AIMUTTY Vs. SPECIAL DEPUTY COLLECTOR

JUDGEMENT

(1.) This writ petition is in challenge of a common order passed by learned District Judge, ThrissurA.O.P.Nos.281 of 2010 to 290 of 2010 filed by petitioners under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, "the Act") seeking appointment of an Advocate Commissioner to inspect their respective properties notified by the respondents for acquisition for widening NH-47 and submit reports regarding its present condition and value of improvements including buildings thereon. Learned District Judge dismissed the applications on the ground that in view of Section 5 of the Act jurisdiction of the court is limited only to matters specified in the Act and that Section 9 of the Act does not take in the power to appoint Advocate Commissioner to collect evidence. Learned counsel for petitioners contend that the order passed by Learned District Judge is not correct and that Section 9 of the Act confers power on the principal civil court of original jurisdiction to entertain such application. It is also submitted by learned counsel that as per Section 3E of the National Highways Act, 1956 owner of the property is to hand over possession of the same to the authorities concerned after demolishing the structures thereon and if that happens affected parties will not be able to prove nature of improvements and value of buildings before the Arbitral Tribunal. Learned counsel for petitioners has brought to my notice some orders passed by the Learned District Judge on prior occasions allowing a request under Section 9 of the Act to appoint Advocate Commissioner to inspect the property and submit report. Learned Government Pleader who took notice for respondents contends that Section 26(1)(a) of the Act enables the Arbitral Tribunal to appoint experts to report on specific issues determined by such tribunal and in the circumstance, there is no reason for appointing Advocate Commissioner under Section 9 of the Act.

(2.) Learned District Judge was of the view that Section 5 of the Act curtailed power of the court. As the learned Government Pleader points out under Sec.26(1)(a)) of the Act, Arbitral Tribunal itself has jurisdiction to appoint expert for deciding issues before such tribunal. Section 9 of the Act deals with interim measures, etc by the court. It is therefore clear that what is provided by Section 9 is not in relation to interim measures alone. Under subsection (c) of Sec.9, principal civil court of original jurisdiction has the power to pass appropriate orders for 'the detention, preservation or inspection of any property or thing which is the subject matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence.' That power could be exercised during the arbitral proceedings as well.

(3.) Going by the said provision it is within the power of learned District Judge to pass appropriate orders for inspection of any property which is the subject matter of dispute in arbitration which may be necessary or expedient for the purpose of obtaining full information or evidence. It is true that Sec.9 does not specifically use the words relating to appointment of an Advocate Commissioner but when the provision empowers the court to pass orders for inspection of any property which is the subject matter of the dispute in arbitration which may be necessary or expedient for the purpose of obtaining full information or evidence it follows that it is open to the learned District Judge to get the property inspected to collect information or evidence through an officer of the court. I am therefore to understand Sec.5 as subject to the power conferred under Sec.9 of the Act. Hence learned District Judge was not correct in holding that he has no authority to appoint an Advocate Commissioner. But I do not mean to say that in every case learned District Judge has to appoint an Advocate Commissioner. Whether an Advocate Commissioner has to be appointed or not, has to be decided by the learned District Judge on the facts and circumstances of the case. Here, petitioners have a contention that value of improvements and buildings have not been correctly ascertained by the Arbitral Tribunal. In such a situation, it would necessary to appoint an Advocate Commissioner to inspect the property and collect information and evidence. Having regard to these aspects I find no reason why applications preferred by petitioners should not be allowed. The order o on I.A.Nos.2745 of 2010 to 2754 of 2010 in f learned District Judge in the circumstances cannot be sustained. Resultantly this petition is allowed in the following lines: