Disputes regarding encroachment and usage of the allotted land needed to be adjudicated before the arbitrator, and specific performance of the contract could not be ordered.

YOGESH KHANNA, J.

1. This petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as ‘the Act’) has been filed by the petitioner against the respondent in respect of an agreement dated 10.11.2017 executed between them.

2. The brief facts as alleged by the petitioner are as follows:

(a) The petitioner is one of India's leading adventure sports company with over 25 years of experience in the field of adventure sports having worldwide affiliations and technical collaborations in U.K. and U.S.A. and Germany. The petitioner is approved by the Ministry of Tourism, Government of India and is a member of ATOAI, IATO, PATA, TUV, TAAI and other internationally recognized organizations in adventure sports. The petitioner has set up and successfully operated over 1000 adventure events for government as well as private sectors in the last 25 years and various stakeholders have lauded the efforts of the petitioner. The respondent in the past has been involved in the conduct of adventure sports at the Garden of Five Senses ("the premises").

(b) The petitioner since the year 2013 has been conducting adventure sports activities ranging from few days up to 6 months at the premises on instructions of the respondent. The respondent after realizing the long term viability of an adventure sports park at the premises after following the requisite legal procedure awarded the legal tender to set up and operate adventure park at the premises to the petitioner vide its letter dated 11.08.2017.

(c) On 15.09.2017, the officials of the respondent visited the premises to earmark the area for establishing the adventure sports activities in front of the rocky terrain (allegedly referred as "the Topiary Garden"). In absence of any mention of the exact dimension on the ground with specifications of area the above team keeping in mind the concerns of the Horticulture Department not to disturb any shrubs and plants did the due allocations at the unused and banjar land. The petitioner Company had been allocated only banjar, wasteland unused area which had been covered with dried thorny waste.

(d) On 11.10.2017 the agreement has been executed between the petitioner and the respondent vide which the respondent granted the permission to use the premises for setting up and operation of adventure park at the premises for a period of 5 years at a monthly rent of 50,000/- along with revenue share @ 2% of the revenue generated from the ticket sales.

(e) From 02.11.2017 onwards the petitioner allegedly started installing the equipment in the area ear-marked by the team as detailed above and vide e-mail dated 02.11.2017 addressed to Mr. Vikram, Manager of the respondent categorically represented the area of activity as well as the space to be occupied by the Company and detailed the same in the e-mail dated 02.11.2017 and vide said email the location as well as the area had been categorically specified and communicated to the respondent to which the respondent did not object and in fact allowed the installation process as it was as per the earmarked area decided by the respondent in front of the rocky terrain allegedly referred as "the Topiary Garden" by the respondent.

(f) On 13.11.2017 the respondent vide letter bearing reference number F. No. Adv/ DTTDC/2016-17/0050/827 to the Additional Commissioner of Police (Licensing), P.S. Defence Colony, New Delhi recognized the fact that the installation work is almost complete and requested him to grant permission to the petitioner to operate the adventure sports activities as mentioned in the agreement.

(g) Vide another letter dated 13.11.2017 bearing reference No. F. No. Adv/DTTDC/2016- 17/0050/828 asked the petitioner (if possible) to submit the drawings, measurements and structure safety certificate to the respondent. In turn the petitioner vide letter dated 18.11.2017, categoricall