The main legal point established in the judgment is the validity of the appointment of the District Magistrate/Deputy Commissioner as the Arbitrator under Section 3G(5) of the National Highways Act, 1956, and the availability of an alternative efficacious remedy under the Arbitration and Conciliation Act, 1996.

JUDGMENT

Manmohan, J. - C.M.No.32195/2020 in W.P.(C) 9361/2018 (for vacation or fixing the matter for final hearing by R-3)

C.M.No.32194/2020 in W.P.(C) 9417/2018 (for vacation or fixing the matter for final hearing by R-3)

Keeping in view the averments in the applications and with consent of parties, the matters are taken up for hearing.

Accordingly, the applicationsstand disposed of.

CM APPL. 32621/2019 in WP(C) 9372/2018 (by R-3)

Keeping in view the averments in the application, the delay in filing the reply to CM No. 12611/2019 is condoned.

Accordingly, the application stands disposed of.

W.P. (C)9361/2018 & connected matter Page 4 of 17

W.P.(C) 9361/2018

W.P.(C) 9372/2018 & C.M.Nos.46518/2018 (for stay by petitioner)

W.P.(C) 9373/2018 & C.M.No.46523/2018 (for stay by petitioner)

W.P.(C) 9417/2018

1. Present writ petitions have been filed by the petitioners inter alia seeking appointment of an independent and impartial Arbitrator in accordance with Section 3G(5) and (6) of the National Highways Act, 1956 (hereinafter referred to as the 'Act') read with Arbitration and Conciliation Act, 1996 and Arbitration and Conciliation (Amendment) Act, 2015 and the Schedules appended thereto, more particularly, Fifth and Sixth Schedule.

2. At the outset, Mr.Sanjay Poddar, learned senior counsel for respondent no.3/NHAI states that the present writ petitions are infructuous as the District Magistrate/Deputy Commissioner has been appointed as Arbitrator in accordance with Section 3G(5) of the Act on 09th October, 2018.

3. However, Mr. Saurav Aggarwal, learned counsel for the petitioners states that the present writ petitions are for appointment of an independent and impartial Arbitrator under Section 3G(5) of the Act. He states that this fact had been duly noted by the learned predecessor Division Bench in its order dated 25th September, 2018 in which two judgments passed by learned Single Judges of this Court had been referred to. Since considerable reliance is placed upon the order dated 25th September, 2018 by learned counsel for the petitioners, the same is reproduced hereinbelow:-

"Issue notice to show cause as to why petitions be not admitted. Counsels for the respondents accept notice. Since none is present on behalf of the UOI, Ms Saroj Bidawat, Advocate who is present in court is requested to look into the matter and ensure that the concerned counsel appears in the matter on the next date. Let a complete set of paper book be supplied to Ms Bidawat.

We are informed by learned counsel appearing for NHAI that they are in the process of appointing an Arbitrator under Section 3G(5) of the NH Act, 1956. Learned counsel appearing for the petitioners relies on Section 3G(5) and 3G(6) of the NH Act, 1956 to contend that while making the appointment, the respondents will have to take into consideration the Schedule V of the Arbitration and Conciliation Act, 1996 and the judgments rendered in the case of Devendra Kumar Gupta vs Union of India; O.M.P.(T) 5/2017, Dream Valley Farms Private Limited vs Religare Finvest Limited & Ors; ARB. 635/2016 decided on 19.10.2016 and ASSIGNIA-VIL JV vs Rail Vikas Nigam Limited; ARB. P. 677/2015 decided on 29.04.2016, more particularly paragraphs 9 and 10, which we reproduce below:-

"9. In Dream Valley Farms Private Limited vs. Religare Finvest Limited & Ors. ARB. 635/2016 decided on 19.10.2016 which runs as under:

20. While in the normal course, that would be one option, in the present case not only are Clauses 22 and 24 of the Fifth Schedule attracted giving rise to justifiable doubts as to the independence and impartiality of the Arbitrator, but the conduct of the Arbitrator in seeking to mislead the Petitioner and suppress in the first instance the fact of his being a presiding Arbitrator in 27 arbitration matters relating to the Respondent smacks of dishonesty that is unbecoming of an Arbitrator.

21. The Court is