M.R. Calla, J. - (1.) This matter directed against the order dated 22.11.1988 passed in Civil Misc. Cases No. 23/85 and 21/85 (consolidated vide order dated 6.9.1985) by the Additional District Judge No. 1, Bharatpur, was filed in this court on 11.1.1989 as appeal under Section 39(iii) of the Arbitration Act, 1940 and was initially registered as S.B. Civil Misc. Appeal No. 27/89 and was admitted as such on 7.3.89. On this very date i.e., 7.3.89 in the stay file No. 14/89 the operation of the order dated 22.11.1988 passed by the Additional District Judge No. 1, Bharatpur also stayed. All subsequent proceedings have been recorded in the file of stay application and not in the main case file. Under the Court's order dated 5.2.1989, it was treated as Revision. Thereafter, the main case was registered as S.B. Civil Revision Petition No. 163/90 and the stay matter was registered as S.B. Civil Misc. Stay Petition No. 137/90 therein.
(2.) The facts giving rise to this case are as under : A notification under Section 4 of the Rajasthan Land Acquisition Act, 1953 (hereinafter referred to as "the Rajasthan Act") was issued on 13.3.1973 for acquiring that land comprising of Khasra No. 1134 measuring 237 Bighas belongings to Rajasthan Udyog, Bharatput for Hindustan Development Corporation, Calcutta. M/s. Rajasthan Udyog. Bharatput, filed a writ petition challenging aforesaid notification in the Rajasthan High Court as Jodhpur and this writ petition No. 389174 was dismissed on 23.7.1974. Against this judgment and order dated 23.7.1974 passed by the learned Single Judge an appeal was preferred before Division Bench by M/s. Rajasthan Udyog, Bharatpur 14.8.1974 being D.B. Civil Special Appeal No. 448/74. On 30.9.1975 notification under Section 6 read with Section 17 of the Rajasthan Act was issued for the above land thereafter, Sub-Divisional Officer, Bharatput issued notices under Section 9 of the Rajasthan Act. On 5.10.1976 D.B. Civil Special No. 448/74 was allowed by the Rajasthan High Court at Jodhpur and the land acquisition proceedings were quashed. In the mean while on 12.11.1975, Rajasthan Udyog had also filed a writ petition No. 1775/1975 before Rajasthan High Court at Jodhpur challenging the notification dated 30.9. 075 under Section 6 read with Section 17 and this writ petition No. 1775/75 was dismissed on 26.10.1976 because the proceedings and already been quashed by Division Bench in the appeal No. 448/1974 on 5.10.1976. State of Rajasthan and Hindustan Development Corporation preferred separate Special Leave Petitions before Supreme Court against the aforesaid division bench decision of the Rajasthan High Court. The leave was granted by the Supreme Court on 13.10.1977 and on 10.2.1978 stay order was also passed against Rajasthan Udyog from alienating or encumbering the land.
(3.) Thereafter on 27.11.1978 parties agreed for arbitration and an agreement dated 7/16.2.1979. (marked as Ex. 0-44 by the Arbitrator) was arrived at between the parties and on 21.2.1979 matter was referred to Hon'ble B.P. Beri, Retired Chief Justice of Rajasthan High Court on 21.2.1979 for arbitration. On the principle of live and let live suggested by Shri B.P. Beri. parties agreed to give and take smaller area of and i.e., 145 Bighas instead of the entire land .measuring 247 Bighas and 6 Biswas and accordingly the modified agreement (Ext. A. 1 marked by the Arbitrator) was executed on 1.2.1980 Shri Hari Shanker a partner of Rajasthan Udyog filed an application tinder Section 11 of Arbitration Act before the 'District Judge, Bharatpur making allegations against' Hon'ble Shri B.P. Beri on 28.5.1981 and 25.5.1981, Distt. Judge, Bharatpur stayed the arbitrator proceedings before Hon'ble B.P. Beri Hindustan Development Corporation preferred a revision petition No. 285/81 before the Rajasthan High Court at Jodpur against the stay order dated 29.5.1981 passed by Distt. Judge, Bharatpur, but Hon'ble Shri B.P. Beri expressed his unwillingness to continue to act as Arbitrator and on 15.7.1981 the stay order dated 29.5.1981 passed by the District Judge, Bharatput was vacated by the Rajasthan High Court in the revision. Hindustan Development Corporation approached the High Court for appointment of another Arbitrator under Sections 5, 8, 12, 20 and 34 of the Arbitration Act and on 17.10.1981 High Court directed parties to file application before the District Judge, Bharatpur for appointment of new Arbitrator and accordingly the application was made by Hindustan Development Corporation on 19.12.1981 before the Additional District Judge, Bharatpur (before whom the matter was pending now) for appointment of new Arbitrator in Arbitration Case No. 7/82 (115/81). Additional District Judge, Bharatpur passed an order on 30.5.1983 that the Arbitrator is to be appointed only from amongst the retired High Court Judges, and Hon'ble Shri L.S. Mehta was appointed as the Sole Arbitrator by the Additional District Judge, Bharatpur on 26.9.1983 and in the meantime on 2.9.1983 the Supreme Court dismissed the application of Rajasthan Udyog for release of 104 Bighas of land from the undertaking of not alienating or encumbering the land. The appointment of Hon'ble Shri L.S. Mehta (Retd. Judge of Rajasthan High Court) as Sole Arbitrator was chal lenged by Rajasthan Udyog before Rajasthan High Court in S.B. Civi1 Revision Petition No. 616/83 and on 3.10.1983 with the consent of parties the High Court appointed Hon'ble Shri .C.B.Bhargava (Retd. Judge of Rajasthan High Court) as the Sole Arbitrator in place of Hon'ble L.S. Mehta. The arbitration proceedings commenced before Hon'ble C.B. Bhargava on 27.11.1983 and on 9.6.1985 the order was delivered by Hon'ble C.S. Bhargava in presence of both the parties and the same was received by the Court of Additional District Judge, Bharatpur with files on 10.6.1985. Rajasthan Udyog as well as its partner Shri Hari Shankar filed applications on 8.7.1985, under Section 33 of the Arbitration Act being No. 21/85 and r23/85 respectively. Hindustan Development Corporation conveyed its acceptance of the award on 15.7.1985 by registered post to all concerned i.e., Rajasthan Udyog, its partner and the Arbitrator and on 18.7.1985 a letter of acceptance of the award was also submitted personally by the Hindustan Development Corporation to Hon'ble C.B. Bhargava. Hari Shankar, partner of Rajasthan Udyog filed an amended application under Section 33 before the Additional Distt. Judge and the Additional Distt. Judge, Bbaratpur passed orders on 22.11.1988 which is the impugned order before me.;