1. The petitioners are depositors in terms of Section 2(b) of the Kerala Warehouses Act, 1960. The petitioners deposited certain articles or goods with the second respondent, the warehouseman as defined in Section 2(j) of the said Act. There was a demand for warehouse charges. The demand was made issuing notices with a threat that, in case the demand is not met, the articles or goods shall be subjected to sale by the warehouseman. Those notices were challenged by the petitioners separately in O.P. Nos. 25246/01 & 25338/01. During the pendency of those original petitions, both the petitioners in those original petitions have approached this court with this original petition seeking a direction to the first respondent Government to take steps to constitute a Board of Arbitrators u/s 31 of the Kerala Warehouses Act and to refer the dispute raised in Exts. P1 and P2 notices to the said arbitrators.
2. It is submitted that arbitration is provided for as per the Kerala Warehouses Act and the rules framed thereunder. Therefore, it is mandatory for the first respondent when a dispute or complaint is received to refer the matter for decision by the arbitrator/arbitrators.
3. The arbitration is dealt with in Section 31 of the Act which reads as follows:
Where under this Act any matter is required to be determined by arbitration, the matter shall be determined by a board of arbitrators consisting of three members of whom one each shall be nominated by the two parties concerned and the third by the Government or such other authority as may be empowered in this behalf of Government....."
But the petitioners counsel was unable to point out to me whether the matter raised in Exts. P1 and P2 is a matter which is "required to be determined by arbitration" under the Act. But it is contended that this is a matter for arbitration in terms of Rule 35 read with Rule 38. Rule 35 reads as follows:
Notices of disputes arising between a warehouseman and depositor regarding any matter including the weight, bulk quality or grade of the goods deposited shall be served on the Secretary to Government in charge of the Co-operation within 30 days from the date on which the cause of dispute arose".
It is an admitted fact before me that the dispute raised in Exts. P1 and P2 does not relate to the weight, bulk, quantity or grade of goods deposited by the petitioners. Therefore necessarily, what is raised in Exts. P1 and P2 is not a dispute coming under the said Rule.
4. The Board of Arbitrators is provided for in Rule 38 which reads as follows:
On receipt of an appeal notice of dispute or complaint in writing under Rule 34 to 36 the Government shall issue notices to either party to the appeal, dispute or complaint calling upon them to nominate an arbitrator each on their behalf within 15 days from the date of receipt of the notice."
The petitioners also do not have a case before me that the matter raised in Exts. P1 and P2 is anything concerning Rules 34, 35, or 36 of the said Rules. Necessarily, Rule 38 does not have any application to the dispute raised by the petitioners in Exts. P1 and P2 which does not come within dispute.
5. Naturally, the petitioners cannot raise a dispute to constitute Board of Arbitrators or to refer a complaint raised as per Exts. P1 and P2 to the arbitrators. Original petition fails, dismissed. No costs.
