M/S R.K. And Co. Patran vs Union Of India And Ors
2023 Latest Caselaw 11781 P&H

                                                                             2023:PHHC:099734

                                In the High Court for the States of Punjab and Haryana
                                                 At Chandigarh

                                                                    CR-4362-2023 (O&M)
                                                                    Date of Decision: 3.8.2023

                M/s R.K. & Co. Patran                                                 ... Petitioner

                                                     Versus

                Union of India and others                                        ... Respondents


                CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL


                Present:-          Mr. Santosh Sharma, Advocate for the petitioner.

                                   Mr. Abhilaksh Gaind, Advocate with
                                   Mr. Rakesh Roy, Advocate for respondent No.2 - NHAI.

                                   *****

                GURVINDER SINGH GILL, J. (Oral)

1. By way of filing the instant petition, the petitioner assails order dated

27.7.2023 (Annexure P-1) passed by respondent No.4 - The Commissioner,

Patiala Division Patiala-cum-Arbitrator appointed under National Highway

Act, 1956, vide which his application for leading additional evidence, has

been declined.

2. Learned counsel for the petitioner submitted that the evidence sought to be

led in the shape of photographs and videos of locality in question and

documents including sale-deeds etc. is material evidence for just decision in

the matter and in case the same is not permitted to be brought on record, the

correct determination of compensation may not be possible. The learned

counsel pressed into service a judgment passed by Hon'ble Delhi High Court

PANKAJ KAKKAR 2023.08.03 18:56 I attest to the accuracy and authenticity of this document CR-4362-2023 (O&M) (2) 2023:PHHC:099734

in Glenocore International AG Versus Dalmia Cement (Bharat) Limited,

2018 R.A.J. 672 to contend that leading of additional evidence is permissible

at any stage, subject to relevancy of such evidence.

3. Notice of motion.

4. At this state, Mr. Abhilaksh Gaind, Advocate has put in appearance on behalf

of respondent No.2 - NHAI and accepts notice.

5. Learned counsel representing respondent No.2 - NHAI has, however,

opposed the petition on the ground that the documents now sought to be

placed on record particularly sale-deeds etc. were very much in the

knowledge of the petitioner and that no reason is forthcoming as to why the

said documents could not be placed on record previously.

6. This Court has considered the rival submissions addressed before this Court.

7. It is apposite to refer to order dated 22.3.2023 passed in CR-5353-2022 by a

Coordinate Bench of this Court, wherein the petitioner had earlier

approached against an order passed by the Arbitrator declining his request for

spot inspection. The relevant extract from order dated 22.3.2023 reads as

under:

"3. Learned Senior counsel for the petitioner after arguing at some length restricts his prayer that the impugned order may not be treated as an impediment against the petitioner for invoking the right under the provisions of Act for leading evidence.

4. Learned counsel for the respondent raises a plea with regard to the maintainability of the petition stating that an appeal is maintainable. However, to cut short the controversy and to avoid further prolonging of the litigation, he is not pressing the said issue.

5. In the peculiar facts and circumstances of the present case and in view of the restricted prayer, the petition is disposed of, accordingly. It is

PANKAJ KAKKAR 2023.08.03 18:56 I attest to the accuracy and authenticity of this document CR-4362-2023 (O&M) (3) 2023:PHHC:099734

clarified that the impugned order would not stand in the way of the petitioner for availing the remedies in accordance with the statutory provisions of the Act."

8. The aforesaid order indicates that this Court had previously left it open for

the petitioner to avail remedies in accordance with the statutory provisions of

Arbitration and Conciliation Act, 1996.

9. While broad principles of Code of Civil Procedure, 1908 can be said to apply

to the arbitration proceedings, but the Arbitrator cannot be said to be bound

by all the provisions of Code of Civil Procedure, 1908 as is mandated under

Section 19 of Arbitration and Conciliation Act, 1996, which reads as under:

"19. Determination of rules of procedure.--

(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872).

(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.

(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate.

(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence."

10. In Glenocore International's case (supra), the Arbitrator had granted liberty

to one of the parties to file additional documents just prior to the final

hearing, which was assailed by the other party before Hon'ble Delhi Court

during course of a petition for enforcement of a foreign award. The Hon'ble

Delhi High Court turned down the said challenge while observing as under:

PANKAJ KAKKAR
2023.08.03 18:56
I attest to the accuracy and
authenticity of this document
                 CR-4362-2023 (O&M)                          (4)                 2023:PHHC:099734

"35. The contention that the arbitral tribunal did not adopt the judicial approach as it permitted Glencore to produce additional documents is also without substance."

11. The abovecited case leaves no manner of doubt that additional evidence may

be permitted to be led in fit cases. Having regard to the fact that the

documents sought to be placed on record i.e. Photograph, Videography, sale-

deeds etc. would have material bearing on the outcome of the proceedings as

regards assessment of compensation, the instant petition is accepted. The

impugned order is set aside and the petitioner is permitted to place on record

the documents/evidence in question subject to right of the respondents to

rebut the same or to produce any evidence to challenge the authenticity of

such documents.

12. However, having regard to the fact that the application was moved at a

belated stage, the same is being accepted subject to payment of non-

refundable costs of Rs.2,00,000/-, which shall be deposited in "Chief

Minister Punjab Relief Fund".

                3.8.2023                                           ( GURVINDER SINGH GILL )
                Pankaj                                                     JUDGE

                                    Whether speaking /reasoned       Yes / No

                                    Whether Reportable               Yes / No




PANKAJ KAKKAR
2023.08.03 18:56
I attest to the accuracy and
authenticity of this document