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PETITIONER: NIROD BARAN BANERJEE

       Vs.

RESPONDENT: DY. COMMISSIONER OF HAZARI BAGH

DATE OF JUDGMENT14/02/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1980 AIR 1109            1980 SCR  (2)1043  1980 SCC  (3)   5

ACT:      New Plea-A  point not  taken either  before  the  trial court or  before the  High Court  when the  appeal  was  not taken, cannot  be allowed  to be  raised for  the first time either in  the Supreme  Court or  in the  application  given before the High Court for granting a certificate of fitness- Civil Procedure Code Order VI Rule 8 and Order VIII Rule 2.

HEADNOTE:      In respect of the lands acquired by the State of Bihar, the appellant  was awarded  a sum of Rs. 9665-35 which along with solatium  and other  charges totalled  to a  sum of Rs. 20,231-67. The  appellant claimed a sum of Rs. 2,80,000/- as the market  value of  the land acquired. Before the District Magistrate could  take up  the hearing  on a  reference made under s.  18 of  the Land  Acquisition Act,  the matter  was agreed  by  the  parties  to  be  referred  to  a  Board  of Arbitration consisting  of three  persons of  whom  one  was appointed by the appellant. The Board so constituted gave an award confirming  the compensation  given by  the Collector. The appellant moved the District Court for setting aside the award. The  said application  was dismissed by the Court and an appeal  to the  High Court  thereon was  also  dismissed. Thereafter, the  appellant approached  the  High  Court  for granting a  certificate of fitness for appeal to the Supreme Court and  it was  at that stage that for the first time the appellant raised  the point  that the  arbitration agreement was not  in accordance with the provisions of Article 299 of the  Constitution   and  that  there  being  no  arbitration agreement in  the eye  of law,  the award  was  invalid  and liable  to  be  set  aside.  The  High  Court  accepted  the contention and granted leave as prayed for.      Dismissing the appeal, the Court, ^      HELD: 1.  The question  whether or  not  there  was  an agreement which  fulfilled the  requirements of  Art. 299 is not a  pure question  of law but is a question which depends on investigation of facts. [1046C]      2. In  view of  the provision  of Order  VI Rule  8 and Order  VIII  Rule  of  the  Code  of  Civil  Procedure,  the appellant would  be debarred  from raising  a point  for the first time  before this Court or even before the High Court.

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It is  well settled  that no  evidence can be looked into by the Court for which there is no foundation in the pleadings. [1047B]      In the instant case, the appellant cannot be allowed to raise the  plea for  the first time in the Supreme Court, in as much as:      (a) the  appellant contented  himself by relying on the resolution  by   the  Government,  treated  it  as  a  valid arbitration agreement and never raised the question that the said resolution  was hit  by Art. 299 of the Constitution of India. [1047C]      (b)  he   fully   participated   in   the   arbitration proceedings and  having taken  the benefit  of a decision by the Board in his favour made a complete somersault only when the decision  went against him, by taking the plea now under examination,  which   doubtless  required  investigation  of facts. [1047D] 1044      (c)  Even   that  plea   he  took  neither  before  the Additional Sub-Judge  nor in  the High Court when the appeal was heard  on merits  but only  for the  first time  in  the application which  he gave  for granting  leave to appeal to this Court.  Had he  raised the  plea before the Trial Court that the  arbitration agreement  was not  in consonance with Art. 299  of the  Constitution of  India, the respondent may have been  in a  position to  rebut the  plea  by  producing evidence and  circumstances to  show that  an agreement  for arbitration was  authenticated in  the form required by Art. 299 of the Constitution. [1047E]      Kalyanpur Lime  Works Ltd.  v. State of Bihar and Anr.; [1954] S.C.R. 958 @ 969; followed.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No.1105 of 1970.      Appeal by Certificate from the Judgment and Order dated 13-5-1968 of the Patna High Court in Misc. Appeal No. 178 of 1963.      Dr. Y.  S. Chitale,  K. N.  Choubey and B. P. Singh for the Appellant.      Lal Narain Sinha Attorney General and S. N. Jha for the Respondent      The Judgment of the Court was delivered by      FAZAL ALI,  J.-This appeal  by certificate  is directed against a  judgment of  the Patna High Court dated 13-5-1968 dismissing the appeal filed by the appellant before the High Court.      The case  arose out  of  land  acquisition  proceedings taken by  the Government  in respect  of the land in dispute which comprised  84.31 acres. On 21-9-1980, the Collector by his award  allowed a compensation of Rs. 9666.35 which along with solatium  and other  charges totalled  to a  sum of Rs. 20,231.67. The  appellant  claimed  Rs.  2,80,000/-  as  the market  value   of  the  land  acquired.  On  11-10-1960,  a reference was  made to the District Judge under S. 18 of the Land Acquisition  Act. Before  the District Judge could take up the proceedings for hearing, the matter was agreed by the parties, to be referred to a Board of Arbitrators consisting of three  persons of whom one was appointed by the appellant Accordingly, a  joint petition for referring the case to the arbitrator was made on 19-12-1961 and on the next day, dated 20-12-1961 the  case was  referred for  arbitration  to  the Board. On  22-5-1962, the Board gave an award confirming the

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compensation given  by the  Collector. Having  thus lost his case before  the Board,  the appellant  moved  the  District Court for  setting aside  the  award.  His  application  was dismissed by the Additional Sub-Judge to whom 1045 the case was transferred in the meantime and hence an appeal was filed  by him  before the  High  Court  which  was  also dismissed. There-after  the appellant  approached  the  High Court for  granting a  certificate of  fitness for appeal to this Court  and it was at that stage that for the first time he raised  the point  that the arbitration agreement was not in accordance  with the  provisions of  Article 299  of  the Constitution  and  that  thus  there  being  no  arbitration agreement in  the eye  of law,  the award  was  invalid  and liable to  be set aside. The High Court appears to have been impressed by the point raised before it and granted leave as prayed for. Hence this appeal before us.      Dr. Y.  S. Chitale,  learned counsel  appearing for the appellant submitted  that on the admitted facts there was no separate arbitration  agreement, that  the resolution of the Government incorporating  the agreement  of both the parties that the  matter be  referred to  the Board  of  Arbitrators would be  deemed to  be the  arbitration agreement, that the resolution not  having been authenticated in accordance with the provisions  of Article  299 of the Constitution of India was invalid  and that  therefore the award which followed it would also  be invalid.  In  support  of  his  argument  the learned counsel  relied on  a decision  of this Court in the case of  Mulamchand v. State of Madhya Pradesh(1) where this Court while  considering the  scope and the ambit of Article 299 observed as follows:-      "It was  held by  this Court  that the provisions of s.      175(3) were  mandatory and the contracts were therefore      void and  not binding  on the Union of India which were      not liable for damages for breach of the contracts. The      same principle  was reiterated by this Court in a later      case-State of  West Bengal  v. M/s.  B. K.  Mondal  and      Sons[1962] 1  Supp. SCR  876. The principle is that the      provision of s. 175 (3) of the Government of India Act,      1935 or  the corresponding provisions of Art. 299(1) of      the Constitution  of India  are mandatory  in character      and the contravention of these provisions nullifies the      contracts and  makes them void. There is no question of      estoppel or ratification of such a case."      It was  argued by  Dr. Chitale  that  in  view  of  the constitutional provisions  of Art. 299, this Court held that the agreement  was void, and that there could be no estoppel against a  statute or constitutional provisions. To the same effect are the decisions in Laliteshwari 1046 Prasad Sahi  v. Baseshwar Prasad & Ors.(1) and Bihar Eastern Gangetic Fisherman Co-operative Society Ltd. v. Sipahi Singh and Ors.(2).  Great  reliance  was  placed  by  the  learned counsel for  the appellant  on the decision of this Court in The Marine  Cooled (Bengal)  P. Ltd.  v. Union  of  India(3) which was also a case of an arbitration agreement.      The Attorney  General while  repelling the arguments of the appellant  submitted that  there can  be no dispute with the propositions  laid down  by  this  Court  regarding  the interpretation of  Art. 299 of the Constitution of India but that the  question whether  or not  there was  an  agreement which fulfilled  the requirements  of Art. 299 is not a pure question  of   law  but  is  a  question  which  depends  on investigation of  facts. He  added that as the appellant did not plead this point either before the Trial Court or before

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the High  Court when  the appeal  was heard  on  merits  the appellant cannot  be allowed  to raise it for the first time either in  this Court or in his application given before the High Court  for granting  a certificate  of fitness.  It was argued by  the Attorney  General that  if the point had been pleaded at the initial stage, the respondent might have been in a  position to  show that  an agreement conforming to the provisions of Art. 299 of the Constitution of India existed. We are  of the  opinion that  the contention  raised by  the Attorney General  is sound  and must prevail. In the case of Kalyanpur Lime works Ltd. v. State of Bihar and Another(4) a similar situation  arose and this Court refused to entertain the point  relating to  the applicability  of s.  30 of  the Government of  India Act  1915 which corresponds to Art. 299 of the  Constitution or s. 175(3) of the Government of India Act, on  the ground  that the  party concerned did not raise the same  in their  pleadings. In this connection this Court observed as follows:-      "The first  question which arises in this connection is      whether the  contract was  to be  executed by  a formal      document or  whether it  could be  spelt out  from  the      correspondence in  which the  negotiations were carried      on by  the parties.  We do not think it necessary to go      into this question, for assuming that a formal document      was necessary,  the plea  of section  30, it  is to  be      noted, was  not raised  in the  pleadings. Objection is      taken on behalf of the appellant that 1047      the  point  not  having  been  raised  in  the  written      statement it  was not  incumbent upon  the plaintiff to      show that  the contract  was executed  according to the      provisions  of   section  30,   before  it   could   be      specifically enforced  and reliance was placed upon the      provisions of  order VI, rule 8, and Order VIII, rule 2      of the Civil Procedure Code."      This Court  pointed out  that in view of the provisions of order  VI Rule  8 and  Order VIII  Rule 2  of the Code of Civil  Procedure,  the  appellant  would  be  debarred  from raising the  point for  the first  time before this Court or even before  the High  Court. The  facts of the present case appear to  be on  all fours  with facts  of the  case in the decision  cited   above.  In  the  instant  case  also,  the appellant contented  himself by relying on the resolution by the Government,  treated it as a valid arbitration agreement and never  raised the  question that the said resolution was hit by  Art. 299  of the Constitution of India. On the other hand, the  appellant fully  participated in  the arbitration proceedings and  having taken  the benefit  of a decision by the Board in his favour made a complete somarsault only when the decision  went against him, by taking the plea now under examination,  which   doubtless  required  investigation  of facts. Even  that  plea  too  he  took  neither  before  the Additional Sub-Judge  nor in  the High Court when the appeal was heard  on merits  but only  for the  first time  in  the application which  he gave  for granting  leave to appeal to this Court.  In these  circumstances it  is manifest that if the appellant  had raised  the plea  before the  Trial Court that the  arbitration agreement  was not  in consonance with Art. 299  of the  Constitution of  India, the respondent may have been  in a  position to  rebut the  plea  by  producing evidence and  circumstances to  show that  an agreement  for arbitration was  authenticated in  the form required by Art. 299 of the Constitution. It is well settled that no evidence can be  looked into  by the  Court for  which  there  is  no foundation in  the pleadings.  We cannot therefore allow the

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appellant to raise the plea for the first time in this Court and the  High Court also ought not to have entertained it at the stage of the application for a certificate of fitness to be granted for leave to appeal to this Court. No other point was pleaded before us.      The appeal  fails and  is accordingly dismissed. In the circumstances of  this case  however, there will be no order as to costs. V.D.K.                                    Appeal dismissed. 1048