Delhi High Court
Advanced Ocean Systems (P) ... vs Delhi Jal Board And Anr. on 13 December, 2001
Author: M Mudgal
Bench: M Mudgal
JUDGMENT
Mukul Mudgal, J.
1. This writ petition prays the following relief:
i) grant a writ of mandamus or any other
appropriate writ or order restraining
the respondents their men, agents or
assigns from in any manner interfering
with the petitioner retrieving their
equipment from the site namely wireless
centre and also carry out the necessary
activities of destanking in order to
preserve the site from causing any
irreversible environmental damage.
2. The petitioner who is a contractor had entered into a
contract with the Respondent No. 1, Delhi Jal Board, for
the restoration/rehabilitation of settled portion of 2200
mm dia Ring Road Trunk Sewer near Gurudwara Damdama Sahib
wireless centre and zoo. The relevant arbitration clause
in the Contract reads as follows:
"Clause - 25 Arbitration Clause
1. Except where otherwise provided in the
contract all questions and disputes relating
to the meaning of the specifications,
designs, drawings and instruction herein
before mentioned and as to the quality of
workmanship or materials used on the work or
as to any other question claim right matter
of thing whatsoever, in any way arising out
of or relating to the contract, designs,
drawings specifications estimates,
instructions order or these conditions or
otherwise concerning the work or the
execution or the execution or the execution
of failure to execute the same whether
arising during the progress of the work or
after the completion or abandonment thereof,
shall be referred to the sole arbitration of
the CEO Delhi Jal Board or any person
nominated by the CEO in his behalf. The
award of the arbitration shall be final
conclusive and binding on all parties to
this contract".
3. The learned senior counsel for the petitioner Shri R.
Venkataramani has relied on Clause 25(4) of the
Arbitration to contend that only such dispute can be
referred as are though fit by the CEO of Delhi Jal Board.
The case of the petitioner is that since the property of
the petitioner has been sought to be blocked by the
respondent and such an action is totally without authority
of law, a writ petition is maintainable. He further
contends that public body is not entitled to act
arbitrarily and indeed lawlessly in its dealings with a
private body such as a petitioner. He further submits
that in view of this stark arbitrariness of the impugned
action he has approached the writ court.
4. Section 9 of the Arbitration and Conciliation Act,
1996 (hereinafter referred to as the Act) reads as under:
"9. Interim measures, etc. by court. -- A
party may, before or during arbitral
proceedings or at any time after the making
of the arbitral award but before it is
enforced in accordance with Section 36,
apply to a court :--
(i) for the appointment of a guardian for a
minor or a person of unsound mind for
the purposes of arbitral proceedings;
or
(ii) for an interim measure of protection in
respect of any of the following
matters, namely:-
(a) the preservation, interim custody or
sale of any goods which are the subject
matter of the arbitration agreement;
(b) securing the amount in dispute in the
arbitration;
(c) the detention, preservation or
inspection of any property or thing
which is the subject matter of the
dispute in arbitration, or as to which
any question may arise therein and
authorising for any of the aforesaid
purposes any person to enter upon any
land or building in the possession of
any party, or authorising any samples
to be taken or any observation to be
made, or experiment to be tried, which
may be necessary or expedient for the
purpose of obtaining full information
or evidence;
(d) interim injunction or the appointment
or a receiver;
(e) such other interim measure of
protection as may appear to the court
to be just and convenient,
and the Court shall have the same power for
making orders as it has for the purpose of,
and in relation to, any proceedings before
it.
5. Learned senior counsel for the petitioner does not
dispute that the measures sought by the writ petition may
fall within the sweep of Clause (e) of Section 9 of the
Act. It is further submitted that the action of the
respondent is so arbitrary and the situation so emergant
that the petitioner was compelled to come to this Court
under Article 226 of the Constitution. Learned senior
counsel for the petitioner has further submitted that a
request for the appointment of an arbitrator was made and
the arbitrator has not yet been appointed.
6. I am prima face of the view that the prayers sought to
be raised in the writ petition would fall within the ambit
of Clause 25 (1) i.e. arbitration particularly when the
relevant portion of the said arbitration clause is very
widely worded as under:
"as to the quality of workmanship or
materials used on the work as to any
other question claim right matter of thing
whatsoever, in any way arising out of or
relating to the contract, designs, drawings
specifications estimates, instructions order
or these conditions or otherwise concerning
the work or the execution or the execution
or the execution of failure of execute the
same whether arising during the progress of
the wok or after the completion or
abandonment thereof, shall be referred to
the sole arbitration of the CEO Delhi Jal
Board or any person nominated by the CEO in
his behalf".
7. In Sundram Finance case the Hon'ble Supreme Court has
held that orders under Section 9 can be sought in advance
of the appointment of the arbitrator provided there is a
direction to appoint an arbitrator within a specified
time. I am thus satisfied that the order/protection, if
any, that the petitioner may be entitled, can only be
sought under Section 9 of the Arbitration Act in
appropriate proceedings. In this view of the matter, the
writ petition is not maintainable and is accordingly
dismissed in liming. dusty.
