Delhi High Court
M/S Prem Sukh Bothra (Huf) Through ... vs Office Of The Competent Authority ... on 8 January, 2021
$~S- 5 to 8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9361/2018
M/S PREM SUKH BOTHRA (HUF) THROUGH KARTA PREM
SUKH BOTHRA ..... Petitioner
Through Mr.Saurav Agarwal, Advocate.
versus
OFFICE OF THE COMPETENT AUTHORITY AND ORS.
..... Respondents
Through Mr.Yeeshu Jain, Standing Counsel for
LAC with Ms.Jyoti Tyagi, Advocate.
Mr.Manish Mohan, CGSC with
Ms.Manisha Saroha, Advocate for
UOI.
Mr.Sanjay Poddar, Sr.Advocate with
Ms.Padma Priya, Mr.Dhruv Nayar
and Mr.Shivam Goel, Advocate for
NHAI.
WITH
+ W.P.(C) 9372/2018
MOTI LAL BOTHRA (HUF) THROUGH KARTA SHRI MOTI
LAL BOTHRA ..... Petitioner
Through Mr.Saurav Agarwal, Advocate
versus
OFFICE OF THE COMPETENT AUTHORITY (LAND
ACQUISITION) UNDER THE NATIONAL HIGHWAYS ACT,
1956 & ORS ..... Respondents
Through Mr.Yeeshu Jain, Standing Counsel for
LAC with Ms.Jyoti Tyagi, Advocate.
W.P. (C) 9361/2018 & connected matter Page 1 of 17
Mr.Manish Mohan, CGSC with
Ms.Manisha Saroha, Advocate for
UOI.
Mr.Sanjay Poddar, Sr.Advocate with
Ms.Padma Priya, Mr.Dhruv Nayar
and Mr.Shivam Goel, Advocate for
NHAI.
WITH
+ W.P.(C) 9373/2018
M/S DHANRAJ BOTHRA (HUF)
THROUGH KARTA KUSHAL KUMAR BOTHRA ..... Petitioner
Through Mr. Saurav Agarwal, Advocate
versus
OFFICE OF THE COMPETENT AUTHORITY AND ORS.
..... Respondents
Through Mr.Yeeshu Jain, Standing Counsel for
LAC with Ms.Jyoti Tyagi, Advocate.
Mr.Manish Mohan, CGSC with
Ms.Manisha Saroha, Advocate for
UOI.
Mr.Sanjay Poddar, Sr.Advocate with
Ms.Padma Priya, Mr.Dhruv Nayar
and Mr.Shivam Goel, Advocate for
NHAI.
WITH
+ W.P.(C) 9417/2018
MASTER ESTATE PRIVATE LIMITED ..... Petitioner
Through Mr.Saurav Agarwal, Advocate.
versus
W.P. (C) 9361/2018 & connected matter Page 2 of 17
OFFICE OF THE COMPETENT AUTHORITY
(LAND ACQUISITION) & ORS. ..... Respondents
Through Mr.Yeeshu Jain, Standing Counsel for
LAC with Ms.Jyoti Tyagi, Advocate.
Mr.Manish Mohan, CGSC with
Ms.Manisha Saroha, Advocate for
UOI.
Mr.Sanjay Poddar, Sr.Advocate with
Ms.Padma Priya, Mr.Dhruv Nayar
and Mr.Shivam Goel, Advocate for
NHAI.
% Date of Decision: 08th January, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
MANMOHAN, J: (Oral)
C.M.No.32195/2020 in W.P.(C) 9361/2018 (for vacation or fixing the
matter for final hearing by R-3)
C.M.No.32194/2020 in W.P.(C) 9417/2018 (for vacation or fixing the
matter for final hearing by R-3)
Keeping in view the averments in the applications and with consent of
parties, the matters are taken up for hearing.
Accordingly, the applications stand disposed of.
CM APPL. 32621/2019 in WP(C) 9372/2018 (by R-3)
Keeping in view the averments in the application, the delay in filing
the reply to CM No. 12611/2019 is condoned.
Accordingly, the application stands disposed of.
W.P.(C) 9361/2018
W.P.(C) 9372/2018 & C.M.Nos.46518/2018 (for stay by petitioner)
W.P.(C) 9373/2018 & C.M.No.46523/2018 (for stay by petitioner)
W.P.(C) 9417/2018
1. Present writ petitions have been filed by the petitioners inter alia
seeking appointment of an independent and impartial Arbitrator in
accordance with Section 3G(5) and (6) of the National Highways Act, 1956
(hereinafter referred to as the 'Act') read with Arbitration and Conciliation
Act, 1996 and Arbitration and Conciliation (Amendment) Act, 2015 and the
Schedules appended thereto, more particularly, Fifth and Sixth Schedule.
2. At the outset, Mr.Sanjay Poddar, learned senior counsel for
respondent no.3/NHAI states that the present writ petitions are infructuous
as the District Magistrate/Deputy Commissioner has been appointed as
Arbitrator in accordance with Section 3G(5) of the Act on 09th October,
2018.
3. However, Mr. Saurav Aggarwal, learned counsel for the petitioners
states that the present writ petitions are for appointment of an independent
and impartial Arbitrator under Section 3G(5) of the Act. He states that this
fact had been duly noted by the learned predecessor Division Bench in its
order dated 25th September, 2018 in which two judgments passed by learned
Single Judges of this Court had been referred to. Since considerable reliance
is placed upon the order dated 25th September, 2018 by learned counsel for
the petitioners, the same is reproduced hereinbelow:-
"Issue notice to show cause as to why petitions be not admitted.
Counsels for the respondents accept notice. Since none is present on
behalf of the UOI, Ms Saroj Bidawat, Advocate who is present in court
is requested to look into the matter and ensure that the concerned
counsel appears in the matter on the next date. Let a complete set of
paper book be supplied to Ms Bidawat.
We are informed by learned counsel appearing for NHAI that
they are in the process of appointing an Arbitrator under Section 3G(5)
of the NH Act, 1956. Learned counsel appearing for the petitioners
relies on Section 3G(5) and 3G(6) of the NH Act, 1956 to contend that
while making the appointment, the respondents will have to take into
consideration the Schedule V of the Arbitration and Conciliation Act,
1996 and the judgments rendered in the case of Devendra Kumar
Gupta vs Union of India; O.M.P.(T) 5/2017, Dream Valley Farms
Private Limited vs Religare Finvest Limited & Ors; ARB. 635/2016
decided on 19.10.2016 and ASSIGNIA -VIL JV vs Rail Vikas Nigam
Limited; ARB. P. 677/2015 decided on 29.04.2016, more particularly
paragraphs 9 and 10, which we reproduce below:-
"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 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."
Counter affidavits be filed within four weeks. Rejoinder(s), if
any, be filed within two weeks thereafter. The counter affidavits will
address the issues raised and reflected in the order passed by this court
today.
List on 07.12.2018."
4. Learned counsel for the petitioners also states that the petitioners have
filed additional documents, received in response to queries under the Right
to Information Act, 2005, in the present batch of writ petitions to show that
there was 'fettering of jurisdiction' inasmuch as the Arbitrator had been
appointed at the instance and behest of respondent no.3/NHAI and the note
appointing the Arbitrator had been signed by Chairman, NHAI. In support
of his contention, he refers to the following documents:-
(i) Copy of the letter dated 14th June, 2018 written by Mr.Niraj Verma,
IAS, NHAI to Ms.Manisha Saxena, Secretary (Revenue), Govt. of Delhi.
"For acquisition of Dwarka Expressway, ADM (South West) has
already declared land award and some of the land holders may
like to go for arbitration under provisions of NH Act. In this
connection, it is requested to nominate a suitable Authority as
Arbitrator (preferably District Magistrate) u/s 3G (5) of NH Act,
1956. The proposal for the same has already been submitted by
NHAI in March, 2018, to your department (copy enclosed).
I would request for early nomination of an officer to act as
Arbitrator u/s 3G (5) of NH Act, 1956."
(ii) Copy of letter dated 05th September, 2018 written by Mr.Akash Padhi,
Manager (T), NHAI to Dy. Secretary (LA), Govt. of NCT of Delhi.
"As the Arbitrator has not yet been nominated by Delhi Govt, the
letter of ADM (SW) along with all enclosures (in duplicate) is
being forwarded to your good office for further urgent necessary
action."
(iii) Coy of the letter dated 11th September, 2018 Written by Mr.Alok
Sharma, Dy. Secretary (LA), Land & Building Department to the General
Manager (T)/Project Director, NHAI.
"This is with reference to your office letter No.
NHAI/PIU/DWE/01/08/269 dated 14.03.2018 on the subject cited
above, whereby it was requested that suitable authority may be
nominated as arbitrator (preferably District Magistrate) under
Section 3G (5) of NH Act, 1956 for respective districts in state of
Delhi.
In this regard, it is informed that Competent Authority is
pleased to nominate District Magistrates/ Deputy Commissioners
of North, North-West and South-West district as arbitrator under
NH Act, 1956 for their respective jurisdictions."
(iv) Copy of letter dated 13th September, 2018 written by Mr.Udeep
K.Singhal, GM(T)/Project Director, NHAI to Mr.Vimal, DGM (LA), NHAI
HQ, New Delhi.
"4. Meanwhile, this has led to various litigations in Hon'ble
High Court of Delhi with prayer to appoint arbitrators. As on
date there are about 20 petitions pending in Hon'ble High Court
of Delhi for appointment of Arbitrator i.r.o aforesaid award in
which NHAI has been made a respondent. The Court has
repeatedly directed NHAI, while hearing the Petitions, to take
expeditious action for appointment of Arbitrator or else the same
would be appointed by High Court. This has led to embarrassing
situations.
5. Considering the urgency of the matter and widespread
repercussions in case Hon'ble High Court of Delhi appoints an
Arbitrator on its own because of further delay volition. It is
necessary that order for appointment of Arbitrator is issued
expeditiously.
6. Accordingly, this office has prepared draft
notification/order (based on the nomination received from
GNCTD) for appointment of Arbitrators under section 3G (5) of
NH Act, 1956.
7. In view of the above, it is requested that the matter may
be taken up with Ministry of Road Transport and Highways for
appointment of Arbitrator on priority. As the next date of hearing
in Hon'ble High Court of Delhi in related case is 25/09/2018."
(v) Copy of the internal note dated 24th September, 2018 issued by NHAI
(LA Division) with regard to appointment of Arbitrators under NH Act,
1956.
"The Proposal under consideration is for appointment of
following State Officers to Act as Arbitrator for land acquisition
proceeding in the Revenue Districts of North, North-West &
South-West in National Capital Territory of Delhi.
Sl. No. Designation of the Revenue State
Officer District
(1) (2) (3) (4)
1 District North National Capital
Magistrate/Deputy Territory of Delhi
Commissioner
2 District North-West National Capital
Magistrate/Deputy Territory of Delhi
Commissioner
3 District South-West National Capital
Magistrate/Deputy Territory of Delhi
Commissioner
2. The Govt. of NCT of Delhi has given its consent to
appoint above Officers as Arbitrator vide letter no.
9(12)LA/L&B/2017/4466-71 dated 11.09.2018 (C/P-08).
3. The Central Govt. (MORT&H) has to issue order
appointing above officers as Arbitrator for District of North,
North-West & South-West for land acquisition proceedings u/s
3G (5) of NH Act, 1956 in the National Capital Territory of
Delhi.
4. In view of the above, kind approval of the Hon'ble
Minister of State (MORT&H) is solicited for Appointment of
Arbitrators for land acquisition proceedings as mentioned above,
as per DFA (F/X) & (F/Y) placed in the file. Mayapuri Press
letter is placed at F/1."
(vi) Copy of office Notification dated Nil/2018 issued by the Deputy
Secretary, GOI.
"In pursuance of Sub - Section (5) of Section 3G of the National
Highways Act, 1956 (48 of 1956), the Central Government
hereby appoints the Officers mentioned in Column (2) of the
Table below, to be Arbitrator for the purpose of the said Sub-
Section who shall exercise the powers conferred and perform the
duties imposed, on Arbitrators by or under the said Act within
the local limits of their respective jurisdiction as specified in
column (3) and (4) of the said table. Sub - Section (6) & (7) of
Section 3G of the Act shall be taken into consideration while
passing awards by the Arbitrator.
Table
Sl. No. Designation of the Revenue State
Officer District
(1) (2) (3) (4)
1 District North National Capital
Magistrate/Deputy Territory of Delhi
Commissioner
2 District North-West National Capital
Magistrate/Deputy Territory of Delhi
Commissioner
3 District South-West National Capital
Magistrate/Deputy Territory of Delhi
Commissioner
5. Mr. Saurav Agarwal points out that the District Magistrate who has
now been appointed as an Arbitrator was actively involved in the monitoring
and supervision of Dwarka Expressway Project as he was present in all the
meetings in which progress of the project was monitored. He further states
that as respondent no.3/NHAI is going to bear the expenditure of the office
set-up of the Arbitrator, there is reasonable apprehension of bias on the part
of the Arbitrator. He, accordingly, prays that an independent person be
appointed as an Arbitrator.
6. Per contra, Mr. Sanjay Poddar, learned senior counsel for the
respondent no. 3/NHAI states that as NHAI is a party to the litigation, it has
every right to seek expeditious appointment of an Arbitrator to avoid making
payment of additional interest.
7. He emphasises that respondent no. 3/NHAI indicated its preference to
Government of NCT of Delhi for appointment of District Magistrate/Deputy
Commissioner as the arbitrator as the office of the District Magistrate is in
possession of all the relevant land records. He clarifies that the respondent
no. 3/NHAI's Chairman has signed the file of appointment of the arbitrator
in his capacity as Secretary, Ministry of Road Transport and Highways.
Therefore, according to him, there is nothing wrong in NHAI approaching
the Delhi Government for appointment of an Arbitrator.
8. He submits that all the submissions advanced by the petitioners
regarding partiality of the District Magistrate/Deputy Commissioner have
been rejected by this Court in Anubhav Chand Kathuria v. Union of India,
MANU/DE/0746/2019 and Manju Arora v. Union of India,
MANU/DE/1561/2020.
9. Mr. Sanjay Poddar denies that respondent no. 3/NHAI has appointed
its own staff to assist the Arbitrator. He states that respondent no. 3/NHAI
has only offered secretarial assistance to the Arbitrator with intent to
facilitate early conclusion of the arbitration proceedings.
10. He prays that the petitioners be put to terms as it was only on account
of the interim order passed at the instance of the petitioners that the
arbitration proceedings have not commenced for more than two years.
11. Having heard learned counsel for the parties, this Court finds that the
issue involved in the present batch of writ petitions is no longer res integra
as two Division Benches of this Court in Anubhav Chand Kathuria v.
Union of India (supra) and Manju Arora v. Union of India (supra) have
rejected similar arguments challenging the appointment of District
Magistrate/ Deputy Commissioner as the Arbitrator. It is pertinent to
mention that in Manju Arora v. Union of India (supra), the Division Bench
had reiterated the earlier view, even when the order dated 25th September,
2018 passed by the learned predecessor Division Bench in the present batch
of writ petitions was pointed out. The relevant portion of the said judgments
are reproduced hereinbelow:-
A) Anubhav Chand Kathuria v. Union of India (supra) :-
"18. Mr Yadav expressed the apprehension that the remedy of
arbitration would not be efficacious as far as the Petitioners are
concerned. According to him, the objections in this regard are
three-fold. First, he states that the DM appointed by the Central
Government would not be impartial. The Petitioners cannot expect
to get a satisfactory order in the arbitration proceedings. He
submitted that the DM is disqualified from acting as an Arbitrator
in terms of Section 12 (5) of the Arbitration and Conciliation Act,
1996 ('AC Act') read with the Entry 1 in the Seventh Schedule to
the AC Act. Secondly, Mr. Yadav submitted that the only remedy
available to the Petitioners against the Award of such Arbitrator
would be a petition under Section 34 of the AC Act, where the scope
of challenge would be extremely limited. Thirdly, it is submitted that
the Arbitrator may not be able to go behind what is stated in the
notifications under Sections 3A and 3D of the NH Act, as far as the
type and nature of the land is concerned.
xxx xxx xxx
24. As regards the plea that the DM as appointed by the Central
Government under Section 3G (5) of the NH Act will not act
impartially, this Court notes that under Entry 1 of the Seventh
Schedule to the AC Act, an employee of one of the parties would be
disqualified to act as an Arbitrator. Here, the Central Government
itself is not a party to the arbitration. It is the NHAI which is
acquiring the land and which is going to be paying compensation
for such acquisition, and is a party to the proceedings. Admittedly,
the DM is not an employee of the NHAI. Consequently, the Court is
unable to agree with the submissions of learned counsel for the
Petitioners that the DM is disqualified from acting as an Arbitrator
in terms of Section 12 (5) of the AC Act read with the Seventh
Schedule thereof.
25. On the general plea that the remedy of arbitration is not
efficacious and that the further challenge under Section 34 of the
AC Act would be on very narrow grounds, the Court notes that the
Petitioners have not challenged the constitutional validity of
either Section 3G (1), (5) or (6) of the NH Act. It is, therefore, not
open to the Petitioners to argue that the remedy of arbitration is not
efficacious.
26. The Court also notes that where an efficacious alternative
remedy is provided under the statute itself, in this case the NH Act,
the High Court exercising jurisdiction under Article 226 of the
Constitution would generally be reluctant to interfere. In the
present case, this Court for the reasons aforementioned, is of the
view that the Petitioners should pursue their remedy before the
learned Arbitrator in terms of Section 3G (5) read with Section
3G (6) and (7) of the NH Act."
B) Manju Arora v. Union of India (supra) :-
"1. This petition was filed with the following prayers: -
xxx xxx xxx
(c) issue a writ of certiorari or any other appropriate writ, order or
direction in the nature thereof, thereby quashing the appointment of
District Magistrate, District New Delhi, by the Central Government,
as an Arbitrator under Section 3 G(5) of the NH Act."
xxx xxx xxx
5. The counsel for the petitioner, at the outset, has contended that
another petition namely, W.P. (C) 9372/2018 titled Moti Lal Bothra
(HUF) Through: Karta Shri Moti Lal Bothra v. Office Of The
Competent Authority (Land Acquisition) Under The National
Highways Act, 1956 & Ors., also challenging the appointment of the
District Magistrate as the Arbitrator, under Section 3G(5) of the
National Highways Act, was also scheduled to be listed for today, but
has not been listed for hearing, in the absence of an order therein for
virtual hearing. It is contended that the petitioner in that writ petition
has filed certain replies received to the queries under the Right
to Information Act, 2005 and which help the case of the petitioner
herein also and the present petition be also thus ordered to be taken
up on whichever date W.P. (C) 9372/2018 stands adjourned, as per
the general notification during the pandemic in this regard.
6. The counsel for the respondent No.2 National Highways Authority
of India (NHAI) has opposed the request of adjournment contending
that the arbitration proceedings are held up. It is further stated that
the question of the challenge to the District Magistrate acting as
Arbitrator under Section 3G(5) of the National Highways Act has
already been negated in Anubhav Chand Kathuria v. Union of India,
2019 SCC OnLine Del 7307 (DB),in which also the counsel for the
petitioner herein was the counsel for the petitioners and the said
judgment has attained finality. It is thus contended that as far as the
prayer in the present petition challenging the nomination by the
Central Government of the District Magistrate, to actas Arbitrator is
concerned, in view of the judgment in Anubhav Kathuriasupra, does
not survive.
xxx xxx xxx
13. The counsel for the respondent No. 2 NHAI, in addition to
Anubhav Kathuriasupra has also drawn attention to Vishwasrao
Dattatray Kachare Vs. Union of India, Surendra Kumar Chhabda Vs.
State of Chattisgarh MANU/CG/0693/2017 and National Highways
Authority of India Vs. Sayedabad Tea Company Ltd. & Ors., to
contend that therein also, the Courts have held that since the
appointment of Arbitrator under Section 3G(5) of the National
Highways Act is by Central Government and not by NHAI, which has
acquired the land, the appointment of Arbitrator by the Central
Government is not bad under the Arbitration and Conciliation Act and
merely because the District Magistrate has been appointed as the
Arbitrator, there is no presumption that would be biased in favour of
NHAI.
14. We thus dispose of this petition, declining the reliefs claimed in
prayer paragraphs in terms of Anubhav Kathuriasupra and by
clarifying that the disposal of this petition and the description of the
land as agricultural in Sections 3A, 3D and 3G notifications, would
not come in the way of the petitioner contending in the arbitration
proceedings under Section 3G(5) of the National Highways Act, that
the land is commercial and that the petitioner is entitled to
compensation at commercial and not agricultural rates, and by
reiterating the statements of the counsels for the NHAI and CALA as
contended in Anubhav Kathuriasupra,that they would not object to
such claim of the petitioner on the ground of Arbitrator not having the
jurisdiction to go into the said question."
12. Keeping in view the aforesaid judgments, this Court is of the view
that the petitioners' reliance on the order dated 25 th September, 2018 is
untenable in law, especially when it refers to orders passed by two learned
Single Judges, whereas two Division Benches have subsequently
specifically rejected similar arguments advanced by the petitioners in the
present batch of writ petitions.
13. This Court is further of the opinion that respondent no.3/NHAI by
asking a separate constitutional authority like Delhi Government to
nominate its officer as an Arbitrator had committed no wrong. It is the duty
of every litigant to pre-empt litigation and to ensure speedy disposal of
matters to reduce the interest burden.
14. In fact, the respondent no. 3/NHAI's preference for appointment of
District Magistrate/Deputy Commissioner as the Arbitrator is perfectly
understandable inasmuch as the office of the District Magistrate is in
possession of all the relevant land records and in the event of any dispute
with regard to measurement of the land, the District Magistrate has the
authority to decide the same under Sections 27 and 64 of the Delhi Land
Revenue Act.
15. It is pertinent to mention that the appointment of the Arbitrator is not
by name but by office. Accordingly, there is no merit in the allegation that a
specific individual has been appointed as an Arbitrator at the instance and
behest of the respondent no.3/NHAI.
16. This Court is also of the view that just because the District Magistrate
was engaged in the progress of Dwarka Expressway Project, it cannot lead
to the apprehension that he would not give adequate compensation to the
petitioners and/or that he would be biased in favour of the NHAI.
17. Further, this Court is of the view that just because secretarial
assistance is provided to the Arbitrator by one of the parties, it cannot be
assumed and presumed that he would be biased in favour of that particular
party.
18. This Court is of the opinion that the petitioners have an alternative
efficacious remedy under Sections 12 and 13 of the Arbitration and
Conciliation Act, 1996, in the event, the petitioners have an apprehension of
bias on the part of the Arbitrator.
19. The Chairman of respondent no. 3/NHAI has signed the Note of
appointment of the Arbitrator in his capacity as Secretary, Ministry of Road
Transport and Highways as at that time he was holding a dual charge both as
Secretary, Ministry of Road Transport and Highways and Chairman, NHAI.
Accordingly, the doctrine of necessity is attracted in the present batch of
writ petitions.
20. This Court is also in agreement with the contention of learned senior
counsel for respondent no.3/NHAI that contemporaneous correspondence
shows that the Arbitrator in the present batch of writ petitions has been
nominated by Govt. of NCT of Delhi and appointed by the Central
Government. Further, the Delhi Government applied its mind and took its
own time in giving its consent to appointment of the District Magistrate as
the Arbitrator.
21. Moreover, as pointed out by the two Division Benches in the
aforesaid two judgments i.e. Anubhav Chand Kathuria (supra) and Manju
Arora (supra), the District Magistrate is not under the control and
supervision of NHAI and his appointment is at the behest of the Central
Government.
22. Consequently, this Court is of the view that the arguments advanced
by learned counsel for the petitioners are contrary to facts and untenable in
law. In view thereof, the present writ petitions and stay applications are
dismissed and the interim order dated 13th November, 2018 is vacated.
23. Further, as the arbitration proceedings were stayed at the request of
the petitioners, this Court directs that no interest for the period 13 th
November, 2018 till date shall be payable to the petitioners by the
respondent no.3/NHAI, in the event, an award is rendered by the Arbitrator
in favour of the petitioners. All pending applications stand disposed of.
24. The order be uploaded on the website forthwith. Copy of the order be
also forwarded to the learned counsel through e-mail.
MANMOHAN, J
ASHA MENON, J
JANUARY 08, 2021
KA
