Delhi High Court
Devendra Kumar Gupta vs Union Of India on 8 December, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 28th November, 2017
Pronounced on: 08th December, 2017
+ O.M.P.(T) 5/2017
DEVENDRA KUMAR GUPTA ..... Petitioner
Through : In person.
versus
UNION OF INDIA ..... Respondent
Through : None.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1. This petition is under section 12 and 14 of the Arbitration
and Conciliation Act.
2. It is alleged on 31.05.2010 a public notice was published in
Amar Ujala newspaper for acquisition of land of the petitioner
admeasuring 550 square meters in village Kulchandi Tehsil
Roorkee for widening of NH 58.
3. In March 2015 the petitioner was paid land compensation at
the rate of ₹949/- per square meters and on 20.07.2015 he has
made a request to the District Magistrate Haridwar to pay a
compensation of Rs.3100/- per square meters plus 10% along with
9% interest, have raised dispute.
4. On 17.01.2017 the NHAI authorities supplied a copy of
letter indicating District Collector Haridwar by designation has
been appointed as arbitrator for settlement of claims for the
acquired land.
5. The petitioner on 18.10.2016 had issued a notice under
section 80 CPC to the Secretary (RT&H) to appoint an arbitrator,
per provisions of the amended Act of 2015 and on 02.01.2017
issued yet another notice but the respondent gave no response,
hence this petition.
6. Section 3(G) of the NHAI Act of 1956 incorporates the
Arbitration clause and it runs as under:
"Central Government Act
Section 3G in The National Highways Act, 1956
3G. Determination of amount payable as
compensation.-
(1) Where any land is acquired under this Act,
there shall be paid an amount which shall be
determined by an order of the competent authority.
(2) Where the right of user or any right in the
nature of an easement on, any land is acquired
under this Act, there shall be paid an amount to the
owner and any other person whose right of
enjoyment in that land has been affected in any
manner whatsoever by reason of such acquisition
an amount calculated at ten per cent. of the amount
determined under sub-section (1), for that land.
(3) Before proceeding to determine the amount
under sub-section (1) or subsection (2), the
competent authority shall give a public notice
published in two local newspapers, one of which
will be in a vernacular language inviting claims
from all persons interested in the land to be
acquired.
(4) Such notice shall state the particulars of the
land and shall require all persons interested in
such land to appear in person or by an agent or by
a legal practitioner referred to in sub-section (2) of
section 3C, before the competent authority, at a
time and place and to state the nature of their
respective interest in such land.
(5) If the amount determined by the competent
authority under sub-section (1) or sub-section (2)
is not acceptable to either of the parties, the
amount shall, on an application by either of the
parties, be determined by the arbitrator to be
appointed by the Central Government.
(6) Subject to the provisions of this Act, the
provisions of the Arbitration and Conciliation Act,
1996 (26 of 1996) shall apply to every arbitration
under this Act."
7. It is argued that since arbitrator is to be appointed by Central
Government having its seat in Delhi hence this application is made
here. Further he submits the District Collector Haridwar is
controlling authority of the Special Land Acquisition Officer and
hence would not be a fit person to adjudicate and settle the disputes
of revised compensation of the land acquired and there is every
possibility he may not take an opinion other than that of the Land
Acquisition Officer.
8. The petitioner refers to Vth Schedule of the Arbitration and
Conciliation Amendment Act of 2015 which runs as under:-
"The following grounds give rise to justifiable
doubts as to the independence or impartiality of
arbitrators:
Arbitrator's relationship with the parties or counsel
1. The arbitrator is an employee, consultant,
advisor or has any other past or present business
relationship with a party.
2. xxx
3. xxx
4. xxx
5. The arbitrator is a manager, director or part of
the management, or has a similar controlling
influence, in an affiliate of one of the parties if the
affiliate is directly involved in the matters in
dispute in the arbitration."
9. In Dream Valley Farms Private Limited vs. Religare
Finvest Limited & Ors. ARB. 635/2016 decided on 19.10.2016
which runs as under:
20. While in the normal course, that would be one
option, in the present case not only are Clauses 22
and 24 of the Fifth Schedule attracted giving rise
to justifiable doubts as to the independence and
impartiality of the Arbitrator, but the conduct of
the Arbitrator in seeking to mislead the Petitioner
and suppress in the first instance the fact of his
being a presiding Arbitrator in 27 arbitration
matters relating to the Respondent smacks of
dishonesty that is unbecoming of an Arbitrator.
21. The Court is satisfied that the for the purposes
of Section 14 (1) (a) of the Act the Arbitrator
becomes de jure disqualified from continuing as an
arbitrator. His mandate is accordingly
terminated."
10. ASSIGNIA-VIL JV vs Rail Vikas Nigam Limited ARB.P.
677/2015 decided on 29.04.2016 by the Court as under:
"43. The Fifth Schedule i.e. supplementary
provision read with Section 12
(l)(b) mandates that the appointment made by any
party which would give rise to justifiable doubts as
to the independence or impartiality of arbitrator if
he has relationship with the parties or counsel or
the arbitrator is an employee, consultant, advisor
or has any other past or present business
relationship with a party, the same would give rise
to justifiable doubts. Similarly the Seventh
Schedule read with Section 12 (5) mandates that
there shall not be any arbitrator's relationship with
the parties or counsel who should also not be an
employee, consultant, advisor or has any other
past or present business relationship with a party.
If the answer is yes, the person should not be
appointed as arbitrator in the said matter.
In the present case, the suggestion of the
respondent to appoint its own employee who is
either present employee or retired employee, the
request cannot be accepted as the arbitration is
invoked after amended Act has come into
operation. In case the said request is allowed, the
very purpose of amending the Act would be
defeated.
44. I am clear in my mind that under the
Arbitration and Conciliation (Amendment) Act,
2015, if any such case is covered as referred above
in earlier para which cover the supplementary
provision of schedule Fifth and Seventh, under
those circumstances, the Court is duty bound to
secure the appointment of an independent and
impartial arbitrator as per Section 12 of the Act
(as amended in 2015). As the arbitration is being
an employee of one of the parties would definitely
give rise to justifiable doubt as to his independence
and impartiality."
11. In these circumstances as the District Collector Haridwar is
the controlling authority of concerned Special Land Acquisition
Officer, the apprehensions of the petitioner cannot be brushed
aside hence it would be appropriate if Mr.Nishit Agrawal,
Advocate, Mobile No.7838952060 is appointed as an arbitrator to
arbitrate the dispute. Fee shall be paid as per fee Schedule-IV of
Arbitration and Conciliation Act to be shared jointly by the parties.
12. Petition stands disposed of.
YOGESH KHANNA, J
DECEMBER 08, 2017
DU
