GOVERNMENT OF N.-W.F.P. through Secretary Forests, Peshawar and 4

' ABDUR REHMAN KHAN J:---The respondent purchased certain number of trees in forest Leidhara Compartment No,1 and Jabbar Compartment No,3 situated in Darra Pashto Ilaqa Allai, Tehsil Battagram and in this respect a contract was executed between the respondent and Conservator of Forests, appellant No,3 on 25-5-1974. It is alleged that illicit cutting of 90 trees was detected and the respondent was asked to explain as to why action should not be taken against him under Clause 18-A of the agreement. The reply of the respondent was not found satisfactory and after holding him responsible for the legal damage the Conservator of Forests imposed a fine of Rs.1,97,734 on him through his office order No,49 dated 3-9-1975. The respondent then invoked the aribitration clause of the agreement and approached the Chief Conservator for arbitration. The Arbitrator in his award dated 12-1-1977 agreed with the conclusion of the Conservator and maintained the order of imposition of fine. The respondent, therefore, approached the Court of Senior Civil Judge, Kohistan/Battagram under section 30/33 of the Arbitration Act with a request that the impunged award may be declared as illegal and ineffective over his rights. The said Court granted the declaration as prayed for and consequently exonerated the respondent from payment of fine. This judgment was challenged in appeal before the learned Distirct Judge but that Court returned the memo. Of appeal to the appellant for presentation to this Court as the Distict Judge was of the opinion that he lacked pecuniary jurisdiction in the matter. This appeal has, therefore, been instituted in this Court to challenge the legality of the judgments of both the Courts as it has been submitted in the grounds of appeal that the District Judge was competent to entertain and decide the appeal and his refusal in this respect is illegal and that in any case the order of the original Court being legally and factually incorrect deserves to be set aside. Application under sections 5/14 of the Limitation Act for condonation of appeal has also been filed alongwith the appeal to be considered in case the appeal was not found competent before the District Judge.

2. The learned Assistant Advocate-General while arguing for the appellant at the outset submitted that the appeal before the District Judge was competent and to support his view a case reported as "the Lahore Ferozepore Transport Cooperative Society Limited and 4 others v. Malik Muhammad Sadiq" in PLD 1958 Lahore page 44 was relied upon. In order to repel this contention the learned Advocate of the respondent placed reliance on 1983 CLC 1685 and maintained that the learned District Judge was legally justified in returning the appeal as that Court has no pecuniary jurisdiction. In the Arbitration Act the term 'Court' has been defined as "Court" means a Civil Court having jurisdiction to decide the question forming the subject-matter of the reference if the same had been the subject-matter of a suit, but does not, except for the purpose of arbitration proceedings under section 21, include a Small Cause Court". It is thus obvious that the value of the subject-matter of the reference is the determining factor in matter of jurisdiction. In this case the amount imposed as fine is Rs.1,97,734 and the respondent made it as a subject-matter of his reference as he requested to be exempted from payment of this amount. This amount obviously exceeds the limits of the prescribed pecuniary jurisdiction of the District Judge, therefore, the appeal in this Court would be competent. The judgment reported in PLD 1958 Lah. 44 has distinguishable feature as no valuation was given in that ease which was remanded to the lower Court with the direction to the applicant to amend his application in order to indicate its valuation and thereafter the Court was required to decide if it has jurisdiction in the matter. On the other hand, the rule laid down in 1983 CLC 1685 is applicable to the facts and circumstances of the case and while adopting that dictum it is held that the appeal in this Court is competent and the objection of the learned counsel on this count is overruled. The question of competency of the appeal in the Court of District Judge or this Court was difficult and a complicated one, therefore, the appellants cannot be balmed for filing the appeal in that Court nor it can be said that they were negligent in pursuing their remedy in the said Court. In the circumstances, the application under section 5/14 of the Limitation 'Act is accepted, the period spent in prosecuting the appeal in the Court of the District Judge is condoned and the appeal is held as within time. ##SE## It was next urged that the application under section 30/33 was time-barred as it was not filed within 30 days from the date of service of notice of filing the award as required by Article 158 of the Limitation Act. This objection is without substance and misconceived because the appellants never filed the award in the Court so as to make it effective like the decree of the Court, therefore, Article 158 will have no implication. The learned trial Judge was correct in applying the residuary Article 181 of the Limitation Act and rightly I held the application to be within time. It was submitted that no application under I section 30/33 can be moved unless the award is filed in the Court and as the award in this case was not submitted in Court, therefore, the application was not competent. It is, however, conceded that before making the award a rule of the Court the penalty imposed under it against the applicant-respondent had been realized by the appellant. This objection, therefore, becomes too technical beside it has no legal basis. Moreover, to allow such an objection would tantamount to placing premium on violation of legal duty as the appellants could not enforce the award before making it operative as decree through the intervention of the Court. It was lastly stressed that the original Court has no jurisdiction to set aside the award because the petitioner could not bring his case under any of the clauses of section 30 of the Arbitration Act. The perusal of section 30 would show that an award can be set aside if the arbitrator has misconducted the proceedings or the award has been improperly procured or otherwise is invalid. The word `misconduct' has not been defined in the Act but there exists judicial consensus on the point that it should be given wider meaning. The learned trial Court has set aside the award mainly on the ground that it is opposed to the evidence on record. In this context reference was made to Exh.P.W.1/12 which is a report by the Divisional Forest Officer to the Conservator of Forests about the present disputed forbidden cutting. In this report it has been observed, "According to the reports of Field Staff illicit cutting of trees had been done by the owners of the Forests, therefore, the damage reports were issued against the offenders. The contractor had informed the supervisory staff to take cognizance of the damage committed by the owners for selling of the outturn to him which was beyond his control in view of the peculiar circumstances of the area where the law and order situation is practically not under the control". It also states, "However, as the damage has taken place in the coupe area, therefore, the contractor was asked to explain his position for this damage under the terms of the agreement vide this Office No, 4033/G, dated 27-2-1975. He sent his reply on 10-4-1975, which was sent to Range Officer, Allai, for comments. The comments offered by the Range Officer, Allai have now been received on 26-5-1975. It further reads, "The explanation of the contractor, comments offered by the Range Officer, Allai and other connected enquiry papers reveal that the illicit cutting of trees has not taken place on the instance of the working contractor who could not prevent it due to lawlessness prevailing in that area. In view of the fact that the contractor has completed this forest operations prior to the occurrence of the damage and he himself informed the field staff about it, the invocation of clause 18(a) of the agreement would not be appropriate in this case." This report clearly exonerates the respondent from the liability of criminal cutting and besides it there was no other evidence on record to hold the appellant guilty of the alleged impermissible cutting. The impugned award is, therefore, not based on any evidence but is clearly opposed to the materials on record. If it is found that an arbitrator has ignored important evidence and has returned a verdict which is in conflict with the evidence on record, then the award would not have that much sanctity as to immune it from interference by the Court.

It is well-settled that Courts are there to administer justice and when it was established that the award had no basis in law and was rather clearly unjust being opposed to the evidence on record, then such an award could not be considered a Divine word so as to render the Court helpless to strike it. Finding is that which is based on evidence and an arbitrary conclusion is neither impregnable nor exempt from judicial scrutiny. The finding of the arbitrator should be based on evidence as the arbitrator is obliged to return an award and not an opinion. We would, therefore, not agree with the argument of the learned counsel that the case of the respondent does no fall within the ambit of section 30 of the Arbitration Act.

3. There is no legal or factual flaw in the impugned judgment and accordingly we dismiss this appeal with costs.