{"id":474,"date":"2020-04-23T10:29:54","date_gmt":"2020-04-23T10:29:54","guid":{"rendered":"http:\/\/lexforti.com\/legal-news\/?p=474"},"modified":"2021-01-17T04:26:27","modified_gmt":"2021-01-17T04:26:27","slug":"in-certain-circumstances-law-may-permit-denial-of-right-of-hearing-but-in-order-to-deny-that-it-should-have-a-legal-basis","status":"publish","type":"post","link":"https:\/\/lexforti.com\/legal-news\/in-certain-circumstances-law-may-permit-denial-of-right-of-hearing-but-in-order-to-deny-that-it-should-have-a-legal-basis\/","title":{"rendered":"In certain circumstances, law may permit denial of right of hearing, but, in order to deny that it should have a legal basis."},"content":{"rendered":"\n

Ravikiran Shukre | Manikchand Pahade Law College, Aurangabad | 9th January 2020 <\/strong><\/p>\n\n\n\n

Rudramuni Devaru V. Shrimad Maharaj Niranjan (AIR 2005 KANT 313)<\/strong><\/p>\n\n\n\n

Facts\nof the Case:<\/strong> <\/p>\n\n\n\n

  1. A well-known Veerashaiva Math called\nMoorusaavira Math at Hubli having large number of devotees in the Veerashaiva\nCommunity not only in the State of Karnataka but also from outside. It is\nregarded as Public Trust under the provisions of Bombay Public Trusts Act,\n1950. Mathadhipati is appointed by way of appointment of successor by the\nexisting Mathadhipati in accordance with the opinion of the Lingayath devotees\nof Hubli and Dharwad. <\/li>
  2. Mathadhipati (appellant no. 1) was\nappointed by the first respondent with the document dated 30th<\/sup> October\n1991. When Matter stood thus, first respondent sought to cancel the said\ndocument and the dispute arose between appellant and respondent. However, the\ndifferences and the dispute between them were settled by the intervention of\ndevotees and well-meaning people of the Hubli and Dharwad. <\/li>
  3. Under the said settlement, the first\nrespondent decided to forgive and forget the past and the appellant was again\nappointed as successor as per the wish of the devotees thereby, in effect,\ncancelling the cancellation deed dated 19.10.1995 and affirming the appointment\nof the appellant as successor as per registered deed dated 30th October, 1991.\nIn that regard, the first respondent executed a deed dated 16.10.1998 and the\nsame was duly registered. When the matter stood thus, the first respondent\nquite curiously and within a short time executed another cancellation deed\ndated 02.11.1998 cancelling the appointment of the appellant as the\nMathadipathi without consulting and obtaining the consent of the Lingayath\nDevotees of Hubli-Dharwad and without informing the appellant. <\/li>
  4. Due to which there was chaos everywhere in\ndevotees of Hubli and Dharwad. Therefore, appellant and first respondent eventually\nagreed to refer the dispute between them to the arbitral tribunal consisting of\nfive arbitrators. In terms of the arbitration agreement, out of five\narbitrators, the first respondent was to nominate two arbitrators, the\nappellant was to nominate two arbitrators and the Chief Minister of Karnataka\nwas to nominate one arbitrator and all the arbitrators were required to be\nMathadipathies of different Maths. Appellant nominated third and fifth\nrespondents as his nominees whereas the first respondent nominated fourth and\nsixth respondents as his nominees. The Chief Minister of Karnataka nominated\nsecond respondent as his nominee. The second respondent, the records disclose,\nassumed the role of the presiding arbitrator of the arbitral tribunal.<\/li>
  5. Arbitral Tribunal initiated its\nproceedings from 25th<\/sup>, 26th<\/sup> and 27th<\/sup> December\n1998 and held meeting for the same. Further, sittings were on 17th<\/sup>,\n18th<\/sup> and 19th<\/sup> February 1999. Third respondent due to his\nill health was unable to attend the sittings. And fifth respondent protested to\nthe sittings were held in absence of the third respondent and requested to give\nopportunity to appoint another arbitrator in place of third respondent and\nrequested to arbitral tribunal not to proceed without enquiry before arbitral\ntribunal is properly reconstituted in terms of arbitral agreements. \u00a0<\/li>
  6. The arbitral tribunal conducted enquiry\npassed the award on 27.03.1999 at Bangalore. The award is signed only by the\nsecond, fourth and sixth respondents. The third and fifth respondents have not\nsigned the award. In the award, the installation of the appellant as the\nMathadipathi vide registered deed executed by the first respondent dated\n15.05.1998 and his assumption of the office of the Mathadipathi on 7th\/8th\nNovember, 1998 in pursuance of the deed executed by the first respondent dated\n16.10.1998 are held to be invalid. It is also held that the appellant is not\nentitled to continue as the Mathadipathi of the Math. Tribunal further held\nthat the action of the first respondent in cancelling the appointment of the\nappellant as the Mathadipathi vide deed dated 02.11.1998 is valid.<\/li>
  7. Appellant being aggrieved by this award\nmade an application under section 34 of the Act for setting aside the impugned\narbitral award on various grounds award is null and void as arbitral tribunal\nwas not constituted properly, and no opportunity of being heard was given to\nappellant.<\/li><\/ol>\n\n\n\n

    Judgment:\n<\/strong><\/p>\n\n\n\n

    1. Shri.\nJaykumar S. Patil, learned counsel for the appellant contended that impugned\norder was passed by only three arbitrators out of five; and cannot be regarded\nas award within the meaning of that term under this Act. Award is nullity in\nthe eyes of law as it was passed by only three arbitrators out of five\narbitrators who constituted panel and third and fifth arbitrator did not\nparticipate in the decision making. It is contended that as third and fifth\nrespondents submitted resignation well before the date on which award was\npassed, the arbitral tribunal ought to have given opportunity to appellant to\nnominate new arbitrators in pce of third and fifth respondents as third and\nfifth respondents were nominees of appellant. It was further contended that\nthere is utter violation of principles of natural justice and just hearing. <\/li>
    2. It\nneeds to be noticed in this case that the arbitral tribunal was a multimember\nbody and, therefore, what was of importance and need was the joint deliberation\nfrom amongst all the members of the arbitral tribunal. There is a sound\nrationale behind the insistence that in a multimember body all the members\nshould participate on all the material dates of enquiry. That persistence helps\nthe members of tribunal to influence each other, to appreciate each other\u2019s\nview point and ultimately to arrive at a conscience and unanimous opinion, if\nthat is possible or to accept the opinion of the majority with respect and perfect\nunderstanding. The arbitral tribunal in this case is deprived of the essence of\ndeliberations from amongst all the members of the arbitral tribunal. In taking\nthis view, we are also fortified by the judgment of the Bombay High Court in\nthe case of Faze Three Exports Limited v.\nPankaj Trading Company and Ors.[1]<\/strong><\/a>\n<\/em>arising out of Arbitration and Conciliation Act, 1996. In para 15 of the\nsaid judgment it is stated thus: \u201cAs arbitrators must all act, so\nmust they all act together. They must each be present at every meeting; and the\nwitness and the parties must be examined in the presence of them all; for the\nparties are entitled to have recourse to the agreement, experience and judgment\nof each arbitrator at every stage of the proceedings brought to bear on the\nminds of his fellow judges so that by conference they shall mutually assist\neach other in arriving at a just decision. In the present case, it is not\ndisputed that there were only two arbitral meetings after the remand, i.e. on\n12th August, 2002 and 14th August, 2002. The first meeting was merely adjourned\nand no procedure took place thereunder. Therefore, the only effective meeting\nwas held on 14th August, 2002 and for the entire period of that meeting, one\narbitrator was absent. In such circumstances, the award made by the arbitral\ntribunal cannot be sustained and has to be set aside.”<\/em> <\/li>
    3. This\ntakes us to the other contention of the appellant that the arbitral award is\nvitiated on account of utter violation of principles of natural justice and\nlack of fairness in the procedure adopted by the arbitral tribunal. It is\nneedless to state that if the party making an application under Section 34 of\nthe Act to set aside an arbitral award was not given proper notice of\nappointment of arbitrator or of the arbitral proceedings or was otherwise\nunable to remain present in the arbitral proceedings before the arbitral\ntribunal an arbitral award may be set aside by the Court. The minimum\nrequirements of a proper hearing should include: (i) each party must have\nnotice that the hearing is to take place and of the date, time and place of\nholding such hearing; (ii) each party must have a reasonable opportunity to be\npresent at the hearing along with his witnesses and legal advisers, if any, if\nallowed; (iii) each party must have the opportunity to be present throughout\nthe hearing; (iv) each party must have the reasonable opportunity to present\nstatements, documents, evidence and arguments in support of his own case; (v)\neach party must be supplied with the statements, documents and evidence adduced\nby the other side; (vi) each party must have a reasonable opportunity to\ncross-examine his opponent’s witnesses and reply to the arguments advanced in\nsupport of his opponent’s case.<\/li>
    4. It\nis also admitted case that arbitral tribunal did not give any opportunity to\ncross-examine the witnesses of either side. Perhaps realising the above serious\nflaw in the conduct of the enquiry by the arbitral tribunal, the stock and\nspecious argument placed before us by the learned counsels appearing for the\nrespondents 1, 6 and 8 is that this case cannot be regarded as an adversarial\nlitigation. This contention is not acceptable to us. The subject-matter of\narbitral reference relates to the office of Mathadipathi of the Math. There was\na serious dispute between the appellant, the 1st respondent and the 8th\nrespondent as to who should be a successor Mathadipathi of Math. Therefore, if\nthe arbitral tribunal were to declare that the appointment of the appellant as\nMathadipathi vide registered deed dated 15.05.1998 is invalid and the\ncancellation of the appointment of the appellant as successor Mathadipathi vide\ncancellation deed executed by the 1st respondent on 02.11.1998 is valid, the\nlaw undeniably requires that the affected appellant should have been apprised\nof the adverse materials collected by the arbitral tribunal or adduced by the\n1st respondent. <\/li>
    5. It\nwas contended by the counsel for the first respondent that arbitration\nagreement does not provide that arbitral tribunal shall conduct an enquiry in\nconformity of principles of natural justice and therefore, the procedure\nadopted by the arbitral tribunal with regard to which complaint is made by\ncomplainant cannot be faulted. This contention is rejected as violates the\ncreed flowing from Article 14 of the constitution. In certain circumstances,\nlaw may permit denial of right of hearing, but, in order to deny that it should\nhave a legal basis. It is well settled that though a statute or an instrument\ndoes not specifically include principles of natural justice, the Court is bound\nto read into such statute or instrument the principles of natural justice.<\/li>
    6. In\nWrit Appeal Nos. 3833 and 3834 of 2000 filed by the appellant herein, arising\nout of the proceedings initiated by the Charity Commissioner, this Court was\ntold that the 3rd respondent therein (8th respondent herein) had already\nassumed the office of Mathadipathi. The Division Bench having noticed that fact\npassed the final order thus:<\/em><\/li><\/ol>\n\n\n\n

      “The\n3rd respondent will function as Swamiji. The District Court, Dharwad is\ndirected to dispose of Misc. A. No. 66 of 1999 as expeditiously as possible,\nwithin a period of three months and both the parties are directed to co-operate\nfor the disposal of the case. Pending disposal of the proceedings before the\nDistrict Court, no further proceedings will be taken by the Charity\nCommissioner or first Respondent-Assistant Charity Commissioner or any other\nauthority. The assumption of the charge by 3rd respondent is subject to the\ndecision of the District Court.”<\/em><\/strong><\/p>\n\n\n\n