian Forest Service. He himself was an expert and since the mode of enquiry which he was expected to conduct was not limited in any manner by the arbitraion agreement, it was open to him to proceed in the best of his judgment to give proper decision on this point of reference. It is not open to this Court, therefore, to say that he should have appreciated the quality of the timber supplied to the claimants only by applying a particular test and no other test.

Even otherwise, I find that there is nothing in the evidence produced before me which would go to show conclusively that there is only one test, that is visual test, for determining whether a particular log of wood is samudha timber or not. Reference to the deposition given before me by the objectors'' witness No. 2 Shri D.P. Gupta shows that he is not able to say what is the exact practice prevailing in the market to determine whether a particular timber is samudha or not. He, of course, supports the case of the Government but that support is borne out of the impression which he has carried during the course of his service in the department which would obviously not carry any weight at all. Another witness who is competent to throw some light on this question is claimants'' witness No. 1 Shri R.C. Kaushik who is even at present serving in the State of Himachal Pradesh as Chief Conservator of Forests. In his deposition he has tried to support the case of the Government on this point reference to re-examination shows that before the arbitrator he has admitted that if on sawing, packet decay and rot is found, whether the logs should be treated as samudha or not becomes a matter of dispute, and the point of decision rests on out turn of salable quality and it is this which is under arbitration.

In my opinion, therefore, the record before me does not contain clear, definite and dependable evidence to show that the only test to determine whether a particular log of timber is samudha or not, is the necessarily a visual test.

In view of this, I do not find any substance in the Government''s contention that the arbitrator has misconducted himself in determining the quality of the timber by getting it sawed. In this connection, it is further interesting to note that the arbitrator had determined the quality of timber by getting the logs sawed in his presence only at the request of both the parties including Mr. Chahal who was representing the Government before him. The claimant Mela Singh has in this connection made a specific statement as under:

Thereafter, the arbitrator (Mr. Bachan Singh) started his work and during the course of arbitration proceedings, both the parties, that is the Plaintiffs on the one hand and Mr. Chahal representing the Government on the other hand requested the arbitrator to inspect the auctioned limber by sawing some pieces. Thereafter the arbitrator came to our saw mill along with Mr. Chahal and other officers and sawn some logs of timber out of the auctioned lot. The arbitrator himself noticed the damaging timber to the extent of 30 to 40 per cent. Thereafter the arbitrator also went to the saw mill of Adnhra mill enterprises along with Mr. Chahal and others. I was also present with them. There also some of the logs of the auctioned timber were sawn and damage to the extent of 30 to 40 per cent was found.

Even the proceedings drawn by the arbitrator on 9-9-1975 and then on 10-9-1975 show that the sawing to peration for testing the logs of timber was done in the presence of the parties. Thus the test carried out by the arbitrator was not only in presence of the parties, but also at the request of the parties, and the Government representative Shri Chahal has not at any time objected to this procedure.

The next leg of the contention of the Government to show the misconduct of the arbitrator, was the allegation that the arbitrator went to Pathankot and recorded statements of certain witnesses without the knowledge of the parties. I find that even this contention is completely without force. The proceedings drawn by the arbitrator for 15-9-1975 show that it was in presence of both the parties that he decided to go to Pathankot. These proceedings are in the following words:

I will go to Pathankot and if need be to some other markets to ascertain the market terminology and practice regarding classification and sale of timbers.

The claimants Mela Singh states that at the time of deciding to go to Pathankot on 15-9-1975 the arbitrator enquired from the parties whether they wanted to accompany him to Pathankot. The parties, however, refused to do so and left the matter to the discretion of the arbitrator. This evidence has also gone unchallenged and gets sufficient corroboration from the above referred proceedings drawn by the arbitrator on 15-9-1975. There is, therefore, no substance in the Government''s plea that the arbitrator had gone to Pathankot without informing the parties.

The learned Advocate General, however, contended that the above quoted proceedings dated 15-9-1975 do not state the date on which the arbitrator was to go to Pathankot. According to him, therefore, it was not possible for the parties to accompany him to Pathankot. Even this contention is found to be without substance because the claimant Shri Mela Singh has definitely stated that the arbitrator had given date of 18-9-1975 for going to Pathankot. Even otherwise, when the above quoted proceedings were made in the presence of the parties, the parties and their representatives would have naturally enquired from the arbitrator as to on what date he was proposing to go to Pathankot.

In this connection it should also be noted that after the close of evidence the parties submitted written arguments before the arbitrator. I have perused the written arguments submitted on behalf of the Government and I find that there is nothing in these written arguments to suggest that the Government had made any grievance with regard to the arbitrator''s visit to Pathankot.

It is further found from Shri Mela Singh''s deposition that after the arbitrator returned from Pathankot he had read over the statements he had recorded there in presence of both the parties. Even this statement of Shri Mela Singh has gone unchallenged.

From all these facts it is apparent that the arbitrator had gone to Pathankot after informing both the parties and had also kept them conversant with what he had done at Pathankot. I, therefore, see not force in the Government''s contention that he had committed any misconduct in going to Pathankot and recording evidence there.

This disposes of all the contentions raised by the parties, and in view of my findings on these contentions it should follow that the awards given by the arbitrator in all these matters must be accepted and must be made the rule of the Court. It is, therefore, ordered that decrees in terms of these awards be passed in each case in favour of the respective claimants.