Dismissed

Hans Raj v. M/S H.M.T. Ltd. and Ors.

Punjab & Haryana HC9 Feb 2012CR/4862/2011

Case brief

AI extract

What is this about?

In a revision petition under Article 227, the court dismissed the challenge to an order rejecting an application for arbitration. The petitioner argued that the dispute over eviction from public premises was arbitrable under a clause in the lease deed. The court held that special eviction acts render the matter non-arbitrable and the petitioner did not submit to jurisdiction merely by seeking docu

What did the court decide?

The revision petition was dismissed, and the impugned order of the Estate Officer was upheld.

Hans Raj Vs M/S H.M.T. Ltd. and Ors. — Arbitration | Punjab & Haryana HC (2012)

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CR No.4862 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CIVIL REVISION NO.4862 OF 2011 DATE OF DECISION: FABRUARY 9, 2012

Hans Raj

.... Petitioner

Versus

HMT Limited & others

.... Respondents

CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.

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PRESENT: Mr. Vishal Sodhi, Advocate for the petitioner.

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Mr. Anand Chhibbar, Advocate for the respondents.

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L.N. MITTAL, J. (ORAL)

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Hans Raj has filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 29.07.2011 (Annexure P-8) passed by Estate Officer, thereby dismissing application moved by the petitioner herein under Section 8 of the Arbitration and Conciliation Act, 1996 (in short, the Act) for referring the dispute to Arbitrator.

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Respondent No.1 company of which respondents No.2 to 4 are officers has filed eviction petition under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (in short, the Eviction Act) against the petitioner. It is alleged that petitioner was licensee in the disputed premises. The license terminated on expiry of license period. Accordingly, petitioner herein became unauthorized occupant.

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Petitioner herein moved application Annexure P-6 under Section

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CR No.4862 of 2011

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8 of the Act for referring the dispute to Arbitrator alleging that dispute is covered by arbitration clause 20 of the allotment letter and lease deed. Bias on the part of Estate Officer was also alleged.

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Respondent herein resisted the aforesaid application by filing reply Annexure P-7 pleading inter alia that the petitioner had earlier moved application seeking documents to file written statement and to lead evidence and had, therefore, submitted to the jurisdiction of the Estate Officer. It was also contended that original agreement was not annexed with application as required by Section 88(2) of the Act. It was also pleaded that arbitration clause is not applicable as the case is governed by the Eviction Act. Petitioner had also filed civil suit and is therefore, not entitled to invoke the arbitration clause.

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Learned Estate Officer vide impugned order Annexure P-8 dismissed the petitioner's application filed under Section 8 of the Act. Feeling aggrieved, instant revision petition has been preferred.

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I have heard learned counsel for the parties at considerable length and perused the case file.

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Counsel for the petitioner contended that there is arbitration clause No.20 in the allotment letter Annexure P-1 and therefore, the dispute is required to be referred to Arbitrator. Reliance has been placed on judgment of Hon'ble Supreme Court in the case of Bharat Sewa Sansthan versus U.P. Electronics Corporation Limited, 2007(4) RCR (Civil) 98 . It was contended that in view of Section 16 of the Act, Arbitrator can decide the question of its own jurisdiction. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in Hindustan Petroleum Corpn. Ltd. Versus M/s. Pinkcity Midway Petroleums, 2003(3) PLR 746. It was also

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CR No.4862 of 2011

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submitted that moving of application by petitioner seeking copies of documents does not amount to submitting to the jurisdiction of the Estate Officer because written statement regarding substance of the dispute was not filed and therefore, the petitioner is entitled to invoke the arbitration clause by filing application under Section 8 of the Act. Reliance in support of this contention has been placed on judgment of Supreme Court in the case of Rashtriya Ispat Nigam Limited & another versus M/s. Verma Transport Company, 2006(4) RCR (Civil) 478 . It was also contended that even in a case governed by the Eviction Act, dispute can be referred to Arbitrator if there is arbitration clause. Reliance in support of this contention has been placed on judgment of Delhi High Court in case of M/s. Oriental Building and Furnishing Co. Ltd., New Delhi versus Union of India, 1981 AIR (Delhi) 293 .

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On the other hand, counsel for respondents contended that Arbitrator cannot order eviction of unauthorized occupant from public premises and therefore, the dispute cannot be referred to Arbitrator. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in case of Haryana Telecom Ltd. Versus Sterlite Industires (India) Ltd., JT 1999(4) SC 545 . It was contended that in cases governed by special Acts, the dispute cannot be referred to Arbitrator. Reliance in support of this contention has been placed on judgment of this Court in case of Dr. Jasbir Singh Mann versus Mrs. Ana Cidaliza Columna Ohri and others and judgment of Full Bench of Bombay High Court in case of Central Warehousing Corporation versus M/s. Fortpoint Automotive Pvt. Ltd., 2010 (3) RCR (Civil) 70 . It was also contended that the petitioner submitted to the jurisdiction of the Estate Officer by filing application seeking copies of

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CR No.4862 of 2011

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documents for filing written statement and for leading evidence and therefore, petitioner thereafter cannot invoke Section 8 of the Act. Reliance in support of this contention has been placed on judgment of Allabahad High Court in the case of Bal Kisan Bansal versus Pramit Bansal, AIR 2006 Allahabad 305 .

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I have carefully considered the rival contentions.

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The petitioner had not submitted to the jurisdiction of the Estate Officer before filing application under Section 8 of the Act by merely filing application seeking copies of documents. Section 8(1) of the Act stipulates that application under Section 8 of the Act has to be moved not later than submitting first statement on the substance of the dispute. In the instant case, the petitioner by earlier moving application seeking only copies of documents did not file his first statement on the substances of the dispute. Consequently application under Section 8 of the Act is not barred on this ground.

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However, the eviction case filed by respondents is governed by special Act i.e. Eviction Act. In view thereof, the dispute is not liable to be referred to Arbitrator in view of judgment of this Court in the case of Dr. Jasbir Singh Mann (supra), Full Bench judgment of Bombay High Court in the case of Central Warehousing Corporation (supra) and also in view of judgment of Supreme Court in the case of Haryana Telecom Limited (supra). Arbitrator would not able to pass order for eviction of the petitioner if the dispute is referred to him. Consequently the question of the Arbitrator himself deciding the question of his own jurisdiction would not arise in the instant case.

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It may also be added that the petitioner in his application Annexure P-6 filed under Section 8 of the Act has not raised any dispute at all. The petitioner has rather alleged bias on the part of the Estate Officer who is

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dealing with the eviction petition filed under the Eviction Act. However, the said allegation is completely irrelevant for deciding application under Section 8 of the Act. It is undisputed that the disputed premises were allotted to the petitioner as licensee for eleven months. The petitioner himself has relied on allotment letter Annexure P-1 in this regard. Petitioner had challenged eviction notice by filing civil suit but the plaint was rejected as jurisdiction of the civil Court was held to be barred by Section 15 of the Eviction Act. Thus the petitioner himself had invoked the jurisdiction of civil Court instead of invoking arbitration clause. Even otherwise, there is no dispute regarding terms and conditions of the allotment as contained in allotment letter/license deed. For these added reasons as well, the dispute is not required to be referred to Arbitrator in the instant case.

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As a necessary consequence of the discussion aforesaid, I find no merit in the instant revision petition. Impugned order passed by the Estate Officer does not suffer from any illegality, perversity or jurisdictional error, so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. Accordingly the instant revision petition is dismissed.

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(L. N. MITTAL) JUDGE

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09.02.2012 'raj'

Hans Raj v. M/S H.M.T. Ltd. and Ors.

Case brief

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Hans Raj v. M/S H.M.T. Ltd. and Ors.

Case brief

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