State Of Uttarakhand Through ... vs Madhav Nayan
2021 Latest Caselaw 1480 UK

                                               Reserved
     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
                    Appeal From Order No. 218 of 2008

State of Uttarakhand through Collector,
Tehri Garhwal.                                             ......... Appellant
                                      Vs.
Madhav Nayan, S/o Sri Kamal Nayan,
R/o Village Jaol, Patti Bamund,
District Tehri Garhwal.                                  .......Respondent

Present: Mr. Sunil Khera, Deputy Advocate General for the State/appellant.
         Mr. Rakesh Thapliyal, Senior Advocate, assisted by Mr. Mukesh Kapruwan,
         Advocate for the respondent.

                                JUDGMENT

Per: Hon'ble Ravindra Maithani, J.

Present appeal is preferred against the judgment and order dated 28.09.2007, passed in Misc. (Arbitration) Case No. 28 of 2005, Smt. Madhav Nayan Vs. Commissioner, by the court of District Judge, Tehri Garhwal (for short "the case"). The impugned judgment and order has been passed on an application filed by the respondent under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, "the Act") for setting aside the arbitral award dated 23.04.2005, passed by the sole Arbitrator. By the impugned judgment and order, the arbitral award has been set aside.

2. Facts necessary for the disposal of instant appeal, briefly stated, are as hereunder:-

On 31.12.1966, Kamal Nayan and Parshu Ram were granted lease in Plot No.44 Section No.3, below Motor Road Village Khuret, total area 77 nali and 14 muthi (land in question) for the purposes of developing an orchard by planting fruit bearing trees. The lease deed was also executed. Both the lessees are dead. Respondent Madhav Nayan is son of the original lessee Kamal Nayan.

On 19.09.1996, the respondent executed a Power of Attorney with respect to the land in dispute in favour of Rahul Sondhi. It appears that the lessor issued notices to the respondent with regard to the non compliance of the terms of lease and thereafter a joint inspection was ordered on 28.01.2000. Pursuant to which, the Revenue Officers and Forest Officers conducted a joint inspection of the land in dispute. In the joint inspection it was found that though 442 fruit bearing trees were planted in the land in dispute but they appeared to have been planted after 1995-1996. It was also found that there were two houses of seven rooms constructed by Rahul Sondhi on the land in dispute and he had also stationed a Kisan Singh as watchman, whom he paid salary. The joint inspection team was told that the land in dispute has been sold. The joint inspection team also found that the land in dispute was being used for growing agricultural crop and vegetables. In view of it, the District Magistrate, Tehri Garhwal cancelled the lease on 04.02.2003. This order cancelling the lease deed was challenged in Writ Petition (M/B) No.886 of 2003, Madhav Nayan vs. State of Uttaranchal (for short, "the writ petition"). It may be mentioned here that the lease deed was cancelled on two counts (i) Non use of the land in dispute for the purpose for which the lease was granted and (ii) non-payment of the rent.

This Court on 22.09.2003, directed the respondent to pay the arrears of taxes within two weeks since then and on the second question the Court observed "the matter comes under arbitration as mentioned in the terms of allotment and the arbitration lies before the Commissioner". And the Court further observed "in the circumstances, the petitioner pays arrears of taxes as directed above, he is allowed to raise a dispute before the Commissioner under the arbitration. In that event, the Commissioner will decide the question whether the petitioner has utilized the

land for the purpose for which they are allotted." The respondent paid the rent thereafter. But, the respondent did not raise the issue before the Arbitrator, instead the District Magistrate, Tehri Garhwal referred the matter for arbitration on 23.12.2000. In the communication dated 23.12.2003, the District Magistrate, Tehri Garhwal recorded that the arrears of rent has been paid by the respondent.

The arbitrator by its award dated 23.04.2005, observed that there is no reason to interfere in order dated 04.02.2003, passed by the District Magistrate, by which the lease has been canceled. It was so observed on the following grounds:-

(i) The trees were planted after 1995-1996 which is violation of the terms of the lease.

(ii) The respondent did transfer all his rights on land in dispute by way of Power of Attorney, which is a kind of sub lease and defeats the purpose of Chamba Mussorie Fruit Belt Scheme and.

(iii) The family settlement is not recognized.

3. The award was challenged under Section 34 of the Act by the respondent and by the impugned order the award has been canceled. Hence, the appeal.

4. Heard learned counsel for the parties and perused the record.

5. Learned counsel for the State would submit that the scope of Section 34 of the Act is much restricted. It is not an appellate jurisdiction; the purpose of the Act would be defeated, if application under Section 34 of the Act is treated like an appeal against the award. Learned State counsel raised the following points in his arguments.

(i) The arbitrator did not exceed its jurisdiction as held by in the impugned order.

(ii) The District Magistrate was not restricted to raise the claim before the arbitrator, strictly, in view of the order dated 22.09.2003, passed in the writ petition, because

in the writ petition liberty was given to the respondent to raise his dispute. Which he never raised and the dispute which was raised on behalf of the State was though raised after the order passed in the writ petition, but was independent to it and in terms of the lease deed, the State was within its rights to raise all the permissible claims before the arbitrator.

(iii) The lessee could not have handed over the land in dispute to anyone as per the lease deed, but by executing power of attorney, the land in question has been handed over to a Rahul Sondhi, who constructed a house on the land in dispute, which is violation of the lease deed and it is a question of fact, which has been decided by the arbitrator and it could not have been disturbed under Section 34 of the Act.

(iv) The trees were planted in the year 1995-1996, as noted in the joint inspection report and this finding of fact could not have been disturbed under Section 34 of the Act.

(v) The land in dispute was being used for agricultural purposes and for the purpose of growing vegetables as found in the joint inspection. The arbitrator passed his finding on this fact also which ought not to have been disturbed under Section 34 of the Act.

6. Learned counsel would submit that after grant of lease in the year 1966 for about 30 years no plantation was done to develop the orchard, instead house was built and agricultural crops and the vegetables were grown, which is violation of the lease deed; the power of attorney is nothing but at least handing over the possession of the land, which is also restricted by the lease deed. It is argued that, in fact, the purpose was to develop a fruit belt in the area and it has been defeated by the acts of the respondent. The terms of the lease deed have been violated. It was so detected in the joint inspection report. Based on it, the lease has rightly been cancelled and the reference has been rightly decided by the

Arbitrator. But, it is argued that learned court below exceeded its jurisdiction under Section 34 of the Act, in re-evaluating the factual aspects. Therefore, it is submitted that the impugned judgment and order deserves to be set aside and appeal allowed.

7. In support of his contention, learned counsel has placed reliance upon the principles of law, as laid down in the cases of MMTC Limited Vs. Vedanta Limited, (2019) 4 SCC 163 and Parsa Kente Collireries Limited Vs. Rajasthan Rajya Vidyut Utpadan Nigam Limited, (2019) 7 SCC 236.

8. In the case of MMTC Limited (supra), the Hon'ble Supreme Court discussed the scope of Section 34 of the Act and observed as hereunder:-

"11. As far as Section 34 is concerned, the position is well-settled by now that the Court does not sit in appeal over the arbitral award and may interfere on merits on the limited ground provided under Section 34(2)(b)(ii) i.e. if the award is against the public policy of India. As per the legal position clarified through decisions of this Court prior to the amendments to the 1996 Act in 2015, a violation of Indian public policy, in turn, includes a violation of the fundamental policy of Indian law, a violation of the interest of India, conflict with justice or morality, and the existence of patent illegality in the arbitral award. Additionally, the concept of the "fundamental policy of Indian law" would cover compliance with statues and judicial precedents, adopting a judicial approach, compliance with the principles of natural justice, and wednesbury1 reasonableness. Furthermore, "patent illegality" itself has been held to mean contravention of the substantive law of India, contravention of the 1996 Act, and contravention of the terms of the contract.

12. It is only if one of these conditions is met that the Court may interfere with an arbitral award in terms of Section 34(2)(b)(ii), but such interference does not entail a review of the merits of the dispute, and is limited to situations where the findings of the arbitrator are arbitrary, capricious or perverse, or when the conscience of the Court is shocked, or when the illegality is not trivial but goes to the root of the matter. An arbitral award may not be interfered with if the view taken by the arbitrator is a possible view based on facts. (See Associate Builders v. DDA2. Also see ONGC Ltd. v. Saw Pipes Ltd.3, Hindustan Zinc Ltd. v. Friends Coal Cabonisation4, and McDermott International Inc. v. Burn Standard Co. Ltd.5)"

1. Associated Provincial Picture Houses v. Wednesbury Corpn. (1948) 1KB 223 (CA)

2. (2015) 3 SCC 49 : (2015) 2SCC (Civ) 204.

3. (2003) 5 SCC 705

4. (2006) 4 SCC 445

5. (2006) 11 SCC 181

9. In the case of Parsa Kente Collieries Limited (supra) also the Hon'ble Supreme Court interpreted the scope of Section 34 of the Act and referred to the cases decided on this point and observed as hereunder:-

"9.1 In Associate Builders6, this Court had an occasion to consider in detail the jurisdiction of the Court to interfere with the award passed by the Arbitrator in exercise of powers under Section 34 of the Arbitration Act. In the aforesaid decision, this Court has considered the limits of power of the Court to interfere with the arbitral award. It is observed and held that only when the award is in conflict with the public policy in India, the Court would be justified in interfering with the arbitral award. In the aforesaid decision, this Court considered different heads of "public policy in India" which, inter alia, includes patent illegality. After referring Section 28(3) of the Arbitration Act and after considering the decisions of this Court in McDermott International Inc. v. Burn Standard Co. Ltd.7, SCC paras 112-113 and Rashtriya Ispat Nigam Limited v. Dewan Chand Ram Saran8, SCC paras 43-45, it is observed and held that an Arbitral Tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. It is further observed and held that construction of the terms of a contract is primarily for an Arbitrator to decide unless the Arbitrator construes the contract in such a way that it could be said to be something that no fair-minded or reasonable person could do. It is further observed by this Court in the aforesaid decision in para 33 that when a court is applying the "public policy" test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. A possible view by the Arbitrator on facts has necessarily to pass muster as the Arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. It is further observed that thus an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score."

10. On the other hand, learned Senior Counsel for the respondent would submit that impugned judgment and order has been passed in accordance with law and it does not warrant any interference. It is submitted that the execution of power of attorney cannot be held to be a transfer. It is recognized by law and it does not violate the condition of lease deed. It is also argued that, in fact, the arbitrator travelled beyond its jurisdiction to decide the question of power of attorney because the only question, which the arbitrator could have decided was about the use of

6. Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2SCC (Civ) 204

7. (2006) 11SCC 181

8. (2012) 5 SCC 306

land as directed by this Court on 22.09.2003, in the writ petition. It is submitted that since the award was not in accordance with law and against the public policy of India, it has rightly been set aside. In support of his contention, learned Senior Counsel placed reliance upon the principle of law as laid down in the cases of Orissa Mining Corporation Ltd. Vs. Prannath Vishwanath Rawlley, (1977) 3 SCC 535 and Union of India Vs. G.S. Atwal and Co. (Asansole),(1996) 3 SCC 568, Syed Abdul Khader Vs. Rami Reddy and others, (1979) 2 SCC 601.

11. In the case of Orissa Mining Corporation Ltd. (supra), the Hon'ble Supreme Court discussed the scope of jurisdiction of the arbitrator and observed that "when the amount has been specified in the plaint and when the reference is confined to the claim made in the plaint, the arbitrator would have to restrict his award only to the claim. We are satisfied that in this case the arbitrator has exceeded his jurisdiction in embarking on the claim that was for the first time put forward before him by the respondent. There is therefore an error apparent on the face of the award".

12. In the case of G.S. Atwal, (supra) the Hon'ble Supreme Court observed that "but the arbitrator cannot enlarge the scope of his arbitration and make in a non-speaking award, a lump sum amount of all claims, after enlarging his jurisdiction on non-accepted or objected claims.".

13. In the case of Syed Abdul Khader (supra), the Hon'ble Supreme Court discussed the provision of Section 182 of the Contract Act, 1872 with regard to agency and agreed with the proposition that "Co- principals may jointly appoint an agent to act for them and in such case become jointly liable to him and may jointly sue him". And further "undoubtedly, where someone other than the person who has a right to act in respect of certain things has, under a contract of agency, the right to act on be-half of principal, the authority conferred by the written instrument has to be strictly construed. Ordinarily a Power of Attorney is construed strictly by Courts"

14. Challenge to an award is made under Section 34 of the Act, which is as hereunder:-

"34. Application for setting aside arbitral award.- (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub- section (2) and sub-section (3).

(2) An arbitral award may be set aside by the Court only if--

(a) the party making the application establishes on the basis of the record of the arbitral tribunal that--

                     (i)       a party was under some incapacity, or
                     (ii)     the arbitration agreement is not valid under the law to

which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or.

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or

(b) the Court finds that--

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii) the arbitral award is in conflict with the public policy of India.

Explanation 1.- For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,-

(i) The making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or

(ii) It is in contravention with the fundamental policy of Indian law;

or

(iii) It is in conflict with the most basic notions of morality or justice.

Explanation 2. --For avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.

(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:

Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that

application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.

(4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.

(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.

(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party."

15. Under Section 34 (2) (b) the explanation 1 has been amended in the year 2015. Prior to it, it was as hereunder:-

"Explanation.- Without prejudice to the generality of sub-clause

(ii) it is hereby declared, for the avoidance of any doubt, that in award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81."

16. The award has been set aside by the impugned judgment and order observing as hereunder:-

i. The joint inspection report did not give any reason to estimate life of trees planted and arbitrator also did not take any evidence on this aspect, therefore, the award has not been made in an independent quasi- judicial manner.

ii. The transfer by way of power of attorney or a family settlement was not part of reference and the arbitrator exceeded its jurisdiction in deciding these issues. iii. The execution of power of attorney is governed by the Power of Attorney Act, 1882; the attorney does not become owner; the arbitrator held that by executing the power of attorney, the land has been transferred or sublet, this award or finding is clearly in conflict with the public policy of India.

17. It may also is to be noted that in page 14, para 2 of the impugned judgment, it has also been observed that in application under Section 34 of the Act, the Court does not sit as a court of appeal.

18. The phrase "Public Policy of India" has come up for discussion in various cases. In the case of Oil and Natural Gas Corporation Ltd. Vs. Saw Pipes Ltd., (2003) 5 SCC 705, the Hon'ble Supreme Court observed that "therefore, in a case where the validity of award is challenged, there is no necessity of giving a narrower meaning to the term 'public policy of India". On the contrary, wider meaning is required to be given so that the "patently illegal award" passed by the arbitral tribunal could be set aside."

19. In the case of MMTC (supra), the scope of violation of Indian Public Policy has been further interpreted, as quoted hereinabove.

20. It is also settled law that interference under Section 34 of the Act, does not mean a review of the merits of the dispute. The interference is warranted only when the findings are arbitrary, capricious or perverse, or when the conscience of the Court is shocked, or when the illegality goes to the root of the matter. The Court under Section 34 of the Act does not act as a Court of appeal. The errors of facts cannot be lightly rectified. If a view taken by the arbitrator is possible view based on the fact, it sould not be interfered with.

21. Has the arbitrator exceeded its jurisdiction? The lease was cancelled on 04.02.2003 by the District Magistrate, Tehri Garhwal. It was challenged in the writ petition. On 22.09.2003, the respondent was allowed to raise the dispute before the Commissioner, under the arbitration. It was so done by the Court, in view of the arbitration clause in the lease deed itself. The Court in its order dated 22.09.2003 had observed "in that event, the Commissioner will decide the question whether the petitioner has utilized the land for the purposes for which they are allotted." The words "in that event" is of significance, it relates to the first sentence, which says that "if the respondent pays arrears of taxes, as

directed above, he is allowed to raise a dispute before the Commissioner under arbitration", but the respondent in the instant case, did not raise any dispute before the arbitrator. There is no dispute to the fact that in the lease deed, there is a provision of arbitration. The State referred the matter for arbitration and in the reference, it has also been noted that in a meeting chaired by the concerned Minister, it was decided that execution of power of attorney shall also be deemed to be in violation of terms of lease deed.

22. Had the respondent raised his claim before the arbitrator, it would have been restricted to the use of land in dispute, as per the order dated 22.09.2003 of this Court passed in the writ petition. But, as stated the respondent did not raise the dispute.

23. State had already cancelled the lease deed, but since an order was passed by this Court in the writ petition, the State referred the matter to the arbitrator. If after the order of this dated 22.09.2003, passed by the court, in the writ petition, some more grounds existed for revealing violation of lease deed, the State was definitely free to raise the claim before Arbitrator as per the term of the lease deed. The State was not restricted by the order dated 22.09.2003 of this Court.

24. If this matter is looked from other angle, it also reflects that the reference to arbitrator made by the District Magistrate, Tehri Garhwal was essentially restricted to violation of the term of lease deed. Such claim could have been raised as per the term of lease deed. In substance, the reference was with regard to violation of the terms of the lease. In the reference made to the arbitrator, the State has stated that execution of power of attorney has also been considered as violation of the lease deed.

25. The question of use of land in dispute was also related to violation of lease deed. So if, State has also raised an issue of execution of power of attorney, it does not mean that the reference has been made in violation of the Court's order dated 22.09.2003, passed in the writ petition.

In essence, the question was whether the land in question has been used as per the term of the lease deed and to that extent, reference has been made and considered by the arbitrator. The arbitrator did not enlarge it's jurisdiction, when he considered the question of power of attorney. Therefore, it may not be right to say that the arbitrator in any manner exceeded its jurisdiction.

26. The lease deed was given to the initial lessee in the year 1966. In the year 1996, they executed the power of attorney. What is that power of attorney? Undoubtedly, it is recognized under the law. There is an Act which governs this i.e., the Power of Attorney Act, 1882. But, the use of power of attorney for various reasons cannot be lost sight off.

27. In the case of Suraj Lamp And Industries Private Limited (2) Through Director Vs. State of Haryana and another, (2012) 1 SCC 656, the Hon'ble Supreme Court observed as hereunder:-

"4. The earlier order dated 15-5-20099, noted the ill-effects of such SA/GPA/will transactions (that is, generation of black money, growth of land mafia and criminalization of civil disputes) as under: (SCC pp. 368-69, paras 19-21) "19. Recourse to 'SA/GPA/will' transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons:

(a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.

(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.

(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin.

20. Whatever be the intention, the consequences of SA/GPA/will transactions are disturbing and far-reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large-scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the Government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption.

9. (2009) 7 SCC 363 : (2009) 3 SCC126

21. This kind of transactions have disastrous collateral effects also. For example, when the market value increases, many vendors (who effect power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such 'power-of-attorney sales' comes to know about the vendor's action, he invariably tries to take the help of musclemen to 'sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power-of-attorney sale and then threaten the previous 'power-of-attorney sale' purchasers from asserting their rights. Either way, such power- of-attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions." It also makes title verification and certification of title, which is an integral part of orderly conduct of transactions relating to immovable property, difficult, if not impossible, giving nightmares to bona fide purchasers wanting to own a property with an assurance of good and marketable title."

28. Under the law, power of attorney is not transfer of the land, it should not be equivalent to sale that is true, but then as Hon'ble Supreme Court observed in the case of Suraj Lamp (supra), that the power of attorneys are executed when vendors with imperfect title, who cannot or who do not want to execute the registered deed of conveyance take recourse to power of attorney.

29. The condition 2(b) of the lease deed dated 31.12.1966, categorically stipulates that a lessee will not sublet the land in dispute nor will it be handed over to others. The power of attorney is on record, the first page, last paragraph categorically records that the respondent is unable to look after the land in dispute because of his employment and in Para No. 13, he gives all sweeping rights to Rahul Sondhi with regard to the land in dispute. The arbitral tribunal has rightly concluded that it is handing over of land, which is not permissible under the lease deed. The arbitral tribunal rightly concluded that the execution of power of attorney defeats the purpose of Chamba, Mussorie Fruit Belt Scheme. While doing so, the arbitral tribunal did not exceed its jurisdiction.

30. The main question is use of land. The joint inspection report is on record, which categorically records that there were agricultural crops as well as vegetables being grown in the land in dispute and trees were

planted in the year 1996. This joint inspection was done by the Range Officers, Revenue Officers, Tehsildar, Divisional Forest Officers, District Horticulture Officer and many other officers of Forest and Revenue Department. In the impugned order, it has been observed that a joint inspection report did not give any reason to estimate the age of the trees. This is beyond the scope of jurisdiction under Section 34 of the Act. It is a factual aspect. The persons who estimated the life of plant were not unaware of plants life. They were Revenue Officers and Forest Officers and, as stated, finding of fact cannot be disturbed unless it is an arbitrary, perverse, capricious or when the conscience of the Court is shocked. Instant is not such a case. Life of plants have been assessed by Revenue and Forest Officers based on it, the arbitral tribunal gave its finding, which is based on facts. Finding is neither arbitrary nor capricious nor perverse nor does it shocked the conscience of the Court. Even if two views are possible the view adopted by the arbitral tribunal has to be respected. Even otherwise, after 1966, had any tree been planted on the land in dispute in the year 2000, there would have been a huge orchard, which was missing. Therefore, this Court is of the view that learned Court below did commit an error of law, while appreciating the factual aspects and disturbing the finding of facts recorded by the arbitral tribunal.

31. In view of the foregoing discussion, this Court is of the view that arbitral tribunal passed the award in accordance with law. It does not warrant any interference and learned court below committed error in setting aside the arbitral award. Therefore, the instant appeal deserves to be allowed.

32. The appeal is allowed.

33. Impugned judgment and order dated 28.09.2007 is set aside.

(Ravindra Maithani, J.) 12.04.2021

Jitendra