JAMMU & KASHMIR STATE FOREST CORPORATION v. ABDUL KARIM WANI

Citation: [1989] 2 S.C.R. 380

Court: Supreme Court of India

Bench: R.S. PATHAK, SABYASACHI MUKHERJI, L.M. SHARMA

Case summary

If the foundation of the claim of the respondent be any alleged assurance or custom or practice, it cannot be said that such claim arises out of the written agreement between the parties; and so the prayer for reference has to be rejected.

Judgment text

~AMMU & KASHMIR STATE FOREST CORPORATION v. ABDUL KARIM WAN! MARCH 31, 1989 [R. S. PATHAK, CJ. , SABYASACHI MUKHARJI AND LAUT MOHAN SHARMA, JJ. ] Jammu and Kashmir Arbitration Act 2002 (Smvt) Sections 8, 11,' 20and 41. Arbitration Act, 1940--Sections 2(a), 18 and 20. Arbitration clause in Contract-How to be construed. Dispute between parties-Whether referable to arbitration or not-Court to refrain from expressing opinion on merits ofdispute. Jurisdiction of Court to make interim order-Only 'for the purpose' ofarbitration proceedings-Not to frustrate the same. The appellant, a Corporation was created under the Jammu & Kashmir Forest Corporation Act, 1978. One of its main functions was yto undertake the removal and disposal of trees and exploitation of the forest resources entrusted to it by the Government. The Corporation took a decision for the extraction of timber of a total volume of 10. 08 lakh c. ft. which included the work offelling and removal of trees.

The respondent an approved contractor submitted his I tender and was granted the works contract initially with reference to 4 y lakh c. ft. , and subsequently he was entrusted with an additional work 'l . J , for a further quantity of 2 lakh c. ft. The respondent completed the entire work under the contract. Thereafter, he claimed that he was entitled to the remaining volume of the work, namely, 4. 08 lakh c. ft. as per the procedure, practice, custom and usage extended to him. The appellant denied any such practice, custom or assurance and said that a ' decision had been taken not to work the area further till the entire ' timber ·already extracted was removed to its destination. There was, therefore, no question of entrusting the remaining work to anybody. Paragraph 15 of the Tender Notice stipulated that: "Extension for . 4 the additional volume in the coupe will not be claimed as a matter of right but may be considered by the Management where the achievement J

:;ST CO~PN. v. A-K. WAN! 381 is I00 per ce11t," Tlw a_greemeq\ pnwide e referred for arbitration to the Mllll! lllh•g DireCl\11' 11ftll. f Jammllf {lj: l\asllmir f11rest CorP1Jrati1Jn. " I The resp1m ntracts executed between llte parties, ii referred Ille mllt! el' 11nder cla11se 42 of t11e agreement to the namell ;irbilrator, @mely, tile l\1anll~lng lHrector of tbe State Forest Corpor11lio11, Tiie ffigll Court went f11rtller alld by an h1terim order directed that llte clllllractor be permilted ! ti di! tile re111i1i11i11g work of extraction (If ti111ber of sta11di11g morked tree~ 11111!. ti•• rntes be ! letermined by the arbitrator ;itler hearll!! l boll\ th@ parties p11rs11l111t Ill tile said interim order. " Aggrieved by Ille afor<>sai unburnt bricks. The stand of 'i° the contractor was that the cl;iie( reason of the destruction of the katcha bricks was the fail11re of the department to lift the monthly quota of the bricks in accordan.

ce with the written agreement: and, Clause 6 of the agreemeμ( referred only to such cases where the department had nci control, and would not cover a ease of irs nwn default. The Supreme Court did not agree with him and set aside the award, inter alia obs~rving, that if \le chose to c;ontract in the terms including Clause 6 of the written agreement he could not go back on. his agreement when it did not suit him to abide by it. In the case befon, us, the plaintiff contractor is trying to connect the allotment of future 1- work by a reference to paragraph 15 of the tender notice which specifically says that adqitional work could not be claimed as a matter of right.

The High C ur(, therefore, was not correct in interpreting tht· aforementioned Clause 15 in the following words: "Ther~ was cl~use 15 in the tender notice according to which extension of additional volume available in the CO\lpe wo11ld not have to be claimed by the contractor as a matter of right P\lt h~ would have to be considered by tht: m~nag~mept wh~:r~ his 11chievement \vas H1tlr;-~'. 111 the pn.. ~-· Sent C~S~ the acQievement Of the petitioner W~IS . \~_1(jt;1) iln(l r-J under such circumstances the petitioner had all the right to claim additional work in the said coupe. " Besides, if this view be assumed to be correct, what was there left for the arbitrator to decide? Further, it is not alleged or suggested that the Corporation has ever indicated its unwillingness to consider the respondent when it takes up the question of allotting the additional work.

In absence of a repudiation by the Corporation of the respondent's right to be considered, if and when occasion arises, no dispute can be said to have arisen which may be referred for arbitration. In order that there may be reference to arbitration, existence of a dispute is essential and the dispute to be referred to arbitration must arise under the arbitration agreement. When in the future, the Corporation makes a decision for the execution of the additionafwork and takes up ·~ the question of executing a contract for the purpose, the stage for consideration of the plaintiff-respondent's claim would be reached and a dispute may then arise if the Corporation refuses to consider the claim.

Neither the agreement nor the tender notice deals with the question as to the conditions and time for grant of any additional work to the plaintiff and if his claim be interpreted as a demand for immediate allotment of any future work, the same cannot be connected with the agreement or the tender notice. We, therefore, do not agree with the observations of the High Court that the conduct of the )" Corporation in not taking up immediate deforestation of a part of Compartment No. 59-Marwa is reprehensible, simply for the reason that the trees in the area concerned are "to be extracted one day or the other" or that the plaintiff has the right to claim the additional work on the ground that his achievement in the past has been more than 100%. We also hold that the claim raised by the plaintiff in his application before the High Court is not covered by the arbitration clause and cannot be referred for a decision of the arbitrator.

The order of reference passed by the High Court, therefore, has to be set aside. 5. By the interim order the High Court permitted the plaintiff to execute the additional work claimed by him without waiting for the award. On the quashing of the main order of reference, the interim order automatically disappears, but we would, however, like to briefly indicate the scope of Court's power to issue interim orders at the time of reference of a dispute to arbitration, and point out how in the present case the High Court was in grave error in granting the interim relief. The relevant provision in the Jammu & Kashmir Arbitration Act, 2002 (Smvt. ) is ins. 4l(b) which is quoted below: J&K STATE FOREST CORPN. v. A. K. WAN! [SHARMA, J. ] 391 "41. Procedure and powers of Court.

-Subject to the mam provisions of this Act and of rules made thereunder-, (a) (b) the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court: Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umplfe for making orde,rs with respect to any such matters. " S. 18 deals with the power of Court to pass interim orders after award is actually filed in Court. So far as clause (a) of s. 41 is concerned, it makes only the procedural rules of the Civil Procedure Code applicable. The source of power to grant interim relief cannot be traced to clause (a), otherwise as was pointed out in H. M. Kamaluddin v. Union of India, [1983] 4 SCC 417, clause (b) would become otiose.

So far as clause (b) is concerned, it circumscribes the Court's power within the limits indicated in the Second Schedule and further qualifies it by declaring in the Proviso that it cannot be used to the prejudice of any of the powers of the arbitrator. The interim direction can be issued only "for the purpose of" arbitration proceedings and not to frustrate the same. In the present case the plaintiff-contractor was allowed by the High Court to execute the extraction work which was the subject matter of the arbitration. Mr. Kacker, appearing for the plaintiff respondent, argued that in pursuance of this part of the impugned ~-- judgment the plaintiff was able to cut down all the trees in question before this Court passed an order of stay. In other words it is claimed on behalf of the plaintiff-respondent that he was able to completely frustrate the arbitration proceeding in a very short time on the strength -~- of the interim order.

This statement of fact has been seriously challenged by the petitioner Corporation; but whatever be the factual position, the High Court by granting the interim relief, not in the shape of an injunction in the negative form, but by a mandatory direction clothing the plai_ntiff with the right to do something which he could have been entitled to, only after a final decision on the merits of the case in his favour, committed a serious error. Paragraph l of the Second Schedule speaks of the preservation of subject matter of the reference and paragraph 3 also highlights that aspect. The 4th paragraph which mentions-"interim injunction or the appointment of receiver"-has also to be interpreted in that light specially because of the language of clause (b) of s. 41 and the Proviso thereto. The second part of the judgment under appeal is also, therefore, set aside. 6.

It has been averred before us on behalf of the plaintiffn:spondent that all the trees in question were cut down, and so the plaintiff must be permitted to complete the remaining work including their transportation to the destination. The learned counsel for the Corporation placed reliance on the statements in several affidavits and contended that if the entire circumstances including the period which could have been available to the respondent for the purpose of felling the trees, are examined, there is no escape from the conclusion that the respondent had felled the trees or majority of them after service of the stay order passed by this Court. We do not think it necessary to examine and decide this controversy as in our view the respondent, in the facts and circumstances of this case, cannot take any advantage from or claim compensation for the hurried steps he alleges to have taken under the strength of the illegal order interim in nature, which we are setting aside. y 7.

In the result, the appeal is allowed. The impugned judgment of the High Court is set aside and the respondent's application filed before the High Court for reference is dismissed. The respondent shall pay the costs of this Court and of the High Court to the appellant- CQrporation. SABYASACHI MUKHARJI, J. I have read the judgment proposed to be delivered by L. M. Sharma, J. with which the learned Chief Justice has agreed. With great respect, I am unable to agree with them on the view that there was no arbitration agreement subsisting covering the dispute in question between the parties. It is, therefore, necessary to refer to certain facts, as I view these. This appeal by special leave is directed against the judgment and F order of the High Court of Jammu & Kashmir, dated 4th June, 1987. The Jammu & Kashmir Forest Corporation is the appellant. The undisputed facts leading to this appeal are that one Abdul Karim Wani, the respondent No.

1, filed an application for referring certain matters alleged to be in dispute to an independent arbitrator; and that for the last 15 years the respondent had been working as a contractor for the J&K STATE FOREST CORPN. v. A. K. WANI IMUKHARJI, J. l 393 appellant Corporation, namely, Jammu & Kashmir Forest Corpn. and was carrying on various activities in different forest areas in Jammu. Province, including felling, machine sawing, pathroo, paccinali, rope span, mahan and transportation. It is stated that in February, 1986 the said Corponation issued tenders for felling, handsawing, pathroo, paccinali and mahanwork of timber to be extracted from compartment No. 59 Marwah. In response thereto the petitioner to the original application being the respondent herein, submitted his quotation and offered the lowest rate of 1l. 74 per cft. and thereby secured the contract. A formal agreement was also executed between the parties.

In October, 1987 after about 7 months from the issuance of first work order the appellant Corporation through its General Manager (Extraction) issued a sanction for further quantity of 2 lac cft. sawn volume in compartment No. 59 Marwah, on the same rates, terms and conditions as contained in the original contract. The sanction appears at pages 26 & 28 of the present appeal papers before us. It appears that the total marking carried out in compartment No. 59 was 10,08,000 cft. standing out of wh. ich only 6 lac cft. was sanctioned in favmir of the respondent. The compartment in question is at a distance of over 70 kms. from the nearest road point and the timber extracted from the compartment had to travel by pathroo, paccinali and mahan through Chenab river for a total distance of 80 kms. before it is collected at loading point of Dedpeth.

It is, further, the case of the respondent that "as per the procedure, practice, custom and assurances extended to the respondent by the appellant Corporation through its functionaries, from time to time," the entire marking conducted in a particular compartment for extraction was required (emphasis supplied) to be handed over to the respondent in compartment No. 59. As regards sale, it is suggested that as the compartment is situated in one of the remotest area of Jammu province where making arrangements for extraction of timber including cartage/carriage of foodgrains, saws, tools and implements is very difficult, it was never intended that the balance work remaining in the compartment for extraction would be given to any other contractor. ..

The case of the respondent is that acting upon the assurances and representations of the appellant Corporation that the entire work in the aforesaid compartment would be handed over to him, the respon- dent had made adequate arrangement after investing Rs. 5 lacs by way of provision for rations, saws, tools and implements etc. All these arrangements at that scale were necessary and were made just to extract entire marked timber from the compartment in question and not just initially tendered quantity. That would have been wholly uneconomical. It was further asserted that there was also the practice in the Corporation tbat once a compartment was handed over to the contractor for work, it was taken back from him only after the entire available work in the said compartment stood concluded. The con· tractor further alleged that the appellant Corporation was not allotting rest of the work to him contrary to the policy adopted and assurances extended, as mentioned hereinbefore.

The respondent furnished instances where such conduct or procedure of making allotments, as alleged by the respondent, had been followed. We were referred to the sanction in favour of M/s. Ghulam Hussain, Sukhjinder Singh in respect of compartment No. 82 Lander on 28. 4. 87, Mst. Jana Begum in respect of compartment No. 30-B, Dachhan and 62 Marmat dated 10. 3. 87, Sh. Rehmatullah Bhat for compartment No. 19A Paddar dated 5. 5. 87, Nassarullah Malik for compartment No. 16 Ramban on 12. 5. 87 and Irshad Ahmed Shah in respect of compartment No. 62 Sewa dated 4. 2. 87. On behalf of the Corporation and others, it was stated before the learned Judge of the High Court that there was no assurance and no practice regarding grant of the contract to the respondent contractor Abdul Karim Wani, in the manner alleged. Further, it was alleged that the respondent and the Corporation had decided not to work on the compartment till the entire extracted timber was removed to sale depot.

Once that decision was there the instances quoted by the contractor proved useless, according to the appellant. It, however, very clearly appears that in compartment No. 59 Marwah marked standing ,J trees were to the extent of 10,08,000 cft. The second aspect emerging is that out of this volume only 6 lac cft. standing timber had been sanctioned in favour of the contractor on two different occasions, and such timber had been extracted, removed and taken to the loading point. The only dispute subsisting was about the rest of the standing trees i. e. , 4,80,000 cft. It is not disputed that the said remaining cfts. have been markea. These remained as marked timber which required to be extracted. The respondent claims preference for grant of contract of extraction by way under the clause in the relevant sanction. The only contention of the appellant was that they had no intention to extract J&K STAIB FOREST. CORPN. v. A. K. WAN! [MUKHARJI, J.

] 395 the said timber till other extracted timber was taken to the depot. The case of the appellant as noted by the learned Judge in his judgment, was that the remaining timber to be extracted presently for 'unknown reasons' was not to be then extracted and, as such, the Corporation could not be compelled to grant or sanction extraction of remaining marked timber. i) . 'i The learned Judge by his impugned judgment and ordei: depre- ·• cated the conduct of the authorities concerned. He proceeded on the ballis that inasmuch as the remaining timber had to be extracted one day or the other, the entire work should have been given to the respondent. In the present case, the learned Judge noted that the performance of the respondent contractor as 300%. The respondent was X entitled to the grant of this contract even if his performance had merely been 100%. The learned Judge found that there were two different points to be examined.

He found that there existed a dispute between the parties touching the agreement exeettted between them. The matter in dispute was referred to the named arbitrator, namely, the Managing Director of the State Forest Corporation, who was directed to adjudicate upon the same and submit his award within the statutory period of four months. The learned Judge went further and as an interim measure directed·that the petitioner before hlDl, namely, the respondent herein be allowed to do the remaining work of extraction of timber of standing marked trees in compartment No. 59 Marwah and the rates were to be determined by the arbitrator, after hearing both the parties. This order is the subject-matter of the appeal. The main question involved in this appeal is whether there was any subsisting arbitration agreement in respect of the matters sought to be referred.

The second aspect involved herein is whether the learned Judge was justified in making the impugned order by directing --~ that the petitioner be allowed to do the remaining work of extraction uf timber of standing marked trees in compartment No. 59 Marwah, and the rates be determined by the arbitrator after hearing both the . :if sides. It was contended on behalf of the appellant that the learned Judge travelled beyond the scope of his jurisdiction. It was submitted that there was no subsisting arbitration agreement covering the entire area of 10,08,000 cft. There were only two subsisting contracts one being a contract for felling trees of 4 lacs cft dated 6th March, 1986, and another for 2 lacs cft in addition, dated 28th October, 1986. The agreement dated 6. 3. 86 provided that dispute in respect of these should be referred to arbitration but there was, according to the appellant, no subsisting contract in respect of the remaining 4 lacs cft.

The respondent had only a right to be considered in respect of the rest and yet no contract had been granted to him. Therefore, there being no subsisting contract there was no scope for reference to arbitration. In nly opinion, it is not the correct way to look at the facts of this case. It appears from the first agreement, which is at page 142 onwards of the present paper-book that it contained, inter a/ia, the following clauses. "The quantum of work under each activity/sub-activity is estimated and a~ such cannot be guaranteed and can be increased or decreased upto 25% by the General Manager Ext. East Jammu East on the contract rates subject to prior approval of the Managing Director. Any subsequently marking earned out in a section/unit under work with the contractor shall be included in this increase of 25%. " It also contained clause 15 which was to the following extent: "Extension for the additional volume available in the . , coupe will not be claimed as matter of right.

But may be y !! -~ considered by the Management where the achievement is 100%. " Clause 17 of the said agreement which provided for reference to arbitration was the following: "Any dispute, difference, question which may at any time arise between the parties in respect of the works to be executed by the contractor(s) shall be referred for arbitration to the Managing Director J&K SFC whose decision ~·· shall be final and binding on both the parties. " In r<! spect of the second contract that similar terms were there, was not disputed before us. Therefore, even though where the f. achievement of the contractor was 100% the contractor had a right only to be considered for grant of the additional work. In this case it was contended on behalf of the appellant-Corporation that the Corporation could not be compelled by the process of an application under Section 20 of the Arbitration Act to grant addi. tional work to the con- . tractor. On the other.

hand, the contractor had pleaded that where the J&K STAIB FOREST CORPN. v. A. K. WAN! [MUKHARJI, J. ] 397 j.. ~-· achievement of the contractor in respect of the subsisting contract was 100% the contractor had a right to be considered for grant of the additional work, while in this case his performance was 300%. Additional volume available in the coupe was liable to be granted to him or, at least, he was entitled to be considered in accordance with equity and justice. The contractor has further alleged that while others in similar position had been granted this additional work, he had been wrong- -~ fully denied. His claim was that he having fulfilled 300% performance, ' was entitled to the remaining work of the additional work. • ... It was contended on behalf of the appellant before us that there cannot be any application for filing of an arbitration agreement for the arbitrator in respect of the contract which had not been entered into. l ~ am unable to accept this submission.

Clause 17 of the arbitration x agreement provided that any dispute, difference, question which might at any time arise between the parties in respect of the works to be executed by the contractor(s) should be referred to the arbitration of the Managing Director of the Jammu & Kashmir State Forest Corpn . . Thetefore, it appears to me that dispute which had arisen between the parties in respect of the "works to be executed" by the contractor was ·a dispute which was referable in terms of the clause 17 and the dispute was, according to the pleadings, the custom, practice and procedure of ... ,. , granting additional volume of available coupe where the timber trees had been marked but not extracted to be considered by the Governmen! for grant of the contract. The contract alleged if such proper consideration or lawful consideration in accordance with the principles of equity and justice had been made, the contract would have been .... granted to the contractor.

Therefore, the contractor claimed that he was entitled to the grant of additional volume of work. in my opinion, ~~ there was a dispute whether the contractor was entitled to the grant of • additional volume of the work. Such dispute was a dispute between the parties in respect of the "works to be executed by the contractor. " •• I am clearly of the opinion that the dispute in this case was a . dispute between the parties in respect of the "works to be executed by the contractor". In that view of the matter and in the light of clause 15 ... read with clause 17, the dispute in this case was clearly referable to . l( arbitration of the Managing Director, Jammu & Kashmir State Forest Corpn. · An arbitration agreement is one which is defined in Section 2(a) of the Arbitration Act, 1940 as a written agreement to submit present or future differences to arbitration. There was, in this case, an arbitra- tion agreement, that is to say, the parties had been ad idem.

The agreement was in writing. It was not a contingent or a future contract. It was a contract at present time to refer the dispute arising out of the present contract entered into by the parties as a result of which the contractor got a right or a privilege to ask for consideration of grant of the further work. It was not as sought to be argued a mere right to get the additional work. Hence, in my opinion, it could not be contended that there was no agreement. Endeavour should always be to find out the intention of the parties, and that intention has to be found out by reading the terms broadly, clearly, without being circumscribed. This contention of the appellant cannot, therefore, be accepted. - In the light in which I have read the facts, I am unable to accept the position that the claim raised by the plaintiff in this application before the High Court was not covered by the arbitration clause.

The amplitude of the arbitration clause, in my opinion, was wide-enough and should be so read for the reasons mentioned hereinbefore. If that is the position then the order of reference by the High Court was not bad and cannot be set aside. I am unable to agree that the decision of this Court in Seth Thawardas Pherumalv. The Union ofIndia, [1955] 2 S. C. R. 48 indicated that in the facts of this case, there could not be reference to the arbitration. That was a case where the appellant, a contractor, entered into a contract with the Dominion of India as it then was for_ supply of bricks. A clause in the contract required all disputes arising out of or relating to the contract to be referred to arbitration. Disputes arose and the matter was duly referred. The arbitrator gave an award in the contractor's favour. It was held that it was not enough for the contract to provide for arbitration but something more was necessary.

An arbitrator only got jurisdiction when either, both the parties specifically agreed to refer specified matters or, failing that, the court compelled them to do so under the arbitration clause if the dispute was covered by it. That case was mainly concerned with a specific question of law. This Court referred to the decision of this Court in A. M. Mair & Co. v. Gordhandass Sagarmull, [1950] S. C. R. 792 at 798 where this Court quoted a passage from Viscount Simon's speech in Heyman v. Darwins Ltd. , [1942] Appeal Cases 356 at 368. Here in this case the clause as I read it gave the 'f- .. respondent a right to be considered. The respondent's grievance was, if properly considered his performance being 300% achievement he was entitled in the facts and circumstances set out hereinbefore to the grant of the contract and further similarly placed persons had been so given. That right had not been duly considered.

That is the dispute in the present case and that dispute is clearly referable to the arbitration J&K SfATE FOREST CORPN. v. A. K. WAN! [MUKHARJ! , J. ] 399 clause as mentioned hereinbefore. I am, therefore, unable to accept the position that the order of reference passed by the High Court is bad. The second challenge to the order of the High Court was that the order so far as it directed under Section 20 of the Arbitration Act that the petitioner be allowed to do the remaining work of extraction of timber of standing market trees in compartment No. 59 Marwah, was wholly without jurisdiction. For this reference may be made to Section ..

41 of the Arbitration Act which provides that for the purpose of and in relation to arbitration proceedings, the Court has such powers to pass interim orders for detention, preservation, interim custody and sale of any property-the subject matter of the reference for preservation or inspection of any property or thing-the subject-matter of the refer- _)( ence or as to which any question may arise therein for taking of samples and making observations and experiments; for securing the amount in difference in the reference; for granting an interim injunction and appointing a receiver as the Court has in relation to any proceeding before it. But though under Section 41(b) the Court has power to pass an interim order of injunction or appointment of receiver, in my opinion, the Section does not empower the Court to direct execution of the contract, the extent of which is in dispute and is a matter referable to be adjudicated by the arbitrator.

If the Court 'r' does so then the decision of the dispute becomes academic because the contract is executed. Where the question is whether the contract was to be executed by the respondent, if the contract is in fact executed by the respondent by virtue of the order of the Court, then nothing remains of the dispute. There is nothing arbitrable any more and pro- ceedings before the arbitrator cannot, in my opinion, be forestalled by interim order by ordering execution of the contract before it is decided whether it had any right to the contract for additional work in the garb of preservation of the property. In that view of the matter, I am clearly of the opinion that the interim directions given by the High Court that the "contractor be allowed to do the remaining work of extraction of timber of standing marked trees in compartment No. 59, Marwah" was beyond the competence of the Court. In this respect I agree with my learned brothers.

But so far as the Court directed that the rates be determined by the arbitrator after hearing both the parties, this direction, in my opinion, was clearly within the jurisdiction provided this dispute was referred to the arbitration. In this case unfortunately after the order of the High Court was passed and before any order of stay could be I ~~ passed by this Court in a petition under Article 136 of the Constitution, the respondent had done the work of extraction of timer of standing marked trees in compartment No. 59 Marwah. Therefore, it would be inappropriate to interfere with this order. The events have overreached the decision of the Court. It would be unjust to deprive any party of its dues simply because the work has been done in view of a wrong order or incorrect order of the Court of justice when there was ~ -Iino stay. Would it be just to deprive a suitor of his dues in this manner under Article 136 of the Constitution? I have no doubt in my mind that » it would be unjust.

The work indisputably has been done pursuant to an order of the Court of law and the party who has done the work must be paid its remuneration. How would that remuneration be settled, would it be by a decree in the suit or would it be by adjudication of an award? In the view I have taken that there was a valid reference on the -,(_ . ,, contention of the respondent, this question which was incidental thereto must be decided along with that contention. In any view of the matter, however, for determining the work done pursuant to the liberty or right given by the High Court which was not stayed by this Court arbitration undoubtedly is a better method of finding out the dues in respect of that work done. I would not, therefore, in any event alter this direction of the High Court. In the aforesaid view of the matter, in my opinion, it would be y inappropriate to interfere with the interim direction of the High Court though the direction was beyond jurisdiction.

In the premises I would have disposed of the appeal by directing the arbitrator to determine .. the rates in respect of the extraction of the remaining timber of standing marked trees in compartment No. 59 Marwah. In fae aforesaid view of the matter, I would have made no order as to costs. N. V. K. Appeal allowed.