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National Highway Authority of India, Represented by Project Director, Near N.S.S. Higher Secondary School, Thiruvananthapuram v/s Jabeena Beevi & Others

    WA No. 961 of 2021

    Decided On, 03 August 2021

    At, High Court of Kerala

    By, THE HONOURABLE CHIEF JUSTICE MR. S. MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P. CHALY

    For the Appellant: K.A. Salil Narayanan, Advocate. For the Respondents: R1, Basant Balaji, R2 to R4, V. Tekchand, Sr.Govt. Pleader.



Judgment Text

S. Manikumar, CJ.

1. Instant writ appeal is filed challenging the judgment in W.P.(C). No.13469 of 2021 dated 12.7.2021.

2. Appellant is the Project Director of National Highways Authority of India, for the Project Implementation Unit, Thiruvananthapuram. National Highways Authority of India (hereinafter referred to as NHAI) is an authority constituted under the National Highways Authority of India Act, 1988. It is entrusted with the functions of developing, maintaining and managing the National Highways and any other highways vested in or entrusted to it by the Government.

3. Respondent No.1 herein is the writ petitioner, 2nd respondent is the Arbitrator and District Collector, Thiruvananthapuram, who is entrusted with the powers under Section 3G(5) of the National Highways Act, 1956 (hereinafter referred to as Act, 1956), to decide the compensation payable to the parties, if they are aggrieved by the decision of the 3rd respondent/Special Deputy Collector and Competent Authority Land Acquisition. Respondent No.4 is the Executive Engineer for the National Highway division.

4. Case of the writ petitioner/respondent No.1 is that for the purpose of widening the National Highway to 4/6 lane, property belonging to him in R.S. 226/31 in Block 11 of Kazhakuttom Village, together with building Nos.TC 1/3363, 3364 and 3365 were acquired. After acquisition, compensation was determined and communicated to the writ petitioner vide Exhibit P1 notice of award.

5. Dissatisfied with the quantum of compensation awarded, writ petitioner preferred Exhibit P2 Arbitration Application No.293/2020 before the 2nd respondent, viz., The Special Deputy Collector L.A N.H and Competent Authority, Land Acquisition, National Highway, Thiruvananthapuram, under Section 3G(5) of the National Highways Act, 1956. Pending the said application, petitioner also moved an application for appointment of an advocate Commissioner and an expert to value the buildings and sought for reliefs invoking Sections 26 and 27 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as Act, 1996).

6. Initially, vide Exhibit P5 judgment dated 5.3.2021, writ court passed orders directing the District Collector and Arbitrator for Land Acquisition, Thiruvananthapuram, to take up the applications for consideration and pass orders on the application filed for appointment of an expert preferably, one, who is agreeable to both parties. Pursuant to Exhibit-P5 judgment, by Exhibit P7 proceedings dated 17.01.2021, the Arbitrator & District Collector, Thiruvananthapuram, the 2nd respondent herein, passed orders appointing the Executive Engineer (Building), PWD, Thiruvananthapuram, as the expert for reassessing the value of the buildings located in 01.08 Ares of land in Re-survey No.226/31 (LA Resurvey No.226/43) of Block No.11 of Kazhakoottam village, Thiruvananthapuram, and to submit a report. Challenging the said proceedings issued by the Arbitrator, the writ petition was filed for the following reliefs:

i) That all records leading to Exhibit-P7 proceedings dated 17.06.2021 shall be called to this Court and a writ of Certiorari be passed quashing the same.

ii) A Writ of Mandamus, order or direction be passed directing the 1st respondent to appoint any expert from the panel submitted by the petitioner in the application or any other independent expert who is well versed in valuation of building.

7. After hearing the parties, writ court, by judgment dated 12.07.2021, disposed of W.P(C). No.13469 of 2021, as under:

“2. The grievance of the petitioner is that the appointment of an official of the Government as the expert will prejudice his rights. It is seen from Ext.P3 memo filed before the 1st respondent that the petitioner had suggested the names of 2 retired Executive Engineers from the Public Works Department as experts.

3. In the light of the apprehension expressed by the petitioner, this Court is of the opinion that interest of justice will be served, if the officer appointed as per Ext.P7 as expert will function along with Sri.S.Shajahan, retired Executive Engineer, PWD, Kerala, T.C.No.53/1623, Nemom P.O., Nemom Village, Thiruvananthapuram as joint experts and conduct the inspection as ordered by the Arbitrator jointly and file a report. The experts shall not limit their area of inspection to the building alone but shall refer to all the aspects pointed out in the interim application for appointment of Commission regarding which an expert's opinion is required, which will include the land value also. Ext.P7 order is modified to the above extent. The writ petition is disposed of."

8. Being aggrieved, instant appeal is filed by the appellant, National Highway Authority of India, Thiruvananthapuram, on the following grounds:

(a) The judgment under challenge is wrong, arbitrary, and it interferes with the powers and functions entrusted to a statutory authority. The court lacked jurisdiction to entertain the writ petition as the order viz., Exhibit-P7 dated 17.06.2021, is an appealable order.

(b) The National Highways Act, 1956 is a self contained Act and it governs the entire procedures from acquisition till payment of compensation to the land owners. The process commences with the issue of notification under Section 3A of the National Highways Act, 1956, after which, objections are heard under Section 3C of the Act, followed by notification under Section 3D. When notification under Section 3D is published, the land vests with the Central Government free of all encumbrances. Determination of the amount payable is done under Section 3G of the Act. The initial determination is done by the Competent Authority, who in this case is the 3rd respondent and if the same is not acceptable to either of the parties, they can approach the 2nd respondent, who is the Arbitrator under Section 3G(5) of the Act. Before the 2nd respondent, the proceedings are governed by the Arbitration and Conciliation Act, 1996.

(c) The petitioner initially approached this Court by filing W.P.(C) No.7508 of 2020 and vide Exhibit P5 judgment dated 05.03.2021, the Arbitrator was directed to take up for consideration the Interlocutory Application and pass orders on the same expeditiously. This was done by the Arbitrator, which resulted in Exhibit-P7 order. Exhibit-P7 order is perfectly justified and did not call for any interference at the hands of this Court. Exhibit-P7 is an order passed invoking the powers under Section 26 read with Section 17 of the Arbitration and Conciliation Act, 1996. The said order is an appealable order and does not call for any interference under Article 226 of the Constitution of India. The same is perfectly in order and the impugned judgment has been rendered taking note of the unreasonable and unjustified apprehensions of the petitioner.

(d) It may be noted that the initial assessment was done by the Assistant Executive Engineer, PWD, National Highway Sub Division, Thiruvananthapuram. Now, as per Exhibit P7 order, it is the Executive Engineer (Building) PWD, who has been appointed as the expert for reassessing the building. He is a person, who is the superior officer of a separate department, with specialization in building construction, apart from the National Highway Sub Division. He is a suitable and competent authority to reassess the assessment already done by the Assistant Executive Engineer, N H Sub Division.

(e) In the above stretch relating to the present acquisition, there are more than 7000 structures that have to be valued for the purpose of assessment of compensation. If, in these cases, the above judgment was to be cited as a precedent, it is respectfully submitted that the entire proceedings before the Arbitrator will be thwarted and the very purpose of attaining finality of the matter by arbitration will be totally lost.

(f) Learned Single Judge went wrong in directing a retired Executive Engineer of the PWD to function along with the person appointed vide Exhibit-P7. The Arbitrator will be at a total loss if both the persons give diverging views and figures. If at all the writ petitioner/respondent No.1 is aggrieved by the findings and compensation arrived at by the Arbitrator, he can always resort to remedies provided under Sections 34 and 37 of the Arbitration and Conciliation Act, 1996.

(g) Interdicting the Arbitrator, at the stage of exercising his original jurisdiction, is uncalled for and is liable to be interdicted by this Court in its appellate jurisdiction. The further error in the judgment is directing the experts who are to value the structure, to give an opinion regarding the land value also. The same is not within their domain.

9. Based on the above aspects, Mr. Salil Narayanan, learned counsel for the appellant National Highways Authority of India, made submissions and Sri Basant Balaji, learned counsel for the writ petitioner addressed arguments supporting the Judgment of the learned Single Judge.

10. Though several grounds were raised in the writ petition seeking interference with Ext.P7 order passed by the Arbitrator, it is pertinent to note that impugned order passed by the Arbitrator is invoking powers conferred under Sections 26 and 27 of the Arbitration and conciliation Act, 1996 whereby the Executive Engineer (Building) PWD, Thiruvananthapuram was appointed as an expert for re-assessing the value of the buildings located in a extent of 1.08 Ares of property situated in Re-Sy No.226/31, of Block No.11 of Kazhakkoottam Village, Thiruvananthapuram Taluk. Petitioner was apparently aggrieved by Ext.P7 since the reliefs sought for by the petitioner in Exhibit P3 application was for appointment of an Advocate Commissioner and an Expert Engineer for ascertaining the matters in the commission application. However, the said application was only partly allowed, appointing only an expert and declining the relief for appointment of an Advocate Commissioner, and according to the writ petitioner the expert appointed was not acceptable to him and therefore the appointment runs counter to the directions contained in the earlier writ petition specified above.

11. Exhibit-P7 proceedings issued by the Arbitrator & District Collector, Thiruvananthapuram dated 17.06.2021 is extracted hereunder:

“PROCEEDINGS OF ARBITRATOR & DISTRICT COLLECTOR, THIRUVANANTHAPURAM

Present: Dr. Navjot Khosa, I.A.S

K. 20 - 326416/2021 Dated: 17/06/2021

Sub:- Appointment of an expert for the reassessment of building based on the order of Hon'ble High Court of Kerala upon WP(C) 7508/2020 case filed by Smt. Jabeena Beevi - reg.

Ref:- 1) The Arbitration submission by Smt. Jabeena Beevi before Arbitrator & District Collector on 13/02/2020.

2) Judgment of Hon'ble High Court on the case WP(C) 7508/2020 filed by Smt. Jabeena Beevi.

3) Hearing Notice No.K. 20-32641/2021 of the District Collector dated 25/05/2021.

An extent 01.08 Ares of land in Re-Survey No. 226/31 (LA Resurvey No.226/43) of Block No.11 of Kazhakkoottam Village, Thiruvananthapuram Taluk was acquired by the Land Acquisition Officer & the Competent Authority in Award No.285/2018 dated 03/02/2020. Following this, the petitioner was sanctioned a sum of Rs. 94,83,607/- as compensation. Out of this amount, Rs. 28,46,089.40/- was sanctioned as building compensation. Aggrieved by this, the party filed Arbitration Application No. (Tapal No. 293/2020) u/s. 3G(5) of the NH Act before the Arbitrator.

As the turn for accepting the arbitration was not completed, the Petitioner Smt. Jabeena Beevi, W/o. E. Nahas, Adam Nivas, Andoorokonam P.O., Thiruvananthapuram filed the writ petition No.7508/2020 before the Hon'ble High Court of Kerala with prayers to pass appropriate orders on the Arbitration Application filed by her and to direct the arbitration court for appointing a commissioner to assess the values of structures in the land. The Hon'ble High Court of Kerala in its judgment dated 05-03-2021 also ordered that the Arbitrator & District Collector should appoint an expert preferably one who is agreeable to the both parties, or at the choice of the Arbitrator & District Collector. It was also ordered in the judgment that the expert should determine the value of the structures and should file a report before the Arbitrator & District Collector within one month.

As per the read 3rd cited above, a Google meet was conducted by the Arbitrator & District Collector to hear the parties. In the online hearing, the advocate of petitioner and Liaison Officer of NHAI were present. In the hearing, the advocate of the petitioner demanded for the appointment of an expert for the measurement of the building as they suggested in their application. At the same time, the representative of the NHAI objected the proposal of the advocate of the petitioner.

In this circumstances, considering the above suggestion and the objection of both parties, the Executive Engineer (Building), PWD, Thiruvananthapuram is hereby appointed as the expert of for reassessing the value of the said building located in 01.08 Ares of land in Re-Survey No. 226/31 (LA Resurvey No.226/43) of Block No. 11 of Kazhakkoottam Village, Thiruvananthapuram Taluk. He should submit the report within 3 weeks on receipt of this order. It is also ordered that the Special Deputy Collector and Competent Authority, LA (NH), Thiruvananthapuram should provide all related documents and necessary assistance to the expert for the preparation of the report.

Sd/-

Arbitrator & District Collector”

13. Before considering the submissions on the challenge to the impugned judgment, let us consider the relevant statutory provisions.

14. National Highways Act, 1956 is an Act to provide for the declaration of certain highways to be national highways and for matters connected therewith. Section 3A of the Act, 1956 speaks about power of the Central Government to acquire land, etc and it reads thus:

“3A. Power to acquire land, etc.—(1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land.

(2) Every notification under sub-section (1) shall give a brief description of the land.

(3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language.”

15. Section 3C of the National Highways Act, 1956 reads thus:

“3C. Hearing of objections.—(1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of section 3-A, object to the use of the land for the purpose or purposes mentioned in that sub-section.

(2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.

Explanation.— For the purposes of this sub-section, “legal practitioner” has the same meaning as in clause (i) of subsection (1) of section 2 of the Advocates Act, 1961 (25 of 1961).

(3) Any order made by the competent authority under subsection (2) shall be final.”

16. Section 3D of the Act, 1956 speaks about declaration of acquisition and it reads thus:

“3D. Declaration of acquisition.— (1) Where no objection under sub-section (1) of section 3-C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of section 3A.

(2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances.

(3) Where in respect of any land, a notification has been published under sub-section (1) of section 3A for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect:

Provided that in computing the said period of one year, the period or periods during which any action or proceedings to be taken in pursuance of the notification issued under subsection (1) of section 3A is stayed by an order of a court shall be excluded.

(4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority.”

17. Section 3E of the National Highways Act, 1956 speaks about the power to take possession and it reads thus:

“3E. Power to take possession.— (1) Where any land has vested in the Central Government under sub-section (2) of section 3-D, and the amount determined by the competent authority under section 3-G with respect to such land has been deposited under sub-section (1) of section 3-H, with the competent authority by the Central Government, the competent authority may by notice in writing direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof to the competent authority or any person duly authorised by it in this behalf within sixty days of the service of the notice.

(2) If any person refuses or fails to comply with any direction made under sub-section (1), the competent authority shall apply—

(a) in the case of any land situated in any area falling within the metropolitan area, to the Commissioner of Police;

(b) in case of any land situated in any area other than the area referred to in clause (a), to the Collector of a District,

and such Commissioner or Collector, as the case may be, shall enforce the surrender of the land, to the competent authority or to the person duly authorised by it.”

18. Section 3G of the Act 1956 deals with determination of amount payable as compensation. Sub sections 5, 6 and 7 there to are relevant and significant to the context and they read thus:

“(5) If the amount determined by the competent authority under subsection (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government.

(6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.

(7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration—

(a) the market value of the land on the date of publication of the notification under section 3A;

(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;

(c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;

(d) if, in consequence of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.”

Therefore, it is clear from the said provisions that the arbitrator appointed under the Act 1956 is guided by the provisions of the Act, 1996.

19. Arbitration and Conciliation Act, 1996 is an Act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto. Section 17 speaks about the interim measures that can be ordered by the Arbitral Tribunal, and it reads thus:

“17. Interim measures ordered by arbitral tribunal.— (1) A party may, during the arbitral proceedings, apply to the arbitral tribunal—

(i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or

(ii) for an interim measure of protection in respect of any of the following matters, namely:—

(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b) securing the amount in dispute in the arbitration;

(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d) interim injunction or the appointment of a receiver;

(e) such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient,

and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and in relation to, any proceedings before it.

(2) Subject to any orders passed in an appeal under section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an order of the Court for all purposes and shall be enforceable under the Code of Civil Procedure,1908 (5 of 1908), in the same manner as if it were an order of the Court.”

20. Section 26 of the Arbitration and Conciliation Act, 1996 speaks about appointment of an expert by the Arbitral Tribunal, and it reads thus:

“26. Expert appointed by arbitral tribunal.— (1) Unless otherwise agreed by the parties, the arbitral tribunal may—

(a) appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal, and

(b) require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.

(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in an oral hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.

(3) Unless otherwise agreed by the parties, the expert shall, on the request of a party, make available to that party for examination all documents, goods or other property in the possession of the expert with which he was provided in order to prepare his report.”

21. Section 27 of the Arbitration and Conciliation Act, 1996 speaks about the Court's assistance in taking evidence, and it reads thus:

“27. Court assistance in taking evidence.—

(1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the Court for assistance in taking evidence.

(2) The application shall specify—

(a) the names and addresses of the parties and the arbitrators;

(b) the general nature of the claim and the relief sought;

(c) the evidence to be obtained, in particular,—

(i) the name and address of any person to be heard as witness or expert witness and a statement of the subject-matter of the testimony required;

(ii) the description of any document to be produced or property to be inspected.

(3) The Court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal.

(4) The Court may, while making an order under sub-section (3), issue the same processes to witnesses as it may issue in suits tried before it.

(5) Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the Court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the Court.

(6) In this section the expression “Processes” includes summonses and commissions for the examination of witnesses and summonses to produce documents.”

22. Section 37 of the Arbitration and Conciliation Act, 1996 speaks about appealable orders, and it reads thus:

“37. Appealable orders.— (1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:—

(a) refusing to refer the parties to arbitration under section 8;

(b) granting or refusing to grant any measure under section 9;

(c) setting aside or refusing to set aside an arbitral award under section 34.

(2) Appeal shall also lie to a court from an order of the arbitral tribunal—

(a) accepting the plea referred to in sub-section (2) or subsection (3) of section 16; or

(b) granting or refusing to grant an interim measure under section 17.

(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.”

23. The question emerges for consideration is whether when the writ petitioner has resorted to the provisions of the Arbitration and Conciliation Act, 1996, was he entitled to challenge the order passed by the arbitrator, invoking powers conferred under sections 26 of Act, 1996 in a writ proceeding under Article 226 of the Constitution of India.

24. The provisions of the National Highways Act, 1956 and the Arbitration and Conciliation Act, 1996 extracted above would make it clear that it was on the basis of the powers conferred under Section 3G (5) of the Act, 1956 that the Arbitrator was empowered to exercise the power to decide the dispute raised by the writ petitioner. Admittedly, it was only on the basis of Subsections 5 and 6, the application could be filed by the writ petitioner before the Arbitrator seeking appointment of an Advocate Commissioner along with an expert to value the buildings situated in the property in question. It was by virtue of the specific powers conferred under Sub sections 5 and 6 of Section 3G that the Arbitrator has invoked the provisions of the Arbitration and Conciliation Act, 1996. It is clear from Section 17 of Act 1996 that the Arbitrator is vested with powers to pass any interim orders so as to protect the interest of an aggrieved person. Section 26 of Act, 1996 empowers the Arbitrator to appoint one or more experts to report to it on specific issues to be determined by the Arbitral Tribunal. It is clear from Section 27 that the Arbitrator is also vested with powers to seek assistance of the Court in taking evidence. Therefore, when an order was passed by the Arbitrator invoking the powers under the provisions of the Act, 1996, read along with the provisions of Act 1956, it had to be treated and viewed as an order passed under Act, 1996. Therefore by virtue of Section 37 of Act, 1996 if any person is aggrieved by the order passed by the Arbitrator, he has a right of appeal to the court authorised by law. It is clear from Section 37 of Act, 1996 that petitioner was entitled as of right to prefer an appeal since the relief sought for by the petitioner to appoint an Advocate Commissioner along with an expert acceptable to him was declined by the Arbitrator.

25. On an analysis of Exhibit P7 impugned order, it is clear that the Arbitrator has assigned reasons for appointing the Executive Engineer as the expert for reassessing the value of the building. It is also evident that even though the writ petitioner pressed for appointment of an Advocate Commissioner, it was declined. Analysing so, it is clear that the petitioner had the remedy to approach a competent court of law as envisaged under Section 37 of the Arbitration and Conciliation Act, 1996. Whatever that be, it is not a case where the arbitrator has exercised the power without jurisdiction. Clearly, jurisdiction is conferred on the arbitrator by virtue of Section 3G(5) and (6) of the Act 1956 read with the provision of the Arbitration and Conciliation Act, 1996 to consider any application for appointment of an expert and if at all there is an illegality in the order passed, it could only be a subject matter of appeal under Section 37 of the Act, 1996. True, the Arbitral Tribunal is a statutory creation as per the provisions of the Act 1956, however normally and ordinarily, an order passed by the Arbitral Tribunal invoking powers of the Act, 1996 could not be capable of being challenged under Article 226 of the Constitution of India.

26. The petitioner had a clear remedy under Section 37 of the Act 1996 and moreover, if Section 37 was not available to the petitioner, then the remedy available to the petitioner was under Section 34 of the Act, 1996 while challenging the Award of the Arbitrator, if aggrieved.

27. Considering the legal and factual circumstances involved in the case, we are of the definite opinion that the writ petitioner was not at liberty to invoke Article 226 of the Constitution of India to ventilate his grievances against Exhibit P7 order passed by the Arbitrator, since there were no extraordinary situations remaining in the impugned order. It is also clearly discernible from the order that the Arbitrator has taken a decision after providing an opportunity of hearing to the respective parties and considering the contentions put forth. It is a well settled proposition in law that a writ court is only expected to look into the manner in which the order was passed by the statutory authority ie., as to whether principles of natural justice were followed, whether there is any arbitrariness in exercising the powers by the statutory authority and any other legal infir

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mities justifiable to be interfered with under the extraordinary jurisdiction. 28. On going through the order, we are of the considered opinion that there is no arbitrariness or violation of principles of natural justice by the Arbitrator, which ought to have persuaded the learned Single Judge to interfere with the impugned order exercising the power conferred under Article 226 of the Constitution of India. In fact, the Apex had occasion to consider the issue with respect to the power exercised by the Arbitrator vis-a-vis interference with the same by the writ court in M.D., Army Welfare Housing Organisation Vs. Sumangal Services Pvt.Ltd. [AIR 2004 SC 1344]. Paragraph 41 of the said judgment reads thus: “41. An arbitral tribunal is not a court of law. Its orders are not judicial orders. Its functions are not judicial functions. It cannot exercise its power ex debito justitiae. The jurisdiction of the arbitrator being confined to the four corners of the agreement, he can only pass such an order which may be subject matter of reference.” 29. Similarly, the issue was considered in SBP & Co. V. Patel Engineering Ltd., and Another reported in (2005) 8 SCC 618. Paragraph 45 of the said judgment reads thus: “45. It is seen that some High Courts have proceeded on the basis that any order passed by an arbitral tribunal during arbitration, would be capable of being challenged Under Article 226 or 227 of the Constitution of India. We see no warrant for such an approach. Section 37 makes certain orders of the arbitral tribunal appealable. Under Section 34, the aggrieved party has an avenue for ventilating his grievances against the award including any in-between orders that might have been passed by the arbitral tribunal acting Under Section 16 of the Act. The party aggrieved by any order of the arbitral tribunal, unless has a right of appeal Under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The arbitral tribunal is after all, the creature of a contract between the parties, the arbitration agreement, even though if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the arbitral tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the arbitral tribunal is capable of being Corrected by the High Court Under Article 226 or 227 of the Constitution of India. Such an intervention by the High Courts is not permissible. 30. It is true that the judgments referred to above deal with the contractual arbitration agreements and not a statutory arbitral tribunal as in the instant case, we have no hesitation to say that the principles of law laid down would substantially apply in the instant case, there being no situation made to interfere under article 226 of the Constitution of India. Taking into account the above legal and factual circumstances, we are of the undoubted opinion that interference is required to the judgment of learned Single Judge. Accordingly, we set aside the impugned judgment of the learned Single Judge, allow the appeal and accordingly dismiss the writ petition. However, we leave open the liberty of the writ petitioner to seek necessary reliefs in accordance with the provisions of the Arbitration and Conciliation Act, 1996, if advised so.
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