Government Of Nct Of Delhi Land And ... vs Smt. Vidyawati D/O Late Shri Likhi ...
2005 Latest Caselaw 1803 Del

JUDGMENT

Madan B. Lokur, J.

1. The Appellant is aggrieved by a judgment and order dated 1st September, 2003 passed by a learned Single Judge allowing WP (C) No.4834 of 1999.

2. Some agricultural land owned by the father of the Respondent was notified under Section 4 of the Land Acquisition Act, 1894 on 13th November, 1959. The land was acquired and possession taken by the Appellant on 27th June, 1969.

3. It appears that in the meanwhile the Respondent's father passed away on 17th April, 1964 and she succeeded to his interest. Consequently, when she applied for compensation in respect of a part of the land, it was granted to her on 29th January, 1970.

4. Some time in the early 1980s, the Respondent's husband passed away and thereafter she came back to her late father's house to reside since she apparently had no issues.

5. The Respondent then applied for and received compensation in respect of the remaining land belonging to her father on or about 7th October, 1996.

6. Apparently, on the basis of a policy announced by the Appellant relating to alternative allotment of land to those persons whose land had been acquired in 1959, the Respondent made an application dated 19th September, 1996 on 22nd October, 1996 claiming an alternative plot of land under the policy.

7. By a letter dated 3rd February, 1999, the application of the Respondent was rejected by the Appellant on the ground that merely because she has received question could be examined even by the arbitrator if an objection is so raised by the party before the arbitrator, as arbitrator has complete jurisdiction to decide with regard to his own jurisdiction as well as of existence of an arbitration agreement. In fact, it is the common case of the parties that the dispute particularly in the case of the contractor and the Society are liable to be referred to the arbitration. It is the person/persons who are to be appointed as arbitrator, which is in dispute. According to the contractor, Architect should be appointed as a sole arbitrator while according to the Society the Architect could not be appointed as an arbitrator as there are serious disputes between the Society and the Architect itself. Arbitration agreement and the proceedings are founded on principle of mutuality and the procedure adopted by the arbitral forum has not only to be fair, but there should be actually fairness to the extent that they could not be questioned. Not only nemo est supra legs, but nemo debet esse judex in propria causa. If for the dispute raised by the contractor against the Society and vis versa architect is appointed as an arbitrator in terms of t he said arbitration agreement, obviously the architect would determine all disputes which are stated to have arisen in AA 250/2003, does not only impliedly but actually he would determine the fate of the claims raised against the architect by the Society. This would offend any known canone of arbitral jurisprudence. It is necessary that parties must get fair opportunity to prove their cases before the arbitral forum in a just and fair manner. In fact the Society could not have named the architect as the sole arbitrator in view of the pendency of the petition before this Court. They had suggested the name of an Advocate as their arbitrator to which the respondent failed to react. In the case of Datar Switchgear Ltd. Vs. Tata Finance Ltd. and Anr. JT 2000 (Supp.2) SCC 226, the Supreme Court held that nomination mentioned in the arbitration clause gives a right to suggest the name of the arbitrator to the other side and appointment could be done with the concurrence. This contention of the appellant in that case was rejected by the Supreme Court wherein Their Lordships held that nomination is equivalent to the word ``appointment'` and in given cases, nomination virtually amounts to appointment for a specific purpose. In the agreement between the Society and the Contract there is no alternative method provided to sole arbitrator in the event parties failed to accept the same. In these circumstances, it will be just fair, equitable and keeping in view the economic limitation of the parties as pleaded that a sole arbitrator be appointed in both these cases to look into the disputes arising between the contractor, Society and the Architect as well. Thus while partially allowing both these petitions, Mr.Justice V.S. Aggarwal, a retired Judge of this Court is appointed as a sole arbitrator, who may enter upon the reference and proceed in accordance with law. Parties are directed to appear before him on 8th September, 2005. Both these petitions are disposed of in the above terms while leaving the parties to bear their own costs.

Liberty to the parties to move before the arbitrator for an interim order in relation to the measurement of the work or any other allied prayer which had been made in IA 7113/2004 and 5788/2003. Both IAs are dismissed with liberty, as granted above.