ASHOKE KUMAR DASADHIKARI, J. - (1.) THIS is an application under Section 34 of the Arbitration and the Conciliation Act, 1996 filed by the petitioner, Sailendra Nath Pal challenging the award passed by Gaurav Swarup, the President of Agri-Horticultural Society of India, the sole Arbitrator on 17th December, 2009.
(2.) IT appears that the petitioner, Saliendra Nath Pal entered into an agreement dated 14th December, 1993 with the respondent, the Agri- Horticultural Society of India. By and under the said agreement the respondent made over possession of a space between the Northern extremity of the respondents garden and its gate opening on Alipore Road measuring about 350 sq.ft. in the said space. The petitioner operating a shop room by the name The Florist Shop. The said agreement was for a period of 13 years which has expired on 13th December, 2006. Although, a renewal option for a further period of 13 years were there but the petitioner after expiry of 13 years continued to occupy the said shop room without renewal. The respondent also received rent for the period subsequent to 13th December, 2006. The said agreement contains an arbitration clause which, inter alia, provides for that in case of any dispute and/or differences arising out of the agreement then the same shall be referred to a sole arbitrator under the provisions of the Indian Arbitration Act, 1940 or any modification thereof. That the President of the Society shall be the Sole Arbitrator. Venue will be the office of the Society and under the jurisdiction of Alipore District Court. The award will not be challenged by the second party and shall be final and binding on both the parties. The office of the President of the respondent society is held by individuals being member of the society for a period of one year. The respondent society submitted the statement of claim before the President of the respondent on or about July 16, 2007 and the claim was filed before Mr. B.D. Bose who was the President of the respondent at the relevant time. Originally the statement of claim did not contain any prayer for recovery of possessing but at a letter stage the statement of claim was amended and the prayer for recovery of possession was inserted. The petitioner was served with a copy of the statement of the claim by the sole arbitrator and upon receiving such statement of claim the petitioner made an application under Sections 12, 13 and 16 of the Arbitration and Conciliation Act, 1996 contending that the learned Arbitrator is not empowered to adjudicate the nature of disputes between the parties. By that time the term of B. D. Bose as President of the respondent society expired and B. K. Nahata succeeded him. The said B. D. Bose, outgoing President issued directions on B. K. Nahata the new incumbent to the office of the President that the arbitration proceeding will be continued by the new incumbent. The petitioner made an application before the Honble High Court wherein two orders were passed, one is on 24th April, 2008 and the other is on 28th June, 2008. In the order dated 28th June, 2008 the learned Single Judge of this Court passed an order that the relief sought for in this aforesaid application cannot be granted. Parties will takes steps in accordance with law. The points raised in the application will be left upon to challenge by the petitioner at the appropriate stage.
(3.) THE petitioner thereafter filed a suit to safeguard his tenancy right before the Second Civil Judge (Jr. Division) at Alipore being title suit No. 108 of 2008 which is still pending. THE petitioner filed different applications which are all pending. However, hearing of the application filed by the petitioner under Sections 12, 13 and 16 of the Arbitration and Conciliation Act of 1996 was adjourned from time to time. By a letter and/or notice dated 25th November, 2008, the Arbitrator fixed 12th December, 2008 and 13th December, 2008 to be the next dates for holding the arbitration sitting. By a letter dated 4th December, 2008, the advocate on record of the petitioner intimated that the learned Advocate appearing on behalf of the petitioner had difficulties because by his preoccupation and requested the sole arbitrator to adjourn the proposed sitting fixed on the said of dates it was contended that the advocate on record of the respondent did not oppose to such prayer but the arbitrator did not adjourn the matter. He proceeded with arbitration on 12th December, 2008 and proceeded to take up hearing of the said application of the petitioner ex parte and concluded the hearing of the said application. On 18th December, 2008, an order was passed by the Arbitrator rejecting the application of the petitioner made under Sections 12, 13 and 16 of the Arbitration and Conciliation Act of 1996. It was contended that the Arbitrator exceeded his jurisdiction to hold that there exists no landlord tenant relationship between the claimant and the respondent. It was alleged that the Arbitrator, therefore, usurped the jurisdiction of the Civil Court to decide the landlord tenant relationship. On the expiry of the term of B. K. Nahata as the President of the respondent society, one Gaurav Swarup succeeded him. The arbitration proceeding continued before the said Gaurav Swarup and ultimately he passed the award which is under challenge in this petition. Mr. Mitra, learned Senior Counsel appearing in support of the petition have raised three points and the first one is that the award has been passed in violation of principles of natural justice and the second point is that the Arbitrator has traveled beyond the reference made and the award dealing with issues not covered under the reference and the third is that the award is contrary to the laws of land and opposed to public policy.;