RAVINDRA v. GHUGE & Y. G. KHOBRAGADE, JJ. DATE
Facts
*1* 12wp533o24 groupIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 533 OF 2024BHAGWAT GOPINATH KADAM AND OTHERSVERSUSTHE UNION OF INDIA THROUGH ITS SECRETARY ANDOTHERS...ANDWRIT PETITION NO. 14745 OF 2023DILIPKUMAR RAGHUNATH PANDHARE AND ANOTHERVERSUSTHE UNION OF INDIA THROUGH ITS SECRETARY ANDOTHERS…ANDWRIT PETITION NO. 15305 OF 2023BABAN SUKHDEV KAKADE AND OTHERSVERSUSTHE UNION OF INDIA THROUGH ITS SECRETARY ANDOTHERS…Shri A.B. Kale, Advocate i/by Shri Sambhaji B. Tarde, Advocateand Shri A.B.Kharosekar, Advocate for the Petitioners in therespective petitions.Shri R.B. Bhosale, Shri Madhur A. Golegaonkar and Shri R.R.Bangar, Standing Counsel for Respondent Nos.1 and 3/UoI.Shri S.K. Tambe, AGP for Respondent No.2/State.Shri Anand P. Bhandari, Advocate a/w Shri Vikas Hinge and ShriK.D. Mundhe, Advocates i/by Hinge and Deshmukh Associates,for Respondent No.4.…
Legal Reasoning
*2* 12wp533o24 group CORAM : RAVINDRA V. GHUGE & Y. G. KHOBRAGADE, JJ. DATE :- 09th September, 2024Per Court :-1.In all these matters, the Petitioners are before theCourt with an identical grievance. The Acquiring Authority haschallenged the award before the Arbitrator under Section 3G(5)of the National Highways Act, 1956. After lodging of theproceedings, no steps have been taken by the AcquiringAuthority for conducting the matters. No interim relief has beensought, much less, granted. The grievance is that, neither theamount is deposited before the Arbitrator, nor is it paid to theClaimants.2.Having considered the submissions of the learnedAdvocates and having perused the affidavit in reply, there areseveral contentious issues as regards the alleged escalation of theprice of the land, the plantations made and the purportedimprovements carried out, etc., with an object of orchestrating anunusual and unjustified rise in the compensation. *3* 12wp533o24 group3.With the assistance of the learned Advocates, wehave perused Sections 9 and 17 of the Arbitration andConciliation Act, 1996, which read as under:-“9. Interim measures, etc., by Court.—(1)A party may, before or during arbitral proceedingsor at any time after the making of the arbitralaward but before it is enforced in accordance withsection 36, apply to a court—(i) for the appointment of a guardian for aminor or person of unsound mind for the purposesof arbitral proceedings; or(ii) for an interim measure of protection inrespect of any of the following matters, namely:—(a) the preservation, interim custody or saleof any goods which are the subject-matter of thearbitration agreement;(b) securing the amount in dispute in thearbitration;(c) the detention, preservation or inspectionof any property or thing which is the subject-matterof the dispute in arbitration, or as to which anyquestion may arise therein and authorising for anyof the aforesaid purposes any person to enter uponany land or building in the possession of any party,or authorising any samples to be taken or anyobservation to be made, or experiment to be tried,which may be necessary or expedient for thepurpose of obtaining full information or evidence;(d) interim injunction or the appointment ofa receiver;(e) such other interim measure of protectionas may appear to the Court to be just andconvenient, and the Court shall have the samepower for making orders as it has for the purposeof, and in relation to, any proceedings before it.(2) Where, before the commencement of the arbitralproceedings, a Court passes an order for anyinterim measure of protection under sub-section(1), the arbitral proceedings shall be commencedwithin a period of ninety days from the date of such *4* 12wp533o24 grouporder or within such further time as the Court maydetermine.(3) Once the arbitral tribunal has been constituted, theCourt shall not entertain an application under sub-section (1), unless the Court finds thatcircumstances exist which may not render theremedy provided under section 17 efficacious.]”“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 aminor or person of unsound mind for the purposesof arbitral proceedings; or(ii) for an interim measure of protection inrespect of any of the following matters, namely:—(a) the preservation, interim custody or saleof any goods which are the subject-matter of thearbitration agreement;(b) securing the amount in dispute in thearbitration;(c) the detention, preservation or inspectionof any property or thing which is the subject-matterof the dispute in arbitration, or as to which anyquestion may arise therein and authorising for anyof the aforesaid purposes any person to enter uponany land or building in the possession of any party,or authorising any samples to be taken, or anyobservation to be made, or experiment to be tried,which may be necessary or expedient for thepurpose of obtaining full information or evidence;(d) interim injunction or the appointment ofa receiver;(e) such other interim measure of protectionas may appear to the arbitral tribunal to be justand convenient, and the arbitral tribunal shallhave the same power for making orders, as thecourt has for the purpose of, and in relation to, anyproceedings before it.(2) Subject to any orders passed in an appeal undersection 37, any order issued by the arbitraltribunal under this section shall be deemed to bean order of the Court for all purposes and shall be *5* 12wp533o24 groupenforceable under the Code of CivilProcedure,1908 (5 of 1908), in the same manner asif it were an order of the Court.”4.A party can make an application for securing theamount in dispute in arbitration. There is no dispute that thearbitration proceedings are pending since April, 2023. Noticeshave been issued and the parties have appeared in the saidproceedings.5.Thus, there is a statutory provision, which isengrafted in the Arbitration and Conciliation Act, 1996, for thepurposes of securing the interest of the party, and that provisionenables the Claimants before us to seek an order from theArbitrator for securing the amount, granted by the competentauthority, during the pendency of the proceedings in arbitration.Such applications have still not been made by these Petitioners.6.In the affidavit in reply, it is seriously canvassed byNHAI, that these Petitioners have caused improvements in theform of plantation of fruit bearing trees, construction ofcompound wall, construction of concrete road, sheds,
Decision
*6* 12wp533o24 groupunderground storage water tank, etc. after publication of thenotification under Section 3-A of the National Highways Act,1956. It is also canvassed that bloated or exaggerated saleinstances have been cited in order to orchestrate highercompensation amount. According to the NHAI, the assets areimproved and created after the notification under Section 3-Aand this needs proper investigation.7.The learned Advocates for the Petitioners haveinformed us that in some cases, some Claimants have filed theirapplications seeking a direction from the Arbitrator to theAcquiring Body to deposit the amounts before the Arbitrator.Such applications are invariably kept pending.8.In view of the above, these Writ Petitions aredisposed off with the following directions:-(a)Keeping in focus several contentious issues, wedeem it appropriate to direct these Petitioners to tender theirapplications for seeking directions from the Arbitrator to orderthe NHAI to deposit the amounts before the Arbitrator. Suchapplications shall be filed until 18.09.2024. *7* 12wp533o24 group(b)The Advocate representing the NHAI or anyAuthority concerned, before the Arbitrator, shall collect suchapplications, which would be filed until 18.09.2024. (c)The NHAI shall enter their replies, on or before23.09.2024.(d)The Arbitrator would permit the learned Advocatesto canvass their submissions on 25.09.2024 and thereafter, passan order on the said applications, on 04.10.2024.(e)The parties to the arbitration shall, accordingly,appear before the Arbitrator on 18.09.2024, 23.09.2024,25.09.2024 and 04.10.2024. Notices are dispensed with.(f)Needless to state, if the Arbitrator directs the NHAIto deposit any portion of the compensation amount, it shallspecify a particular duration, in view of Rule 3 of the NationalHighways (manner of depositing the amount by the CentralGovernment; making requisite funds available to the competentauthority for acquisition of land) Rules, 2019.(g)Since we are informed that there are several suchapplications pending, we deem it appropriate to record that suchapplications, either for interim stay or for securing the amount indispute in arbitration, shall not be kept pending beyond 60 days *8* 12wp533o24 groupfrom the date of appearance of the parties.(h)Adjournments should not be granted onunreasonable or trivial ground and the Arbitrator wouldendeavour to decide such applications, within 60 days. kps (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)