ARBAP/46/2017
2022 Latest Caselaw 3111 UK

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

      THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI

            ARBITRATION APPLICATION NO. 46 OF 2017

                        23rd SEPTEMBER, 2022

Between:

M/s Ski and Snow Resorts
Private Limited                         ...... Applicant/Petitioner

and

State of Uttarakhand                    ......          Respondent


Counsel for the applicant     :   Mr. Sudhir Kumar, learned counsel

Counsel for the respondent    :   Mr. J.C. Pande, learned Standing
                                  Counsel for the State


The Court made the following:

JUDGMENT:

The present application has been filed under

Section 11(6) of the Arbitration and Conciliation Act to

seek appointment of an Arbitrator to adjudicate the

disputes and claims between the parties in terms of the

Arbitration Clause contained in the Standard Lease Deed

Form, particularly, in Clause 3 thereof.

2) The case of the applicant is that the applicant

obtained the land for setting up a resort from one Dr. Vijay

Singh Pal and his nephew by means of registered sale

deed for plot Nos. 15, 16 and 17, and a lease deed for plot

No. 18. The land is situated in Village Auli Lagga Salurh

Dugra, Tehsil Joshimath, District Chamoli. It is stated that

the said land comprising of plot No. 18, measuring 30 Nali

in Village Auli Lagga Salurh Dugra was granted by the

respondent, i.e., the State of Uttarakhand to Sri Indra

Singh, and a deed of grant was executed in his favour. It

is this deed of grant which contains the Arbitration

Agreement. The State claimed breach of the terms and

conditions of the grant made in favour of the grantee, and

a case bearing Case No. 2/2013-14, titled State of

Uttarakhand Vs Vijay Singh and others, was filed before

the Deputy Commissioner.

3) The applicant company claims that upon its

learning of the said filing of the case, the applicant moved

an application and got itself impleaded in the said

proceedings. The Collector, Chamoli, vide his order dated

09.03.2011, cancelled the grant and directed the applicant

to vacate the land. The applicant's appeal preferred

against the order of the Collector, Chamoli before the

Commissioner, Garhwal Division, was rejected on

02.01.2013. A further appeal was preferred by the

applicant before the Board of Revenue, which allowed the

appeal vide order dated 05.07.2014, and remanded the

matter back to the Collector for a fresh decision.

4) The applicant states that the deed of grant

contains the Arbitration Agreement, and consequently, the

applicant moved an application before the Collector,

Chamoli, for deciding the issue of arbitration before

entering into the merits of the matter. This request of the

applicant was rejected by the Collector, Chamoli. The

applicant then preferred writ petition, being Writ Petition

(M/S) No. 1918 of 2017, titled M/s Ski and Snow Resorts

Pvt. Ltd. Vs State of Uttarakhand. This Court vide order

dated 10.08.2017, directed the Collector, Chamoli to

decide the question of arbitration first, and decide the case

on merits thereafter, if so required. The Collector heard

the question of arbitration, and by order dated

13.09.2017, decided that the matter is not to be referred

to arbitration on the application of the applicant company.

The Collector vide order dated 20.09.2017, returned the

finding with regard to the violation of the terms of the

lease / grant, and consequently, cancelled the same, and

directed taking over of possession from the applicant

company.

5) The applicant then sought to invoke Arbitration

by serving a notice on the respondent, and also moved an

application under Section 9 of the Arbitration and

Conciliation Act to seek interim measures vide a Civil Misc.

Case No. 66 of 2017 before the District Judge, Chamoli,

titled M/s Ski and Snow Resorts Pvt. Ltd. Vs State of

Uttarakhand. The District Judge, vide order dated

15.12.2017, rejected the application moved by the

applicant holding that the applicant is not a party to the

Arbitration Agreement, and cannot file an application under

Section 9 of the Arbitration and Conciliation Act, 1996.

6) Since the respondent has not appointed the

Arbitrator, this application has been preferred.

7) I have heard learned counsels and perused the

record.

8) Admittedly, the deed of grant was not made in

favour of the applicant. The applicant, therefore, cannot

step into the shoes of the grantee, i.e., Dr. Vijay Singh Pal.

The order dated 15.12.2017 passed by the learned District

Judge is a judicial order, which binds the applicant. In the

face of the said order, the applicant cannot again assert a

right to claim arbitration, when it is not a party to the

Lease Agreement. The applicant, therefore, cannot invoke

the Arbitration Agreement.

9) I find no merit in this application, and the same

is, accordingly, dismissed.

________________ VIPIN SANGHI, C.J.

Dt: 23rd SEPTEMBER, 2022 Negi