Jharkhand High Court

The State Of Jharkhand vs Mohini Devi on 24 June, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                                                         2025:JHHC:16878

      IN THE HIGH COURT OF JHARKHAND, RANCHI
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C.M.P. No. 948 of 2023

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1.The State of Jharkhand, through the Deputy Commissioner, Giridih, P.O. and P.S. Giridih, District Giridih

2.The Superintending Engineer, Irrigation Department, Hazaribagh, P.O. and P.S. Hazaribagh, District Hazaribagh

3.The Executive Engineer, Konar Canal Division, Bagodar, P.O. and P.S. Bagodar, District Giridih ...... .... ... Petitioner(s)

-- Versus --

1.Mohini Devi, w/o late Shambhu Dayal Sharma, resident of Gomia, P.O. and P.S. Gomia, District Giridih

2.Ramesh Kumar Sharma, s/o late Shambhu Dayal Sharma, resident of Gomia, P.O. and P.S. Gomia, District Giridih ... Opposite Party(s) With C.M.P. No. 917 of 2023

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1.The State of Jharkhand, through the Deputy Commissioner, Giridih, P.O. and P.S. Giridih, District Giridih

2.The Superintending Engineer, Irrigation Department, Giridih, P.O. and P.S. Giridih, District Giridih, now Superintending Engineer, Tenughat Dam Circle, Tenughat, District Bokaro

3.The Executive Engineer, Konar Canal Division, Bagodar, P.O. and P.S. Bagodar, District Giridih ...... .... ... Petitioner(s)

-- Versus --

1.Mohini Devi, w/o late Shambhu Dayal Sharma, resident of Gomia, P.O. and P.S. Gomia, District Giridih

2.Ramesh Kumar Sharma, s/o late Shambhu Dayal Sharma, resident of Gomia, P.O. and P.S. Gomia, District Giridih ... Opposite Party(s) With

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1.The State of Jharkhand, through the Deputy Commissioner, Giridih, P.O. and P.S. Giridih, District Giridih

2.The Superintending Engineer, Irrigation Department, Hazaribagh, P.O. and P.S. Hazaribagh, District Hazaribagh

3.The Executive Engineer, Konar Canal Division, Bagodar, P.O. and P.S. Bagodar, District Giridih ...... .... ... Petitioner(s)

-- Versus --

1.Mohini Devi, w/o late Shambhu Dayal Sharma, resident of Gomia, P.O. and P.S. Gomia, District Giridih

2.Ramesh Kumar Sharma, s/o late Shambhu Dayal Sharma, resident of Gomia, P.O. and P.S. Gomia, District Giridih ... Opposite Party(s) With

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C.M.P. No. 950 of 2023 &

2025:JHHC:16878

1.The State of Jharkhand, through the Deputy Commissioner, Giridih, P.O. and P.S. Giridih, District Giridih

2.The Superintending Engineer, Irrigation Department, Hazaribagh, P.O. and P.S. Hazaribagh, District Hazaribagh

3.The Executive Engineer, Konar Canal Division, Bagodar, P.O. and P.S. Bagodar, District Giridih ...... .... ... Petitioner(s)

-- Versus --

1.Mohini Devi, w/o late Shambhu Dayal Sharma, resident of Gomia, P.O. and P.S. Gomia, District Giridih

2.Ramesh Kumar Sharma, s/o late Shambhu Dayal Sharma, resident of Gomia, P.O. and P.S. Gomia, District Giridih ... Opposite Party(s) With

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1.The State of Jharkhand, through the Deputy Commissioner, Giridih, P.O. and P.S. Giridih, District Giridih

2.The Superintending Engineer, Irrigation Department, Giridih, P.O. and P.S. Giridih, District Giridih

3.The Executive Engineer, Konar Canal Division, Bagodar, P.O. and P.S. Bagodar, District Giridih ...... .... ... Petitioner(s)

-- Versus --

1.Mohini Devi, w/o late Shambhu Dayal Sharma, resident of Gomia, P.O. and P.S. Gomia, District Giridih

2.Ramesh Kumar Sharma, s/o late Shambhu Dayal Sharma, resident of Gomia, P.O. and P.S. Gomia, District Giridih ... Opposite Party(s)

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner(s) : Mr. Gaurav Raj, Advocate For the Opp.Party Nos.1&2 : Mrs.Rakhi Rani, Advocate

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6/24.06.2025 Heard the learned counsel appearing on behalf of the petitioner(s)

as well as the learned counsel appearing on behalf of the Opposite party nos.1

and 2.

2. I.As filed in all these petitions for deleting the name of the

O.P.No.2 has been allowed by the order dated 23.06.2025.

3. In all these C.M.Ps, common question of law and facts are

involved and in view of that, all these CMPs are heard together with consent of

the parties.

4. In C.M.P. No.948 of 2023, the challenge is made for quashing of the

C.M.P. No. 950 of 2023 &

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judgment dated 11.02.2019 and decree dated 28.02.2019 passed by the court

of learned District Judge-VIII, Giridih, in Civil Appeal No.19 of 2005 whereby the

learned court has been pleased to confirm the judgment dated 28.02.2005 and

decree dated 17.03.2005, passed by learned Sub Ordinate Judge-I, Giridih in

Civil Appeal No.59 of 1983. The prayer is also made for quashing the judgment

of the learned court in Title (Arbitration) Suit No.59 of 1983 as well as quashing

of the Arbitral Award dated 04.06.1989 passed by the learned sole Arbitrator.

5. In C.M.P. No.917 of 2023, the challenge is made for quashing of the

judgment dated 11.02.2019 and decree dated 28.02.2019 passed by the court

of learned District Judge-VIII, Giridih, in Civil Appeal No.22 of 2005 whereby the

learned court has been pleased to confirm the judgment dated 28.02.2005 and

decree dated 17.03.2005, passed by learned Sub Ordinate Judge-I, Giridih in

Title (Arbitration) Suit No.62 of 1983. The prayer is also made for quashing the

judgment of the learned court in Title Arbitration Suit No.62 of 1983 as well as

quashing of the Arbitral Award dated 04.06.1989 passed by the learned sole

Arbitrator.

6. In C.M.P. No.946 of 2023, the challenge is made for quashing of the

judgment dated 11.02.2019 and decree dated 28.02.2019 passed by the court

of learned District Judge-VIII, Giridih, in Civil Appeal No.20 of 2005 whereby the

learned court has been pleased to confirm the judgment dated 28.02.2005 and

decree dated 17.03.2005, passed by learned Sub Ordinate Judge-I, Giridih in

Title (Arbitration) Suit No.60 of 1983. The prayer is also made for quashing the

judgment of the learned court in Title Arbitration Suit No.60 of 1983 as well as

quashing of the Arbitral Award dated 04.06.1989 passed by the learned sole

Arbitrator.

7. In C.M.P. No.950 of 2023, the challenge is made for quashing of the

judgment dated 11.02.2019 and decree dated 28.02.2019 passed by the court

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of learned District Judge-VIII, Giridih, in Civil Appeal No.21of 2005 whereby the

learned court has been pleased to confirm the judgment dated 28.02.2005 and

decree dated 17.03.2005, passed by learned Sub Ordinate Judge-I, Giridih in

Title (Arbitration) Suit No.61 of 1983. The prayer is also made for quashing the

judgment of the learned court in Title Arbitration Suit No.61 of 1983 as well as

quashing of the Arbitral Award dated 04.06.1989 passed by the learned sole

Arbitrator.

8. In C.M.P. No.1316 of 2023, the challenge is made for quashing of the

judgment dated 11.02.2019 and decree dated 28.02.2019 passed by the court

of learned District Judge-VIII, Giridih, in Civil Appeal No.23 of 2005 whereby the

learned court has been pleased to confirm the judgment dated 28.08.2005 and

decree dated 17.03.2005, passed by learned Sub Ordinate Judge-I, Giridih in

Title (Arbitration) Suit No.63 of 1983. The prayer is also made for quashing the

judgment of the learned court in Title Arbitration Suit No.63 of 1983 as well as

quashing of the Arbitral Award dated 04.06.1989 passed by the learned sole

Arbitrator.

9. Mr. Gaurav Raj, the learned counsel appearing on behalf of the

petitioner(s) submits that in all the C.M.Ps the learned sole arbitrator without

giving any reason has been pleased to pass the Award dated 04.06.1989. He

submits that the said Award was tested before the learned Sub Ordinate Judge,

Giridih and in light of Section 20 of the Arbitration Act, 1940 in Title Arbitration

Suit No.59 of 1983 and in another Arbitration Suit as prayed in all other CMPs.

He submits that by the judgment dated 28.02.2005 the learned Sub Ordinate

Judge, Giridih has decided the application under section 20 (1) of the

Arbitration Act, 1940 and has confirmed the Award. He further submits that the

petitioners herein have preferred the Civil Appeal No.19 of 2005 and other Civil

Appeals as prayed in all these petitions and the learned appellate court has

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further dismissed the appeals by judgment dated 11.02.2019. He submits that

now the execution case is pending before the learned court for execution of the

Award, however, in all these proceedings, the reasons have not been provided

to dismiss the case of the petitioners. He submits in view of that all these

petitions filed before this Court under Article 227 of the Constitution of India

and in view of that these orders/judgments may kindly be quashed. He relied in

the case of State of Rajasthan and Another vs Ferro Concrette

Construction Private Limited reported in (2009) 12 SCC 1 and referred to

para no.8 and 11 which are as under:

8. In the meanwhile the contractor filed a suit against the appellant in the District Court, Ajmer and obtained a temporary injunction restraining the employer from imposing liquidated damages. The contractor made an application to the District Court, Ajmer, under Section 20 read with Section 8 of the Arbitration Act, 1940 ("the Act", for short) for filing the arbitration agreement into the court and seeking appointment of an arbitrator.

11. In the meanwhile, the employer having concluded the arrangements to get the work completed through an alternative agency, on the contractor's failure to resume the work, awarded the work to M/s Indian Hume Pipes Co. Ltd. on 10-8-1992. On the basis of the contract value in regard to the balance work, the employer revised its Counterclaim 2 relating to extra cost to Rs 6,66,62,000 and consequently the total of the counterclaims stood increased to Rs 11,55,98,388.

10. Relying on the above judgment, he submits that arbitral award has been

passed and on the legal misconduct that can be interfered by the Court.

11. On the other hand, learned counsel for the Opposite party nos.1 and 3

opposes the prayer in all these C.M.Ps and submits that arbitral award has

already been challenged by the petitioners-herein under Section 20 (1) of the

Arbitration Act, 1940 which was decided by the learned Sub Ordinate Judge,

Giridih by the judgment dated 28.02.2005 and against that, the appeal has

been preferred under section 39 of the Arbitration Act, 1940 which was

numbered as Civil Appeal No.19 of 2005 and the learned appellate court has

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held that the petitioners herein before the learned court has not brought any

witness to prove that the Arbitrator has misconducted and the Award passed by

the learned Arbitrator is invalid and it has also not been brought on record by

the petitioners to show that there is any apparent error on the face of the

arbitration award. She submits that the learned appellate court has already

rejected the same and Arbitration Act is a complete statute itself and in view of

that, the petition under Article 227 of the Constitution of India can be

maintained only in exceptional circumstances. She submits that different awards

have been passed and all were subject matter before the learned courts as

prayed in all these C.M.Ps and all have been decided in different suit and appeal

respectively, however, points in all proceedings are same. She has relied in the

case of Union of India v. Tantia Construction (P) Ltd. reported in (2011)

5 SCC 697 and has referred to paragraph nos.33 and 34 of the said judgment,

which are quoted below:

33. Apart from the above, even on the question of maintainability of the writ petition on account of the arbitration clause included in the agreement between the parties, it is now well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities.

Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution.

34. We endorse the view of the High Court that notwithstanding the provisions relating to the arbitration clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the writ petition filed on behalf of the respondent Company. We, therefore, see no reason to interfere with the views expressed by the High Court on the maintainability of the writ petition and also on its merits.

12. Relying on the above judgment, she submits that the Award can

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be interfered only on the above grounds as held by the Hon'ble Supreme Court,

however, the petitioners-herein have not been able to show those grounds

either before this Court or before the learned court under section 20(1) of the

said Act as well as before the firsts appellate court. On this ground, she submits

that these petitions may kindly be dismissed.

13. It is an admitted position that the agreement between the

petitioners and the Opposite parties are there which contains the arbitration

clause and pursuant to the dispute arises between the parties, the arbitrator

has been appointed and the sole arbitrator by the award dated 04.06.1989 has

passed the Award in favour of the Opposite parties which has been challenged

before the Sub Ordinate Judge, Giridih under section 20(1) of the Arbitration

Act, 1940. The learned Sub Ordinate Judge by the cogent reason discussing the

entire argument as well as the other evidence has been pleased to dismiss the

same. The said order has further been tested by the petitioners herein in Civil

Appeal No.19 of 2002 and in another Civil Appeals as prayed in all these C.M.P.

petitions which have been noted hereinabove and by the different orders the

learned first appellate court has been pleased to dismiss the same on contest

holding the petitioners have not brought any witness to prove that the

arbitrator has misconducted and the Award passed by the learned arbitrator is

invalid and it has also not been brought on record by the petitioners herein to

show that there is an apparent error on the face of the Award. Thus, what has

been argued herein that has not been proved before the other proceedings as

discussed hereinabove. In the case of Indian Oil Corporation Limited v.

Commercial Court reported in (2023) SCC Online (All.) 809 wherein it was

held that the arbitral award is not a decree and objection under section 47 CPC

1908 could not be maintainable against an arbitral award. In paragraph nos.46

to 48, it has been held as under :

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46. Again the very same issue of filing of objection under Section 47 CPC came before this Court in Bharat Pumps & Compressors Ltd. case16 and Court following the ratio of law laid down by this Court in Larsen & Toubro Ltd. case15 has held as follows:

"22. The Arbitration Act, 1940 is self-contained, complete code and Section 17 thereof is in pari materia with Section 36 of the Arbitration & Conciliation Act, 1996. Section 20 thereof, provides for challenging the appointment of an arbitrator. The revisionist never challenged appointment of the arbitrator under Section 20 thereof.

Sections 30/33 and 37 of the Arbitration Act, 1940, read with Article 119 of the Limitation Act, give provision for an application to be filed within 30 days of notice of award; however, no such application within the said period was filed by the revisionist.

23. The arbitration award by way of friction is executed as decree, but it is not a decree as defined under Section 2(2) CPC and therefore, the objection under Section 47 CPC, which was filed only in execution of decree [as defined under Section 2(2) CPC], is not maintainable in the proceedings seeking execution of award."

47. This Court has again taken view that arbitral award is not a decree under Section 2(2) CPC, therefore, objection filed under Section 47 CPC is not maintainable.

48. To conclude this point on the basis of undisputed fact, objection under Section 47 CPC filed against the arbitral award is not maintainable as the same is not a decree under Section 2(2) CPC. Further, arbitral award can be executed invoking Section 36 of the new Act, 1996 along with the provisions CPC in the same manner as if it is decree of the court.

14. In light of the above and considering the statute of Arbitration Act,

1940, it can be safely said that a challenge to an Award on the ground that it is

a 'nullity' or is otherwise invalid can be addressed only in the proceedings that

may be initiated in accordance with section 20(1) of the Arbitration Act, 1940.

The grounds on which an award can possibly be assailed are comprehensively

set out in that section. The Act, neither envisages nor sanctions a dual or

independent challenge to an award based on the various facets of nullity as

legally recognized being laid in enforcement proceedings.

15. Accordingly, for all these reasons, the Court comes to a conclusion

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that the challenge to the award on merits, as has been raised in all these

petitions, cannot be made. Further the objections raised herein by the

petitioners herein have not been mentioned in the application filed under

section 20(1) of the said Act or subsequent appeal under section 39 of the said

Act. If these objections were not raised under these provisions, they cannot

now be resurrected under a writ application under Article 227 of the

Constitution. To permit such objections to be raised in this forum would

undermine the finality of the arbitral awards and circumvent the statutory

scheme established by the Act. Once the parties have availed themselves of the

statutory remedies available under the Act and has exhausted the appellate

process under the Act, the award attains finality, akin to a judgment of a court

of law. Just as a judgment of a court cannot be challenged ad infinitum through

collateral proceedings, an arbitral award cannot be subjected to endless

relitigation through writ petitions under Article 226 or Article 227 of the

Constitution of India. Moreover, the invocation of Article 227 of the Constitution

of India to challenge arbitral proceedings after the dismissal of objections under

Sections 20 and 39 of the Act would amount to an abuse of process and a

disregard for the principle of issue estoppel. Issue estoppel precludes parties

from relitigating issues that have been conclusively determined in earlier

proceedings. Petitioners' failure to raise these objections earlier suggests either

a lack of diligence or a tactical decision to withhold objections until a later stage

- a tactic that cannot be countenanced in the interest of fairness and

procedural regularity. The principles of finality and judicial economy demand

that parties abide by the decisions of Arbitral Tribunals and exhaust the

statutory remedies available under the Act before seeking recourse to collateral

challenges through writ petitions under Article 226 or Article 227 of the

Constitution of India. The persistent delay and obstructionist behavior, merit

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unequivocal condemnation and necessitate the imposition of substantial costs.

Delay tactics serve to perpetuate injustice by denying parties their rightful

entitlements. In the context of arbitration proceedings, the purpose of

arbitration is to provide a swift and cost-effective alternative to traditional

litigation. By resorting to delay tactics, the petitioners have sought to frustrate

this objective and deny the respondents the benefits of a timely resolution. This

not only prolongs the uncertainty and financial strain but also undermines the

effectiveness of arbitration as a dispute resolution mechanism.

16. The Hon'ble Supreme Court in the case of Sterling Industries v.

Jayprakash Associates Limited and Others reported in (2021) 18 SCC

367 has disapproved of the stand adopted by some of the High Courts that any

order passed by Arbitral Tribunal during arbitration, would be capable of being

challenged under Article 226 or Article 227 of the Constitution of India. A

reference may be made to the case of S.B.P and Co. v. Patel Engineering

Limited and Another reported in (2005) 8 SCC 618, wherein at paragraph

no.45, it has been held as under:

45. It is seen that some High Courts have proceeded on the basis that any order passed by an Arbitral Tribunal during arbitration, would be capable of being challenged under Article 226 or 227 of the Constitution. We see no warrant for such an approach. Section 37 makes certain orders of the Arbitral Tribunal appealable. Under Section 34, the aggrieved party has an avenue for ventilating its grievances against the award including any in-

between orders that might have been passed by the Arbitral Tribunal acting under Section 16 of the Act. The party aggrieved by any order of the Arbitral Tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The Arbitral Tribunal is, after all, a creature of a contract between the parties, the arbitration agreement, even though, if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the Arbitral Tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by

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some of the High Courts that any order passed by the Arbitral Tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution. Such an intervention by the High Courts is not permissible.

17. In light of the above reasons and analysis, this Court comes to the

conclusion that these C.M.Ps are misconceived one.

18. So far as the judgment relied by Mr. Gaurav Raj, the learned

counsel appearing on behalf of the petitioners in the case of State of

Rajasthan and Another v. Ferro Concrete Construction Private Limited

(supra) is concerned, the fact of that case was otherwise; in that case, it has

been proved about the misconduct and the error apparent on the face of the

Award and of the Arbitrator and the facts of the present case, as discussed

hereinabove, are otherwise, and in view of that, the said judgment is not

helping the petitioners.

19. In view of above facts, reasons and analysis, these petitions are

hereby dismissed.