Point of Law : Arbitration - In presence of dispute between both sides, if the building is constructed and if a part of the building is sold to strangers, in that case, it is the respondents who would be deprived of their property- dispute between the parties should be resolved first.

JUDGMENT :

This is a common Judgment for these two cases.

Heard learned senior counsel Mr. K.N. Choudhury, appearing for the appellant. Also heard the learned senior counsel Mr. G.N. Sahewalla, appearing for the respondent.

1. This is an appeal u/s 37 of the Arbitration and Conciliation Act 1996, whereby the judgment dated 07.07.2021, passed by the learned District Judge Kamrup (M), Guwahati in Misc (Arb) case no. 18/2021 is put to challenge.

2. The appellant is a Company registered under erstwhile Company’s Act 1956, having its registered office at Guwahati. The appellant is engaged in the business of Real Estate Development and Construction of Multi Storied Buildings.

3. The respondents are the owners of two separate plots of lands measuring in total 5 bighas, 1 katha and 15.94 lechas. The entire plot of the land is divided into two parts. One part is 1bigha, 2 kathas, 5.7 lechas. On its back side, the second part is there, of which measures 3 bighas, 4 kathas 10.24 lechas. It may be mentioned that another person named Sri Sivajyoti Deka is also one of the co-owners of the land. He has not been made a party in this case because he did not file any arbitration petition against the appellant.

4. All the respondents including Sri Sivajyoti Deka had an agreement with the appellant for development of their land. It has been stated that Sri Sivajyoti Deka was satisfied with the terms of the agreement and therefore, he did not join the other respondents in the litigation.

5. Aforementioned plot of land measuring 5 bighas, 1 kathas and 15.94 lechas of land was connected by 5 ft wide passage.

6. Before entering into the development agreement with the respondent and Sri Sivajyoti Deka, in the year 2011, the appellant had another development agreement with Sivajyoti Deka for development of the aforementioned 1 bighas, 2 kaths, and 5.7 lechas of land. At that time, Sivajyoti Deka convinced the appellant that he is the sole rightful owner of that plot of land. He convinced the appellant that the said plot of land falls into his share in the family. Sivajyoti Deka further convinced the appellant that if necessary, he would get the NOC from the respondents. Ultimately, when the appellant entered into a development agreement with Sri Sivajyoti Deka, the later even executed a general power of attorney in favour of the appellant. On the basis of those documents, the appellant applied to the authorities for permission to construct building on that land.

7. In the year 2016, Sri Sivajyoti Deka adviced the appellant that they might develop the other part of the land which measured 3 bighas, 4 kathas and 10.24 lechas. Sri Sivajyoti Deka suggested that the appellant should construct multi storied residential cum commercial building in the entire plot of land measuring 5 bighs, 1katha nad 15.94 lechas.

8. The appellant entered into an agreement with the respondents containing certain terms and conditions.

9. The aforementioned 3 bighas, 4 kaths, 10.24 lechas of land was connected to 4 meter wide PWD road. Inspite of that the respondent wanted an area equivalent to 48 percent of FAR @ 150%.

10. The appellant had stated that they intended to acquire another adjacent plot of land belonging to a person called Gautam Sen Deka, so that they could have a 7 meter wide road connecting both the plots of lands. According to the appellant, there was a possibility that if the two other adjacent plots of land belonging to Smt Sumitra Bala Pathak and Brigadier Nabhojyoit Deka are acquired then the existing 5 ft wide passage connecting the two plots of lands would be widened to a 21 ft passage.

11. Brigadier Nabhojyoti Deka is a brother of the respondents. Therefore, the respondents tried to convince Brigadier Nabhojyoti Deka and Smt Sumitra Bala Pathak. In that way, the respondents also tried to convince the aforementioned Gautam Sen Deka but their efforts went in vein.

12. The appellant further states that the aforesaid back side land was also partially encroach by Sri Gautam