S.L. Talati, J.
1. The petitioner is the Board constituted under the provisions of Gujarat Water Supply Sewerage Board Act, 1978 and it has come to this Court under Article 226 of the Constitution of India and by that petition the order passed by the Civil Judge (S. D.), Narol in Civil Miscellaneous Application No. 231 of 1981 dated 30-11-1981 18 30-11-1981 18 challenged. The order passed by respondent No. 2, the Sole Arbitrator appointed by the order of the Civil Judge, Narol is also challenged and both orders are produced at annexures 'A' and 'B' to the petition.
2. The short facts which are required to be stated for the purpose of deciding this petition are as under.:
Some pipelines were required to be laid for Bhavnagar city somewhere in the year 1976. It was a scheme sanctioned by the state Government and known as Bhavnagar City Water Supply Scheme based on Shetrunji Dam. The work was entrusted to respondent No. 1. There were disputes between the parties and it appears that respondent No. 1 gave a notice and desired that the matter was required to be referred to the Arbitrator. There was no response and, therefore, respondent No. 1 filed Civil Miscellaneous Application No. 231 of 1981 in the Court of Civil Judge (S. D.) at Narol and requested the Court to appoint respondent No. 2 as a sole Arbitrator or in the alternative any other person as Sole arbitrator for resolving the disputes of the parties. The written statement was filed, a copy of which is produced at annexure 'B'. Several contentions were taken and it was urged that there was breach of condition of the agreement which was not covered by the specific condition as laid down in Clause 30 of the agreement between the parties. After raising various contentions in paragraph 9 of the written statement it was stated as under:However, subject to the aforesaid contentions the opponents would agree to the appointment of Shri G. G. Vaidya as arbitrator with specific understanding that the arbitrator shall have first to decide which of the alleged disputes set forth in the application fall within the purview of Clause 30 of the agreement and then decide only those which fall within the purview of it. The opponents will not object if the appointment is made with such specific court order.
Now, therefore, the present petitioner made it clear to the Judge that if Shri G. G. Vaidya, respondent No. 2 was appointed as an arbitrator they had no objection but he should be appointed with specific Understanding that he has first to decide which of the alleged disputes fall within the purview of Clause 20 of the agreement and thereafter decide only those which fall within the purview of it. The learned Civil Judge thereafter passed order which is produced at annexure 'A'. The order is dated 30-11-1981 and after slating the reasons the final order is passed which runs as under:
Shri G.G. Vaidya. Rt. Supdt. Engineering, Government of Gujarat is appointed as Arbitrator on concurrence of both the sides and with a specific understanding that he will have first to decide which of the alleged disputes set forth in paras 8 and 10 of the application will fall within the purview of Clause 30 of the agreement and then proceed to decide only those covered thereunder.
Now, therefore, reading paragraph 9 of the written statement and taking into consideration the fact that this order was never challenged by the petitioner in any superior Court thereafter and further fact that there-after they went before Shri G.G. Vaidya and argued the matter where Shri G.G. Vaidya heard the parties on the first question as to which of the disputes set forth would fall within the meaning of Clause 30 of the agreement, would go to show that this order was passed in fact with concurrence of both the sides. In fact one cannot go beyond record of the court and can never say that both parties did not agree to such a course. However, in this particular case even if it is so suggested, the written statement paragraph 9 and subsequent conduct of the parties would clearly go to show that what the learned Civil Judge stated was absolutely correct in his order that both parties had agreed to this type of recourse and thereafter the order was passed.
3. Thereafter several meetings were held before respondent No. 2. Shri G.G. Vaidya. The first preliminary meeting was held on 12-1-1982. Thereafter preliminary statement was filed by the claimants on 29-1-1982. The second meeting was held on 24-4-1982 and at that meeting the Managing Director and the Secretary of the petitioner together with their advocates remained present and on behalf of the other side meaning thereby the respondents side so far as the matter there was concerned (here the respondent is the petitioner), the persons who remained present were, the Superintending Engineer, Executive Engineer and Deputy Engineer and the Government advocate Shri M. A. Trivedi. By that time as four months for publication of the award had expired, the parties gave an undertaking to apply for extension of time. They also gave undertaking that they were appearing without any objection with a condition that they would obtain necessary permission from the Court and the proceedings were resumed, the arguments were heard and ultimately parties agreed to produce evidence and third meeting was held on 4-5-1982 where the representatives of the parties and their advocates remained present and the arguments were resumed. Legal opinion from learned advocate Shri N.A. Palkhiwala on the arbitrarily of the claim under Section 30 was filed which was objected to and the next meeting was thereafter held on 5-5-1982. It was held that the legal opinion which was produced was in general terms and it was not a claim-wise opinion and the parties were at liberty to argue on each claim regarding facts and the applicability or otherwise of any of the sub-clauses which provide for arbitration.
4. Thereafter arguments were resumed and the arguments were heard on all claims from 10(a) to 10(o).
5. The next meeting was fixed on 22-5-1982, The arbitrator decided that out of claims 10(a) to 10(m) and 10(o) the claims at sr. Nos. 10(g) and 10(i) were considered not arbitrable and the rest of the claims were considered arbitrable and he gave reasons for doing so and thereafter adjourned the matter on 22-5-1982 for the purpose, of proceeding in the matter on merits. That order came to be passed, on 5-5-1982 which is produced at annexure 'B'. Thereafter on 6-7-1982 this petition is filed in this Court challenging the two orders which are produced at annexures 'A' and 'B' and therefore, the petition -was filed for a writ of prohibition and also for a writ of mandamus audit was prayed that the order at annexure 'A' passed by the Civil Judge may be quashed and a writ of prohibition may be ordered against the arbitrator not to proceed with the arbitration between the petitioner and the respondents. It was very vehemently submitted that the learned Civil Judge (S. D.), Narol abdicated his function and did not exercise the jurisdiction which he had. It was submitted that it was he who was expected to decide as to what disputes were covered by Clause 30 and thereafter refer those disputes only to the arbitrator. The finction to decide as to which disputes were covered by Clause 30 was not the function of the arbitrator and learned Civil Judge not only abdicated his function but decided to arm the arbitrator with a function which the arbitrator was not expected to perform and the arbitrator further erred in taking upon itself the function which in fact was not his and, therefore, the Civil Judge, Narol and the arbitrator both committed grave error of law by abdicating his jurisdiction and the arbitrator assuming the jurisdiction. This was at the highest the case put forth by the learned advocate Shri Vakharia for the petitioner. In order to support this argument certain authorities were cited which may be referred to at this stage before deciding about the submissions 'made by the learned advocate Shri Vakharia.
6. The first authority which is required to be referred to is the case of A. M. Mair and Co. v. Gordhandas Sagarmull reported in : 1SCR792 . It was a case where the arbitration clause in a contract provided for reference to arbitration of all matters questions, disputes, differences and/or claims arising out of and/or concerning...or relating to this contract and the question was whether a party to the contract was acting merely as a broker; or was the principal bound by the contract. It was held:
As the question turned upon the true interpretation of the contract and the parties had to take recourse to the contract to establish the claim, it was a dispute under or arising out of the contract and thus within the jurisdiction of the arbitrators.
It was further held that 'once the dispute is found to be within the scope of the arbitration clause, it is no part of the province of the Court to enter into the merits of the dispute'. Now, therefore, this was a case where purely on interpretation of the contract it was found that it was a contract where everything was left to the arbitrator and, therefore, the arbitration clause provided for arbitration and, therefore, the court was not required to enter into the merits of the case.
7. The second case to which reference was made was the case of Chhogalal and Anr. v. New Ganesh Finance Co. Beawar reported in A.I.R. 1966 Rajasthan at page 181. It was a case where the opposite party challenged the arbitration agreement. It was held:
Civil Court has jurisdiction to decide about the existence of contract out of which arbitration clause arises.
In that case written statement which was filed by the opposite party was treated as an application under Section 33 of the Arbitration Act. It was a case where in a proceeding under Section 8 of the Arbitration Act reply was filed in which it was alleged that they merely hired a truck from the respondent and did not enter into any written agreement and that their signatures were obtained on 65 blank papers including some stamps at Udaipur. Before the learned Senior Judge it wag prayed that it may first be decided whether there was an arbitration agreement between the parties. That prayer was overruled on two grounds. One ground was that if the court adjudicates upon the question as to whether or not they entered into the hire purchase contract as both are contained in the same document and would thereby be encroaching upon the jurisdiction of the arbitrator. The second ground on which the learned Civil Judge refused to decide the question was that the applicants had not moved, an application under Section 33 of the Arbitration Act. The opinion of the Civil Judge was considered as erroneous on the first point considering the case of Hevman v. Darwins Ltd. 1942-1 All England Report page 337. The following passage was quoted:
An arbitration clause is a written submission, agreed to the contract, and, like other written submissions to arbitration, must be construed according to its language and in the light of the circumstances, in which it is made. If the dispute is as to whether the contract which contains the clause has ever been entered into at all, that issue cannot go to arbitration under the clause, for the party who denies that he has ever entered into the Contract is thereby denying that he has ever joined in submission.
The second objection was overruled and set aside and it was ordered that written statement filed may be treated as an application under Section 33 of the Arbitration Act.
8. The third case to which reference may be made is the case of Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar and Anr. reported in : 1SCR501 . It was held:
The test in such cases is whether recourse to the contract by which the parties are bound is necessary for the purpose of determining the matter in dispute between them. If such recourse to the contract is necessary, then the matter must come within the scope of the arbitrator's jurisdiction.
The question was regarding policy of insurance which contained the arbitration clause. It was also held considering all the relevant facts as under:
The difference between the parties was therefore a difference arising out of the policy and the arbitrator had jurisdiction to decide it, the parties having made him the sole Judge of all differences arising out of the policy.
In paragraph 9 it was held as under:
Again, no question of determining the effect of the arbitration agreement arises, because there is no dispute between the parties as to what it means. The language of the arbitration clause is quite clear, and both parties construe it in the same way. The real question between them is whether respondent I has or has not complied with the conditions of agreement. But this question does not turn on the effect of the agreement. This i' the view which has substantially been taken by the High Court and in our opinion it is correct.
9. Anther case to which reference was made was the case of Gordhandas Pursottam Sonawala v. Natvarlal Chandulal and Co. reported in : AIR1952Bom349 . There the question arose because of an application under Section 33 of the Arbitration Act. It was held as under:
Normally in dealing with an application under Section 33 of the Arbitration Act, the Court is concerned with determining the existence, legality or effect of an arbitration agreement at the instance of a party challenging the arbitration agreement, and the Court is not concerned with the existence or validity of the transactions which are the subject-matter of arbitration. The question as to the existence or validity of the subject-matter of the dispute cannot directly fall within the scope of an enquiry as to the existence or validity of the arbitration agreement. But when the petitioner desires to have the effect of the arbitration agreement determined, the Court is entitled under Section 33 in so doing to consider whether the particular dispute before the Court is within the scope of the arbitration agreement. If the Court comes to the conclusion that a dispute is within the arbitration agreement, the arbitrator is the sole judge of it, but if it does not fall within the scope of the arbitration agreement, the court is entitled to declare the effect of the arbitration agreement and incidentally upon the validity of the contract.
10. Another case to which reference was made is the case of union of India v. Chamanlal Doona and Co. reported in : 1SCR1039 and it was held as under:
On an application under Section 20, ordinarily the only point for decision for the Court was if there was an arbitration agreement and the question of liability was one for the arbitrator and not for the Court to decide. Where, however, it appears that the Union of India as such was admittedly not a party to the arbitration agreement and could not be dragged, therefore, to an arbitration proceeding on the strength of an agreement to which it was not a party unless by operation of law it was deemed to be a party to the agreement, the question of liability must be decided by the Court.
11. Another case to which reference was made is the case of Chandra Bhushan Khanna and Ors. v. Brij Nandan Singh and Anr. reported in : AIR1978All459 . This ruling was cited on the question as to whether the consent can confer the jurisdiction it was also decided that delay in taking objection to jurisdiction cannot be a ground to confer jurisdiction even impliedly of it was lacking inherent jurisdiction. It was held that the jurisdiction cannot be conferred on ft court by consent, acquiescence or waiver where there is none, nor can it be ousted where it is. Acquiescence, waiver or consent of the parties may be relevant in objections relating to pecuniary or territorial jurisdiction of the court but these factors have no relevance where the court lacks inherent jurisdiction which strikes at the very authority of the court to pass any decree and renders the decree if passed, a nullity.
12. The last case to which the learned advocate Shri Vakharia referred to is the case of Khardah Company Ltd. v. Raymon and Co. reported in A.I.R. 1962 Supreme Court at page 1810. Paragraphs 3, 4 and 9 were read before me. The important passage occurs in paragraph 9 which runs as under:
Where the contract itself is repudiated in the sense that its original existence or its binding force is challenged, e.g., where it is said that the parties never were ad idem, or where it is said that the contract is voidable ad initio (e.g., in cases of fraud, misrepresentation or mistake), and that it has been avoided, the parties are not bound by any contract and escape the obligation to perform any of its terms including the arbitration clause unless the provisions of that clause are wide enough to include the question of jurisdiction.
It was also held that a dispute as to validity of agreement though not raised before the arbitrator the parties are entitled to raise the same in an application under Section 33. Party taking part in proceeding is not estopped by conduct from questioning validity of award.
13. Now as I have stated earlier the learned advocate Shri Vakharia tried to support the submissions that he made by citing the aforesaid authorities. It may here be mentioned that there was a written agreement between the parties and there was an arbitration clause contained in Clause 30 of that written agreement and the relevant part of Clause 30 may be reproduced as under:
Clause No. 30:
30 (1) The disputes relating to this contract, so far as they relate to any of the following materials, whether such disputes arise during the progress of the work or after the completion or abandonment thereof, shall be referred to the sole arbitration of the person who is holding or has held a post not below the rank of a Superintending Engineer, State of Gujarat:
(i) The rates of payment under clause-5 for any tools, plants, materials and stores, in or upon the contractor or procured by him and intended to be used for the execution of the work or any part thereof which possession may have been taken by the Engineer-in-charge under the said clause-5.
(ii) The reduction in rate made by the Engineer-in-charge, under clause-9 for the item of work not accepted as completed fully in accordance with the sanctioned specifications.
(iii) The rates of payment for any class of work in which is included in the additional or altered work carried out by the contractor in accordance with the instructions of the Engineer-in-charge under clause-14 and the rate for which is to be determined under the said clause-14.
(iv) The rates of payment for materials already purchased or agreed to be purchased by the Contractor before receipt of notice given by the Engineer-in-charge under Clause-15, and/or the amount of compensation payable to the contractor under the said clause for loss in respect of such materials.
(v) The amount of compensation which the contractor shall be liable to pay under clause-17 in the event of his failure to rectify, remove or reconstruct the work within the period specified in the written intimation or the amount of expenses incurred by the Engineer-in-charge under the said clause-17 in rectifying, removing or re-executing the work or in removing and replacing the materials or articles complained of.
(vi) The reduction of rates as may be fixed by the Engineer-in-charge under clause-17 for the interior work or materials as accepted or made use of.
(vii) The amount of compensation payable by the contractor for damages as estimated and assessed under clause-23.
(viii) The amount payable to the contractor for the work carried out under clause-32 in accordance with the instructions and the requirement of the Engineer-in-charge in case where there is no specification.
(2) The provisions of the Arbitration Act, 1940 and rules made thereunder shall apply to the arbitration proceedings under this clause....
Now that, therefore, Clause 30 has reference to clauses 5, 9, 14, 15, 17, 23 and 32. Now, therefore, if there was a dispute there could be arbitration under Clause 30. If there are disputes which are outside those clauses they are not covered by Clause 30. Now. whenever an application is made before the Civil Court the court has to determine first as to which of the disputes fall within clauses 5. 8, 14, 15, 17, 23 and 32 and thereafter refer these disputes only to the arbitrator. The petitioner did raise the contention in the written statement that all disputes did not arise under those clauses. However, it was not the case that none of the disputes arose under those clauses. Now, therefore, there was a duty cast on the Judge. But thereafter in the written statement itself a concession was made that if the arbitrator decides that question first the petitioner had no objection. Thus the parties themselves led the Court to pass an order and the Court if it is suggested fell into an error it was because of the fault of the parties themselves. Thereafter also it was open for any of the parties to move the superior court and challenge that order which was passed by the learned Civil Judge. That was not done. The matter did not rest there. The parties went before the arbitrator, argued the points in all its details as to which dispute would fall within which of the clauses and would attract Clause 30 or not. Ultimately the arbitrator for the reasons that he recorded came to a particular conclusion by which he came to the conclusion that two of the disputes did not fall within Clause 30 and others did fall. Now that was a decision which was invited by the parties after arguments. So the petitioner took a chance of winning before the arbitrator. Having failed there it dawned upon him that the petitioner had committed a mistake. Perhpas they became wise and the petitioner thought that it should not have subjected itself to the jurisdiction of the Arbitrator and, therefore now they have come to this Court saying that their consent, their submissions before the arbitrator cannot confer jurisdiction and, therefore, this Court should now at this stage interfere and set the things right.
14. The learned advocate Shri N. J. Mehta Vehemently urged before me that the writ jurisdiction of the High Court is of an extra ordinary mature and therefore, that jurisdiction should not be exercised at the instance of a party who itself allowed the civil court to pass an order by consent and ultimately did not choose to challenge the order passed by the civil court and went before the arbitrator and submitted before the arbitrator the particular disputes and thereby took chance of winning before the arbitrator. The petitioner had specifically agreed to go to the arbitrator 'with a condition that the arbitrator shall first decide the question as to which of the disputes could be referred to him and that precisely what the arbitrator did is right or wrong is not required to be decided at this Stage. If ultimately the award is passed by the arbitrator that award could always be challenged before the civil court under Section 30 and 33 of the Indian Arbitration Act, 1940 and If civil court is satisfied regarding the grounds which are necessary for the purpose of setting aside the order the civil court will have power to set aside the award if found necessary or thought fit. The learned advocate Shri Mehta referred to certain cases which are required to be referred to at this stage.
15. The first case to which reference may be made is the case of State of Maharashtra v. Ramdas Shrinivias Nayak and Anr. reported in : 1982CriLJ1581 . This ruling was cited for the purpose of showing that the order passed by the Civil Judge in which it was stated that the order was being passed with concurrence of both the sides. That question cannot be agitated now and suggested that merely because the contentions were taken in the written statement to the effect that certain disputes were of a nature where Clause 30 would not be attracted and thereafter only there was an alternative plea suggesting that they had no objection to the appointment of Shri Vaidya as arbitrator with a specific understanding that he will have to decide as to which of the alleged disputes set forth in Sections 8 and 10 of the application will fall within the purview of Clause 30 of the agreement. The learned Judge in the case referred to above stated as under:
We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done Public Policy bars us Judicial decorum restrains us. Matters of judicial record are unquestionable They are not open to doubt, Judges cannot be dragged into the arena. 'Judgements cannot be treated as more counters in the game of litigation'. We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence.
It was further observed as under:
The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contract such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected.' If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on ft wrong appreciation of the law and had led to gross injustice, but he may not call in question the very fact of making the conclusion as recorded in the judgment.
Now, therefore, the petitioner cannot be heard to say that the concession was not made. It may be that the contentions may have been taken in the written statement and the consent in the written statement to the appointment of Shri Vaidya may be an alternative plea. But it is clear that at the stage of arguments the concession most have been made as it is very clear from the order recorded. Not only the concession was made with a specific condition which was also embodied in the order. The subsequent conduct makes it clearer. The subsequent conduct is that that order was not challenged before that Judge and it was not challenged before any superior court. On the contrary the petitioner went before the arbitrator and argued the matter as per their concession. Thereafter when the petitioner could not succeed before the arbitrator it has now come to this Court saying that the concession was not made. That argument cannot be accepted. It may be open to the petitioner that the concession was made on the wrong notion of law and the concession did not authorise the Judge to abandon his jurisdiction to decide the matter and the concession did not authorise the arbitrator to assume jurisdiction which he had none. These are matters which can be urged at an appropriate stage after the award is passed in an application if at all made to get the award set aside. That may be entirely a different matter.
16. Another ruling which is required to be referred is the case of Gandhinagar Motor Transport Society v. State of Bombay reported in : AIR1954Bom202 . The Division Bench of the High Court held as under:
B fore a question of jurisdiction of a tribunal is raised on a petition under Articles 126 and 227, objection to jurisdiction must be taken before the tribunal whose order is being challenged.
What was further observed was as under:
It is not as if by the petitioner not challenging the jurisdiction of the tribunal that he confers jurisdiction upon that tribunal if that tribunal has no jurisdiction. Bat what the English Courts have said is that the High Court has been asked to exercise a special jurisdiction, not an ordinary jurisdiction, and the High Court is entitled to know what the tribunal has to say on the question of jurisdiction which the petitioner wants to agitate before the Court. There is another principle underlying this view, and that is that the tribunal which is brought before the court should itself be given an opportunity to decide that it has no jurisdiction, before the High Court is called upon to give its decision.
It must be borne in mind that in exercising its jurisdiction under Articles 226 and 227 the High Court is not exercising an ordinary jurisdiction. It is always open to a petitioner to assert his rights in a suit property filed, but when he chooses to assert his rights by calling upon the High Court to exercise its special jurisdiction, the High Court must itself lay down certain principles for the exercise of that jurisdiction and must not make the exercise of that jurisdiction a matter of ordinary concurrence A suit may Well be filed within the period of limitation, the Judge trying the suit does not non-suit the plaintiff because he came to Court towards the end of the period of limitation: but this Court tells the petitioner 'you' must come to the Court expeditiously.
Equally so a defendant may not raise the question of jurisdiction in the Court of first instance, he may not raise the question of jurisdiction in the appellate Court, he may postpone raising the question of jurisdiction lip to the Stage of the Privy Council or 4he Supreme Court, yet if the Court has no jurisdiction the highest Court in the land Will allow the point to be raised and decide in it favour of the defendant, But the principle is different When the petitioner comes to this Court for a writ. The Court must tell the petitioner : 'It was open to you to raise that point before the tribunal whose order you are challenging. You have Sat on the fence, you have taken a chance of the tribunal deciding in your favour, and it is not open to you now to come to us and ask for a writ.
The quotation from the judgment of Channel J. was quoted as under:.A party may by his conduct preclude himself from claiming the writ 'debito justice, no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted' ex debito justicia' to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the fact on which he relies to impugn them.
17. Another case which was referred to was the case of Kifayatullah Khan v. Registrar of Co-operative Societies and Ors. reported in A.I.R. 1956 Hyderabad at page 129. There it was observed as under:
Certiorari, as is well known, goes to the jurisdiction of the authority determining the case. It does not go to any error of judgment that may have been committed in the exercise of the jurisdiction. Different considerations would arise where a party seeks to attack the validity of an order on the ground of want of jurisdiction in proceedings under Article 226 of the Constitution where he had submitted to the jurisdiction of the tribunal. The jurisdiction conferred on the High Court by Article 226 of the Constitution is a limited jurisdiction and the power exercisable by the High Court under the above Article is an entirely discretionary one and when the question arises as to whether the court should exercise the discretion in favour of the applicant the Court would take into consideration among other circumstances the conduct of the party applying.
Hence where the petitioner had actually invited the jurisdiction of the arbitration under Section 42-A, Hyderabad Co-operative Societies Act and had completely acquiesced in the jurisdiction of the arbitrator, he cannot subsequently when the decision goes against him challenge the validity of the award of the arbitrator on ground of want of jurisdiction by an application under Article 226.
18. The Division Bench of this Court in the case of Satubha K. Vaghela v. Moosa Raza the District Development Officer, Surendranagar reported in 10 G.L.R. at page 23 held as under:
When the petitioner comes to the High Court in a writ petitioner under Articles 226 and 227 of the Constitution without making any averment that he had no knowledge of the relevant facts which would give him a right to object and that he was not aware of his right to raise any such objection, the petitioner by his conduct would be disentitled from raising any such contention for the first time in the High Court. Even if there was any defect in the constitution by reason of the bias of the tribunal as alleged, as the petitioner had waived the objection, it is not open to him to raise that contention before the High Court for the first time in the writ petition as he has disentitled himself by his conduct and is precluded from raising that contention. If he had raised that contention before the competent authority or had moved the District Panchayat and pointed out the defect, it could have been cured at the earliest stage. The petitioner, however, having chosen to argue the case on merits before the authority and having invited decision in his favour, he is now precluded from raising this point after the decision has gone against him.
19. Another case to which reference is required to be made is the case of Pannalal Binirai and Ors. v. Union of India and Ors. reported in : 1SCR233 . It was a case where certain assesses were assessed in a particular area or locality where according to them they were not required to be assessed. The petition was filed under Article 32 of the Constitution and it was held that none of the petitioners raised any objection to their cases being transferred under Section 5(7A) of Income-Tax Act, and in fact submitted to the jurisdiction of the Income-Tax Officers to whom their cases had been transferred. It was only after the decision in Bidi Supply Co. v. The Union of India reported in 1956 S.C.R. 267 pronounced on 20th March, 1956 that those petitioners woke up and asserted their alleged rights, the Amritsar group on 20th April, 1956, and the Raichur group on 5th November 1956. If they acquiesced in the jurisdiction of the Income-Tax Officers to whom their cases were transferred, they were certainly not entitled to invoke the jurisdiction of the Court under Article 32. It is well settled that such conduct of the petitioners would disentitle them to any relief at the hands of the Court.
20. In another case Hukam Singh and Ors. v. Mst. Indri and Ors. reported in A.I.R. 1959 Jammu & Kashmir at page 98, relying upon the judgments reported in : AIR1954Bom202 (Supra) and : 1SCR233 (Supra) it was observed as under:
In a case where a person submits to the jurisdiction of a subordinate tribunal without objecting to its jurisdiction he cannot be heard to urge in certiorari proceedings that the subordinate Tribunal had no jurisdiction, except perhaps where it is shown by his affidavit that he had no knowledge of the facts which constituted the defect of jurisdiction of the subordinate tribunal. The principle applies a fortiori, where the petitioner himself moved the subordinate tribunal and invited it to adjudicate upon the grievance.
Even if there be some technical error of law or formal defect of jurisdiction in a given case, the High Court is not bound to issue a writ of certiorary unless it is satisfied that the interests of justice demand the granting of such a writ.
21. Now, therefore, it is clear that the petitioner invited the order from Civil Court and the Civil Court passed an order and a specific condition was also imposed as desired by the petitioner. Thereafter the petitioner submitted to the jurisdiction of the arbitrator and took chance of winning. Ultimately the arbitrator decided that certain disputes were covered by certain clauses and, therefore, Clause 30 of the agreement empowered him to proceed further. In regard to two disputes he came to the conclusion that they were not covered. Now, therefore, the only question which is of importance is as to whether this Court in a petition under Articles 226 and 227 of the Constitution of India should interfere either with the order passed by the Civil Judge or passed by the arbitrator. On this point the learned advocate Shri Vakharia submitted that if ultimately it is found that the arbitrator acted without jurisdiction and his award is set aside when a petition under Sections 30 and 33 of the Indian Arbitration Act is filed, the proceedings will start de novo before the civil court and much time could be saved if the court interferes at this stage. I am unable to accept this contention. The reason is that if it is so done it would be exercise of extraordinary jurisdiction of this Court at the instance of a party who by his concurrence brought about this particular type of result. This is required to be done so that in future also the parties do not invoke the extra-ordinary jurisdiction of this Court in this particular way. I, therefore, do not express any opinion as to whether the order passed by the arbitrator in construing various clauses of the arbitration is correct or not. I only dismiss this petition on the sole ground that extra-ordinary jurisdiction of this Court is not required to be exercised in this particular case because the petitioner by its own act got the matter referred to Shri G.G. Vaidya with specific condition and thereafter argued the matter on merits before the arbitrator and never took any objection regarding jurisdiction till this petition was filed in this particular court. Under these circumstances this petition is dismissed. Rule is discharged with no order as to costs.
Interim relief shall stand vacated after the period of four weeks from today.
The learned advocate Shri J.R. Nanavaty who appears on behalf of Bhavnagar Municipal Corporation supported the arguments advanced by the learned advocate Shri Vakharia and stated that he had nothing more to add than what Shri Vakharia had stated.
22. Civil Application No. 311/83 therefore, stands disposed of.
However, Bhavnagar Municipal Corporation was not a party either before the Civil Court or before the arbitrator. It is not necessary to join Bhavnagar Municipal Corporation as party to this petition.
23. Rule discharged with no order as to costs.