O R D E R (ORAL)

% 22.01.2021 (Video-Conferencing)

O.M.P. (COMM) 532/2020

1. Issue notice. Ms. Leena Tuteja, learned counsel for the respondents, accepts notice.

2. Counter affidavit, if any, be filed within a period of four weeks with advance copy to learned counsel for the petitioner, who may file rejoinder thereto, if any, within a period of two weeks thereof.

3. Inasmuch as, the petition is by way of challenge, under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “1996 Act”), to an award of the learned arbitrator, exchange of pleadings is not necessary. The Registry is, however, directed to requisition the arbitral records from the learned arbitral tribunal and have the same placed on record prior to the next date of hearing. A copy thereof would also be provided, by email, to learned Counsel for the parties.

4. Renotify on 15th April, 2021. IA 10239/2020 (Section 151 CPC)

1. For the reasons stated in the application, delay in re-filing of the petition is condoned.

2. The application is allowed and disposed of.

IA 10237/2020 (Section 36(2) of the Arbitration and Conciliation Act, 1996)

1. Mr. Anil Grover, learned Senior Standing Counsel for the NDMC submits, at the very outset, that he is restricting his prayer for stay to the direction qua Claim IV of the respondents, who were the claimants before the learned arbitrator. The said direction, as contained in the operative part of the impugned award, may be reproduced.

“Claim IV: Allowed.

(i) The Claimants are entitled to carry on the business of Eating lounge/Bar from the Commercial Area of the project site subject to statutory permissions;

(ii) The show cause notice-cum-sealing order dated 25/02/2016 is contrary to the Concession Agreement and is illegal. The sealing of the Eating Lounge was illegal and in breach of the Concession Agreement;

(iii) The Respondent shall permit the Claimants to operate and carry out commercial activities from the Project Site, in terms of the Concession Agreement, without hindrance.”

2. Mr. Grover has, essentially, sought to challenge the afore- extracted directions of the learned arbitrator on the ground that, as per the Master Plan for Delhi, 2021 (hereinafter referred to as “MPD 2021”), the area in question, forming subject matter of controversy, was not a “District Park”, as it was less than 25 hectares and the MPD 2021 requires a District Park to be in excess of 25 hectares. He, however, acknowledges the fact that in the Concession Agreement, between the petitioner and the respondents, the area in question was described as a District Park. This fact also stands acknowledged in the short notes of the written submissions filed by the petitioner-NDMC before this Court, in which it is averred that the “erroneous statement”, in the Concession Agreement, to the effect that the project site was a District Park, could not operate as an estoppel against the petitioner. He submits that the reference, in the Concession Agreement, to the project site as a ‘District Park’, was immaterial, as the NDMC was not empowered to grant concession against the law.

3. It is also acknowledged that the completion plans of the respondents were sanctioned by the NDMC, treating the area as a District Park. Again, on this point, too, it is sought to be contended that the sanctioned completion plans could not override the MPD

2021.

4. Mr. Grover also sought to submit that, much prior to the execution of the Concession Agreement, the premises of the respondents were sealed on 25th February, 2016, on the ground that an eating house could not be run in a ‘District Park’. Ms. Leena Tuteja, learned counsel for the respondents, however, traverses this submission of Mr Grover, and asserts that the sealing of the premises which took place in 2016 was not on the ground that the Eating House was in an area which was not a District Park, but, rather, on the allegation that the respondents were serving liquor. Moreover, she points out that, consequent to the