Point of law : Tenancy – Arbitration clause in lease Agreement -Tenancy covered under and governed by rent control legislation and therefore, not arbitrable.

JUDGMENT :

1. Petitioner has challenged award dated 21st April, 2015, for it to be set aside. Mr. Saha, learned senior advocate appeared on behalf of petitioner/award debtor and submitted, his client is tenant for non-residential purpose and protected under West Bengal Premises Tenancy Act, 1997. He relied on judgment of Supreme Court in Ranjit Kumar Bose vs Anannya Chowdhury reported in (2014) 11 SCC 446, paragraphs 10 to 12 and 20 to submit, section 6 of the 1997 Act overrides a contract between landlord and tenant, including arbitration agreement. His client had earlier applied under section 16 of Arbitration and Conciliation Act, 1996 challenging jurisdiction of the arbitral Tribunal. He relied on paragraphs 10, 13 and 16 of his client’s subsequent section 16 application. The paragraphs are set out below.

“10. The subject matter of the arbitration is the eviction of the Respondent from Premises nos. 23, 23/1 and 24, J. N. Mukherjee Road, Howrah. The issues involved in the Suit are governed by the provisions of West Bengal Premises Tenancy Act, 1997, section 44 of the said Act provides as follows:

“No civil court shall entertain any suit or proceeding in so far as it relates to fixation of fair rent in relation to any premises to which this Act applies or to premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any Civil Court.”

11. …

12. …

13. The Respondent states that the bar contained in section 44 of the West Bengal Premises Tenancy Act, 1997, extends to arbitration proceedings as well.

14. …

15. …

16. In the circumstances, it is just and proper that the arbitration proceedings be terminated and dismissed for want of jurisdiction.”

Mr. Saha also relied on judgment of Supreme Court in Vidya Drolia & Ors Vs Durga Trading Corporation decided on 14th December, 2020 (Civil Appeal 2402 of 2019) paragraph 66, reproduced below.

“In view of the aforesaid, we overrule the ratio laid down in Himangni Enterprises and hold that landlord-tenant disputes are arbitrable as the Transfer of property Act does not forbid or foreclose arbitration. However, landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations. Such rights and obligations can only be adjudicated and enforced by the specified court/forum, and not through arbitration.”

2. He reiterated his client is tenant under claimants. The tenancy is covered and governed by rent control legislation and therefore, not arbitrable. Specific Court or forum has been given exclusive jurisdiction to try and decide the special rights and obligations.

3. Second point argued by Mr. Saha is, the award was passed out of time without his client having had consented to extension of time for the Tribunal to make and publish award. The reference was on appointment under section 11 of the Act. Subsequent to commencement of the reference there was order dated 22nd February, 2012 made, in which clear agreement of parties to have the reference concluded within six months from date [22.2.2012] was recorded. After expiry of the period there was passed order dated 7th March, 2013, whereby time for concluding the reference was extended by three months from that date. A further petition for extension of time was dismissed by order dated 13th June, 2013. Respondent/claimant preferred appeal unsuccessfully. Mr. Saha relied on appellate order dated 26th August, 2013.

4. He submitted, on there having had been express agreement to conclude the reference within six months and subsequent extension, thereafter when no further extension was agreed to by the parties nor directed by Court, mandate terminated, before making and publishing of the award. From