Madhya Pradesh High Court
National Highways Authority Of ... vs Bhim Singh on 12 October, 2022
Author: Subodh Abhyankar
MP No.1939/2021_AFR_Bunch
1
In the High Court of Madhya Pradesh
At Indore
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 12TH OF OCTOBER, 2022
Miscellaneous Petition No.1939/2021
Between: -
National Highway Authority Of India, PIU - Indore,
Through Project Director,
Address: 14, Sampat Hills, Bicholi Mardana,
Indore-Dewas Bypass Road, Indore, District Indore (MP)
.....PETITIONER
(By Ms. Anita Sharma, Advocate)
AND
Smt. Anita W/o Shri Arvind Mahajan,
Smt. Sarita W/o Shri Harish Mahajan,
All R/o - Dewas, Land Owner Village Bilawali,
Tehsil & District Dewas (MP)
(By Mr. Ravindra S. Trivedi, Advocate)
.....RESPONDENTS
Miscellaneous Petition No.1967/2021
Between: -
National Highway Authority Of India, PIU - Indore,
Through Project Director,
Address: 14, Sampat Hills, Bicholi Mardana,
Indore-Dewas Bypass Road, Indore, District Indore (MP)
.....PETITIONER
(By Ms. Anita Sharma, Advocate)
AND
Smt. Balbeer Kaur W/o Jaswant Singh Punjabi,
R/o - 11, Bahadur Shah Marg, Land Owner Village Bilawali,
Tehsil & District Dewas (MP)
(By Mr. Ravindra S. Trivedi, Advocate)
.....RESPONDENT
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-10-2022
18:09:42
MP No.1939/2021_AFR_Bunch
2
Miscellaneous Petition No.1972/2021
Between: -
National Highway Authority Of India, PIU - Indore,
Through Project Director,
Address: 14, Sampat Hills, Bicholi Mardana,
Indore-Dewas Bypass Road, Indore, District Indore (MP)
.....PETITIONER
(By Ms. Anita Sharma, Advocate)
AND
Smt. Anand Kuwar W/o Dasrath Singh,
Village Aagrodh, Land Owner Village Bilawali,
Tehsil & District Dewas (MP)
(By Mr. Ravindra S. Trivedi, Advocate)
.....RESPONDENT
Miscellaneous Petition No.1986/2021
Between: -
National Highway Authority Of India, PIU - Indore,
Through Project Director,
Address: 14, Sampat Hills, Bicholi Mardana,
Indore-Dewas Bypass Road, Indore, District Indore (MP)
.....PETITIONER
(By Ms. Anita Sharma, Advocate)
AND
Harish S/o Shri Kishanji Mahajan,
Rohit S/o Shri Mangilal Mahajan,
All R/o - Dewas, Land Owner Village Bilawali,
Tehsil & District Dewas (MP)
(By Mr. Ravindra S. Trivedi, Advocate)
.....RESPONDENTS
Miscellaneous Petition No.2025/2021
Between: -
National Highway Authority Of India, PIU - Indore,
Through Project Director,
Address: 14, Sampat Hills, Bicholi Mardana,
Indore-Dewas Bypass Road, Indore, District Indore (MP)
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-10-2022
18:09:42
MP No.1939/2021_AFR_Bunch
3
.....PETITIONER
(By Ms. Anita Sharma, Advocate)
AND
M/s. Anil Industries Limited, Through Director,
Manish Sahara S/o Suresh Sahara,
R/o - Indore, Land Owner Village Bilawali,
Tehsil & District Dewas (MP)
(By Mr. Ravindra S. Trivedi, Advocate)
.....RESPONDENT
Miscellaneous Petition No.2026/2021
Between: -
National Highway Authority Of India, PIU - Indore,
Through Project Director,
Address: 14, Sampat Hills, Bicholi Mardana,
Indore-Dewas Bypass Road, Indore, District Indore (MP)
.....PETITIONER
(By Ms. Anita Sharma, Advocate)
AND
Amarjeet S/o Amarik Singh Khanuja,
R/o - Dewas, Land Owner Village Bilawali,
Tehsil & District Dewas (MP)
(By Mr. Ravindra S. Trivedi, Advocate)
.....RESPONDENT
Miscellaneous Petition No.2029/2021
Between: -
National Highway Authority Of India, PIU - Indore,
Through Project Director,
Address: 14, Sampat Hills, Bicholi Mardana,
Indore-Dewas Bypass Road, Indore, District Indore (MP)
.....PETITIONER
(By Ms. Anita Sharma, Advocate)
AND
M/s. Dharamdas & Sons, Through Director,
Prataprao S/o Dharamdas Arora,
Through Legal Representatives
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-10-2022
18:09:42
MP No.1939/2021_AFR_Bunch
4
1. Damodar S/o Prataprao Arora
2. Chandradhar S/o Prataprao Arora
3. Asha D/o Prataprao Arora W/o Nar Singhlal
4. Roma D/o Prataprao Arora W/o Kamal Hirani
5. Lajwanti W/o Prataprao Arora
Land Owner, All R/o - Dewas, Village Bilawali,
Tehsil & District Dewas (MP)
(By Mr. Ravindra S. Trivedi, Advocate)
.....RESPONDENTS
Miscellaneous Petition No.2041/2021
Between: -
National Highway Authority Of India, PIU - Indore,
Through Project Director,
Address: 14, Sampat Hills, Bicholi Mardana,
Indore-Dewas Bypass Road, Indore, District Indore (MP)
.....PETITIONER
(By Ms. Anita Sharma, Advocate)
AND
Dilip Singh S/o Umrao Singh,
R/o - Dewas, Land Owner Village Bilawali,
Tehsil & District Dewas (MP)
Deceased through Legal Representatives
TO BE BROUGHT ON RECORD
Jenendra Singh Pawar S/o Dilip Singh,
Ajay Singh Pawar S/o Dilip Singh,
Geeta Devi Pawar W/o Dilip Singh,
All R/o - Dewas, Land Owner Village Bilawali,
Tehsil & District Dewas (MP)
(By Mr. Ravindra S. Trivedi, Advocate)
.....RESPONDENTS
Miscellaneous Petition No.2114/2021
Between: -
National Highway Authority Of India, PIU - Indore,
Through Project Director,
Address: 14, Sampat Hills, Bicholi Mardana,
Indore-Dewas Bypass Road, Indore, District Indore (MP)
.....PETITIONER
(By Ms. Anita Sharma, Advocate)
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-10-2022
18:09:42
MP No.1939/2021_AFR_Bunch
5
AND
Bhim Singh S/o Shri Jagannath,
Land Owner Village, R/o - Bilawali,
Tehsil & District Dewas (MP)
(None present, though respondent is served)
.....RESPONDENTS
Miscellaneous Petition No.2101/2021
Between: -
National Highway Authority Of India, PIU - Indore,
Through Project Director,
Address: 14, Sampat Hills, Bicholi Mardana,
Indore-Dewas Bypass Road, Indore, District Indore (MP)
.....PETITIONER
(By Ms. Anita Sharma, Advocate)
AND
Smt. Baby Bai W/o Bhim Singh Pahadia,
R/o Bhawani Sagar, Dewas, Land Owner Village Bilawali,
Tehsil & District Dewas (MP)
(None present, though respondent is served)
.....RESPONDENTS
...............................................................................................................................
This PETITION (S) coming on for orders this day, the court
passed the following:
ORDER
Heard finally, with the consent of the learned counsel for the
parties.
This order shall govern the disposal of Miscellaneous Petition
No.1939/2021 and connected petitions being Miscellaneous Petition
No.1967/2021, Miscellaneous Petition No.1972/2021,
Miscellaneous Petition No.1986/2021, Miscellaneous Petition
No.2025/2021, Miscellaneous Petition No.2026/2021,
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-10-2022
18:09:42
MP No.1939/2021_AFR_Bunch
Miscellaneous Petition No.2029/2021, Miscellaneous Petition
No.2041/2021, Miscellaneous Petition No.2114/2021 and
Miscellaneous Petition No.2101/2021, having regard to the
similarity of the issue involved. For the sake of convenience, the
facts, as noted in Miscellaneous Petition No.1939/2021, are being
taken into consideration.
This Miscellaneous petition under Article 226 / 227 of the
Constitution of India has been filed by the petitioner / National
Highway Authority of India, Project Implementation Unit, Indore
(MP) challenging order dated 09.02.2021 (Annexure P/1) passed by
the learned 5th Additional District Judge, Ujjain (MP) in
Miscellaneous Judicial Case bearing registration number MJC (AV)
31/2018, whereby the application filed by the petitioner for
cancellation of the award dated 13.08.2018 passed by the
Arbitrator-cum-Commissioner, Ujjain Division, Ujjain, under
Section 34 of the Arbitration & Conciliation Act, 1996 (herein after
referred to as the Act of 1996) has been rejected on the ground of
territorial jurisdiction of the Court, in view of Section 2 (d) of the
Arbitration & Conciliation Act, 1996, while allowing the
application filed by the respondents under Section 16 of the Code of
Civil Procedure, 1908.
2. In brief, the facts of the case are that the respondents herein
are the owners of land situated at District Dewas which was
sought to be acquired by the petitioner National Highway Authority
of India for construction of National Highway Number 3 (NH-3) in
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-10-2022
18:09:42
MP No.1939/2021_AFR_Bunch
Shivpuri-Dewas Zone. In the aforesaid acquisition proceedings, the
Competent Authority (Sub Divisional Officer, Revenue, Dewas)
passed an award on 07.02.2013 (Annexure P/6). This award was
challenged by the respondents before the statutory Arbitrator,
National Highway Tribunal & Court of Commissioner, Ujjain
Division, Ujjain (MP), who vide its order dated 13.08.2018
(Annexure P/2) passed the final award. The aforesaid final award
was challenged by the petitioner before the Additional District &
Sessions Judge, Ujjain under Section 34 of the Arbitration &
Conciliation Act, 1996 (herein after referred to as the Act of 1996)
for cancellation of the final award dated 13.08.2018. In the
aforesaid proceedings, the respondents filed an application dated
29.07.2019 under Section 16 of the Code of Civil Procedure, 1908
(CPC) read with Sections 34 (2) and 34 (5) of the Act of 1996,
contending that the Ujjain Court has no jurisdiction to entertain the
aforesaid application filed by the National Highway Authority of
India under Section 34 of the Act of 1996, as the appropriate forum
would be the Court at Dewas only, where the subject matter of the
dispute is situated.
3. The learned Judge of the lower Court, vide its impugned
order dated dated 09.02.2021, (Annexure P/1) has allowed the
aforesaid application under Section 16 of the CPC filed by the
respondents and has rejected the application filed by the petitioner
under Section 34 of the Act of 1996; and also directing the
petitioner to file the application under Section 34 of the Act of 1996
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
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MP No.1939/2021_AFR_Bunch
before the appropriate Court of jurisdiction.
4. Ms. Anita Sharma, learned counsel appearing for the
petitioner has submitted that the impugned order is liable to be set
aside, as it has been erroneously held by the learned Judge of the
lower Court that it has no jurisdiction to decide an application under
Section 34 of the Act of 1996, despite the fact that the arbitral
proceedings took place at Ujjain only; and thus, the Court at Ujjain
was competent enough to entertain an application under Section 34
of the Act of 1996.
5. In support of her contentions, Ms. Sharma has also relied
upon a decision rendered by a coordinate bench of this Court in the
case of Gopal v. National Highway Authority of India & others,
Arbitration Appeal No.41/2018, order dated 17.12.2018, wherein
also, in similar circumstances, this court held that Dhar court would
have jurisdiction to here an application u/s.34 of the Act of 1996,
and where the Additional District Judge, Dhar had rejected an
application under Section 34 of the Act of 1996 on the ground of
jurisdiction, holding that the award has been passed by the
Additional Commissioner, Indore, hence in terms of Section 42 of
the Act of 1996, Dhar Court has no jurisdiction to decide an
application under Section 34 of the Act of 1996.
6. The petition is opposed by the respondents. Shri Ravindra S.
Trivedi, learned counsel appearing for the respondents has
submitted that the impugned order is just and proper and no
interference is called for.
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-10-2022
18:09:42
MP No.1939/2021_AFR_Bunch
7. In support of his contention, Shri Trivedi has also relied upon
s.16 of CPC, as also on a decision rendered by the Supreme Court
in the case of Executive Engineer, Road Development Division
No. III, Panvel & another v. Atlanta Limited reported in (2014)
11 SCC 619; and a decision dated 12.04.2022 of this Court in the
case of Parenteral Drugs (India) Limited through Shri Nanalal
Joshi authorized Signatory v. Gati Kintetsu Express Private
Limited, Arbitration Appeal No.16/2022.
8. So far as the decision rendered by the co-ordinate bench of
this court in the case of Gopal (supra) is concerned, the relevant
excerpts of the same read as under:-
"The record reflects that against the Arbitration
Award dated 30th December, 2014 passed by the
Addl. Commissioner, Indore Division, the petitioner
had filed objection u/S.34 of the Arbitration and
Conciliation Act, 1996 before the Addl. District
Judge, Dhar which has been rejected by the
impugned order dated 10/3/2018 on the ground that
in terms of Sec.42 of the Act of 1996, Dhar Court
has no territorial jurisdiction.
The record reflects that the property which was
subject to the acquisition under the National
Highways Act is located at village Utavad, District
Dhar. The award dated 5/2/2011 in respect of the
land acquisition proceedings under the National
Highways Act, 1956 was also passed by the SDO
Revenue and Competent Authority, National
Highways 59, District Dhar. There is no arbitration
agreement in existence and matter was referred to
the notified arbitrator u/S.3G (5) of the Act of 1956.
It is undisputed between the parties that by virtue of
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-10-2022
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MP No.1939/2021_AFR_Bunch
notification issued by the government, the Revenue
Commissioner, Indore had acted as arbitrator. Hence
the arbitration proceeding before the Revenue
Commissioner, Indore was statutory arbitration
proceedings. No seat of the Arbitrator was fixed,
hence Indore where the arbitration took place was
merely the venue of arbitration. Hence, the matter
needs to be examined in the aforesaid back ground.
Sec.2(e) of the Act of 1996 defines the Court as
under:-
"Court" means--
(i) In the case of an arbitration other than
international commercial arbitration, the
principal Civil Court of original jurisdiction
in a district, and includes the High Court in
exercise of its ordinary original civil
jurisdiction, having jurisdiction to decide
the questions forming the subject-matter of
the arbitration if the same had been the
subject-matter of a suit, but does not
include any Civil Court of a grade inferior
to such principal Civil Court, or any Court
of Small Causes;
The subject matter of the arbitration was the
compensation for acquisition of land which is
situated at Dhar, therefore, Dhar is the Principal
Civil Court of original jurisdiction for the purpose of
present dispute. The Constitution Bench of the
Supreme Court in the matter of Bharat Aluminium
Company Vs. Kaiser Aluminium Technical
Services INC (2012) 9 SCC 552 after taking note of
Sec.2(e) and considering the issue of jurisdiction has
held that:-
"96. Section 2(e)-----------------------
We are of the opinion, the term "subject-matter of the
arbitration" cannot be confused with "subject matter of
the suit". The term "subject-matter" in Section 2(1)(e)
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-10-2022
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MP No.1939/2021_AFR_Bunch
is confined to Part I. It has a reference and connection
with the process of dispute resolution. Its purpose is to
identify the courts having supervisory control over the
arbitration proceedings. Hence, it refers to a court
which would essentially be a court of the seat of the
arbitration process. In our opinion, the provision in
Section 2(1)(e) has to be construed keeping in view the
provisions in Section 20 which give recognition to
party autonomy. Accepting the narrow construction as
projected by the learned counsel for the appellants
would, in fact, render Section 20 nugatory. In our view,
the legislature has intentionally given jurisdiction to
two courts i.e. the court which would have jurisdiction
where the cause of action is located and the courts
where the arbitration takes place. This was necessary
as on many occasions the agreement may provide for a
seat of arbitration at a place which would be neutral to
both the parties. Therefore, the courts where the
arbitration takes place would be required to exercise
supervisory control over the arbitral process. For
example, if the arbitration is held in Delhi, where
neither of the parties are from Delhi, (Delhi having
been chosen as a neutral place as between a party from
Mumbai and the other from Kolkata) and the tribunal
sitting in Delhi passes an interim order under Section
17 of the Arbitration Act, 1996, the appeal against such
an interim order under Section 37 must lie to the
Courts of Delhi being the Courts having supervisory
jurisdiction over the arbitration proceedings and the
tribunal. This would be irrespective of the fact that the
obligations to be performed under the contract were to
be performed either at Mumbai or at Kolkata, and only
arbitration is to take place in Delhi. In such
circumstances, both the Courts would have
jurisdiction, i.e., the Court within whose jurisdiction
the subject matter of the suit is situated and the courts
within the jurisdiction of which the dispute resolution,
i.e., arbitration is located."
In terms of the aforesaid judgment also the Dhar Civil Court
has the jurisdiction. So far as Sec.42 of the Act of 1996 on
which the reliance has been placed by the trial court, the
same is attracted when an application under Part I of the Act
was made in a court, but in the present case nothing has been
pointed out to show that before filing the objection u/S.34,
any application in any court was made, therefore, the trial
court has committed an error in attracting Sec.42. The trial
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-10-2022
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MP No.1939/2021_AFR_Bunch
court has placed reliance upon the judgment of the Supreme
Court in the matter of State of W.B. and others Vs.
Associated Contractors AIR 2015 SC 260 but in this case
also it has been held that if first application ie. application
u/S.9 is made to a Court having jurisdiction, then the
subsequent applications will be made in that Court, but in the
present case no prior application made in any other court has
been pointed out.
Having regard to the aforesaid factual and legal position, I am
of the opinion that the trial court has committed an error in
rejecting the application u/S.34 on the ground of lack of
territorial jurisdiction. Hence, the impugned order of the trial
court cannot be sustained and is hereby set aside.
The Arbitration Appeal is accordingly allowed."
(emphasis supplied)
9. So far as the case of Atlanta Limited (supra) is concerned, it
has been held by the Supreme Court as under:-
"24.3. Under the Arbitration Act, therefore, the legislature
has clearly expressed a legislative intent different from the
one expressed in Section 15 of the Code of Civil Procedure.
The respondent had chosen to initiate proceedings within the
area of Greater Mumbai, it could have done so only before
the High Court of Bombay. There was no other court within
the jurisdiction of Greater Mumbai, where the respondents
could have raised their challenge. Consequently, we have no
hesitation in concluding that the respondent by initiating
proceedings under Section 34 of the Arbitration Act, before
the Original Side of the High Court of Bombay, had not
violated the mandate of Section 2(1)(e) of the Arbitration Act.
Thus viewed, we find the submission advanced at the hands
of the learned counsel for the appellants, by placing reliance
on Section 15 of the Code of Civil Procedure, wholly
irrelevant.
(emphasis supplied)
10. On a comparative reading of both the aforesaid decisions,
with due respect, this Court finds itself unable to agree with the
observations made by the co-ordinate bench of this Court in the
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-10-2022
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MP No.1939/2021_AFR_Bunch
case of Gopal (supra) which read as under:-
"So far as Sec.42 of the Act of 1996 on which the reliance has
been placed by the trial court, the same is attracted when an
application under Part I of the Act was made in a court, but in
the present case nothing has been pointed out to show that
before filing the objection u/S.34, any application in any court
was made, therefore, the trial court has committed an error in
attracting Sec.42."
This is for the reason that the aforesaid observation made by the co-
ordinate bench of this Court stands nullified by the observations
made by the Supreme Court in the case of Atalanta Limited (supra)
where it held in para 18, as under:-
"18. The respondent had chosen to initiate proceedings within
the area of Greater Mumbai, it could have done so only
before the High Court of Bombay. There was no other court
within the jurisdiction of Greater Mumbai, where the
respondents could have raised their challenge. Consequently,
we have no hesitation in concluding that the respondent by
initiating proceedings under Section 34 of the Arbitration Act,
before the Original Side of the High Court of Bombay, had
not violated the mandate of Section 2(1)(e) of the Arbitration
Act."
(emphasis supplied)
11. Meaning thereby that an application filed u/s.34 of the Act of
1996 shall be treated to be an application for the purposes of s.42 of
the Act. S.42 which reads as under:-
"42. Jurisdiction.--Notwithstanding anything
contained elsewhere in this Part or in any other law for
the time being in force, where with respect to an
arbitration agreement any application under this Part has
been made in a Court, that Court alone shall have
jurisdiction over the arbitral proceedings and all
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
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MP No.1939/2021_AFR_Bunch
subsequent applications arising out of that agreement
and the arbitral proceedings shall be made in that Court
and in no other Court."
(emphasis supplied)
Thus, it is held that an application u/s. 34 of the Act of 1996 cannot
be treated to be mere objections, but in effect, an application under
Part I of the Act of 1996.
12. In view of the aforesaid discussion, as also on the strength of
the decision of the Supreme Court in the case of Bharat Aluminium
Company (supra), as relied upon by the coordinate bench of this
court in the case of Gopal (supra), this court has no hesitation to
hold that the Court at Ujjain where the application u/s.34 of the Act
of 1996 was filed has the jurisdiction to decide the same as the
arbitration proceedings also took place before the Divisional
Commissioner, Ujjain.
13. Accordingly, the petitions stand allowed and the impugned
order (s) is stand set aside. The matter is remanded back to the
concerned court at Ujjain to decide the case on merits.
Parties are also directed to appear before the Court at Ujjain
(5th Additional District Judge, Ujjain, MP) on 2nd of November,
2022 so as to avoid any further delay in issuance of notice to the
parties.
With the aforesaid observation and direction, Miscellaneous
Petition No.1939/2021, Miscellaneous Petition No.1967/2021,
Miscellaneous Petition No.1972/2021, Miscellaneous Petition
No.1986/2021, Miscellaneous Petition No.2025/2021,
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-10-2022
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MP No.1939/2021_AFR_Bunch
Miscellaneous Petition No.2026/2021, Miscellaneous Petition
No.2029/2021, Miscellaneous Petition No.2041/2021,
Miscellaneous Petition No.2114/2021 and Miscellaneous Petition
No.2101/2021 stand disposed of.
Let the original signed order be kept in Miscellaneous
Petition No.1939/2021 and a copy thereof be kept in other
connected cases.
All the other pending interlocutory applications, if any, shall
stand disposed of.
(Subodh Abhyankar)
Judge
Pithawe RC
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 17-10-2022
18:09:42
