Allowed

Anurag Kumar Goel and Another v. Union of India and 5 Others

Allahabad HC21 May 2019WRIC/14513/2019

Case brief

AI extract

What is this about?

The High Court held that Section 34 of the Arbitration and Conciliation Act, 1996 does not prescribe any pecuniary jurisdiction for a District Judge. The court set aside the District Judge's order rejecting the petitioner's application on this ground and directed the Judge to entertain the application for setting aside the arbitrator's award.

What did the court decide?

Petitioner's application under Section 34 of the Arbitration and Conciliation Act, 1996 must be entertained by the District Judge, Bijnor.

Anurag Kumar Goel and Another Vs Union of India and 5 Others — Arbitration | Allahabad HC (2019)

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Court No. - 21

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Case :- WRIT - C No. - 14513 of 2019

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Petitioner :- Anurag Kumar Goel And Another Respondent :- Union Of India And 5 Others Counsel for Petitioner :- Gulrez Khan,Javed Husain Khan,W H Khan(Senior Advocate) Counsel for Respondent :- A.S.G.I.,C.S.C.,Manish Goyal,Rajesh Kumar Jaiswal

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Hon'ble Pradeep Kumar Singh Baghel,J. Hon'ble Rohit Ranjan Agarwal,J.

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1. The petitioners have instituted this proceeding, challenging the order dated 29.04.2016 passed by the respondent No.5 and the order dated 07.01.2019 passed by the respondent No.6, Arbitrator/Collector, Bijnor.

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2. The relief sought amongst other reads as under:

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"I. Issue a writ, order or direction in the nature of certiorari quashing award dated 29.04.2016 passed by the competent authority and the order dated 7.1.2019 passed by the Arbitrator/Collector, Bijnor and the aforesaid award and order be modified by directing the said authority to award compensation at the rate of Rs.16,500/- per Sq. Mtr. of the acquired land of the petitioner alongwith solatium and interest as provided in the Act No.30 of 2013.

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II. Issue a writ, order or direction in the nature of mandamus commanding the District Judge, Bijnor or Presiding Officer Land Acquisition Rehabilitation and Resettlement, Moradabad and Commercial Court, Moradabad which one is found to be competent and having jurisdiction to entertain and decide the objection of the petitioners under Section 34 of the Arbitrator and Conciliation Act, 1996 dated 28.03.2019 or to any other authority found be competent and having jurisdiction to decide the aforesaid objection."

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3. We have heard Shri W.H. Khan, learned Senior Counsel assisted by Shri Gulrez Khan, Advocate for the petitioners, learned Standing Counsel for respondent Nos. 3 to 6 and Shri Anil Babu, learned counsel for the High Court.

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4. The petitioners claim that they are owner and in possession of Plot No.17 measuring 1.980 sq. meter situated in Gram Chak Shahjani, Tehsil Dhampur, District

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Bijnor. The said land was acquired by the National Highway Authority of India under the provisions of National Highway Act, 1956. It is stated that a notice under Section 3D of the National Highways Act, 1956 (for short Act 1956) was published on 28.10.2014, pursuant thereto the petitioner had an objection claiming compensation in respect of the said plot at the rate of Rs.16,500/- per sq. meter. On 29th April, 2016, respondent No.5 passed an award wherein the petitioner was awarded compensation only at the rate of Rs. 6,400/- square yard.

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5. Dissatisfied with the order of the respondent No.5, the petitioner has challenged the award before the Arbitrator under Section 3G(5) of the Act. The Arbitrator has rejected the claim of the petitioner by the impugned order dated 07.01.2019. It is averred in the writ petition that the petitioner has a remedy to challenge the order of the Arbitrator under Section 34 of the Arbitration Act and Conciliation Act, 1996 before the District Judge. The petitioner was advised that Land Acquisition Rehabilitation and Resettlement Authorities established in Uttar Pradesh and as such he can file his objection under Section 34 before the said authority at Moradabad. Accordingly, he made an application on 27th March, 2019 under Section 34 of the Act, 1996 at Moradabad, but his application is not entertained and he was directed to file the same before the District Judge. It is averred that no order to the said effect was furnished to the petitioner.

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6. The petitioner, thereafter, filed application before the District Judge, Bijnor on 28.03.2019 and filed their objections under Section 34 of the Act 1996. On 30.10.2019, the District Judge returned the objection of the petitioner on the ground that the valuation of arbitration

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award exceeds the pecuniary jurisdiction of the Court.

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7. Learned Senior Counsel has submitted that Section 34 of the Act 1996 does not provide any pecuniary limit, Section 34 is extracted hereinunder.

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" 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).

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

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(a) the party making the application furnishes proof that—

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(i) a party was under some incapacity, or

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(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

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(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

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(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:

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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

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(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

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(b) the Court finds that—

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

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

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[Explanation 1. — For the avoidance of any doubt, it is

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clarified that an award is in conflict with the public policy of India, only if,-

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(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

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

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

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[Explanation 2. – For the 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.]

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[(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:

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

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(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:

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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.

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(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.

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[(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.]

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[(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 subsection (5) is served upon the other party.]

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8. On a plain reading of Section 34, it is clear that no pecuniary jurisdiction has been provided under Section 34, we are of the opinion that the view taken by the District Judge is not correct.

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9. Learned Standing Counsel has also placed instructions so received by him, which is taken on record.

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10. The award of Arbitrator can only be challenged under Section 34 by making an application before the District Judge for setting aside such arbitral award, therefore, the District Judge has wrongly returned the case of the petitioners on the ground of pecuniary jurisdiction.

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11. We, therefore, set aside the order dated 30.3.2019 and direct the District Judge, Bijnor to entertain and decide the application of petitioners under Section 34.

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12. Needless to say that the court below shall not go into the question of limitation, as the same is protected by Section 14 of the Limitation Act.

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13. With the aforesaid observation, the writ petition stands allowed .

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Order Date :- 21.5.2019 A.N. Mishra

Anurag Kumar Goel and Another v. Union of India and 5 Others

Case brief

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Anurag Kumar Goel and Another v. Union of India and 5 Others

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