Delhi High Court
Sajjan Kaur vs Union Of India & Anr. on 17 September, 2018
$~30 to 33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17.9.2018
+ ARB.P. 696/2018 & I.A. No.12516/2018
ISHWAR SINGH & ORS.
..... Petitioners
Through Mr. Uttam Datt and Mr. Tarun
Sharma, Advs.
versus
UNION OF INDIA & ANR.
..... Respondents
Through Ms. Gunjan Sinha Jain and Mr.
Mukesh Kumar, Advs.
+ ARB.P. 697/2018 & I.A. No.12517/2018
SAJJAN KAUR
..... Petitioner
Through Mr. Uttam Datt and Mr. Tarun
Sharma, Advs.
versus
UNION OF INDIA & ANR.
..... Respondents
Through Mr.Mahender Kr. Bhardwaj and
Ms. Tapasiya Bhardwaj, Advs
+ ARB.P. 698/2018 & I.A. No.12533/2018
SAMEEN KUMAR & ANR.
..... Petitioners
Through Mr. Uttam Datt and Mr. Tarun
Sharma, Advs.
versus
Arb. P. 696/2018 Page 1
UNION OF INDIA & ANR.
..... Respondents
Through Mr R. Mishra and Mr. M.K.
Tiwari, Advs.
+ ARB.P. 699/2018 & I.A. No.12524/2018
SATBIR SINGH RANA
..... Petitioner
Through Mr. Uttam Datt and Mr. Tarun
Sharma, Advs.
versus
UNION OF INDIA & ANR.
..... Respondents
Through Mr R. Mishra and Mr. M.K.
Tiwari, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J. (ORAL)
1 Issue notice.
1.1 Ms. Jain accepts notice on behalf of the respondents in Arb.
P. No.696/2018. Mr. Mahender Kr. Bhardwaj accepts notice on
behalf of the respondents in Arb. P. No.697/2018. Mr. R. Mishra
accepts notice on behalf of the respondents in Arb. P.
Nos.698/2018 & 699/2018.
2 Learned counsel for the respondents has drawn my attention
to an order dated 16.05.2018, passed in Civil Appeal
No.5250/2018, in the matter of National Highways and
Infrastructure Development Corporation Ltd. Vs. Prakash Chand
Arb. P. 696/2018 Page 2
Pradhan & Ors. This is an order passed by the Supreme Court.
Based on this order, learned counsel submits that the captioned
petitions under Section 11 of the Arbitration and Conciliation Act,
1996 (in short '1996 Act') are not maintainable, in view of the fact
that Section 3G of the National Highways Act, 1956 (in short
'1956 Act') which gives the power only to the Central Government
to appoint an Arbitrator. It is stated that being a Special Act, it
overrides the 1996 Act.
3 Furthermore, learned counsel for the respondents has placed
before me a communication dated 11.09.2018 addressed by the
Deputy Secretary (LA), Government of NCT of Delhi to the
General Manager of the respondents. Via this communication, it is
indicated that the competent authority has nominated the District
Magistrate/Deputy Commissioner of North, North-West and
South-West Districts as an Arbitrator under the 1956 Act.
4 Ms. Jain has also placed before me a copy of a prior letter of
the respondents dated 13.03.2018 addressed to the same authority
i.e. Deputy Secretary (LA) regarding the appointment of an
Arbitrator, albeit, by the Central Government. The
communication dated 11.09.2018 has been issued pursuant to the
respondents' letter dated 13.03.2018.
5 Having perused the order of the Supreme Court, I am of the
view that while Ms. Jain is right in contending that a petition under
Section 11 of the 1996 Act will not lie. Her contention that the
Arbitrator can be appointed by the Government of the NCT of
Delhi is not borne from the aforementioned order of the Supreme
Arb. P. 696/2018 Page 3
Court.
6 For the sake of easy reference, relevant part of the
aforementioned order of the Supreme Court is set forth hereafter:-
"Section 3-G of the National Highways Act, 1956
provides for determination of the amount that is
payable by way of compensation. We are concerned in
these appeals with sub-sections (5) and (6) of Section
3-G which read as under:
"(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."
A cursory reading of sub-section (5) shows us that
appointment of the arbitrator under the said sub-
section is only in the hands of the Central
Government. Sub-section (6) begins with the
important expression "subject to the provisions of
this Act", the provisions of the Arbitration and
Conciliation Act, 1996 shall apply.
Having heard learned counsel for the parties, we
are, therefore, of the view that a Section 11
application under the 1996 Act cannot be made as
the Central Government alone is to determine who is
Arb. P. 696/2018 Page 4
to be an arbitrator under Section 3-G (5) of the
National Highways Act. If a demand is made for the
appointment of an arbitrator, and the Central
Government does not appoint an arbitrator within a
reasonable time, the remedy that is to be availed of
is a writ petition or a suit for the said purpose, and
not Section 11 of the Arbitration and Conciliation
Act, 1996.
A similar provision contained in Section 86
(1)(f) of the Electricity Act, 2003 specifically gives
the State Commission power to refer any dispute for
arbitration. In this view of the matter, this Court in
Gujarat Urja Vikas Nigam Ltd. vs. Essar Power
Ltd., (2008) 4 SCC 755, held as under:
"28. Section 86(1)(f) is a special provision
and hence will override the general provision in
Section 11 of the Arbitration and Conciliation Act,
1996 for arbitration of disputes between the licensee
and generating companies. It is well settled that the
special law overrides the general law. Hence, in our
opinion, Section 11 of the Arbitration and
Conciliation Act, 1996 has no application to the
question who can adjudicate/arbitrate disputes
between licensees and generating companies, and
only Section 86(1)(f) shall apply in such a situation."
We respectfully agree with the ratio of the
said judgment. Likewise, Section 3-G of the National
Highways Act is a special provision which will be
given effect insofar as the appointment of an
Arb. P. 696/2018 Page 5
arbitrator is concerned.
Learned counsel appearing on behalf of the
respondents has, however, argued that an arbitrator
has now been appointed under Section 11 of the
Arbitration and Conciliation Act, 1996 and, that,
therefore, no prejudice will be caused if he is
allowed to continue. This arguments ignores the fact
that Section 11 of the Arbitration and Conciliation
Act does not apply and that, under Section 3-G, the
Central Government alone can appoint an
arbitrator.
Accordingly, the impugned judgment is set
aside and the appeals are allowed."
7 In view of the above, the captioned petitions are dismissed
with liberty, though, to the petitioners to take recourse to an
appropriate remedy as may be available to them in law.
8 Pending applications will, accordingly, stand closed.
RAJIV SHAKDHER,J
SEPTEMBER 17, 2018
A
Arb. P. 696/2018 Page 6
