Judicial intervention in arbitration proceedings is limited as per Section 5 of the Arbitration Act.

JUDGMENT :

The property of the petitioner was acquired for the purpose of widening National Highway No.66. The Special Deputy Collector (LA), the 2nd respondent, the competent authority under the National Highways Act, 1956 (hereinafter referred to as the 'N.H. Act') determined the compensation payable to the petitioner and passed Ext. P1 award. Dissatisfied with the amount determined by the competent authority, the petitioner filed Ext.P2 arbitration application dated 24.08.2022 under Section 3G (5) of the N.H. Act before the 1st respondent Arbitrator. Aggrieved by the delay in disposal of Ext. P2 arbitration application, the petitioner approached this Court by filing W. P. (C) No. 9997 of 2023 and this Court, by judgment dated 12.04.2023, disposed of the writ petition directing the Arbitrator to dispose of Ext. P2 arbitration application within two months from the date of receipt of the copy of the judgment after hearing the parties.

2. Pending Ext. P2 arbitration application, the petitioner filed Ext.P4 application dated 04.07.2023 for appointment of an Advocate Commissioner with a Surveyor and Technical person to conduct inspection of the properties and to file a report with sketch plan showing the lie, nature, commercial importance, appurtenance to National Highway and other aspects. The 2nd respondent filed Ext. P5 objection dated 25.07.2023 to Ext. P4 application. Ext.P4 application for appointment of Advocate Commissioner was rejected by the Arbitrator by Ext.P6 order upholding the contention of the 2nd respondent, the competent authority that the valuation of the land and structures has already been done after site inspection and observing all the legal formalities and pointing out the time frame fixed by this Court for disposal of Ext. P2 arbitration application.

3. Ext.P6 order is impugned in the writ petition contending that when the provisions of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Arbitration Act') are applicable to Ext. P2 proceedings, the Arbitrator is having jurisdiction under Section 26 of the Arbitration Act to appoint an Advocate Commissioner with Surveyor and Technical person and to report to the Arbitrator for adjudication of the dispute and rejection of the application amounts to jurisdictional error.

4. Heard Sri. M.K. Sumod, the learned counsel for the petitioner, Sri. B.G. Bidan Chandran, the learned standing counsel for the National Highway Authority of India and Sri. Bimal K. Nath, the learned Senior Government Pleader for respondents 1 and 2. Sri. Bidan Chandran has also placed on record an argument note.

5. Sri. Bidan Chandran contends that Ext. P4 application of the petitioner for appointment of an Advocate Commissioner has to be construed as one filed under Section 27 of the Arbitration Act and not under Section 26 as contended by the petitioner and in either case, the remedy of the petitioner is to challenge the final award invoking the provisions of Section 34 of the Arbitration Act and the writ petition filed under Article 226 of the Constitution against Ext. P6 order is not maintainable. Sri. Bidan Chandran has relied on the decision of the Hon'ble Supreme Court in SBP and Co v. Patel Engineering Ltd and another [(2005) 8 SCC 618 : AIR 2006 SC 450 : 2005 KHC 1909] and the decision of the Division Bench of this Court in National Highway Authority of India v. Jabeena Beevi and others [2021 KHC 594 : ILR 2021 (4) Ker. 495] to contend that the writ petition is not maintainable.

6. Sri. Sumod, on the other hand, would rely on the decision of the Hon'ble Supreme Court in Harbanslal Sahnia and another v. Indian Oil Corporation Ltd and others [(2003) 2 SCC 107] wherein it was held that the rule of exclusion of writ jurisdiction by availability of alternative remedy by way of recourse to arbitration clause is a rule of discretion and not one of compulsion and where there is violation of fundamental rights or failure to follow principles of natural justice, the High C