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2008 DIGILAW 1751 (PNJ)

M/s The Malt Co. (India) Ltd. v. State Of Haryana

2008-10-17

HEMANT GUPTA, KANWALJIT SINGH AHLUWALIA

body2008
Judgment Hemant Gupta, J. 1. This order shall dispose of Civil Writ Petition Nos. 7818 and 8869 of 2007, challenging the order passed by the Commissioner dated 1.3.2007 (Annexure P.11), whereby after setting aside the order of penalty and damages, in an appeal under Section 9 of the Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (for short `the Act), the Commissioner gave liberty to get the issue of damages resolved through an Arbitrator. 2. The present writ petitions are in respect of two separate godowns taken on rent by the petitioners @ Rs. 16.39 pr MT per month and @ Rs. 11.50 per MT per month for the period 1.4.2000 to 31.3.2001. 3. The dispute regarding possession of the petitioners over the two godowns was firstly taken before the Civil Court in a suit for injunction filed by the petitioners. In the said suit for permanent injunction, the petitioners have filed an application for grant of ad interim injunction as well. Such application came to be decided by the learned trial Court on 23.11.2001. Vide the said order, the defendants were restrained from dispossessing and interfering in the peaceful possession of the godowns in possession of the petitioners. The appeals against the said order were filed, which were dismissed. Thereafter, the respondent-HAFED filed a petitions under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. During the pendency of the said petitions, a statement was made by the counsel for the respondent-HAFED on 12.11.2005 that since the present petitioners have vacated the godowns, therefore, the petitions be dismissed as withdrawn. On the basis of the said statement, the said petitions were dismissed. 4. During the pendency of the aforesaid ejectment proceedings, the respondents initiated proceedings for eviction of the petitioners under the Act. The petitioners were found to be bound by the agreement executed while handing over the possession to the petitioners by the learned Collector. The Collector passed an order of eviction and also of recovery of rent @ twice the agreed rent from 1.10.2001 to 16.8.2004 i.e. for 34.5 months. 5. In appeal against the said order, the learned Commissioner vide order Annexure P.10, found that the possession of the godowns was handed over to HAFED on 10.8.2004 and no rent was due to be paid. 5. In appeal against the said order, the learned Commissioner vide order Annexure P.10, found that the possession of the godowns was handed over to HAFED on 10.8.2004 and no rent was due to be paid. The learned Commissioner found that there is no illegality to the extent the petitioner was ordered to be evicted, but the order regarding penalty and damages was set aside. It was also found that since the agreement between the parties has a clause of referring the dispute to an Arbitrator, therefore, the dispute regarding damages is required to be resolved by an Arbitrator. In pursuance of the said order, the Managing Director of the HAFED has passed the order (Annexure P.11) appointing an Arbitrator, which order has been challenged by the petitioners in the present writ petition. 6. Learned counsel for the petitioners has argued that once the order of damages under the Act, has been set aside, then the learned Commissioner, acting as an Appellate Authority against the order passed by the Collector has no jurisdiction to direct the appointment of an Arbitrator. 7. The Managing Director of HAFED has appointed an Arbitrator to resolve the dispute regarding damages between the parties. Appointment of an Arbitrator and its removal are governed by the provisions of the Arbitration and Conciliation Act, 1996. The petitioners are required to take recourse to the challenge procedure of constitution of the Arbitral Tribunal in terms of the provisions of the Arbitration and Conciliation Act, 1996. 8. Admittedly, there is no operative order of payment of damage/charges against the petitioners. The petitioners have since vacated the premises. Therefore, the only dispute between the parties is whether the damages are payable and at what rate, if any. Whether such dispute can be decided by an Arbitrator or not, cannot be examined in the writ petition as the petitioners have the statutory remedy against the action of the HAFED in the appointment of an Arbitrator. 9. Consequently, we do not find any merit in the present writ petitions. Hence, the same are dismissed with liberty to the petitioners to take recourse to the remedies available to the petitioners under the Arbitration and Conciliation Act, 1996.