GHULAM HASSAN DAR Vs. CONTROLLER OF AERODROME
HIGH COURT OF JAMMU AND KASHMIR
GHULAM HASSAN DAR
CONTROLLER OF AERODROME
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(1.) ORDER :- This is an application under S.20 of the Indian Arbitration Act. The petitioner seeks to invoke Cl. 26 of the agreement, which reads as under :
"If any dispute, difference or question shall at any time or times hereafter arise between the Government and the Caterers or any person or persons or corporation claiming under them respectively on account of the breach of any of the covenants, conditions, or agreement herein contained or otherwise touching or in any way relating to the construction, meaning or effect of these presents or any clause or thing herein contained or the rights, duties or liabilities of the said parties respectively touching any valuation matter or thing hereinbefore provided to be determined then every such dispute, difference or question (except such matter the decision whereof is otherwise expressly hereinbefore provided for) shall be referred to the sole arbitration of the Director General of Civil Aviation, or in case his designation is changed or his office is abolished, to the sole arbitration of the Officer, who for the time being is entrusted, whether or not in addition to other functions, with the functions of the Director General of Civil Aviation by whatever designation such officer may be called (hereinafter referred to as the said officer) and if the Director General or the said officer is unable or unwilling to act, to the sole arbitration of some other person appointed by the Director General of Civil Aviation or the said officer willing to act as such arbitrator. There will be no objection to any such appointment that the arbitrator so appointed is a Government servant that he had to deal with the matter, to which this agreement relates and that in the course of his duties as such Government servant he has expressed views on all or any of the matters in dispute, difference or question. The award of the arbitrator so appointed shall be final and binding on the parties. The provisions of the Arbitration Act, 1940 or any statutory modification or re-enactment thereof for the time being in force and of the rules thereunder shall apply and this deed shall be deemed to be a submission to arbitration within the meaning of the Indian Arbitration Act, 1940 or the statutory modification or re-enactment thereof as aforesaid. The arbitrator may with the consent of the parties enlarge from time to time for making and publishing the award."
(2.) THE aforesaid clause is embodied in an agreement which was executed on 29-6- 1981 between the respondents and the petitioner. THE agreement was for running of restaurant at Civil Aerodrome, Srinagar. THE petitioner was, contractor of catering and the premises were offered to him with furniture on hire on the conditions given in the agreement. THE agreement was executed for three years that is, from 19th November, 1979 to 18th November, 1982. THE licence fee for the furnished restaurant was Rs. 2,400/- per month. Charges on account of electricity, water, conservancy were in addition to the premium. Rights and obligations of the petitioner as licencee and respondents as licensors are laid down in the agreement and differences and disputes or any question which may arise between the parties was to be settled in accordance with para 26 of the agreement.
After the expiry of the period of agreement eviction proceedings seem to have been started against the petitioner under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and order for eviction under S.5 of the said Act was passed on 17-6-1983 against which an appeal was filed by the petitioner before the District Judge, Budgam The said appeal was decided on 24-9-1983. The appeal was accepted, order of eviction was set aside and the case was remitted back to the Estates Officer with a direction that he will decide the matter afresh in presence of the parties and in the light of the judgement passed by the District Judge. Instead of going to the Estates Officer under the Act, the petitioner has filed this application under S.20 of the Arbitration Act.
(3.) PETITIONER's contention is that he was holding the premises as a lessee till 28-6-1984 and in the alternative if lease is held to have expired on 29-11-1982, the petitioner was the tenant holding over and as the tenant holding over, his lease was required to be terminated under S.106 of the T.P. Act. Since that was not done, therefore, he was entitled to hold the property as a lessee till he was evicted in due course of law. On the basis of this contention, provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 had no application to the case. The agreement in question which contains arbitration clause is said to be a lease deed and not a licence deed. The petitioner's further contention is that he is sought to be evicted in violation of the terms of the agreement by illegal methods from the possession of the restaurant which is lawful therefore he wants the matter to be referred to the arbitrator under Cl. 26 (supra) of the agreement for adjudication.;
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