Sudhir Choudhire vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 903 Del

JUDGMENT

Sanjay Kishan Kaul, J.

IA No. 2006(be numbered) in OMP No. 340/2006

This application has been filed under Section 5 of the Limitation Act, 1963 for condensation of delay of 17 days in filing the OMP No. 340/2006.

For the reasons stated in the application, sufficient cause has been shown for condensation of delay. The delay is condoned and the application is allowed.

OMP 532/2006 and OMP No. 340/2006

1. These are two petitions filed in respect of challenge to the same award dated 07.06.2006 of Justice S.S. Chadha (Retd.). In OMP No. 340 of 2006, the private petitioner has sought relief under Section 14(2) of the Arbitration Act, 1940 (hereinafter referred to as the 'said Act') for the original award to be taken on record and for the same to be made Rule of the Court. In OMP No. 532/2006, the Government Authorities have challenged the said Award.

2. In order to appreciate the nature of the controversy, it is necessary to set out the background. Petitioner No. 1 Sh. Sudhir Choudrie, the private party, is the owner of the property bearing No. 11, Lancer Road, Delhi measuring 1125 sq mts. The premises were let out to the government authorities on 06.01.1965 for a period of five years. The lease expired but the property was not apparently handed over and on 06.10.1970 four servant quarters, two garages and four flats in the back forming part of the property were requisitioned under the Requisitioning and Acquisition of Immovable Property Act, 1952. No such notification was issued in respect of the two other flats on the front side. This Act was to lapse on 10.03.1987 but prior to that on 06.03.1987, a notification was issued under Section 4 and 17(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the L.A. Act) in respect of the complete property. It may be noticed that apart from the property in question, 13 other properties were also sought to be acquired vide the same notification. A further declaration under Section 6 of the L.A. Act was issued on 10.03.1987.

3. The affected parties filed Civil Writ Petition No. 229/1992 challenging the acquisition and in terms of the judgment dated 25.01.1995 of a learned Single Judge of this Court, the complete acquisition proceedings were set aside and the matter was referred to an arbitrator for determining the damages liable to be paid after 10.03.1987. The government authorities carried the matter further in appeal, but the LPA was also dismissed on 22.03.2002 and thereafter the Civil Appeal was dismissed by the Apex Court Vide Order dated 28.04.2004

4. In the meantime, the arbitrator proceeded to determine the damages. In the present case such determination was to be done by the appointed arbitrator Justice S.S. Chadha (Retd). The arbitrator entered upon reference on 21.04.1995 and pronounced the award on 07.06.2006 awarding a sum of Rs. 1,13,55,070/- towards damages for use and occupation along with interest and costs. Damages as per Annexure Y to the award have been calculated at different rates for different periods and as per Annexure Z the calculation of interest is on the basis as to when the particular amount fell due.

5. The first aspect raised by the learned Counsel for the respondent is in respect of the area for which the damages have to assessed. It is the contention of the learned Counsel for the government authorities that the arbitrator has mistakenly assessed damages for the complete property though the damages had to be assessed only for the requisitioned portion of the property as the remaining portion remained with the private party.

6. This aspect has been specifically dealt with by the arbitrator in the award.

On perusal of the award, it is found that the stand of the private parties in the claim petition was that the Delhi Administration was in possession of the property in question comprising of six large flats, garages and four servant quarters which was being used for office purposes. In reply to the same, the stand of the government authorities was that the property in question had been requisitioned for which the monthly rent had been fixed 'and besides the building all other portions were also being enjoyed by the officials of the government. The building is being used for residential as well as official purpose.'

7. On appreciation of evidence, the arbitrator came to the conclusion that the government authorities, in fact, had admitted that besides the requisitioned portion all other portions of the building were also being enjoyed by the officials of the government. The testimony of Mr. U.P. Singh in this behalf was not found to be believable.

8. In my considered view it cannot be lost sight of that while scrutinizing the objections under Section 30 and 33 of the said Act, it is not the function of this Court to re-appreciate the evidence or to interfere with the award merely on the basis that the Court would come to a different conclusion on the material available before the arbitrator. It is only in the eventuality of the award being perverse that interference is called for as held by the Division Bench of this Court in DDA v. Bhagat Construction Co. Pvt. Ltd. 2004 (3) Arb LR 481. The Apex Court has also repeatedly cautioned that unless an award is contrary to law and the misconduct is with reference to either personal misconduct of the arbitrator or misconduct of law, the award ought not to be interfered with. In this regard, reference may be made to the judgment of the Apex Court in Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. and Anr. and Food Corporation of India v. Joginderpal Mohinderpal and Anr. . The arbitrator is a judge chosen by the parties as a final arbiter of the disputes between the parties and the challenge is limited and restrictive in its operation.

9. The arbitrator has considered in the present case not only the pleadings but even the evidence of the parties. The plea of the respondent as contained in the reply itself belies the stand which was sought to be taken by one of the witnesses. The testimony of the witness was thus rightly disbelieved. It is not open to the respondent to advance submissions before the arbitrator or before this Court contrary to the pleadings made by the parties. I thus find no force in this plea.

10. Learned Counsel for the respondent also seeks to challenge the determination of the rate of damages. In this behalf, a perusal of the findings arrived at by the arbitrator would show that there was transparency in assessing the rent compensation/damages as both the respondents and the claimants had worked out the figures on the basis of the published rates notified by CPWD for different periods of time. The memos filed on record and the annexures give specifications/scale of amenities/sanitary fittings for which plinth area rate would apply as also the proforma for calculating cost index. These are stated to be contained in 'Nabhi Publication' which has CPWD Plinth Area Rates from 1976 to 2003 along with CPWD circulars on Plinth Area Rates and Valuers Reports. The arbitrator, in fact, accepted the basis of the CPWD rates to apply the same for assessment of damages and, in my considered view, this can hardly bedoubted.

11. The last aspect urged by the learned Counsel for the respondent is about the question of rate of interest. The interest has been awarded at the rate of 12 per cent per annum which can hardly be said to be on the higher side. It is also to be noticed that, in fact, during certain periods of time, the interest rate in the market was probably higher than what is awarded which only declined subsequently. Not only that, the arbitrator has taken care to work out the interest amount on the basis of the date when particular amount of damages became due and payable. This is apparent from Annexure Z to the award while Annexure Y gives the damages for the different periods of time.

12. In view of the aforesaid, I find no infirmity in the award and thus OMP No. 532/2006 is liable to be dismissed and OMP No. 340/2006 is liable to be allowed. The Award of Sole Arbitrator Justice S.S. Chadha (Retd) dated 07.06.2006 is made rule of the Court leaving the parties to bear their own costs.

13. Decree sheet be drawn up accordingly.