LexSETH BANARSI DAS versus THE CANE COMMISSIONER & ANOTHER
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1962 D1&ember, 6. 760 SUPREME COURT REPORTS [1963] SUPP. SETH BANARSI DAS v. THE CANE COI\1MISSIONER & ANOTHER (S. K: DAS, J. L. KAPUR, A. K. SARKAR, M. HmAYA'l'ULLAH and RAGHUBER DAYAL, JJ.) Sugar Factories, Control of-Agreement-Whether bindiny- Teat-Provisions of ·'· 18(2) Whether mandatory or direclory- Rule 23, if violativt of Art. 14-Rule 23(6), if beyond rule- making power under s. 30-Uttar Pradesh Sugar Factories Control Act, lu38 (U. P. of 1938), s.,, 18(2), 30-U. P. Sugar Factories Control Rules, 1938, r. 23. Certain disputes arose between the appellant and the Cane Marketing Society Ltd., Bijnor. The a~ellant preferred a claim to the Cane Commissioner for compensation for short supply of Sugar-cane. The Society also moved the Cane Commissioner for arbitration. The Commissioner passed an order calling upon the parties to be present before him for a decision of the dispute. It wa• then that the appellant filed a petition under Art. 226 of the Constitution of India for a writ of certiorari to quash the proceedings pending before the Cane Commissioner, for a writ of prohibition for restraining the Cane Commissioner from continuing the proceedings and a writ of quo warranto for a declaration that the Cane Commissioner had no right to assume the office of arbitrator in the dispute. The appellant contended that there could be no arbitration because the claim was not a proper claim as the Society had omitted to complete the prescribed form XIl by leaving the schedule, the area of cultivation and the estimated yield blank and as the agreements were not signed by the Mills who did not accept them in their incomplete state. In the alternative, ii was con- tended that Ruic 23 offended against Art. 14 of the Constitu. tion. It was also contended that r. 23(6) providing for an appeal went beyond the rule-m1king power of the Provincial Government under s. 30 of the Act. • The writ petition was dismissed by the High Court. The Letters Patent appeal WolS also dismissed. The appellant came to this Court by a certificate. HeU, that the agreement was a binding agreement. The form prescribed set out a number of conditions and all of them have been incorporated in the agreement executed by the Society. There has been no deviation from the prescribed form except some minor omission. The failure to execute the 1962 Seth Banarsi Dar v. Cane Commission11 762 SUPREME COURT REPORTS (1963) SUPP. representative and the Arbitration Act furnishes no answer because it is inconsistent with the Rule. It is, therefore, obvious that the arbitration must be with the consent of the parties and they must express their consent either by selecting an agreed sole arbitrator or by appointing their representative on the Board. This choice is entirely theirs. If the parties do not agree, there can be no arbitration at all and the case must be disposed of by the Cane Commissioner himself. Where there are two procedures, one for everyone and the other if the disputants voluntarily agree to follow it, there can be no discrimination because discrimination can only be found to exist if the election is with some one else who can exercise his will arbitrarily. Rule 23 as a whole does not offend Art.14 of the Constitution. Per Raghubar Dayal, J.-It is true that the provisions of s. 30(2) (u) relate to the settlement of disputr.s betwoen the parties but that by itself does ·not mean that the State Govern- ment can provide for appeals against the orders of the arbitra- tor or arbitrators. These provisions do not expressly state that the rule can provide for an appeal against the award of the arbitrator. They make no reference either for the provision of an appeal or for the procedure to be followed by the Appellate Tribunal or for the enforcement of the order of the Appellate Tribunal. The absence of-such a reference establishes that cl. (u) did neither contemplate nor empowered the State Government to make rules providing an appeal against the award of arbitrator or arbitrators. Further, the order of the Commissioner is not an award and this is recognised by the language of r. 23(8) which refers to the decision of the Cane Commissioner to the award of the arbitrator or arbitrators and to the Commissioner's order in appeal. The provision for an appeal in r. 23(6), therefore, is not to be treated as something ancillary to the provision for settling disputes between the parties by the
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