JUDGMENT

28.10.2021 Heard Mr. P. Sharmah, learned counsel for the petitioner as well as Mr. P.M.

Talukdar, learned counsel for the respondents.

2. This is an application under Section 115 of the Code of Civil Procedure read with Section 151 of the said Code whereby the order dated 03.04.2021 passed by the Civil Judge No. 3, Kamrup (M) at Guwahati in connection with Section 8 of the Arbitration and Conciliation Act, 1996 filed by the respondent (arising out of Title Suit No. 399/2020) is put to challenge.

3. Shorn of unnecessary details, the facts necessary for disposal of this application are like this - the respondent is a tenant in respect of a house owned by the petitioner. The tenancy started with execution of an agreement wherein there is a clause which stated that in the event of any controversy, dispute and difference between the parties then the said dispute shall be referred to arbitration under the provisions of the Arbitration and Conciliation Act, 1996. It was also agreed that the Arbitrator shall be appointed by the lessee. It was agreed between the parties that if there is any dispute regarding the choice of arbitrator by the lessee then the president of Emerging Businesses Chamber of Commerce shall appoint the arbitrator.

It was further agreed that the venue of arbitration shall be at New Delhi.

4. Thereafter, a dispute arose and accordingly the present petitioner filed a suit being TS No.399/2020 in the Court of the Civil Judge, Kamrup (M), Guwahati seeking a decree for eviction of the respondent along with ancillary reliefs. Since there was an arbitration clause in the agreement between the parties, the present respondent filed a petition under Section 8 of the Act of 1996 praying for referring the case for arbitration. The trial Court after hearing both sides agreed with the respondent.

5. I have given my anxious consideration to the submissions made by the learned counsels of both sides.

6. In the State of Assam the land lord tenant relationship is governed by The Assam Urban Areas Rent Control Act, 1972. Long back in the year 1987, this Court in Sri Beni Madhab Sarkar v Tulsi Ram Prasad, reported in (1987)2 GLR (NOC)10 has held as under-

“The Assam Urban Areas Rent Control Act, 1972 which is a special legislation for protection of the tenant, takes away the contractual as well as the statutory rights of the landlord under The Transfer of Property Act, 1882 and the provisions of the Act create a new right in favour of the tenant. The tenant to claim rights and privileges under the said Act the tenant must strictly comply with the provisions of the Act and in case of failure he will lose such protection”.

7. Prior to Sri Beni Madhab Sarkar’s judgment (supra), the Supreme Court in Natraj Studios (P) Ltd. v. Navrang Studios, (1981) 1 SCC 523, has held that the disputes between land lord and tenant cannot be referred to the arbitrator.

8. Thereafter in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532 , the Supreme Court has categorized the disputes which are arbitrable and held as under –

“36. The well-recognized examples of non-arbitrable disputes are:

(i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences;

(ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody;

(iii) guardianship matters;

(iv) insolvency and winding-up matters;

(v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes”.

9. Affirming the decision in Booz Allen & Hamilton Inc (supra), in a recent judgment in Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1,the Supreme Court has dealt with the subject of arbitration in land lord tenant relationship. Paragraphs

38,54 and 55 of