At the grassrootsRAOSAHEB Chintaman Patil was a shetkari (farmer in Marathi) who was living past his prime. At the turn of the 21st century, he had inherited a plot of land abutting a National Highway from his father. He had cultivated the land as the years went by. His wife, Anjalibai, who recently passed, ran a juice stall on a portion of land and served a neat glass of OJ (orange juice) to passersby.Life was taking its usual course until he got to know two decades later that the Union government (sometimes known as the Central Government) was going to acquire a portion of his land to widen the National Highway. On paying a visit to the local zilla office, he was told that the Union government’s adhikari— called ‘the competent authority’— had published a notification in a local newspaper about this acquisition under some Highway Act.A good samaritan provided a copy of the newspaper containing the notification which he went through carefully. The Act was The National Highways Act, 1956. A survey took place a few months later under Section 3B of the Highways Act on the land; boundary lines were drawn up on half the land; a declaration under Section 3D was passed in which that half was to be acquired and the competent authority determined the compensation amount under Section 3G.Raosaheb had no issues with surrendering half the land. After all, it is not like his three sons had any interest in it. According to Raosaheb, the eldest son, Kamlu was a chapter (slang for chalu), the middle child, Pappu was bavlat (clumsy in Marathi) and the youngest son Chintu was a 6 foot 4 inches gadhav (ass in Marathi)..A good samaritan provided a copy of the newspaper containing the notification which he went through carefully..All three of them were working in Commercial City and were not helping him till the land. But what Raosaheb did have an issue with was the amount of compensation he was being awarded for surrendering a portion of the land to the competent authority. He felt it was not enough. So he contacted his local vakil, who was his cousin’s wife’s sister’s husband’s brother, who helped him file an application to determine the compensation amount by an arbitrator appointed by the Union government under Section 3G (5) of the Highways Act. The application was filed by Raosaheb’s vakil before the appointed arbitrator. And then nothing happened….In the cloudsThree summers later, hundreds of kilometers away, a group of chamchas in the Capital City were dishing out ways in which the country could become the hub of arbitration for the world to see. The chamchas had their work cut out for them. Would a continental menu be better for the guests or would local cuisine be more appropriate?.The lord, the law and I.The head chef, from a Michelin star restaurant in Paris, seemed to suggest a fusion experience. Eminent speakers for the conference were arriving from different locations. One of them was a High Court judge from Commercial City.This ‘hub-making’ process was no easy feat. The food had to be perfect, the venue had to be above board, the drinks would have to be served on demand, not to mention there had to be some small talk on arbitration. But like all chamchas, this group had a weakness; an achilleas heal, if you like: ‘excessive delegation’.A constitutional sin but a necessary evil for ‘hub making’. It so happened that when D-day arrived, one of the delegated chamchas forgot to receive the High Court judge from Commercial City who was left stranded at the airport. This judge was no pushover.He was obviously miffed but was made of sterner stuff. He picked up his bags, got onto a bus and found his way to the venue for the conference. Upon arrival, he gave a dressing down to the chamchas who prostrated before him, begging for forgiveness. When his turn came to speak at the conference, he made sure that he told the distracted audience that this ‘hub making’ process included an airport pickup, leaving the chamchas red-faced..He was obviously miffed but was made of sterner stuff. He picked up his bags, got onto a bus and found his way to the venue for the conference..Back to the grassroots and then to Commercial CityRaosaheb could not care less about the arbitration landscape of the country and the ardent efforts that were being made to institutionalise it. The only institution he knew of was a mental asylum that his late wife’s brother had been admitted to in the neighbouring district. Three summers had passed and the arbitrator had not even called upon him and his vakil. The vakil made inquiries from time to time and every time he did, he was told that the arbitrator, who was also a public servant, was busy with official business.The arbitrator seemed to be passing awards in other landowner’s applications at a cost, but poor Raosaheb was left behind. Frustrated with the status quo, Raosaheb asked his eldest son, Kamlu-the-chapter, to ask if someone in Commercial City could help.Kamlu put his father onto a High Court advocate named ‘Junior’ who had got him out of a bit of a pickle a while ago. Raosaheb paid a visit to Commercial City along with the necessary papers. He met with Junior, who quoted a fee that was paid by Raosaheb.Junior prays for RaosahebJunior kept it simple. At least that is what he thought. He petitioned the High Court under Article 226 of the Constitution and prayed that the arbitrator decide Raosaheb’s application one way or another in a fixed time frame. The judges of the division Bench turned to the Union government lawyers who said that they would come back with instructions. But instead of instructions, they came back with their lead counsel, ‘Mr Original’..The first lesson in law.There was nothing original about Mr Original. He was a fifth-generation remake who put forth his minions’ ideas in court and claimed them to be his own. His LinkedIn profile and his ‘info on the gram’ made it seem that he was both ‘the OG’ and ‘the GOAT’ (an acronym for The Greatest of All Time) combined. This aura was backed by his display picture on social media in full attire with the Supreme Court in the background at Capital City. Not to be messed with online.On the next date of hearing, Mr Original made his grand entry with his posse and objected to Junior’s petition on the ground that Junior should have filed an application under Section 29A of the Arbitration and Conciliation Act, 1996 as the mandate of the arbitrator had come to an end. According to Mr Original, Section 3G (6) of the Highways Act clearly stated that the Arbitration Act would apply to every arbitration under the Highways Act, subject of course to the provisions of the Highways Act..Raosaheb could not care less about the arbitration landscape of the country and the ardent efforts that were being made to institutionalise it..Since there was no provision in the Highways Act fixing an expiry date on the mandate of an arbitrator, Section 29A of the Arbitration Act would apply, and since the arbitrator had not decided Raosaheb’s application within the stipulated time frame under Section 29A, the mandate of the arbitrator terminated under Section 29A(4). The judges of the division Bench were impressed with Mr Original’s submission and showered accolades on him much to the disgust of Minion no. 5, whose idea it was in the first place, which Mr Original conveniently stole.The judges of the division Bench then turned to Junior and castigated him for his shoddy petition. Junior, who was obviously taken by surprise, pleaded for some time to come back with an answer. “Come back in two weeks!” said the judges of the division Bench.A change in the Bench led to a change in heartA week passed by as Junior burned the midnight oil to defend the onslaught of Mr Original. However, he was met with an unexpected but pleasant twist of fate, a change in the roster. The judges of the previous division Bench made way for a pro-petitioner Bench headed by the very same judge who was left stranded at the airport by the chamchas of Capital City..The Sunderbans: Entering forbidden land.The senior judge and his colleague on the Bench were not the sort to get saddled with the technicalities of the law and adopted a commonsense approach to adjudicating the disputes before them. However, Junior took no chances. He had to cover his bases.When the matter was called out two weeks later, the senior judge first turned to Mr Original and asked, “Yes, Mr Original, when will Raosaheb’s arbitrator decide?”Mr Original, who by now was not so confident of a walkover before the new Bench, had gotten Minion no. 5 to prepare a note beforehand. The note was handed over to the Bench by Mr Original with a copy grudgingly given to Junior. The gist of the note was this: Section 3G (6) of the Highways Act made it clear that the Arbitration Act would apply to every arbitration under the Arbitration Act, “subject to the provisions” of the Highways Act. The Highways Act only provided for three riders; (i) the arbitrator had to be appointed by the Union government, (ii) while determining the amount to be paid to the landowner, the arbitrator would have to take into consideration the parameters set out in Section 3G (7) and (iii) while determining interest in certain conditions, the arbitrator would have to follow Section 3H (5) and (6). Therefore, all other provisions of the Arbitration Act would apply to the present case including Section 29 (A) of the Arbitration Act.The note extensively relied on certain decisions of the Supreme Court. In General Manager (Project), National Highways and Infrastructure Development Corporation Limited versus Prakash Chand Pradhan and others, while interpreting Section 3G (5) and (6), the Supreme Court held that an application appointing an arbitrator under Section 11 of the Arbitration Act was not maintainable as it was the sole prerogative of the Union government to appoint an arbitrator under the Highways Act.Prakash Chand had been subsequently followed by another Bench of the Supreme Court in National Highway Authority of India versus Sayedabad Tea Company Limited and others, which had held that the Highways Act was a comprehensive code and a special legislation and since the Highways Act had been enacted under Entry 23 of the Union List of the Seventh Schedule of the Constitution, no application could be filed under Section 11(6) of the Arbitration Act to appoint an arbitrator as that power was solely with the Union government..The road to heaven.The aforementioned judgment had in turn been followed by another Bench of the Supreme Court in National Highway Authority of India versus P. Nagaraju, which had held that the award of the arbitrator appointed under the Highways Act which was challenged under Section 34 of the Arbitration Act could not be modified, but it could certainly be set aside on the parameters laid down in the said Section.Great emphasis was also placed in the note on the observation of the Supreme Court in Union of India versus Tarsem Singh, which had held that an arbitrator’s award under the Highways Act would be subject to challenge under the Arbitration Act.Decisions of certain High Courts were also relied on. The Madras High Court in T.K. Paneerselvan (Died) versus The Arbitrator Cum District Collector had held that the statutory remedy under the Arbitration Act had to be availed of to challenge an arbitral award under the Highways Act and a writ petition under Article 226 would not lie.A single Bench of the parent High Court at Nagpur in M/s. Omanand Industries, Nagpur versus The Secretary to the Government of India and others had also held that an arbitral award under the Highways Act had to be challenged under Section 34 of the Arbitration Act, even though the scope of challenge under the Section was limited.Lastly, certain decisions of the Himachal Pradesh High Court, including Puran Singh versus Land Acquisition Officer & another were relied upon to show that applications under Section 29-A had been filed before that court to extend the mandate of the arbitrators who were appointed to pass awards under the Highways Act..Kamlu put his father onto a High Court advocate named ‘Junior’ who had got him out of a bit of a pickle a while ago..Junior’s rebuttalThe Bench turned to Junior who gingerly stood up to make his case. His propositions were this:As per Section 3G (6) of the Highways Act, the provisions of the Arbitration Act apply only to “every arbitration”, meaning that the Arbitration Act would apply exclusively to the arbitral proceedings only from the date of appointment of arbitrator by the Union government to the date on which the arbitrator passed the award and nothing in between; not even pre-arbitration and post-arbitration proceedings.This submission was fortified by Junior’s reading of the provisions of the Arbitration Act. According to him, the legislature had distinguished “court proceedings” relating to arbitral proceedings from “arbitration proceedings” in Section 87, the Explanation (iv) of Section 31A and the Explanation to Section 36 of the Arbitration Act, not to mention Section 9 of the Arbitration Act..A win–win situation.Therefore, court proceedings under the Arbitration Act which would include proceedings under Section 29A of the Arbitration Act for extension of the arbitrator’s mandate would not apply to arbitration proceedings before arbitrators appointed under the Highways Act and therefore, a writ court under Article 226 would have the sole authority to extend the mandate of such arbitrators.Junior further submitted that Section 29A would only apply when parties have contracted to arbitrate and not when the Union government forces a landholder to arbitrate. Junior turned his attention to the decisions of the Supreme Court in Prakash Chand and Sayedabad Tea Company, both of which according to him supported the petitioner’s case as the court had specifically held in those cases that Section 11 of the Arbitration Act would not apply to arbitrations under the Highways Act since the appointment of the arbitrator was to solely be done by the Union government.If Section 11 of the Arbitration Act did not apply, then Section 29A of the Arbitration Act would also not apply as Section 29A would only apply to arbitrations where parties had contracted to arbitrate their dispute. A Section 11 application would be filed only when contracting parties cannot constitute an arbitral tribunal after a notice under Section 21 of the Arbitration Act commencing arbitration proceedings has been served by either party. Therefore, he submitted that in any event, Section 29A of the Arbitration Act would have no application..Mr Original, who by now was not so confident of a walkover before the new Bench, had gotten Minion no. 5 to prepare a note beforehand..However, Junior further made a without-prejudice argument by stating that the Bench could find it difficult to subscribe to both his above-mentioned proposition of the non-applicability of Section 29-A of the Arbitration Act. This is because of the observations of the Supreme Court in National Highway Authority of India versus P. Nagaraju and Union of India versus Tarsem Singh, both of which had stated that the challenge to the arbitral award had to be made under the Arbitration Act.In which case, he submitted, that both the writ court under Article 226 of the Constitution and the principal civil court of original jurisdiction under Section 29-A of the Arbitration Act had concurrent powers to extend the mandate of arbitrators appointed under the Highways Act. Junior relied on decisions of the Madras High Court in A. Sampoorani versus Union of India, the Punjab and Haryana High Court in National Highway Authority of India versus Resham Singh and Allahabad High Court in Dr Rajeev Sinha versus Union of India, in which all three High Courts had entertained writ petitions under Article 226 of the Constitution challenging awards passed by arbitrators under the Highways Act on the ground of nonpayment of solatium and interest, notwithstanding the available alternate remedy under Section 34 of the Arbitration Act..Junior further submitted that Section 29A would only apply when parties have contracted to arbitrate and not when the Union government forces a landholder to arbitrate..Junior then distinguished the judgment of his parent High Court in Omanand by arguing that the issue before the single Bench pertained to Section 34 of the Arbitration Act, not Section 29A. Therefore it would have no application to his petition. He then coyly remarked that the division Bench would not be bound by the decision of the single Bench.Junior submitted that the decisions of the Himachal Pradesh High Court would not be binding on his parent High Court. And in any event, according to Junior, in none of these decisions did the court lay down any proposition of law stating that a writ petition under Article 226 directing an arbitrator appointed under the Highways Act to decide a proceeding before it was not maintainable.Lastly, Junior submitted that there was no decision of the Supreme Court or his parent High Court that specifically held that the writ court would not have the jurisdiction or authority to pass directions directing an arbitrator appointed under the Highways Act to pass an award in a time-bound manner..Junior submitted that the decisions of the Himachal Pradesh High Court would not be binding on his parent High Court..The changing tideNoticing that the matter was slipping from his grasp, Mr Original, who by now was quite agitated, stood up in rebuttal and beseeched the Bench to stay its hands as one of his minions (not Minion no. 5) had informed him that Section 3G of the Highways Act was challenged in the Supreme Court. Therefore, one would have to wait with baited breath of the outcome of that decision.The senior judge turned to Mr Original and once again asked, “Mr Original, we ask you again, when will Raosaheb’s arbitrator decide?” With that being said, the Bench remarked, “Reserved for Orders!” and rose to chambers.The outcomeWhat happened next was anyone’s guess. Was the petition allowed? Did Raosaheb have his day in court? The answer to that question is best left for the reader to decide.
