Neutral Citation No. - 2023:AHC:116084-DB

Court No. - 29

Case :- SPECIAL APPEAL No. - 359 of 2023

Appellant :- Ravi Prakash Chaudhary And 2 Others

Respondent :- Union Of India And 3 Others

Counsel for Appellant :- Om Prakash Pandey,Arvind Kumar

Mishra

Counsel for Respondent :- A.S.G.I.,C.S.C.,Suman Jaiswal

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vikas Budhwar,J.

Heard Sri Apoorva Hajela learned counsel for the appellants and

Ms. Suman Jaiswal learned counsel for the respondents.

This intra-court appeal arises out of a judgment and order dated

19.04.2023 whereby the application under Section 11 of the

Arbitration and Conciliation Act, 1996 filed by the appellants

herein has been rejected noticing that there was no occasion to

invoke provisions of Section 11 of the Arbitration Act, 1996,

inasmuch as, there was no agreement between the parties. The

National Highways Act, 1956 under which the Application under

Section 3G5 can be moved by the aggrieved tenure holders,

provides an inbuilt mechanism for appointment of arbitrator.

We may note that Section 3G5 of the National Highways Act, 1956

which provides remedy to the parties aggrieved by the

determination of compensation by the competent authority under

sub-section (1) or sub-section (2), itself states that on an

application moved by any of the parties, aggrieved by such

determination, arbitrator is to be appointed by the Central

Government. Under sub-section (6) of Section 3G of the Act,

1956, the provisions of Arbitration and Conciliation Act, 1996 are

applicable to the proceedings conducted by the arbitrator,

appointed under sub-section (5) of Section 3G, subject to the

provisions of the National Highways Act, 1956. We may further

note that on the application moved by the petitioners challenging

the award dated 13.06.2022 passed by the competent authority an

arbitrator has been appointed by the Central Government vide

notification dated 26 September, 2022 as the District Magistrate

Maharajganj has been designated as arbitrator to consider the

matters arising out of the award under Section 3G5 of the Act,

1956.

The submission of the learned counsel for the appellants is that

there was a delay on the part of the Central Government in

appointing arbitrator and the notification dated 26 September,

2022 had been issued after a period of about two months whereas

only 30 days time has been given in the Arbitration Act, 1996 for

appointment of arbitrator on the application moved by the

aggrieved party. The submission, thus, is that the application under

Section 11(4) of the Act, 1996 could not have been rejected by this

Court on the premise that there was no agreement between the

parties or the National Highways Act, 1956 provides inbuilt

mechanism for appointment of arbitrator.

We find inherent fallacy in the argument of learned counsel for the

appellants for the bare reading of Sections 7 and 11(4) of the

Arbitration and Conciliation Act, 1996 under the scheme of the

said provision, the application for appointment of arbitration under

sub-section (4) of Section 11 can be moved in case of failure of

one of the parties in appointment of arbitrator, as against the terms

and conditions of the arbitration clause. The question of

appointment of arbitrator under Section 3G5 cannot be dealt with

by invoking the provisions of Section 11(4) in absence of any

arbitration agreement. In any case, the arbitrator has now been

appointed in the month of September, 2022. There was no

occasion for the appellants to approach this Court in the instant

appeal.

The present appeal is dismissed being misconceived.

Order Date :- 24.5.2023

Rajesh

Digitally signed by :-

RAJESH KUMAR

High Court of Judicature at Allahabad

Digitally signed by :-

RAJESH KUMAR

High Court of Judicature at Allahabad