PETITIONER: <NAME> & <ORG> Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 29/04/1969 BENCH: ACT: Natural Justice-Applicability of principles to Administrative proceedings-Violation of principles by first authority-Effect on ultimate decision. HEADNOTE: In pursuance of <ORG> (Initial Recruitment) Regulation, 1966, framed under r. 4(1) of <ORG> (Recruitment) Rules made under the All India Services Act , 1951, <ORG> was constituted for selecting officers to <ORG> in the senior and junior scales from officers serving in the forest department of the State of Jammu and Kashmir. One of the members of the <ORG> was the Chief Conservator of Forests of the State, as )required by the Regulations. He was a Conservator of forests appointed as Acting Chief Conservator superseding another Conservator of Forests whose appeal to <ORG> against his supersession was pending at the time the selections by the <ORG> were made. The Act ing Chief Conservator was also one of the candidates seeking to be selected to <ORG>. The <ORG> made the 'selection of officers in the senior and junior scales. The Act ing Chief Conservator's name was at the top of the list of selected officers, while the names of three conservators, (including the officer who was superseded), who were the Acting Chief Conservator's rivals, were omitted. The Act ing Chief Conservator did not sit in the Selection <ORG> at the time his name was considered, but participated in the deliberations when the names of his rivals were considered. He -also participated in the <ORG>'s deliberations while preparing the list of selected candidates in order of preference. The list and the records were sent to <ORG> and <ORG> forwarded the list with its observations to <ORG>, as required by the Regulations, and the <ORG> examined the records of the officers afresh and made its recommendations. <ORG> thereafter notified the list. The three conservators, whose names were not included in the list, and other aggrieved officers filed a petition in this Court under Art. 32 for quashing the notification. On the questions : (1) Assuming that the proceedings in the present case were administrative proceedings, whether principles of natural justice applied to them; (2) Whether there was a violation of such principles of natural justice in the present case; (3) Since the recommendations of the <ORG> were first considered by <ORG> and the final recommendations were made by the <ORG>, whether there was any basis for the petitioners' grievances; (4) Whether there were grounds for setting aside the selection of all the officers including those in the junior scales, HELD : (1) The rules of natural justice operate in areas not covered by any law validly made, that is, they do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceeding also, especially when it is not easy to draw the line that 458 demarcates administrative enquiries from quasi-judicial ones, and an unjust decision in an administrative enquiry may have a more far-reaching effect than a decision in a quasi-judicial enquiry. [468F-G; 469B- <CITATION> ,  1 S.C.R. 317, <CITATION>  2 S.C.R. 625 and In re : H. K. (An Infant)  2 Q.B. 617, 630, referred to. (2) The concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the <ORG> or the body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that enquiries must be held in good faith and without bias, and not arbitrarily or unreasonably, is now included among the principles of natural justice. [468G-H; 469D-L-] In the present case. at the time of selection, the other members of the <ORG> did not know that the appeal of the superseded conservator was pending before <ORG> and hence there was no occasion for them to distrust the opinion of the Acting Chief Conservator. There was a conflict between his interest and duty and he was a judge in his own cause. Taking into consideration human probabilities and the ordinary course of human conduct, there was reasonable ground for believing that the Acting Chief Conservator was likely to have been biased. He did not participate in some of the deliberations of the <ORG>, but the facts that he was a member of the <ORG> and that he participated in the deliberations when the claims of his rivals were considered and in the preparation of the list, must have had its impact on the selection, as the <ORG>, in making the selection, must necessarily have given weight to his opinion. In judging the suitability of the candidates the members of the <ORG> must have had mutual discussions and though the other members filed affidavits stating that the Acting Chief Conservator in no manner influenced their decision, in group discussions, each member was bound to influence the others in a subtle manner and without their being aware of such influence. [466D-G; 467A-D] In the circumstances of the case, the selection by the <ORG>, could not be considered to have been taken fairly and justly as it was influenced by a member who was biased. [470 C-E] (3) The Selection <ORG> was undoubtedly a high powered body, and its recommendations must have had considerable weight with the <ORG> The recommendation made by the <ORG> could not be dissociated from the selection made by the Selection <ORG> which was the foundation for the recommendations of the <ORG> Therefore, if the selection by the Selection <ORG> was held to be vitiated, the final recommendation by the U.P.S.C, must also be held to have been vitiated. [462 G-H; 469G-H] <NAME> v. Criminal Injuries Compensation <ORG>, Ex Parte Lain,  2 Q.B. 864, 881, applied. <NAME> v. <ORG> W.P. No. 237 of 1966, dated 4-5-1967, distinguished. 459 (4) The selections to both senior and junior scales were made from the same pool and so, it was not possible to separate the two sets of Officers. Therefore, it was not sufficient to merely direct the Selection <ORG> to consider the cases of the three conservators who were excluded, but all the selections had to be set aside. [470 G-H; 471A] JUDGMENT:

ORIGINAL JURISDICTION: Writ Petitions Nos. 173 to 175 of 1967.

Petition under Art. 32 of the Constitution of India for enforcement of the fundamental rights.

<NAME> -and <NAME>, for the petitioners (in W.P. No. 173 of 1967).

<NAME>, <NAME> and <NAME>, for the petitioners (in W.P. No. 174 of 1967).

<NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for the petitioners (in W.P. No. 175 of 1967).

<NAME>, Attorney-General, <NAME> and <NAME>, for respondents Nos. 1 to 6 (in all the petitions). <NAME> and <NAME>, for respondents Nos. 7 and 26 (in all the petitions).

The Judgment of the Court was delivered by <NAME>, J. These petitions are brought by some of the Gazet- ted Officers serving in the forest department of the State of Jammu and Kashmir. Some of them are serving as Conservators of Forests, some as Divisional Forest Officers and others as Assistant Conservators of Forests. All of them feel aggrieved by the selections made from among the officers serving in the forest department of the State of Jammu and Kashmir to <ORG>, a service constituted in 1966 under s. 3(1) of the All India Services Act, 1951 and the rules framed thereunder. Hence they have moved this Court to quash notification No. 3/24/66-A-15(IV) dated the 29th July 1967 issued by <ORG>, <ORG>, as according to them the selections notified in the said notification are violative of Arts. 14 and 16 of the Constitution and on the further ground that the selections in question are vitiated by the contravention of the principles of natural justice. They are also challenging the vires of s. 3 of the All India Services Act, rule 4 of the rules framed under that Act and Regulation 5 of <ORG> (Initial Recruitment) Regulations 1966, framed under the aforementioned rule 4.

Section 2(A) of the <ORG> Act, 1951 authorises <ORG> to constitute three new <ORG> including <ORG>. Section 3 provides that <ORG> shall after consulting the Government of the States concerned including that of the State of -Jammu and Kashmir to make rules for the regulation of recruitment and the conditions of service of persons appointed to those <ORG>. Sub-s. (2) of S. 2 prescribes that all rules made under that section "shall be laid for not less than fourteen days before <ORG> as soon as possible after -they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as <ORG> may make on a motion made during the session in which they are so laid."

In pursuance of the power given under S. 3 , rules for the recruitment to <ORG> were made in 1966- Indian Forest Service (Recruitment) Rules, 1966. The only rule relevant for our present purpose is rule 4(1) which reads :

"As soon as may be, after the commencement of these rules, the Central Governme nt 'May recruit to the service any person from amongst the members of <ORG> adjudged suitable in accordance with such Regulations as <ORG> may make in consultation with the State Governments and the <ORG>."

The <ORG> referred to in the above rule is the Union Public Service <ORG>. The Proviso to that sub-rufe is not relevant for our present purpose. We may next come to the Regulations framed under rule 4(1). Those Regulations are known as the Indian Forest Service (Initial Recruitment) Regulations, 1966. They are deemed to have come into force on July 1, 1966. Regulation 2 defines certain expressions. Regulation 3 provides for the constitution of a special selection board. It says that the purpose of making selection to State cadre, <ORG> shall constitute a special selection board consisting of the Chairman of the Union Public Service <ORG> or his nominee, the Inspector General of Forests of <ORG>, ad officer of <ORG> not below the rank of Joint Secretary, the Chief Secretary to the State Government concerned or the Secretary of that Government dealing with the forests and the Chief Conservator of Forests of the State Government concerned. Regulation 4 prescribes the conditions of eligibility. That Regulation contemplates the formation of a service in the senior scale and a service in the junior scale. Regulation 5 is important for our present purpose. It deals with the

-preparation of the list of suitable candidates. It reads :

"(1) The <ORG> shall prepare, in the order of preference, a list of such officers of <ORG> who satisfy the conditions specified in regulation 4 and who are adjudged by the <ORG> suitable for appointment to posts in the senior and junior scales of the <ORG>.

(2) The list prepared in accordance with sub-regulation (1) shall then be referred to the Commission for advice, by <ORG> along with :-

(a) the records of all officers of <ORG> included in the list;

(b) the records of all other eligible officers of <ORG> who are not adjudged suitable for inclusion in the list, together with the reasons as recorded by the <ORG> for their non-inclusion in the list; and

(c) the observations, if any, of <ORG> on the recommendations of the Board.

3. On receipt of the list, along with the other documents received from <ORG> the <ORG> shall forward its recommendations to that Government."

Regulation 6 stipulates that the officers recommended by the <ORG> under sub-r. (3) of Regulation 5 shall be appointed to the service by <ORG> subject to the availability of vacancies in the <ORG> cadre concerned.

In pursuance of the Regulation mentioned above, <ORG> constituted a special selection board for select- ing officers to <ORG> in the senior scale as well as in the junior scale from those serving in the forest department of the State of Jammu and Kashmir. The nominee of the Chairman of <ORG>, one <NAME> was the Chairman of the board. The other members of the board were the Inspector General of Forests of <ORG>, one of the Joint Secretaries in <ORG>, the Chief Secretary to <ORG> and <NAME>, the Acting Chief Conservator of Forests of Jammu and Kashmir.

The selection board met at Srinagar in May, 1967 and se- lected respondents 7 to 31 in Writ Petition No. 173 of 1967. The cases of respondents Nos. 32 to 37 were reserved for further consideration. The selections in question are said to have been made solely on the basis of the records -of officers. Their suitability was not tested by any examination, written or oral., Nor were they interviewed. For several years before that selection the adverse entries made in the character rolls of the officers had not been communicated to them and their explanation called for. In doing so quite clearly the authorities concerned had contravened the instructions issued by the Chief Secretary of the State. Sometime after the afore-mentioned selections were made, at the instance of <ORG>, the adverse remarks made in the course of years against those officers who had not been selected were communicated to them and their explanations called for. Those explanations were considered by <ORG> and on the basis of the same, some of the adverse remarks made against some of the officers were removed. Thereafter the selection board reviewed the cases of officers not selected earlier as a result of which a few more officers were selected. The selections as finally made by the board were accepted by the <ORG>. On the basis of the recommendations of the <ORG>, the impugned list was published. Even after the review <NAME>, <NAME> and <NAME> were not selected. It may also be noted that <NAME>'s name is placed at the top of the

-list of selected officers.

<NAME> had been promoted as Chief Conservator of Forests in the year 1964. He is not yet confirmed in that post. <NAME>, Conservator of Forests in the Kashmir Forest Ser- vice who is admittedly senior to <NAME> had appealed to <ORG> against his supersession and that appeal was pending with <ORG> at the time the impugned selections were made. <NAME> and <NAME> Conservators of Forests also claim that they are seniors to <NAME> but that fact is denied by <NAME>. <NAME> had also appealed against his alleged supersession but it is alleged that appeal had been rejected by <ORG>.

<NAME> was also one of the candidates seeking to be selected to <ORG>. We were told and we take it to be correct that he did not sit in the selection board at the time his name was considered for selection but admittedly he did sit in the board and participate in its deliberations when the names of <NAME>, <NAME> and <NAME>, his rivals, were considered for selection. It is further admitted that he did participate in the deliberations of the board while preparing the list of selected candidates in order of preference, as required by Regulation 5.

The selection board was undoubtedly a high powered body. That much was conceded by the learned Attorney-General who appeared for <ORG> as well as <ORG>. It is true that the list prepared by the selection board was not the last word in the matter of the selection -in -question. That list along with the records of the officers in the concerned cadre selected as well as not selected had to be sent to the Minis-

try of Home Affairs. We shall assume that as required by Regulation 5, <ORG> had forwarded that list with its observations to the <ORG> and the <ORG> had examined the records of all the officers afresh before making its recommendation. But it is obvious that the recommendations made by the selection board should have weighed with the <ORG>. Undoubtedly the adjudging of the merits of the candidates by the selection board was an extremely important step in the process. It was contended before us that s. 3 of the All India Services Act, rule 4 of the rules framed thereunder and Regulation 5 of the Indian Forest Service (Initial Recruitment) Regulations 1966 are void as those provisions confer unguided, uncontrolled and uncanalised power on the concerned delegates. So far as the vires of s. 3 of the Indian Administrative Act is concerned, the question is no more res integra. It is concluded by the decision of this Court in <CITATION> .(1) We have not thought it necessary to go into the question of the vires of rule 4 and Regulation 5, as we have come to the conclusion that the impugned selections must be struck down for the reasons to be presently stated.

There was considerable controversy before us as to the nature of the power conferred on the selection board under rule 4 read with Regulation 5. It was contended on behalf of the petitioners that that power was a quasi-judicial power whereas the case for the contesting respondents was that it was a purely administrative power. In support of the contention that the power in question was a quasi-judicial power emphasis was laid on the language of rule 4 as well as Regulation 5 which prescribe that the selections should be made after adjudging the suitability of the officers belonging to the <ORG> service. The word 'adjudge' we were told means "to judge or decide". It was contended that such a power is essentially a judicial power and the same had to be exercised in accordance with the well accepted rules relating to the exercise of such a power. Emphasis was also laid on the fact that the power in question was exercised by a statutory body and a wrong exercise of that power is likely to affect adversely the careers of the officers not selected. On the other hand it was contended by the learned Attorney-General that though the selection board was a statutory body, as it was not required to decide about any right, the proceedings before it cannot be considered quasi- judicial; its duty was merely to select officers who in its opinion were suitable for being absorbed in <ORG>. According to him the word 'adjudge' in rule 4 as well as Regulation 5 means "found worthy of selection". (1) [1959] 1 Supp. S.C.R. 792.

The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the <ORG> under our Constitution is regulated and controlled by the rule of law. In a welfare <ORG> like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the <ORG> are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbi- trarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power. 'Me following observations of Lord <NAME> in <NAME> v. <ORG>, Ex. Parte Lain(1) are instructive.

"With regard to Mr. <NAME>'s second point I cannot think that <ORG> intended to confine his principle to cases in which the determination affected rights in the sense of enforceable rights. Indeed, in the <ORG> case, the rights determined were at any rate not immediately enforceable rights since the scheme laid down by the commissioners had to be approved by the Minister of Transport and by resolutions of <ORG>. The commissioners nevertheless were held amenable to the jurisdiction of this court. Moreover, as can be seen from Rex. v. Postmaster-General, Ex-parte Carmichael (2 ) and Rex. v. Boycott Ex parte Keasley(3) the remedy is available even though the decision is merely a step as a result of which legally enforceable rights may be affected. The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have varied (1) [1967] 2 Q.B. 864, 881.

(2) [1928] 1 K.B.291.

(3) [1939] 2 K.B. 651.

from time to time being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter parties. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing -a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agree- ment of the parties concerned.

Finally, it is to be observed that the remedy has now been extended, see Reg. v. <ORG>, Ex parte R. A. Brand & Co. Ltd.(1) to cases in which the decision of an administrative officer is only arrived at after an inquiry or process of a judicial or quasi-judicial character. In such a case this court has jurisdiction to supervise that process.

We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the board in my judgment comes fairly and squarely, within the jurisdiction of this court. It is as Mr. <NAME> said, 'a servant of the <ORG> charged by the <ORG>, by execu-

tive instruction, with the duty of distributing the bounty of the Crown. ' It is

clearly, therefore, performing public duties."

<ORG> has held that the power to make a zoning order under Dairy Factory Supply Regulation 1936 has to be exercised judicially, see New Zealand and <ORG> v. <ORG> (2). This Court in <CITATION> .(3) held that the power to alter the area reserved under the Sugar Cane (Control) Order 1966 is a quasi-judicial power. With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, courts are gradually evolving (1)  2 Q.B. 413;

(2) [1953] New Zealand Law Reports p. 366.

(3) [1969] 2 S.C.R. 807.

the principles to be observed while exercising such powers. In matters like these, public good is not advanced by a rigid adherence to precedents. New problems call for new solutions. It is neither possible nor desirable to fix the limits of a quasi-judicial power. But for the purpose of the present case we shall ,assume that the power exercised by the selection board was an administrative power and test the validity of the impugned selections on that basis. It is unfortunate that <NAME> was appointed as one of the members of the selection board. It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most -appropriate person to be in the selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to <ORG> is entitled to great weight. But then under the circumstances it was improper to have included <NAME> as a member of the selection board. He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of <NAME> was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of this participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of <NAME> to keen out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates.

The members of the selection board other than <NAME>, each one of them separately, have filed affidavits in this Court swearing that <NAME> in no manner influenced their decision in making the selections. In a group deliberation each member of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge. Ms <NAME> is likely to operate in a subtle manner. It is no wonder that the other members of the selection board are unaware of the extent to which his opinion influenced their conclusions. We are unable to accept the contention that in adjudging the suitability of the candidates the members of the board did not have any mutual discussion. It is not as if the records spoke of themselves. We are unable to believe that the members of selection board functioned like computers. At this stage it may also be noted that at the time the selections were made, the members of the selection board other than <NAME> were not likely to have known that <NAME> had appealed against his supersession and that his appeal was pending before <ORG>. Therefore there was no occasion for them to distrust the opinion expressed by <NAME>. Hence the board in making the selections must necessarily have given weight to the opinion expressed by <NAME>.

This takes us to the question whether the principles of natural justice apply to administrative proceedings similar to that with which we are concerned in these cases. According to the learned Attorney General those principles have no bearing in determining the validity of the impugned selections. In support of his contention he read to us several decisions. It is not necessary to examine those decisions as there is a great deal of fresh thinking on the subject. The horizon of natural justice is constanlty expanding. The question how far the principles of natural justice govern administrative enquiries came up for consideration before <ORG> in In re : H. K. (An Infant) (1). Therein the validity of the action taken by an Immigration Officer came up for consideration. In the course of his judgment Lord <NAME>, C.J. observed thus :

"But at the same time, I myself think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative frame work under (1) [1967] 2 Q.B. 617, 630.

which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi-judicially." In the same case <NAME>, <NAME> observed thus "I would only say that an immigration officer having assumed the jurisdiction granted by those provisions is in a position where it is his duty to exercise that assumed jurisdiction whether it be administrative, executive or quasi-judicial, fairly, by which I mean applying his mind dispassionately to a fair analysis of the particular problem and the information available to him in analysing it. If in any hypothetical case, and in any real case, this court was satisfied that an immigration officer was not so doing, then in my view mandamus would lie."

<CITATION> .(1) <NAME>, J. speaking for the Court, dealing with an enquiry made as regards the correct age of a government servant, observed thus "We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character,but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it.-The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon there- after a third rule was envisaged and that is that quasi- judicial enquiries must be held in good faith, without bias and not arbitrarily (1)  2 S.C.R. 625.

or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasijudicial in character. Arriving at a just decision is the aim of both quasi- judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decison in a quasi-judicial enquiry. As observed by this Court in <CITATION> .(1) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the <ORG> or body of persons appointed for that purpose. Whenever a cornplaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the obser- vance of that was necessary for a just decision on the facts of that case.

It was next urged by the learned Attorney-General that after all the selection board was only a recommendatory body. Its recommendations had first to be considered by <ORG> and *.hereafter by the U.P.S.C. The final recommendations were made by the U.P.S.C. Hence grievances of the petitioners have no real basis. According to him while considering the validity of administrative actions taken, all that we have to see is whether the ultimate decision is just or not. We are unable to agree with the learned Attorney-General that the recommendations made by the selection board were of little consequence. Looking at the composition of the board and the nature of the duties entrusted to it we have no doubt that its recommendations should have carried considerable weight with the U.P.S.C. If the decision of the selection board is held to have been vitiated, it is -clear to our mind that the final recommendation made by the <ORG> must also be held to have been vitiated. The recommendations made by the Union Public Service <ORG> cannot be disassociated from the selections made by the selection board which (1) [1969] 1 S.C.R. 317.

is the foundation for the recommendations of <ORG>. In this connection reference may be usefully made to the decision in <NAME> v. <ORG> Ex. Parte Lain(1). It was next urged by the learned Attorney-General that the mere fact that one of the members of the Board was biased against some of the petitioners cannot vitiate the entire proceedings. In this connection he invited our attention to the decision of this Court in <NAME> v. <ORG> and another(2). Therein the Court repelled the contention that the proceedings of a departmental promotion committee were vitiated as one of the members of that committee was favourably disposed towards one of the selected candidates. The question before the Court was whether the plea of mala fides was established. The Court came to the conclusion that on the material on record it was unable to uphold that plea. In that case there was no question of any conflict between duty and interest nor any members of the departmental promotion committee was a judge in his own case. The only thing complained of was that one of the members of the promotion committee was favourably disposed towards one of the competitors. As mentioned earlier in this case we are essentially concerned with the question whether the decision taken by the board can be considered as having been taken fairly and justly. One more argument of the learned Attorney-General remains to be considered. He urged that even if we are to hold that <ORG> should not have participated in the deliberations of the selection board while it considered the suitability of <NAME>, <NAME> and <NAME>, there is no ground to set aside the selection of other officers. According to him it will be sufficient in the interest of justice if we direct that the cases of <NAME>, <NAME> and <NAME> be reconsidered by a Board of which <ORG> is not a member. Proceeding further he urged that under any circumstance no case is made out for disturbing the selection of the officers in the junior scale. We are unable to accept either of these contentions. As seen earlier <ORG> was a party to the preparation of the select list in order of preference and that he is shown as No. 1 in the list. To that extent he was undoubtedly a judge in his own case, a circumstance which is abhorrent to our concept of justice. Now coming to the selection of the officers in the. junior scale service, the selections to both senior scale service as well as junior scale service were made from the same pool. Every officer who had put in a service of 8 years or more, even if he was holding the post of an Assistant Conservator of Forests was eligible for being selected for the senior scale service. In fact some (1) [1967] 2 Q.B. 864.

(2) Writ Petition No. 237/1966 decided on 4-5-1967.

Assistant Conservators have been selected for the senior scale service. At the same time some of the officers who had put in more than eight years of service had been selected for the junior scale service. Hence it is not possible to separate the two sets of officers. For the reasons mentioned above these petitions are allowed and the impugned selections set aside. <ORG> and <ORG> shall pay the costs of the petitioners.

V.P.S. Petitions allowed.

<NAME>


JUDGMENT E.S. Venkataramiah, J.

1. This appeal by certificate is filed against the judgment and decree passed by <ORG> in Regular First Appeal No. 43 of 1962, dismissing the appeal filed by the appellants against the judgment and decree passed in Civil Suit No. 5 of 1960 on the file of the District Judge, <NAME> and allowing in part the cross objections filed by the respondent. The appellants were the defendants in the suit and the respondent was the plaintiff. The parties are referred to hereinafter in accordance with their position in <ORG>.

2. The parties belong to Barmer town in the State of Rajasthan. The case of the plaintiff was that on 25.12.1957 the defendants received from him gold weighing 250 tolas as a trust deposit (amanat), that they had agreed to carry that gold to Bombay at their own risk and to deliver it to the plaintiff against the payment of a sum of Rs. 300/- as their remuneration for the work The plaintiff produced along with the plaint a tehrir (amanati chithi) said to have been executed by the defendants under which they had acknowledged the receipt of the said quantity of gold which was of 99.45 fineness. The plaintiff alleged that after receiving the above gold the defendants neither carried it to Bombay nor returned it to him at Barmer. He further alleged that on 27.7 1960 he had sent a registered notice calling upon the defendants to return the gold and as they had failed to comply with his demand, he had instituted the above suit. This suit was filed on October 5, 1960 for recovery of the gold or its value which he estimated at Rs. 34,000/-The defendants are brothers They were all employees of the <ORG>. The first defendant <NAME> was working as the Head Constable in <ORG> since 1940 at Barmer The second defendant <NAME> was then working in <ORG>. The third defendant <NAME> was also working in <ORG> since October 1, 1951 and at the time of the suit he was working as a Head Constable at Barmer. The fourth defendant <NAME> was working as a teacher. All the defendants filed a common <NAME> statement They denied having received any gold from the plaintiff and also the execution of tehrir, i.e., amanati chithi. They denied having undertaken the work of carrying the gold from Barmer to Bombay and to hand it over to the plaintiff at Bombay. They alleged that the Plaintiff was indulging in the smuggling of gold from Pakistan They also pleaded that the suit was barred by time. On the basis of the pleadings the Court framed a number of issues and at the conclusion of the trial <ORG> decreed the suit directing the defendants to hand over to the plaintiff 250 tolas of gold of the fineness of 99.45 and in default a sum of Rs. 34.000/-. The defendants were directed to pay the costs also Aggrieved by the decree of <ORG> the defendants filed the appeal referred to above, before <ORG>. The plaintiff also questioned the decree by way of cross-objections contending that the price of the gold fixed by <ORG> at Rs. 136 - per tola was not correct and that it should have been fixed at Rs 146/- per tola since the price of gold had gone up by the date of the decree He also contended that the decree of <ORG> should be modified by directing payment of interest from he date of the suit on the value of the gold. <ORG> dismissed the appeal of the plaintiff, as mentioned above, but allowed the cross-objections of the plaintiff in part, by directing the defendants to pay interest on Rs. 34.000/- at the rate of 6 per cent per annum from the date of suit, i.e., October 5, 1960 till realisation in addition to the sum of Rs. 34, 000/- in the event of the defendants not returning the gold bar to the plaintiff.This appeal is filed against the judgment and decree of <ORG>.

3. It is no doubt true that in this case both <ORG> and <ORG> have recorded concurrent findings on the question of entrustment of gold to the defendants. But since we found that there were some serious infirmities which had been overlooked by <ORG> and <ORG>, we requested the learned counsel to take us through the evidence on record and to make their submissions on the said question of fact also.

4. Before proceeding further we propose to deal with the contention of the learned counsel for the plaintiff regarding the scope of the power of this Court to interfere with the concurrent findings of fact of <ORG> and of <ORG> under Article 136 of the Constitution. He relied upon <NAME> and Ors. v. <NAME> and Ors. A I.R. 1934 P.C. 12 <CITATION> and Ors. 73 I.A. 246 <CITATION> . (1958) 1 S.C.R. 140 and some other decisions in support of his contention that this Court should not interfere with the findings on facts recorded concurrently by <ORG> and <ORG>. We have duly considered the said decisions. It is true that ordinarily this Court is averse to interfere under Article 136 of the Constitution with the concurrent findings of fact recorded by <ORG> and <ORG>. But where there are material irregularities affecting the said findings or where the Court feels that justice has failed and the findings are likely to result in unduly excessive hardship, this Court cannot decline to interfere merely on the ground that the findings in question are findings of fact.

5. It is relevant to refer here to the observations of <ORG> in <CITATION> (supra) at page 259 that the practice of the <ORG> not to interfere with the concurrent findings of two courts was not a cast-iron one and the statements contained earlier in its opinion as to reasons which could justify departure were illustrative only and that there might still occur cases of such an unusual nature as would constrain the <ORG> to depart from the practice. We cannot also fail to take note of the other constitutional provision, namely, Article 142 which says that <ORG> in the exercise of its jurisdiction may pass such decree or such order as is necessary for doing complete justice in any case pending before it. The Constitution has left it to the judicial discretion of this Court to decide for itself the scope and limits of its jurisdiction in order to render substantial justice in matters coming before it. It is neither possible nor desirable to lay down any rigid rule capable of covering all conceivable cases, while it is however clear that Article 136 does not confer an unrestricted right of appeal on any party to claim the reopening of all questions of fact and law where none exists otherwise ( <CITATION> may add that in some cases having extraordinary or unusual features this Court has interfered with the concurrent decisions of <ORG> and of <ORG>, particularly where the decision turned on the probabilities and the surrounding circumstances material to the case, which had been unjustifiably disregarded by <ORG> and <ORG>, (e.g. <NAME> v. Smt. Nihar Bala Devi- Civil Appeal No. 3 of 1965 decided on 18lh February, 1965).

6. The evidence adduced in this case can be divided into three parts ; (1) the evidence relating to the acquisition of the gold in question by the plaintiff ; (2) the evidence relating to the entrustment of the gold to the defendants ; and (3) the conduct of the parties subsequent to the date of the alleged entrustment.

7. On the question of the acquisition of the gold bar in question by the plaintiff we have the oral evidence of the plaintiff Only. The plaintiff claimed that he was a dealer in forward contracts in gold, silver and cotton and that he had business transactions with some merchants such as <NAME> of Bombay and <NAME> of Bombay, but he had not maintained any account books relating to his transactions. He did not also remember how much income he used to derive from that business. He was not an assessee under the Indian Income Tax Act . As regards the gold in question, his oral evidence was that he had purchased the said gold from a firm called <ORG> of Bombay and he did not remember how much amount he had actually paid for it. But he said that it was a little more than Rs. 25,000/- but less than Rs. 26,000/-. He further stated that he had also purchased on that same date gold weighing about 100 tolas from one <NAME> of Bombay. He stated that he had carried from Barmer to Bombay a sum of Rs. 40,000/- when he went to purchase the gold in question and the said Rs. 40,000/- was a part of the amount lying in his house. The said amount, according to him, comprised of the earnings of his father, his uncle and of himself and there was some more money still left in the house. The entire amount was lying in his house for about 15 years. He further stated that he had taken along with him his sister's son <NAME> when he purchased the gold at Bombay and that one <NAME> of Bhilwara who lived in Bombay had assisted him in purchasing it. He stated that he had brought to <NAME> the entire quantity of gold, i.e., 250 tolas purchased from <ORG> which was the subject matter of the suit and also 100 tolas gold which he had purchased from <NAME> of Bombay. He had, however, to admit in his cross-examination that his house had been mortgaged by his father to secure a loan from one <NAME> and that mortgage had not been discharged for several years. The creditor had filed a suit for recovery of the mortgaged money and that the suit had been decreed. He further admitted that the cash bill under which gold had been purchased by him from <NAME> of Bombay was still lying with him, but he had not produced it into the Court. He also admitted that he had beared that in or about 1957 gold used to be smuggled into <NAME> ; from outside India and was being sent to Bombay.

8. The next part of evidence relates to the case of entrustment of gold to the defendants. The plaintiff stated that he thought that it was feasible to engage the defendants to carry the gold to Bombay because in those days the <ORG> authorities were in the habit of searching persons who were going from Barmer to Bombay and that they did not allow even gold which was lawfully held to be carried by any person. But it would appear that the <ORG> authorities were not in the habit of searching Government officials and, therefore, he thought of entrusting the gold in question to the defendants, who were Government officials, so that it could be carried safely to Bombay. It is the further case of plaintiff that on the morning of December 25, 1957 he went to the house of defendants and it was settled that one of them should accompany the plaintiff to Bombay that evening along with the gold and he should deliver the gold to the plaintiff at the shop of <NAME> at Kalba Devi Road, Bombay. On the same day in the evening, the plaintiff stated, that he took the defendants to his house and entrusted the gold to them. Although he had stated that it had been settled in the morning that the gold would be weighed before its entrustment its weight was ascertained only by the markings on it as can be seen from the evidence adduced by the plaintiff. It was not weighed. In support of his case relating to the entrustment, the plaintiff has relied upon the document Exhibit-1 which is styled as the tehrir, stated to have been executed by the defendants on December 25, 1957 acknowledging the receipt of the gold. <NAME>, P.W.2, stated to be the writer of the tehrir. <NAME>, P.W.3 and <NAME>, P.W. 5, claim to be the attestors of the tehrir. All of them say that the tehrir had been signed by the defendants. <NAME> says that the plaintiff handed over 250 tolas of gold to the four defendants and that it bore the mark of 99.45. He further says that he had handled the gold bar by his hand and that it did not bear the name of any company or firm. <NAME>, P.W.3, also says that the plaintiff entrusted 250 tolas of gold to the defendants, which was of 99.45 fineness. He denies having seen any mark on the gold. The evidence of <NAME>, P.W.5, also is to the same effect but he adds that the words '250 tolas' had been written in English on it. He said that it was agreed that it should be carried on the same day. He stated that he did not enquire why the gold was being sent through the defendants instead of being carried by the plaintiff himself. As regards the subsequent events and his own conduct the plaintiff" stated that when he arrived at the Railway Station for leaving for Bombay on that very day after the gold was entrusted, <NAME>, Defendant No. 1, came there and said that they might leave on the next day. Therefore, he did not go to Bombay. When the defendants also failed to return the gold, he did not report the matter to the Police, since the defendants were telling that they would be returning it. He, however, stated that he told the Sub-Inspector about this fact but he asked him to see the Superintendent and that when he met the Superintendent he told him that he would admonish the defendants and 'get his work done'. It is not known what actually happened thereafter. However, no record of these things is before the Court. These police officers also have not given evidence in the case. It is admitted that the plaintiff did not file any criminal complaint against the defendants and that the only legal action that was taken by him was the suit which was filed nearly two years and ten months after the alleged entrustment. Even the notice of demand was issued nearly two and half years after the alleged entrustment and the defendants had promptly denied the case of entrustment in their reply. This inordinate delay has not been explained except saying that the plaintiff had approached the police officers, as stated above, about which we have no other evidence.

9. All the defendants have given the evidence in the case. They have denied the entrustment of the gold and also the execution of the tehrir. There is the evidence of an handwriting expert who has been examined as D.W. 8, whose opinion was that the document did not contain the signatures which were comparable with the admitted signatures of the defendants.

10. On going through the evidence of this case we find it difficult to hold that the plaintiff was actually in possession of 250 tolas gold which he had purchased at Bombay sometime earlier. The plaintiff has not chosen to examine the person who had sold the gold to him. It is difficult to believe the story that a sum of Rs. 40,000/- which was taken by him to Bombay to purchase the gold in question, which according to him had been earned by his father, his uncle and by himself was lying with him for nearly 15 years. There is no reliable evidence about the means of the plaintiff. It has already been shown that the father of the plaintiff had to mortgage his house for a loan which was outstanding for a long time and the mortgagee had obtained a decree for nearly Rs. 20,000/- against the plaintiff on the foot of the said mortgage. This fact belies the story that a large sum was lying in the house of the plaintiff. Although the plaintiff claims to be a dealer in forward contracts in gold, silver and cotton he has not maintained any account books. The plaintiff has also not examined his sister's son who had accompanied him to Bombay when he purchased the gold in question, nor <NAME> who assisted him in purchasing it. It is strange that the plaintiff who claimed to have brought the gold in question from Bombay to Banner about fifteen months earlier was afraid of carrying it himself from Barmer to Bombay back on account of the fear of a possible search by the <ORG> authorities and that he had thought of entrusting it to the defendants who were <ORG> officials, who were not being searched by the <ORG> authorities. If in fact he possessed the cash bill under which he had purchased the gold there was no need to resort to this mode of carriage of gold. Curiously the tehrir recites that the cash bill also had been handed over to the defendants. It is difficult to believe that the <ORG> authorities were seizing gold from persons who were lawfully holding it. All the four defendants were employees of the <ORG> and there was no suggestion that they were carrying on jointly the business of carrying goods from one place to another for consideration. It is not easily understandable why all of them signed the tehrir together since there was no suggestion that they were either jointly carrying on the business of carrying goods or that three of them had agreed to be the sureties for one of them who had undertaken to carry the gold. The lehrir which is written in a very formal fashion appeats to be quite an unusual one. It is surprising that the plaintiff had not complained to the police even though the defendants had failed to carry the gold to Bombay or to return it to him.

11. On a consideration of the entire evidence, we are of the view that the story of the plaintiff that he had entrusted 250 tolas of gold to the defendants, as alleged by him, is baseless and appears to be wholly artificial. In the circumstances no value can be attached to the alleged tehrir said to have been executed by the defendants, the execution of which is denied by them. Admittedly, the parties were living in an area where smuggling operations were going on on a large scale. Since we do not believe the evidence regarding the purchase of the gold by the plaintiff at Bombay which according to him was latter on entrusted to the defendants, no liability would arise from the document in question even if it is held that such a document had been brought into existence in the peculiar circumstances of the case. The genuineness of the transaction referred to in that document cannot be believed. Neither <ORG> nor <ORG> has given due consideration to the material aspects, referred to above by us and the judgments therefore stand vitiated.

12. In view of the above conclusion, it is not necessary for us to consider the question of the bar of limitation pleaded by the defendants on the basis of Articles 30 and 31 of the Indian Limitation Act , 1908. We, therefore, allow this appeal, set aside the judgment and decree passed by <ORG> as well as the judgment and decree passed by <ORG> and dismiss the suit. The parties shall however bear their own costs throughout.


JUDGMENT <NAME>, <NAME>

1. The question referred for the decision of <ORG> in this case is, whether when an application has been made under Section 525 of the Code of Civil Procedure, and notice has been given to the parties to the alleged arbitration (other than the applicant), the jurisdiction of the <ORG> to order the award to be filed and to allow proceedings to be taken under it, is taken away by a mere denial of the reference to the arbitration on an objection to the validity of that reference. The affirmative of the proposition involved in the reference has no doubt been decided by more than one <ORG> of this <ORG>, and it further has the support of the opinion expressed, though unnecessarily for the purposes of their decision, by certain members of a Full Bench <ORG> in the case of <CITATION> (1893) I.L.R. 21 Cal.213; see 224. There is, however, no authority on the point by which we are bound, so that it is open to us to consider the question on the words of the Code itself, apart from previous decision. The Sections of the Code more directly governing the present case are Sections 525 and 526, which are in these terms:

2. Section 525,--"When any matter has been referred to arbitration without the intervention of <ORG>, and an award has been made thereon, any person interested in the award may apply to the <ORG> of the lowest grade having jurisdiction over the matter to which the award relates, that the award he filed in <ORG>.

3. " The application shall be in writing and shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants.

4. " The Court shall direct notice to be given to the parties to the arbitration other than the applicant, requiring them to show cause, within a time specified, why the award should not be filed."

5. Section 526.--"If no ground, such as is mentioned or referred to in Section 520 or Section 521, be shown against the award, the <ORG> shall order it to be filed, and such award shall then take effect as an award made under the provisions of this chapter."

6. Now, according to a literal reading of Section 525, two conditions are requisite to warrant an application that an award be filed in <ORG>: first, the matter must have been referred to arbitration without the intervention of a <ORG> of Justice; second, an award must have been made thereon. It would, therefore, seem, on general principles, that the existence or non-existence of each of those conditions is a matter for enquiry and adjudication. It is difficult to see how the <ORG> can ascertain whether or not such an award as is mentioned in the section has been actually made, without first ascertaining, if the matter be disputed, whether or not there has been such a reference as is mentioned in the section. It is urged that the section presupposes the existence of a submission or reference to arbitration, and that if this be disputed, the <ORG> cannot go into the matter, but must leave the parties to have the factum or otherwise of reference decided in an independent suit. The practical effect of such contention, if sound, would be that any party to a reference against whom an adverse award has been made, has only to allege that there was no reference, and he can throw the matter over and paralyze the operation of Sections 525 and 526 of the Code. I can scarcely think this was the intention of the <ORG>, nor do I think the language of the section warrants such a contention. It is difficult to see why the <ORG>, on an application under Section 525, can go into the delicate questions indicated in Sections 520 and 521, and yet is unable to go into that of whether or not there were any reference to arbitration, which is the substratum of the whole matter, and upon which the summary jurisdiction under Section 525 is based. It seems a rather odd conclusion that the <ORG> may go into questions which may result in the award being set aside, and yet cannot go into the question of whether or not there has been any valid reference to arbitration. It has however been urged before us that this literal interpretation of this section must be discarded, because, it is contended, there would be no right of appeal from an adjudication on the factum of reference. This by itself, even were the contention well founded, would not be sufficient reason for withholding from clear and unequivocal language its ordinary meaning, for the function of the <ORG> is to expound the Act as it stands according to the plain sense of the words used. Moreover, any argument drawn from the alleged absence of any right to appeal loses its force, in view of the fact that the same consideration would apply to the adjudication as to the existence of an agreement to refer on an application under Section 523, and also as to those matters of far greater difficulty and intricacy indicated in Section 521, and referentially incorporated into Section 526, though undoubtedly they would have to be. investigated and determined. But in fact the whole basis of this argument, in my opinion, has no existence, for I think the right of appeal exists. In the recent case of <CITATION> (1897) I.L.R. 25 Cal. 141 a Division Bench of this <ORG> has held that an appeal will lie against a decree given in accordance with an award under Section 522 of the Code, when the award upon which the decree is based is not a valid and legal award. An award cannot be a valid or legal award if there has been no submission to arbitration, and how then can the <ORG> go into the question of whether or not it is valid or legal if it cannot go into the question of whether or not there were a submission to arbitration. I do not think that Section 522 contemplates there should be no appeal where the validity of the award is challenged. Another argument addressed to the <ORG> on behalf of the opposite party was, that the question of whether or not there had been any submission to arbitration could not be determined, on the ground that under Sections 525 and 526 the <ORG> could only investigate such matters as are indicated in Sections 520 and 521 . This is a somewhat dangerous argument, for, if it were to prevail, the result would be that the existence and validity of the agreement to refer cannot be questioned, and the order to file the award would be a matter of course. It will be noticed that under Section 526 it is compulsory on the <ORG> to file the award, unless some such ground as is mentioned in Sections 520 and 521 be shown against it. The result is that, in my opinion, the jurisdiction of the <ORG> to order an award to be filed, and to allow proceedings thereunder, is not taken away by a mere denial of the reference to arbitration. This view is consistent with the decision of a Full Bench of the Allahabad High <ORG> in the case of <CITATION> (1894) I.L.R. 17 All. 21.

7. I think, however, that this application must be treated as an appeal, the time for appealing not having expired, and not as an application under Section 622 of the Code, and the petitioner must undertake to pay any additional <ORG>-fee there may be on the footing of its being an appeal.

Trevelyan, J.

8. I agree entirely with the view expressed by the learned Chief Justice.

Jenkins, J.

9. I am of opinion that the question referred to us must be answered in the way proposed by the Chief Justice, and for the reasons expressed in his judgment, and I agree with him as to the mode in which the case should be dealt with.

<NAME>, <NAME>

10. I regret that I must in this case dissent from the decision of the other learned Judges of this Bench. In my opinion Section 525 of the Code presupposes that there has been a reference to arbitration and an award made thereon, and the <ORG> under Section 526 must deal with the award on that footing, if it can do so, having regard to the nature of the cause shown. If it cannot, if for instance the cause shown is that there was no submission and consequently no award, the <ORG> must hold its hand and refuse the application.

11. Section 525 does not, it is true, refer to an admitted reference or an admitted award, but the <ORG> might well refrain from using language which was too suggestive. If stress is to be laid on this circumstance, equal stress must be placed on the absence of any indication that when the question of submission is a question in dispute, the <ORG> is to determine on evidence the fact of a submission. I may point out that an express provision to this effect is to be found in Section 531 when an alleged agreement to refer is filed by one of the parties.

12. Section 526 is silent as to the course to be adopted if, in showing cause, there is a denial of any submission, and I see nothing in that section or in Section 525 to prevent the <ORG> from refusing the application on that ground without enquiring into and deciding the disputed fact. The cause to be shown under Section 526 , and established according to the decision of the Full Bench in <CITATION> (1893) I.L.R. 21 Cal. 213. is some cause as is mentioned or referred to in Section 520 or 521, but such cause could only be shown when there was an actual and not merely an alleged award. It would, moreover, be contrary to established practice and to all ideas of justice and fairness that when one party alleges and the other denies a submission, the burden of proof should be placed on the party denying. It is the party objecting who is to show cause, and this <ORG> has held that to show cause means to establish cause.

13. The corresponding Section (321) of the Code of 1859 enacted that if no sufficient cause was shown against the award, the award should be filed. The cases <NAME> v. <NAME> (1871) 8 B. L. R. 315: 15 W. R. (F. B.) 9 and <NAME> v. <NAME> (1876) L. R. 3 I. A. 209 show that there was a difference of opinion as to what those words meant. The intended scope of the section has not been made very clear in the present Code, but the altered language of Section 526 , coupled with the absence of any extending provisions, indicate to my mind that the <ORG> were intended to deal with actual and not with disputed award. Sections 525 and 526 must be read together, and so reading them they bear in my opinion the construction which I have put upon them. This construction is, moreover, consistent with what one may reasonably suppose to have been the intention of the <ORG> that when the tribunal undisputedly chosen by the parties has made its award, the <ORG> should determine in a summary way, without any right of appeal and having regard only to matters arising on the award on the conduct of the parties or the arbitrators in the making of it, whether effect should be given to the award. In determining the scope of these sections one cannot overlook the fact that finality is given to the decree which by the operation of Sections 526 and 522 is to follow on the filing of the award, except, in so far as the decree is in excess of or not in accordance with the award. No appeal is allowed against an order for the filing of the award, and when such an order is made, the award filed is to take effect as an award made under the provisions of Chapter XXVII. That is to say, the <ORG> is to give judgment according to the award, which must of necessity be the award filed; upon that judgment a decree is to follow, and no appeal is to lie against that decree except in so far as it is in excess of or not in accordance with the award. When the decree is in strict accordance with the award filed, I fail to see that there is any right of appeal against the decree. If the <ORG> intended that the <ORG> of the lowest grade having jurisdiction in the matter should decide disputed questions of submission, I cannot believe that an appeal from the decision would have been disallowed. Possibly an appeal might lie on the ground that the <ORG> had made a decree which it had no jurisdiction to make, but that would mean that the <ORG> had decided matters which it was not competent to decide, and such an appeal would be very different from an appeal against the decree, on the ground that the decree was wrong by reason of an erroneous decision on a question of fact antecedent to the award with which alone the <ORG> can deal under Sections 525 and 526 .

14. A Full Bench of <ORG> held in <CITATION> (1894) I.L.R. 17 All. 21 that the words in Section. 526 " if no ground such as is mentioned or referred to in Section 520 or Section 521 " covered all objections relating to the submission and the authority of the arbitrators to act. If this decision is right my view of the section is wrong. I must however with due respect dissent from the decision. It has been already dissented from by <NAME>, C.J., and <NAME>, J.-in Tejpur v. <NAME> (1896) I.L.R. 20 Bom. 596 and I cannot do better than adopt the reasons of those learned Judges for holding that Section 526 bears no such construction as that It is argued, however, that as the application under Section 525 is to be registered and numbered as a suit between the applicant as plaintiff and the other parties as defendants, it must be dealt with as a suit, and that the <ORG> has at the least an implied power to try and decide all matters arising on the application. I think no such implication rises from that direction standing alone and without the addition of further words such as are to be found in Section 331 and in Section 529 read with Section 531 , and having regard to the language used it would, in my opinion, be going very far to hold that the provisions of the Procedure Code relating to suits apply to applications under Section 525 , and that every such application is to be dealt with as a suit. If, moreover, the application is to be dealt with as a suit culminating in a decree one way or the other, one is driven to what seems to me to be an absurd conclusion. The <ORG> makes an order refusing the application on one or other of the grounds referred to in Section 526 after adjudicating on the objections which come within that section. The order is a decree as defined in Section 9 of the Code, for as it is an adjudication on a right claimed on a defence set up which, so far as regards the <ORG> expressing it, decides the suit. An appeal would lie against the decree, an appeal not being prohibited by any provision of law. If, however, the <ORG> after a similar adjudication overrules the objections coming under Section 526 and makes an order that the award should be filed, the order is not an appealable order, and it is not a decree because it does not finally dispose of the suit. Obviously also no appeal would lie against the decree which is to follow on the filing of the award, if the decree was in accordance with the award.

15. It would follow, therefore, that if the application was refused on any ground set out in Section 521 , the plaintiff would have a right of appeal, but if the application was allowed, the objections under that section being overruled, the defendants would have no right of an appeal. I am unable to believe that any such result as this was intended or contemplated and I must decline to put upon the sections a construction which would lead to it, the more especially as I think they bear a more reasonable construction by which such a result is avoided.

16. The consequence would, of course, be much more serious, if there was a dispute as to the submission. In that case, if the <ORG> held there was no submission and refused the application on that ground, the plaintiff would have a right of appeal. If it held that there was a submission and made a decree in accordance with the award, the defendant, in the view which I take and have already expressed, would have no right of appeal.

17. The real objection to putting a limited construction on the two sections seems to be that the defendant by denying that there was any submission could prevent the operation of the sections. I presume that the applicant would have to support his application by affidavit on verified petition, and that the defendant when called on to show cause must show cause in the same sort of way. His denial, therefore, if false, would not be without risk to himself. Nor do I see that in my construction of the sections any serious hardship or inconvenience is involved. The refusal of the application on the ground that there is a dispute as to the factum of a submission means only this, that the special and summary procedure provided by these sections is not applicable to the case. The applicant is not left without a remedy, he can bring a suit to enforce the award, and in that suit all questions upon which the parties are at issue would be tried in the ordinary way and with the ordinary right of appeal.

18. The cases in this <ORG> seem to me to be all one way and in favour of the view I have expressed. I need only refer to <NAME> v. <NAME> (1883) I.L.R. 9 Cal. 557 decided by <NAME>, J., and myself, and to <CITATION> (1883) I.L.R. 10 Cal. 11 decided by <NAME> and <NAME>, JJ. The head-note in the former case does not seem to be quite accurate. <NAME>, J., although he went further than I was disposed to go, says this: ' There is an additional objection to the present order because the applicant when before the Subordinate Judge denied altogether that the submission was binding upon her, and Section 525 seems to me to have no application to a case in which the submission or its binding effect is in dispute." Then there is the opinion expressed by <NAME> and <NAME>, JJ., and in which I concurred, in the <ORG> case <CITATION> (1893) I.L.R. 21 Cal. 213. That case overrules some of the decisions of this <ORG> in which other learned Judges had taken a still more restricted view of the powers of the <ORG> in dealing with applications under Section 525 , and although the opinion above referred to on the question now raised has not the force of a decision, it was deliberately formed and expressed in order to prevent the decision of the <ORG> being carried further than it was intended to go.

19. <ORG> has practically adopted the same construction in <CITATION> (1884) I.L.R. 9 Bom. 254 and <NAME> v. Mahomed Jammal (1896) I.L.R. 20 Bom. 596.

20. The decision of <ORG> in <CITATION> (1894) I.L.R. 18 Mad. 423 when examined will be found to be no authority on the question now raised. On the other side there is the decision of <ORG> already referred to.

21. It follows from what I have said that I entirely dissent from the conclusion that an appeal lies in this case.

Banerjee, J.

22. The question for the determination of which this case has been referred to a Full Bench is Whether when an application has been made under Section 525 of the Civil Procedure Code, and notice has been given to the parties to the alleged arbitration other than the applicant, the jurisdiction of the <ORG> to order the award to be filed, and to allow proceedings to be taken under it, is taken away by a mere denial of the reference to arbitration on an objection to the validity of the reference.

23. The facts of the case upon which this question arises are shortly these: The petitioner before us applied to the <ORG> of the Subordinate ludge of Patna, under Section 525 of the Civil Procedure Code, for filing an award on the allegation that the same had been made on a reference to arbitration without the intervention of the <ORG>. The opposite party appeared on notice being served on her, and objected to the award being filed in <ORG> on the ground that there was no reference to arbitration by her, and that the ekrar or deed purporting to embody her assent to the reference had been fraudulently caused to be signed by her without the purport of the document being explained to her. And the <ORG> below following the cases of <CITATION> (1883) I.L.R. 10 Cal. 11 and <CITATION> (1893) I.L.R. 21 Cal. 213 rejected the application without taking any evidence or making any enquiry into the truth of the allegations on either side. Aggrieved by the order rejecting the application, the petitioner moved this <ORG>, and has obtained the rule which has given rise to this reference.

24. The answer to the question referred to us must depend upon the meaning of Sections 525 and 526 of the Code of Civil Procedure, and in ascertaining that meaning we must look not merely to the letter but also to the spirit of the law, and must also, as far as possible, have regard to the interpretation put by previous decisions upon these and other cognate provisions of the Code .

25. Section 525 says: ' When any matter has been referred for arbitration without the intervention of <ORG>, and an award has been made thereon, any person interested in the award may apply to the <ORG> of the lowest grade having jurisdiction over the matter to which the award relates, that the award be filed in <ORG>.

26. " The application shall be in writing and shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants.

27. " The Court shall direct notice to be given to the parties to the arbitration other than the applicant, requiring them to show cause within a time specified why the award should not be filed."

28. An applicant under Section 525 must, therefore, allege that there has been a reference to arbitration without the intervention of <ORG>, and an award has been made thereon in which he is interested, and it must be competent to the party summoned to show cause to show, not only that the award is open to the objections referred to in Section 526 , but also that the alleged reference to arbitration never took place. Section 526 , it is true, enacts that " if no ground, such as is mentioned in Section 520 or 521, be shown against the award, the <ORG> shall order it to be filed, and such award shall then take effect as an award made under the provisions of this chapter; " but that cannot be taken to imply that the party summoned to show cause can resist the application only if he can show that the award is open to one or more of the objections contemplated by Sections 520 and 521 , and that he is precluded from urging that there was no actual or valid reference to arbitration. It was argued that the effect of Section 526 , referring only to the objections under Sections 520 and 521 , is to make the absence of other objections such as that there was no actual or valid submission to arbitration, a necessary condition for the <ORG>s entertaining an application under Section 525 . But if that had been the intention of the <ORG>, it would have been expressed, not in this obscure and indirect way, but more clearly and directly by making Section 525 run, not as it does, but somewhat to the following effect, namely, ' when it is admitted by all the parties concerned that any matter has been referred to arbitration without the intervention of <ORG>, etc." Moreover, if this argument was well founded, that is, if the jurisdiction to entertain an application for filing a private arbitration award depended upon the admission of all the parties concerned that there was a valid reference to arbitration, it would make the section practically nugatory, it being always in the power of a recusant party to say that he does not admit the fact of a valid reference to arbitration having been made.

29. When Section 525 allows a party to apply to the <ORG> for filing an award on the allegation that there was a private reference to arbitration and that the award was made upon such reference, and when it directs that the application shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants, and the other parties shall be summoned to show cause why the award should not be filed, the <ORG> must be held to have jurisdiction (unless it is expressly taken away, which is not the case) to enquire into and determine the question whether there has been a valid reference to arbitration, in the event of the parties summoned denying the reference. And the object of Section 526 is, in my opinion, not to limit the jurisdiction of the <ORG> under Section 525 to cases in which the reference to arbitration is admitted, but simply to provide that the only grounds upon which the validity of a private arbitration award, made upon a reference to arbitration either admitted or proved, can be questioned are precisely those upon which an award made on a reference to arbitration in the course of a suit can be called in question; or, in other words, its object is to show that the validity of a private arbitration award cannot any more than that of an award made on a reference to arbitration in the course of a suit, be questioned on the ground of the award being erroneous in fact.

30. It was next argued that if it had been intended that the <ORG> in a case under Section 525 should determine the question whether there has been any reference to arbitration when such question is raised, then the <ORG> would have provided in Section 588 for an appeal against an order determining such question adversely to the applicant; and it would further have provided for an appeal against the decree based on the award when such question is decided in his favour, instead of making such decree final as the latter part of Section 526 by implication does.

31. The answer to this argument is simple. An order under Section 525 determining on the objection of the party summoned to show cause that there has been no valid reference to arbitration and rejecting the application which is numbered and registered as a suit, is clearly a decree as defined in Section 2 , and an appeal lies against it under Section 540 . The case of <NAME> v. <NAME> (1866) 6 W. R. Misc. 83: Sup. Vol. B. L. R. 505 was relied upon as showing that such an order is not appealable, but that was a case under the Civil Procedure Code of 1859, which contained no such definition of the term "decree" as is given in Section 2 of the present Code. Again, when the Court disallows the objection that there has been no reference to arbitration, and orders the award to be filed, and a decree is made in accordance with the award under the latter part of Section 526 , which by implication makes Section 522 applicable to the case, though such decree, in so far as it is in accordance with the award, is under the last-mentioned section not open to appeal, yet that does not bar an appeal against the decree when the appeal raises the question whether there was any submission to arbitration and whether there was any valid award at all--- <CITATION> (1884) I.L.R. 11 Cal. 37; <CITATION> (1897) I.L.R. 25 Cal. 141; and Suppu v. <NAME> (1887) I.L.R. 11 Mad. 85; Lachman Das v. <NAME> (1884) I.L.R. 6 All. 174. The finality that Section 522 contemplates attaches to a decree made in accordance with a valid award; the appeal that that section bars is an appeal against the award on the ground of the award being erroneous in fact on the merits.

32. It was then argued that though Section 525 requires that an application for filing a private arbitration award is to be numbered and registered as a suit, it does not, like Sections 331 and 531 , say that the <ORG> is to try the case in the event of opposition in the same manner as a suit, or that its order shall have the same force as a decree; and that a notice to the other parties to the award requiring them to show cause is not the same thing as a summons to them requiring them to defend a suit. I think this argument is fully met by the following answer:

33. In the proceedings under the two sections referred to, namely Section 331 and Section 531 , the matter in dispute between the parties is intended to be determined by the <ORG>, and accordingly it is expressly provided in those sections that the matter shall be determined by the <ORG> in the same manner as a suit, and the order of the <ORG> shall have the same force as a decree. In the class of cases to which Sections 525 and 526 relate, the primary matters in dispute between the parties are, or are alleged to be, determined by the award of the arbitrators; the dispute, if any, that may arise is only as to certain secondary or subsidiary matters, that is, as to the fact or the validity of the award, or of the submission to arbitration or of both; and if on any ground (including a ground such as this, namely, that there was no real or valid submission to arbitration), the <ORG> holds that the award cannot be filed, it is evidently not open to the parties to ask the <ORG> to decide for itself the matters to which the award relates; so that any specific provision to the effect that the <ORG> is to decide the case as a suit would have been wholly out of place. The absence of any such provision cannot therefore afford valid ground for any adverse argument.

34. Then as to the supposed distinction between a notice to show cause and a summons to defend a suit, I think it is sufficient to say that when upon a notice to show cause, the party served with notice must allege and prove cause, and the <ORG> must fully and finally determine the validity of the cause shown so far as it relates to matters contemplated by Sections 520 and 521 , as has been settled by the decision of the Full Bench in Surjan v. Bhikari I.L.R. 21 Cal. 213 there can be no good ground for thinking that those words imply either that the <ORG> is not to determine at all, or that it is to determine only summarily, and subject to a more complete determination by a suit, the cause shown, when the cause shown consists in a denial of any reference to arbitration.

35. It was lastly argued that as the procedure prescribed by Section 525 is a summary one, and the proceeding is instituted by an application and not by a plaint on payment of a proper <ORG>-fee, it is not likely that the <ORG> intended that any difficult questions, such as those relating to the fact or validity of a reference to arbitration, should be enquired into by the <ORG> under that section. But the simple answer to the argument is this, that the <ORG> must under Section 526 enquire into and determine objections such as those referred to in Sections 520 and 521 , which raise questions of far greater nicety and difficulty than those sought to be excluded from the <ORG>'s consideration, and there is no reason why the <ORG> should not determine these last which lie at the threshold of the case, when it must enquire into the former.

36. Sections 523 and 524 to some extent favour the view I take. They provide that a party to a private agreement to refer to arbitration any matter in dispute may apply to have the agreement filed in <ORG>; thereupon the application is to be numbered and registered as a suit between the applicant and the other parties to the agreement, and a notice is to be issued to them to show cause why the agreement should not be filed, and if no sufficient cause be shown the agreement will be filed, arbitrators appointed, and the case proceeded with in the same manner as if the reference to arbitration had been made in a pending suit. Now in such a case the cause shown can relate only to the fact, validity or subsistence of the agreement to submit to arbitration, and if the <ORG> is to enquire into these matters in a proceeding instituted under Section 523 , there is no good reason why it should not enquire into them in a case under Section 525 , As I understand the sections included in Chapter XVII of the Code of Civil Procedure, they are intended to provide for all cases of reference to arbitration, whether it be made, in the course of a suit, or privately without the intervention of a <ORG>. The first group of sections, that is, Sections 506 to 522 , provide for reference to arbitration in the course of a pending suit; the second group, that is Sections 523 and 524 , relate to cases in which the parties have, or are alleged to have, before instituting any suit, privately come to an agreement to refer any matters in dispute to arbitration, but have proceeded no further; and the third group, that is Sections 525 and 526 , to cases in which there has been, or is alleged to have been, a private submission to arbitration followed by an award. In the first group of sections are given in detail the provisions applicable to the subject, while the other two groups concisely and by implication refer to such of the provisions of the first group as are respectively applicable to the classes of cases they contemplate, and it is their brevity which has given rise to the difficulty of construing them.

37. I may add that the view I take has the effect of preventing multiplicity of judicial proceedings by making the proceedings under Section 525 determine finally all the necessary questions that may arise in it, and it is in accordance with the view taken by the majority of <ORG> in <NAME> v. <NAME> (1897) I.L.R. 24 Cal. 908 upon a somewhat analogous question arising upon the construction of Section 375 .

38. It remains now to consider the eases cited.

39. Of these <NAME> v. <NAME> (1866) 6 W. R. Misc. 83 (which has already been referred to above), and <NAME> v. <NAME> (1871) 8 B.L.R. 315: 15 W. R. (F. B) 9 were decided under the Civil Procedure Code of 1859 under which the provisions relating to appeal were, as has been shown above, different from those under the present Code.

40. The cases of Ichamoyee Chowdhranee v. <NAME> (1883) I.L.R. 9 Cab 557; Hurronath Chowdhry v. <NAME> (1883) I.L.R. 10 Cal. 74 which not only favour the contention of the opposite party, but go a great deal further, have been dissented from by the Full Bench in <CITATION> (1893) I.L.R. 21 Cal. 213.

41. The case of <CITATION> (1883) I.L.R. 10 Cal. II, is no doubt against the view I take. The decision in that case is based upon the terms of Section 526 . <NAME>, J., in delivering the judgment of the <ORG> says: "It appears from Section 526 that the <ORG> has jurisdiction to adjudicate only upon the grounds of objection mentioned in Sections 520 and 521 ." For the reasons given above I must respectfully dissent from this view. And the same remarks apply to the case of Tejpur v. <NAME> (1896) I.L.R. 20 Bom. 596.

42. The opinions of <NAME>, <NAME> and <NAME>, <NAME>., in <CITATION> (1893) I.L.R. 21 Cal. 213 are also against the view I take. But those opinions were not necessary to be expressed for the determination of the question before the <ORG>. The ground upon which those opinions are based is the absence of any reference in Section 526 to any objections other than those contemplated by Sections 520 and 521 . But this ground, as I have tried to show above, is not sufficient to support the inference that is based upon it.

43. The case of <CITATION> (1891) L. R. 18 I. A. 73 was referred to as showing that <ORG> held that an order rejecting an application for filing an award under Section 525 would not operate as res. judicata, upon the question of the validity of the award, and thence it was argued that the jurisdiction of the <ORG> under that section must be of a very limited character. I do not think that the case cited lays down any such broad rule or supports any such inference. Their Lordships overruled the plea of res judicata, not upon the ground of the jurisdiction of the <ORG> under Section 525 being limited in any way, but solely upon the ground of the question as to the validity of the award not having been raised and decided in the former proceeding.

44. On the other hand the cases of <CITATION> (1894) I.L.R. 17 All. 21 and Husananna v. Ling anna (1894) I.L.R. 18 Mad. 423 support the view I take.

45. For the foregoing reasons I would answer the question referred to us in the negative.

46. But here an important point arises for consideration. As in the view I take the order of the <ORG> below rejecting the application is open to appeal, is it competent to the petitioner to invoke our interference under Section 622 of the Code of Civil Procedure? The question I think must be answered in the negative. But as, regard being had to the value of the subject-matter to which the award relates, the appeal lies to this <ORG>, and as the application under Section 622 was made before the expiry of the time allowed for an appeal, I would treat the application as an appeal (provided the applicant puts in the proper <ORG>-fee) and I would decree the appeal, set aside the order of the <ORG> below, and remand the case to that <ORG> for a decision on the merits.

<NAME>, <NAME>

47. With this indication of our opinion we remit the case to <ORG> which referred it to us. We fix three gold mohurs as the hearing fee for the hearing before <ORG>.