BINA RANI DEY Vs. STATE OF TRIPURA

JUDGEMENT

(1.) This is an appeal under Section 39 (vi) of the Arbitration Act, 1940, against the order dated 14-6-93 of the learned Assistant District Judge, No. 2, West Tripura, Agartala, in Title Suit No. 65 (Arb)/83 setting aside the Award made by the Arbitrators.

(2.) The relevant facts briefly are that the appellant No. 1 is the wife, appellants Nos. 2 to 10 are the sons and appellants Nos. 11 to 13 are the daughters of late Gopal Chandra Dey. On the land of late Gopal Chandra Dey, respondents-1, 2 and 3 intended to draw a 66 KV line for power transmission. Late Gopal Chandra Dey objected to the drawal of said line on his land on which he was carrying on the business of manufacturing bricks in a brick kiln. When the respondents did not pay any heed to the said objection of late Gopal Chandra Dey, he instituted Title Suit No. 223/74 in the Court of learned Sadar Munsiff, Agartala and obtained an order of temporary injunction against the respondents restraining them from entering into the suit land, from erecting the said power transmission line over the suit land and from disturbing the plaintiff's possession in any way. Aggrieved by the said order of temporary injunction, the respondents preferred Misc. Appeal No. 21 of 1975 before the learned Subordinate Judge, Agartala, which was dismissed. During the pendency of the appeal, a compromise was arrived at between late Gopal Chandra Dey and the respondents and as per the said compromise, the power transmission line was to be shifted to the Eastern part of the land of late Gopal Chandra Dey and he was to be paid compensation. Pursuant to the compromise, T. S. No. 223 of 1974 was withdrawn and on 20-11-75 late Gopal Chandra Dey filed a petition before the Government claiming compensation of Rs. 4,43,295/- under various heads. The State Government, however, paid only Rs. 5,000/- as cost of trees and plants and Rs. 10,000/- as compensation. The appellants then filed an application under Sections 8 and 20 of the Arbitration Act, 1940, which was registered as Title Suit No. 63 (Arb)/83 and by order dated 14-12-83, the learned Subordinate Judge, West Tripura, Agartala, referred the dispute between the parties to the Arbitrator, namely, Secretary to the Govt. of Tripura, Public Works Department. Since the said Arbitrator did not enter into arbitration with reasonable despatch, he was removed by order dated 10-6-86 of the learned Subordinate Judge and Sri B. Das, an Advocate, and Sri R. B. Sinha, a retired District and Sessions Judge, were appointed as Arbitrators chosen by the appellants and the respondents respectively. The said two Arbitrators after conducting the arbitration proceedings filed their Award dated 30-11-92 awardinga total sum of Rs. 3,66,068.20 p. over and above the sum of Rs. 5,000/- and Rs. 10,000/- already paid by the respondents to the appellants as compensation with simple interest @ 12% per annum from 30-8-84 to the date when the Award was filed before the Court and from the date till the Award was made the Rule of the Court or till the date of realization, whichever was earlier. After receiving the notice of said Award, the respondents filed an application under Section 33 of the Arbitration Act, 1940, raising their objection to the Award, and the learned Assistant District Judge, No. 2, West Tripura, Agartala, after hearing the parties set aside the Award by the impugned order dated 14-6-93. Aggrieved, the appellants have filed this appeal.

(3.) At the hearing Mr. S. Deb, learned senior counsel, appearing for the appellants submitted that the Award was given by the two Arbitrators chosen by the appellants and the respondents in accordance with the provisions of Section 52 of the Indian Electricity Act, 1910, and that such an Award made by the Arbitrators chosen by the parties could only be set aside for an error apparent on the face of the Award or for misconduct as would be clear from Section 30 of the Arbitration Act, 1940. He submitted that it has been held by a long line of decisions in the cases of Champsey Bhara and Company v. Jivraj Balloo Spinning and Weaving Company Ltd., AIR 1923 PC 66; Union of India v. Bungo Steel Furniture Pvt. Ltd., AIR 1967 SC 1032, Municipal Corporation of Delhi v. M/s. Jagan Nath Ashok Kumar, AIR 1987 SC 2316; Indian Oil Corporation Ltd. v. Indian Carbon Ltd., (1988) 3 SCC 36 : (AIR 1988 SC 1340); Bijendra Nath Srivastava v. Mayank Srivastava, (1994) 6 SCC 117 : (AIR 1994 SC 2562); State of Rajasthan v. Puri Construction Co. Ltd., (1994) 6 SCC 485 : (1994 AIR SCW 5061) and Trustees of the Port of Madras v. Engineering Constructions Corporation Limited, (1995) 5 SCC 531 : (AIR 1995 SC 2423), that the Court is not to sit in appeal over the Award made by the Arbitrator and will not re-appraise the evidence led before the Arbitrator, or question the reasonableness of the reasons given by the Arbitrator in the Award and that the Court will set aside an Award only if there is an error apparent on the face of the award or the arbitrator has misconducted the proceeding. But in the instant case, the learned Assistant District Judge has made re-appraisement of the evidence and has questioned the reasons given by the two Arbitrators and has set aside the Award. According to Mr. Deb, the whole approach of the learned Assistant District Judge to the Award of the Arbitrators has been that of an appellate Court contrary to the law as settled by the aforesaid decisions of the Privy Council and the Supreme Court.