Wednesday, January 13, 2010

Municipal Corporation Raipur Versus Deepak Kumar Shrivastava & Others


Writ Petition C No 4909 of 2008

Municipal Corporation Raipur                         ...Petitioners


1 Deepak Kumar Shrivastava
2 Shivnandan Yadav
3 Rajesh Upadhyay Sarpanch
4 Dinesh Tiwari                                                  ...Respondents

Shri Sanjay K. Agarwal, Advocate for the petitioner

Honble Shri Satish K. Agnihotri J
Dated: 08/09/2008 : Judgement

(Passed on this 8th Day of September, 2008)

1. The petitioner, Municipal Corporation Raipur, has filed this petition challenging the validity and legality of the award dated 18.5.2008 (Annexure P/1), passed by the Arbitral Tribunal in Case No. 01/2008 (Deepak Shrivastava Vs. Nagar Palik Nigam).

2. The brief facts, in nutshell, are that earlier the respondent No.1 filed a Writ Petition (C) No. 257 of 2007 (Deepak Kumar Shrivastava Vs. Municipal Corporation & another), challenging the notice dated 1.2.2007 regarding eviction of the shop, issued by the Municipal Corporation, Raipur. The petition was disposed of by order dated 29.3.2007 (Annexure P/4), granting liberty to the petitioner to invoke the provisions of Section 387 of the Chhattisgarh Municipal Corporation Act, 1956 (for short `the Act, 1956'), for appointment of arbitrator. Accordingly, the respondent No.1 filed an application dated 1.9.2007 before the District Judge, Raipur for appointment of Arbitrator, which was registered as Miscellaneous Civil Suit No. 90/2007. By order dated 4.3.2008 (Annexure P/15), the District Judge, Raipur, allowed that application and appointed Shri Rajesh Upadhyaya, Advocate as Sarpanch to determine the compensation or damages. Being aggrieved, by the order dated 4.3.2008, the petitioner filed Civil Revision No. 88 of 2008, which is pending before this Court.

3. Accordingly, the Arbitral Tribunal, comprising Sarpanch and one Panch passed the award dated 18.5.2008 (Annexure P/1). The petitioner seeks quashing of this award.

4. Shri Sanjay K. Agarwal, learned counsel appearing for the petitioner submits that there is no provision under the Act 1956 to challenge the award of this nature where compensation has not been determined in respect of the land and building but in respect of compensation for removal of the tenant. Section 387(4) of the Act, 1956 provides that in any case where the compensation is claimed in respect of land and the Panchayat has given decision, either party, if dissatisfied with the award may apply to the District Court and the matter shall be determined by the District Court in accordance with the provisions of sub-section (3). Sub-section (5) of Section 387 of the Act, 1956 provides for reference to the District Court in respect of building. In the present case compensation awarded to the respondent No.1 was not in respect of land and building but for inconvenience caused to him by removal from the old place to the new place. Thus, the petitioner has no other alternative remedy except to approach this Court for the relief to set-aside the award passed by the Arbitral Tribunal.

5. I have heard learned counsel appearing for the petitioner and perused the documents appended thereto.

6. It is true that sub-sections (4) & (5) of Section 387 of the Act, 1956 makes a reference that a compensation in respect of land and building. In the present case, the tenant was in possession of the building which has been removed and in consequence thereto the tenant has been paid compensation by the Arbitral Tribunal. Even otherwise, under the provisions of The Arbitration and Conciliation Act, 1996 (for short `the Act, 1996'), Section 7 (2) deals with other arbitration also which are not provided in the contract or in the form of a separate agreement. Section 34
of the Act, 1996 provides for making an application for setting aside the arbitral award.

7. A constitution Bench of the Hon'ble Supreme Court in the matter of Saurabh Chaudri and others Vs. Union of India and others1, as per majority, observed as under:-
"36. ...A statute or any enacting provision therein must be so construed as to make it effective and operative "on the principle expressed in the maxim: ut res magis valeat quam pereat".(See CIT v. S. Teja Singh10 and Tinsukhia Electric Supply Co. Ltd. v. State of Assam11).

8. It is well settled principles of interpretation that the statute must be read as a whole, as the words are to be understood in their context. If compensation of any other nature is not mentioned under the provisions of the Act, 1956, and there is no specific exclusion to that extent, sub-section (4) and (5) of Section 387 of the Act, 1956 would be applicable with full force. If a contrary stand is taken, that may lead to chaos. If challenge to the award of compensation in respect of the land and building, an application/appeal can be made to the District Judge, in respect of other type of compensation, arising out of removal of a building, the respondent No.1 was in possession thereon, the same remedy is available.

9. After having examined all the facets of the case, the High Court is not appropriate forum to challenge the impugned award which involves disputed question of facts. The petitioner may seek appropriate remedy under the provisions of the Act, 1956 as well as under the provisions of the Act, 1996 before the appropriate forum, if so advised.

10. Without expressing any opinion on the merits of the case, for the reasons stated hereinabove, this petition is dismissed as not maintainable in limine. However, liberty is reserved to the petitioner to take recourse to the alternative statutory forum that may be available, under the provisions of law, if so advised.


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