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The Secretary Tourism, Government of Goa, Secretariat Department of Tourism, Porvorim-Goa v/s The Indian Hotels Company Limited & Others

    Writ Petition No. 357 of 2021 (F)

    Decided On, 30 June 2021

    At, In the High Court of Bombay at Goa

    By, THE HONOURABLE MR. JUSTICE M.S. SONAK

    For the Petitioner: Devidas Pangam, Advocate General with Maria Correia, Additional Government Advocate. For the Respondents: R1, Rafique Dada, Senior Advocate, and Mr. Iftikhar Agha Advocate.



Judgment Text

Oral Judgment:

1. Heard learned Advocate General for the Petitioner and Mr. Rafiq Dada learned Senior Advocate who appears with Mr. Iftikar Aga for the Respondents.

2. Rule. The rule is made returnable forthwith at the request of the learned Counsel for the parties.

3. The challenge in this petition is to the order dated 20.08.2020 made by the learned Senior Civil Judge, 'A' Court at Mapusa, Goa in Civil Miscellaneous Application No.60/2020/A under section 9 of the Arbitration and Conciliation Act, 1996 (said Act).

4. By the impugned order, the learned Judge has stayed the hearing fixed before the Secretary (Tourism) until the next date of hearing and extended from time to time. This hearing was in pursuance of show-cause notice dated 06.02.2013. This show-cause notice concerns the deed of lease dated 19.06.1997 entered into between the Government of Goa and the Indian Hotels Company Limited (IHCL) i.e. Respondent No.1 herein.

5. The learned Advocate General has pointed out that this Court, by its order dated 30.06.2020 in LD-VC-CW-69-2020 had adjourned the hearing then fixed before the Director of Tourism at the behest of Respondent No.1. This was because Respondent No.1 pointed out certain pandemic-related difficulties in attending the proceedings before the Director of Tourism. The learned Advocate General submitted that in fact, the State had conceded to the grant of the adjournment, and accordingly this order was made.

6. The learned Advocate General points out that thereafter it was realized that the proper authority to give hearing and dispose of the showcause notice would be the Secretary (Tourism). Accordingly, an application bearing LD-VC-OCW-90/2020 was filed before this Court seeking for modification to the effect that the proceedings could now be taken up before the Secretary (Tourism) and disposed of. By order dated 14.08.2020, this modification was granted after hearing the learned Counsel appearing on behalf of Respondent No.1.

7. The learned Advocate General submits that in terms of our order dated 14.08.2020, the proceedings were to be taken up by the Secretary (Tourism) and disposed of in accordance with the law. Accordingly, the proceedings were fixed on 21.08.2020 before the Secretary (Tourism).

8. The learned Advocate General submits and even otherwise the record bears out that three days before the scheduled date, Respondent No.1 applied section 8 of the Arbitration and Conciliation Act pointing out that there is an arbitration clause in the lease deed and in terms of the same, the disputes between the parties are required to be resolved through arbitration.

9. The learned Advocate General points out and even otherwise it is borne on record that after two days or rather one day before the date on which the Secretary (Tourism) was to hold the proceedings, the Respondent No.1 filed Civil Miscellaneous Application No.60/2020 before the learned Judge under section 9 of the said Act seeking the following reliefs:-

“a) Pending the reference to arbitration and pending the commencement and hearing and final disposal of the arbitral proceedings and for a reasonable period thereafter as may be deemed fit by this Hon'ble Court, this Hon'ble Court may be pleased to issue orders and directions against the Respondent Nos. 1, 2 and 3-

i. not to implement or give effect to any order or direction that may be passed or issued by the Respondent No.2 pursuant to the show cause notice dated 6th February, 2013;

ii. not to proceed further or take any steps pursuant to any order or direction that may be passed or issued by the Respondent No.2 pursuant to the show cause notice dated 6th February, 2013; b) for ad interim reliefs in terms o0f prayer clause (a);

c) for Ex-parte as-interim reliefs in term of prayer clause (a) and (b) above.

E) for such further ad-interim and other reliefs as may be deemed fit and appropriate by this Hon'ble court.”

10. The learned Advocate General submits that on the same day i.e. 20.08.2020, the learned Judge has made the impugned order staying the hearing scheduled before the Secretary (Tourism) on 21.08.2020 until the next date of hearing i.e. on 04.09.2020.

11. The learned Advocate General submits that the impugned order contains no reasons whatsoever. He submits that the order made by this Court on 14.08.2020 was either not brought to the notice of the learned Judge by Respondent No.1 or if brought, the learned Judge has completely ignored the same and thereby even acted contrary to the same. Thirdly, the only relief prayed for by the Respondent No.1 in this application under section 9 was a restraint on giving any effect to any order or direction or taking any steps pursuant to any order or direction that may be passed or made by the Secretary (Tourism) in pursuance of the show-cause notice dated 06.02.2013. No relief to stay the proceedings before the Secretary (Tourism) was ever sought, but the learned Judge has virtually gratuitously granted such relief to Respondent No.1. The learned Advocate General submits that as a result of this relief, Respondent No.1 is in a position to stall the hearing on the show-cause notice issued way back on 06.02.2013. He submits that the impugned order is ex facia without jurisdiction and in fact constitutes a serious abuse of the judicial process. He, therefore, submits that the impugned order may be interfered with by this Court in the exercise of its extraordinary jurisdiction having regard to the gross errors and circumstances in which the same was made.

12. Mr. Dada, the learned Senior Advocate appearing for Respondent No.1 submits that there is an arbitration clause in the lease deed and therefore the Respondent No.1 is entitled to contend that the disputes be resolved through arbitration and not by the Secretary (Tourism). He submits that application under section 8 was therefore filed before the Secretary (Tourism). He submits that on the returnable date, the Petitioner appeared before the learned Judge but did not oppose the extension of interim relief made by the impugned order. He submits that it was always open for the Petitioner to urge the vacation of such order before the learned Judge. He submits that in any case, the impugned order can be appealed against, and therefore, no case was made out to interfere with the impugned order under Article 227 of the Constitution.

13. Mr. Dada pointed out that Respondent No.1 has also applied under section 11 of the said Act seeking appointment of Arbitrator. He submits that the order dated 14.08.2020 made by this Court was annexed to the application under section 9 of the said Act. He submitted that a litigant has no control over the pen of the judge and therefore, the absence of reasons in the impugned order may not be a ground to interfere. For all these reasons, he submitted that this petition be dismissed.

14. The rival contentions now fall for my determination.

15. At the outset, it is necessary to note that the issue as to whether the Secretary (Tourism) should be allowed to hold proceedings in pursuance of the show-cause notice dated 06.02.2013 was squarely raised before the Division Bench of this Court when it made this order dated 14.08.2020. It is only after considering this objection was the earlier order dated 30.06.2020, modified. No doubt, all contentions of all parties on merits were left open. This is because, at that stage, the Division Bench of this Court was really not concerned with the merits of the dispute between the parties. The matter came before the Division Bench of this Court only because the Director of Tourism was proceeding with the matter during the pandemic and the Respondent No.1 had some difficulties in attending such proceedings. Therefore, the matter before the Director was adjourned to basically accommodate Respondent No.1.

16. Later on, when it was realized that the Secretary (Tourism) would be the appropriate authority, a modification was applied for by the State and it was only after considering the objections raised by Respondent No.1 that such modification was allowed. The order dated 14.08.2020 has since not been challenged by Respondent No.1. Merely because the contentions on merits were left open, it did not mean that Respondent No.1 was given liberty to once again insist that there should be no hearing before Respondent No.1. In any case, there was no question of Respondent No.1 seeking to once again raise this issue of filing an application under section 9 of the said Act and persuading the learned Judge to grant the ex parte order much over even what was prayed for, just a day before the hearing.

17. At this stage, this Court would not like to go into the issue as to whether the order dated 14.08.2020 was actually shown to the learned Judge or not. In fact, this Court would like to believe that this order was shown to the learned Judge. However, if the order was actually shown to the learned Judge, then, it was most unfortunate that the learned Judge, in the teeth of the Division Bench order dated 14.08.2020 granted the interim order virtually staying the proceedings before the Secretary (Tourism). The impugned order does not even make any reference to the order dated 14.08.2020. This means that if the order was shown to the learned Judge, the learned Judge has simply chosen to ignore the said order or act as if such order does not exist or that the same is entirely irrelevant. This is, by itself, a sufficient ground to set aside the impugned order even without relegating the parties again before the same Judge or to some other forum.

18. In any case, it is a settled position in law that even when ex parte ad interim reliefs are granted, there is a necessity to record some minimal reasons. If the impugned order is perused, there are absolutely no reasons to be found therein. The learned Judge has only observed that he has gone through the pleadings and records and the deed of lease contents and arbitration clause. The order records that Respondent No.1 has also sought for appointment of Arbitrator after the notice dated 18.08.2020. This can hardly constitute any reason, if at all, for making the impugned order of this nature. Since the order is completely devoid of reasons, this is yet another ground to set aside the same.

19. Now if the application under section 9 made by the Respondent No.1 is perused, it is clear that Respondent No.1 had only sought for an interim order to restrain the Petitioner herein from implementing or giving effect to or taking any steps pursuant to any order which the Petitioner might make disposing of the show-cause notice dated 06.02.2013. There was not even any prayer in the application under section 9 of the said Act seeking a restraint upon the Secretary (Tourism) from adjudicating in pursuance of the show-cause notice dated 06.02.2013. Despite the absence of any such relief, the learned Judge proceeded to restrain the Secretary (Tourism) from proceeding with the hearing which was scheduled on 21.08.2020. Possibly, in the hurry to make the order, even the prayer clauses were not perused. On one hand, Respondent no.1 applied Section 8 of the said Act before the Secretary (Tourism) on 18th August 2020 and on the other hand, persuaded the Learned Judge to stay the proceedings. In such circumstances, the Learned Judge could not have made the impugned order. According to me, this is also yet another serious flaw in the impugned order on account of which the same is required to be set aside.

20. It is true, as urged by Mr. Dada, the learned Senior Advocate for Respondent No.1 that the State, could have applied to the very learned Judge for vacating its orde

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r. However, that does not prevent the State from instituting the present petition. In fact, it was proper that such a petition was instituted so that, this Court was apprised of how such order was made by completely ignoring the order of the Division Bench on 14th August 2020. This is a case where the most relevant and vital order dated 14.08.2020 was either not noticed by the learned Judge or having noticed, was ignored by the learned Judge. This is a serious matter and therefore, the State was entirely justified in apprising this Court of how the impugned order came to be made in this matter. 21. On the aspect of abuse of the judicial process, it is only appropriate that this Court, on this occasion, exercises restraint, since de hors the issue of abuse of judicial process, the impugned order is required to be set aside on the aforesaid grounds. 22. Accordingly, the impugned order dated 20.08.2020 is hereby set aside. Only because Mr. Dada, the learned Senior Advocate for Respondent No.1 contends that the parties can have no control over the pen of the learned Judge who may have failed to give reasons, no costs are imposed on Respondent No.1. 23. The rule is made absolute in the aforesaid terms without any costs. All concerned to act on an authenticated copy of this order.
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