IMPORTANT POINT
The Court affirmed the power of the Court under section 9 of The Arbitration and Conciliation Act, 1996 to grant interim measures for preservation of the subject matter of arbitration, and clarified the arbitrability of the dispute.

JUDGMENT :

Moushumi Bhattacharya, J.

1. The petitioner seeks stay of a notice dated 20th September, 2023 by way of the present application filed under section 9 of The Arbitration and Conciliation Act, 1996. The impugned notice was sent by the respondent revoking a Deed of Sub-Lease dated 4th July, 2008 by which the respondent granted 5 acres of land to the petitioner for 99 years.

2. The admitted facts brought to the notice of the Court are as follows.

3. The respondent granted the sub-lease of the land to the petitioner for construction of an IT/ITeS Project. The petitioner alleges that the respondent failed to provide power, water and sewage outlet by reason of which the petitioner was unable to complete the construction within the agreed time frame. The respondent, on the other hand, alleges that the petitioner failed to perform its contractual obligations. The respondent terminated the sub-lease on 20th September, 2023. The petitioner objected to the notice of termination by a letter dated 16th October, 2023. The respondent filed an application under the provisions of The West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962 for evicting the petitioner from the leasehold land and the Collector also issued a show-cause notice to the petitioner. The petitioner appeared before the First Land Acquisition Collector, Kolkata, objecting to the jurisdiction by filing the response in the proceedings. The petitioner issued a notice on 8th November, 2023 invoking the arbitration clause contained in clause 5 of the sub-lease agreement.

4. Learned counsel appearing for the petitioner places clause 5 of the sub-lease agreement to urge that the dispute between the parties culminating in the impugned termination notice of 20th September, 2023 is covered by the arbitration clause in the agreement. Counsel submits that the termination is invalid and contrary to the sub-lease agreement and that the arbitrator should decide on the validity of the termination. Counsel submits that unless the letter of termination is stayed, the rights of the petitioner will irrefutably be prejudiced.

5. Learned counsel appearing for the respondent submits that the application should be rejected for want of territorial jurisdiction and that the application is akin to a suit for land. It is also submitted that the subject-matter of the present application is non-arbitrable since the West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962 is a special statute for providing a speedy route to the Government for eviction of unauthorized occupants and also has overriding effect over The Arbitration and Conciliation Act, 1996. Counsel relies on sections 20A and 41(ha) of the Specific Relief Act, 1963 to urge that injunction cannot be granted in respect of infrastructure projects. Counsel submits on the factual aspect that the petitioner illegally mortgaged the lease-hold interest in the land consequent to which the concerned Bank invoked the SARFAESI Act. It is submitted that relief in the nature of injunction cannot be sought for where there has been a breach of contractual obligations.

6. The objection to jurisdiction should be decided first.

7. The present dispute is not a suit for land since the petitioner is not seeking injunction in respect of an immovable property or inviting the Court to decide any question of title or possession of the land. The petitioner merely seeks interim protection over the subject-matter of the arbitration agreement in view of clause 5 of the said agreement which covers disputes and differences between the parties in respect of the sub-lease agreement dated 4th July, 2008. There is a vital difference between an application for interim protection under section 9 of The Arbitration and Conciliation Act, 1996 and a suit for land where the essential question is to determine the title and possession of the land in question: Ref: P. Ranganathan v. Sai Jagannathan; 1995 (II) CTC 181. Moreover, the sub-lease ag