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2013 DIGILAW 58 (JK)

Jammu Development Authority v. Bansi Lal Sharma

2013-02-04

MANSOOR AHMAD MIR

body2013
1. This appeal is directed against order dated 11.11.2011 passed by Principal District Judge, Jammu in an arbitral proceedings/application for setting aside award dated 21.05.2006 on the grounds taken in the memo of appeal. Brief facts: 2. Lease deed was executed between the parties for the land measuring 2 kanals 5 marlas situated at Fruit Market, Narwal, Jammu which was allotted by appellant in favour of respondent against a payment of Rs.4.70 lacs. Respondent after taking over possession of the said land, started raising construction, which was objected by railway authorities, constraining him to file OWP No. 1048/2000 titled Bansi Lal Sharma v. Union of India and others, before this Court. Said petition was granted with a direction to appellant to conduct demarcation of the land in dispute. After conducting demarcation, it was found that some portion of the land allotted to respondent was in possession of railway authorities. In order to settle the matter, alternate site was allotted to respondent. Respondent after taking over possession of the same, filed Arbitration Petition claiming therein payment of compensation for the construction raised over the plot earlier allotted to him by the Jammu Development Authority. Accordingly, Sh. Dev Raj Sharma, Retd., District Judge, was appointed as Arbitrator, who after examining the report of Valuer, namely, Sh. C.P.Gupta, made award dated 21.05.2006 in favour of respondent against appellant to the tune of Rs.22,73,382/- which constrained appellant-JDA to lay motion before Principal District Judge, Jammu for setting aside award dated 21.05.2006. Said application came to be dismissed vide impugned order dated 11.11.2011. 3. It is contended that both award and impugned order are bad in law on the ground that respondent is claiming compensation of the structure raised in violation of the approved plan. It is also contended that prime land was allotted to respondent and he after accepting the same, cannot lay motion for compensation of the structure raised over the disputed land. In terms of order passed by this Court in OWP No. 1048/2000, appellant was directed to allot alternate land or return the money to respondent to which, respondent chose to claim alternate site. Accordingly, same was allotted to respondent. 4. Respondent served notice upon the appellant to assess the cost of construction and pay the same or appoint Arbitrator in terms of clause contained in the Lease Deed. Accordingly, same was allotted to respondent. 4. Respondent served notice upon the appellant to assess the cost of construction and pay the same or appoint Arbitrator in terms of clause contained in the Lease Deed. Appellant failed to do so, constraining respondent to lay motion for appointment of Arbitrator and, accordingly, Sh. Dev Raj Sharma was appointed as Arbitrator, who after entering upon the dispute got the loss assessed through an independent Valuer, namely, C.P.Gupta. Virtually, appellant has not contested the award before the Court below, which after examining the same in terms of provisions of Jammu and Kashmir Arbitration and Conciliation Act, 1997, dismissed the application for setting aside award dated 21.05.2006. 5. Respondent filed application for appointment of Arbitrator before Principal District Judge, Jammu, which came to be allowed vide order dated 29.10.2005 and Sh. Dev Raj Sharma, Retd. District Judge was appointed as Arbitrator to adjudicate upon the dispute between the parties. Accordingly, Arbitrator vide order dated 21.05.2006 has made the award. 6. Principal District Judge, Jammu while examining all the pleas raised held that admittedly, appellant had allotted land to respondent, which was disputed one, thus, made him to suffer. Respondent applied for permission to raise structure, which was granted in his favour and he after depositing an amount of Rs.1.00 lac, started raising construction, which later on was stopped by the railway authorities in midway on the ground that the land allotted to the respondent was not belonging to Jammu Development Authority, but, was the property of railway authorities. Accordingly, alternate site was allotted to respondent by the appellant. On this count, respondent was put to huge loss. 7. I have gone through the award, which is speaking one and need no interference. However, the appellant has filed application for setting aside the same and while going through the application, it appears that main ground projected was that the appellant had already allotted site of potential value and respondent has accepted the same, could not have invoked jurisdiction of this Court for appointment of Arbitrator. The said point has already been marshaled out by the Principal District Judge, Jammu which has not been questioned by the appellant, thus, I refrain from commenting upon the same. It is not a case of the appellant that lease deed/agreement was not legal one. Appellant has also not contended that opportunity of hearing was not provided by the Arbitrator. The said point has already been marshaled out by the Principal District Judge, Jammu which has not been questioned by the appellant, thus, I refrain from commenting upon the same. It is not a case of the appellant that lease deed/agreement was not legal one. Appellant has also not contended that opportunity of hearing was not provided by the Arbitrator. 8. In given circumstances, this appeal fails and is dismissed as such along with connected CMA(s), if any.