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Allahabad High Court · body

2023 DIGILAW 2050 (ALL)

Vijay Raj Singh v. District Magistrate/Arbitrator

2023-08-24

SARAL SRIVASTAVA

body2023
JUDGMENT : 1. Heard Sri Atul Dayal, learned Senior Counsel assisted by Sri Vivek Saran, learned counsel for the petitioners. 2. Petitioners have preferred this petition under Article 227 of the Constitution of India challenging the order dated 31.07.2023 passed by the Additional District Judge/F.T.C. No.2, Muzaffar Nagar rejecting the application no.58Ga under Section 3(I)(b) of the National Highways Act, 1956 (hereinafter referred to as ‘Act, 1956’) read with Order 11 Rule 12 of C.P.C. and application 63Ka under Section 23(3) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘Act, 1996’) in Arbitration Case No.779 of 2011. 3. The facts in brief are that land of the petitioners being Khasra No.82 admeasuring 250 square meters, village Husainpur, Bopada, Muzaffar Nagar was acquired by the National Highway Authority of India (hereinafter referred to as 'NHAI') for expansion of National Highway No.58 by issuing a notification dated 28.11.2005 and 24.11.2006 under Section 3A of the Act, 1956. The competent authority notified under the Act, 1956 prepared a draft award determining the rate of compensation at Rs.770/-per square meter to be paid to the land owners whose land had been acquired. The draft award was approved by the NHAI vide letter dated 27.02.2009. Thereafter, the competent authority passed a final award on 26.03.2009. 4. Since the rate determined by the competent authority in respect of land was much less than the prevalent market rate of the land in the area, the petitioners preferred an application before the competent authority for referring the matter to the Arbitrator. The application of the petitioners was registered as Land Reference Case No.55 of 2011. 5. The petitioners challenged the award mainly on the ground that the acquired land have been declared by the Sub-Divisional Magistrate, Jansath as non-agricultural land. It is further averred that acquired lands are commercial land, and therefore, the rate determined under the award is much less than the market rate of the land in the area which is about Rs.12,000 square per meter. 6. It would be apt to reproduce the relevant paragraph of the reference application of petitioners:- 7. On the basis of pleadings in the reference, the petitioners prayed for the following relief in the reference case:- vr% Jheku th ls izkFkZuk gS fd mijksDr rF;ksa ds vk/kkj ij ;kphdrkZ dh ;kfpdk Lohdkj dh tkdj cktkj Hkko ds vuqlkj izfrdj ;kph dks fnyk;s tkus dh d`ik djsA^^ 8. On the basis of pleadings in the reference, the petitioners prayed for the following relief in the reference case:- vr% Jheku th ls izkFkZuk gS fd mijksDr rF;ksa ds vk/kkj ij ;kphdrkZ dh ;kfpdk Lohdkj dh tkdj cktkj Hkko ds vuqlkj izfrdj ;kph dks fnyk;s tkus dh d`ik djsA^^ 8. The reference was decided by the Arbitrator under Section 3H (5) of the Act, 1956 by order dated 01.09.2011 enhancing the land rate to Rs.1000/- per square meter by a common award. 9. The petitioners being aggrieved by the award of the Arbitrator, filed an application under Section 34 of the Act, 1996 before the District Judge, Muzaffar Nagar which was registered as Arbitration Case No.779 of 2011. 10. In the aforesaid arbitration case, the petitioners filed an application 58Ga under Section 3-I(b) of the Act, 1956 read with Order 11 Rule 12 of C.P.C. praying for a direction that respondents be directed to produce documents detailed in paragraph nos.1 to 8 of the said application on record before disposal of the case. 11. 10. In the aforesaid arbitration case, the petitioners filed an application 58Ga under Section 3-I(b) of the Act, 1956 read with Order 11 Rule 12 of C.P.C. praying for a direction that respondents be directed to produce documents detailed in paragraph nos.1 to 8 of the said application on record before disposal of the case. 11. For better appreciation of facts, the relevant paragraphs of the application 58Ga which refer to documents in respect of which the petitioners have prayed for a direction to respondents by the court are reproduced herein below:- 1- ;g fd foi{kh la[;k 1 dks ftl uksfVfQds'ku ds ek/;e ls jSQjUldrkZ ds okn dh lquokbZ gsrq vkchZVªsV fu;qDr fd;kA bl uksfVfQds'ku dh izfrfyfiA 2- ;g fd foi{kh la[;k 3 dks us'kuy gkbZos vkFkksfjVh vkQ bf.M;k }kjk ftl uksfVfQds'ku ds }kjk l{ke izkf/kdkjh fu;qDr fd;k x;kA bl uksfVfQds'ku dh izfrfyfiA 3- ;g fd foi{kh uaEcj 3 }kjk jSQjsUldrkZ ds fo:) vius izLrkfor vfHkfu.kZ; fnukafdr 20-1-2009 tks fnukad 26-3-2009 dks foi{kh uaEcj 3 }kjk ikfjr fd;k x;k esa izLrkfor vokMZ dks vius i= la[;k 101/NHAI/MZN/Camp fnukafdr 20-1-2009 ds }kjk thŒ,eŒ uS'kuy gkbZos vkFkksZfjVh vkQ bf.M;k ds ikl izh,Xtkfeus'ku gsrq HkstkA bl i= dh izfrfyfiA 4- ;g fd jSQjsUldrkZ dh vf/kxzfgr dh xbZ Hkwfe ds laca/k esa ikfjr ,okMZ ds laca/k esa Hkkjrh; jk"Vªh; jktekXkZ izkf/kdj.k }kjk izsf"kr vizwoy ysVj (APPROVAL LETTER) la[;k Mh 2153 fnukafdr 27-2-2009 rFkk mlds lkFk Qzs'k estj esaV fjiksVZ e; uD'kk dks vokMZ ds lkFk layXu ugha fd;k x;k gSA mDr i= ,oa jsQjsUldrkZ dh Hkwfe ds laca/k es Qsz'k estj esUV fjiksVZ e; uD'kk dh izfrfyfiA 5- ;g fd jSQjsaldrkZ dh vf/kxzfgr lEifr es [kMs o`{kks ,oa Hkou dh EkwaY;kdau fjiksVZ dh izfrfyfiA 6- ;g fd jSQjsaaldrkZ dh vf/kxzfgr lEifr dk tks izfrdj fu/kkZfjr fd;k x;k mDr izfrdj dh /kujkf'k jk"Vªh; jktekxZ izkf/kdj.k }kjk l{ke izkf/kdkjh ds [kkrs esa tek djk;s tkus ls lEcaf/kr vfHkys[k dh izfrfyfiA 7- ;g fd jSQjsaldrkZ dh okLrfod :i ls vf/kxzfgr dh x;h Hkwfe dk {ks=Qy vkSj mlls lEcaf/kr vfHkys[k dh izfrfyfiA 8- ;g fd ;fn l{ke izkf/kdkjh }kjk ;k jk"Vªh; jktekxZ izkf/kdj.k }kjk jsQjsaldrkZ dh vf/kxzfgr Hkwfe dk Hkksfrd dCtk fy;k x;k gSA bl laca/k esa l{ke izkf/kdkjh }kjk iapukek rS;kj fd;k x;k gS] mDr iapukes dh jSQjsal mijksDr ds vafre :i ls izHkkoh fuLrkj.k gsrq vko';drk gSA bl iapukes dh izfrfyfiA^^ 12. The said application was opposed by the respondents by filing an objection dated 02.07.2022 contending interalia that said application is not maintainable. 13. The petitioners also filed an application 63Ka under Section 23(3) of the Act, 1996 seeking certain amendments in the application under Section 34 of the Act, 1996. 14. The said application was also opposed by the respondents by filing objection 65Ga stating therein that said application is not maintainable since there is no subsequent development which has taken place, and therefore, the amendment application is misconceived and is liable to be rejected. 15. The subordinate court in rejecting the application 58Ga under Section 3-I(b) of the Act, 1956 read with Order 11 Rule 12 of C.P.C. held that proceedings under Section 34 of the Act, 1996 are summary in nature. It further held that the jurisdiction of the court in considering the application under Section 34 of the Act, 1996 is limited and restricted as the court can set aside the award only on the existence of any of the grounds mentioned under Section 34(2)(a) & (b) of the Act, 1996. Thus, the question of calling interrogatories does not arise in considering the objections under Section 34 since the purpose of calling interrogatories is to ascertain the stand of the party in respect of the disputed question of facts. It further held that as the court is not required to decide the disputed question of facts under Section 34 of the Act, 1996 based upon oral and documentary evidence on record, therefore, application 58Ga is misconceived. 16. The subordinate court took note of the judgment of Apex Court in the case of M/s Alpine Housing Development Corporation Private Ltd. Vs. Ashok S. Dhariwal and Others 2023 SCC Online SC 55 and held that the court in a proceeding under Section 34 of the Act, 1996 has to consider the record of Arbitral Tribunal before it. It further held that in such a proceeding it does not call for any additional evidence unless in exceptional circumstances it is necessary. It further recorded a finding that petitioners have failed to make out any exceptional circumstance so as to warrant acceptance of additional evidence in present proceedings. It further held that in such a proceeding it does not call for any additional evidence unless in exceptional circumstances it is necessary. It further recorded a finding that petitioners have failed to make out any exceptional circumstance so as to warrant acceptance of additional evidence in present proceedings. It held that though petitioners had ample opportunity before the Tribunal to lead the aforesaid evidence, they sat quiet for about 12 years, and now by filing the said application, they are trying to make out entirely a new case which is not permissible in law. By recording the aforesaid finding, the subordinate court dismissed the application 58Ga. 17. The subordinate court while rejecting the application 63Ka under Section 23(3) of the Act, 1996 held that under Section 23(3) of the Act, 1996, the relief of amendment of either the claim or the defence is available to the parties only during the pendency of arbitral proceedings before the Arbitrator and not before any other forum or court of law. It further held that arbitral proceedings have been terminated with the passing of the award, and proceedings under Section 34 of the Act, 1996 cannot be deemed to be proceedings before the Arbitral Tribunal by any stretch of imagination. Consequently, it held that the application under Section 23(3) of the Act, 1996 is not maintainable and rejected the same. 18. Challenging the aforesaid order, the learned Senior Counsel for the petitioners submits that the subordinate court has committed a manifest error of law apparent on the face of the record in rejecting the application 58Ga. He submits that an application to bring additional evidence on record is maintainable if documents which are sought to be brought on record are necessary and germane to the issue involved in the case for correct and proper adjudication. 19. To buttress the aforesaid submission, he has laid emphasis upon the word 'furnishes proof' mentioned in Section 34(2) before the substitution of the said words by Act No.33 of 2019 and submits that petitioners are entitled to produce additional evidence in proceeding under Section 34 of the Act, 1996. 19. To buttress the aforesaid submission, he has laid emphasis upon the word 'furnishes proof' mentioned in Section 34(2) before the substitution of the said words by Act No.33 of 2019 and submits that petitioners are entitled to produce additional evidence in proceeding under Section 34 of the Act, 1996. He further submits that courts are not devoid of powers to allow said application in exceptional circumstances in view of the judgment of Apex Court in the case of M/s Alpine Housing Development (supra), and as the petitioners have made out an exceptional circumstance which necessitated to bring on record the documents mentioned in application 58Ga in the interest of justice, therefore, the subordinate court has erred in law in rejecting the aforesaid application. 20. He further submits that observation by the subordinate court that by filing application 58Ga petitioners are trying to make out an entirely new case in the present proceeding is erroneous and not based upon correct appreciation of the record. 21. He further submits that the subordinate court has misinterpreted Section 23(3) of the Act, 1996 in holding that application 63Ka was not maintainable. He further submits that as the amendments sought in the application 63Ka under Section 34 of the Act, 1996 are formal in nature and do not change the nature of the case, therefore, the subordinate court has committed an error apparent on the face of record in rejecting the application 63Ka of the petitioners. 22. I have considered the argument advanced by the learned Senior Counsel for the petitioners and perused the record. 23. The Court first deals with the argument of learned counsel for the petitioners in respect of the order of the subordinate court rejecting application 58Ga. 24. In the instant case, the land of the petitioners bearing Khasra No.82 admeasuring 250 square meters village Husainpur, Bopada, Muzaffar Nagar was acquired by NHAI for expansion of National Highway No.58 by notification dated 28.11.2005 and 24.11.2006. The Special Land Acquisition Officer prepared a draft award fixing land rate @ Rs.770 per square meter. The said draft award was approved by NHAI vide letter dated 27.02.2009 and based on it, the competent authority passed the final award on 26.03.2009. 25. The Special Land Acquisition Officer prepared a draft award fixing land rate @ Rs.770 per square meter. The said draft award was approved by NHAI vide letter dated 27.02.2009 and based on it, the competent authority passed the final award on 26.03.2009. 25. The petitioners being aggrieved by the final award dated 26.03.2009 preferred a reference under Section 3G (5) of the act 1956 before the competent authority mainly on the ground that the acquired land was abadi land and a lot of commercial activities were going around the land, therefore, the land had potential for commercial use and award should have been given as per the market rate applicable to commercial land i.e. Rs.12,000/-per square meter. The relevant extract of the paragraph of the reference application assailing the award has already been extracted above. 26. The competent authority partly allowed the reference application and enhanced the land rate from Rs.770 to Rs. 1000 per square meter by order dated 01.09.2011. The petitioners being not satisfied with the award passed by the arbitrator preferred an application under Section 34 of the Act, 1996 registered as reference Case No.55 of 2011. 27. In the said case, the petitioners preferred an application under Section 3-I of the Act, 1956 read with Order 11 Rule 12 of C.P.C to take on record the documents/inventories detailed in the said application. 28. Now the question that arises for consideration is whether the court in considering the application under Section 34 of the Act, 1996 can allow such application when the power to accept such application is vested with the competent authority under Section 3-I (b) of the Act, 1956. 29. To answer the aforesaid question, it would be apposite to reproduce Section 3G and Section 3-I of the Act, 1956:- “[3G. Determination of amount payable as compensation.– (1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority. (2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent, of the amount determined under sub-section (1), for that land. (3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired. (4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land. (5) If the amount determined by the competent authority under subsection (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government. (6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act. (6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act. (7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration– (a) the market value of the land on the date of publication of the notification under section 3A; (b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land; (c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings; d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.]” 3-I. Competent authority to have certain powers of civil court.—The competent authority shall have, for the purposes of this Act, all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:— (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) reception of evidence on affidavits; (d) requisitioning any public record from any court or office; (e) issuing commission for examination of witnesses.]” 30. Section 34 of the Act, 1996 as it stood before amendment by Act, No.33 of 2019 is reproduced herein below:- “34. Application for setting aside arbitral award.-(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). Section 34 of the Act, 1996 as it stood before amendment by Act, No.33 of 2019 is reproduced herein below:- “34. Application for setting aside arbitral award.-(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if– (a) the party making the application furnishes proof that– (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside, or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that- (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. Explanation 1– For the avoidance of any doubt, it is clarified that an award in conflict with the public policy of India, only if,– (i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice.] Explanation 2.-For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.].....” 31. Section 3-I of the Act, 1956 vests with the competent authority for the purposes of this Act, all the powers of the Civil Court for trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) in respect to the matters enumerated in Section 3-I(a) to (e). Under Section 3-I(b) of the Act, 1956, the competent authority is vested with the power to direct the parties in the interest of justice for the production of any document which is necessary and germane to the controversy for correct and proper adjudication of the case. 32. Section 3G(6) provides that subject to provisions of this Act, the provisions of Act, 1996 shall apply to every arbitration under this Act. So by virtue of Section 3G(6) of the Act, 1956, the provisions of Act, 1996 are made applicable to every arbitration proceedings under the Act, 1956. 33. The power to summon or to direct for production of any document is vested with the competent authority under Section 3-I(b) of the Act, 1956. 34. Section 34(2)(a) & (b) of the Act, 1996 enumerates the grounds on the existence of which the court is empowered to set aside an arbitral award. If the grounds enumerated in Section 34(2)(a) & (b) are not made out by the applicant assailing the legality of the arbitral award under Section 34, the court cannot set aside the award. In the scheme of the Act, 1996 limited grounds for setting aside an arbitral award under Section 34(2)(a) & (b) of the Act, 1996 are set out mainly for the reason that there should be least judicial intervention in the arbitral award and there should not be any delay in culminating the arbitration proceedings. In the scheme of the Act, 1996 limited grounds for setting aside an arbitral award under Section 34(2)(a) & (b) of the Act, 1996 are set out mainly for the reason that there should be least judicial intervention in the arbitral award and there should not be any delay in culminating the arbitration proceedings. Now in the light of the scheme of the Act, 1996, this Court proceeds to consider the aforesaid question posed before it in the instant case. 35. In the case of Fiza Developers and Inter-Trade Private Limited Vs. AMCI (India) Private Limited and Another (2009) 17 SCC 796 , a question arose as to whether 'issues' as contemplated under Order 14 Rule 1 of C.P.C. should be framed in the application under Section 34 of the Act, 1996, the Apex Court considering the scheme of the Act 1996 and also the scope of proceedings under Section 34 of the Act, 1996, answered the said question in negative. In this respect, it would the apt to reproduce paragraphs 20 to 24 of the said judgment:- “20. Section 36 provides that an award shall be enforced in the same manner as if it were a decree of the court, but only on the expiry of the time for making an application to set aside the arbitral award under Section 34, or such application having been made, only after it has been refused. Thus, until the disposal of the application under Section 34 of the Act, there is an implied prohibition of enforcement of the arbitral award. The very filing and pendency of an application under Section 34, in effect, operates as a stay of the enforcement of the award. 21. We may therefore examine the question for consideration by bearing three factors in mind. The first is that the Act is a special enactment and Section 34 provides for a special remedy. The second is that an arbitration award can be set aside only upon one of the grounds mentioned in subsection (2) of Section 34 exists. The third is that proceedings under Section 34 requires to be dealt with expeditiously. 22. The scope of enquiry in a proceeding under Section 34 is restricted to consideration whether any one of the grounds mentioned in sub-section (2) of Section 34 exists for setting aside the award. The third is that proceedings under Section 34 requires to be dealt with expeditiously. 22. The scope of enquiry in a proceeding under Section 34 is restricted to consideration whether any one of the grounds mentioned in sub-section (2) of Section 34 exists for setting aside the award. We may approvingly extract the analysis relating to “grounds of challenge” from The Law & Practice of Arbitration and Conciliation by Shri O. P. Malhotra [1st Edn., p.768, Para (I) 34-14]: "Section 5 regulates court intervention in arbitral process. It provides that notwithstanding anything contained in any other law for the time being in force in India, in matters governed by Part I of this Act, the court will not intervene except where so provided in this Part. Pursuant to this policy, Section 34 imposes certain restrictions on the right of the court to set aside an arbitral award. It provides, in all, seven grounds for setting aside an award. In other words, an arbitral award can be set aside only if one or more of these seven grounds exists. The first five grounds have been set forth in Section 34(2)(a). In order to successfully invoke any of these grounds, a party has to plead and prove the existence of one or more of such grounds. That is to say, the party challenging the award has to discharge the burden of poof by adducing sufficient credible evidence to show the existence of any one of such grounds. The rest two grounds are contained in Section 34(2)(b) which provides that an award may be set aside by the court on its own initiative if the subject-matter of the dispute is not arbitrable or the impugned award is in conflict with the public policy of India." The grounds for setting aside the award are specific. Therefore, necessarily a petitioner who files an application will have to plead the facts necessary to make out the ingredients of any of the grounds mentioned in sub-section (2) and prove the same. Therefore, the only question that arises in an application under Section 34 of the Act is whether the award requires to be set aside on any of the specified grounds in sub-section (2) thereof. Sub-section (2) also clearly places the burden of proof on the person who makes the application. Therefore, the only question that arises in an application under Section 34 of the Act is whether the award requires to be set aside on any of the specified grounds in sub-section (2) thereof. Sub-section (2) also clearly places the burden of proof on the person who makes the application. Therefore, the question arising for adjudication as also the person on whom the burden of proof is placed is statutorily specified. Therefore, the need for issues is obviated. 23. Framing of issues is necessary only where different types of material propositions of fact or law are affirmed by one party and are denied by the other and it is therefore necessary for the court to identify the issues and specify the party on whom the burden to prove the same lies. When this exercise has already been done by the statute, there is no need for framing the issues. 24. In other words, an application under Section 34 of the Act is a single issue proceeding, where the very fact that the application has been instituted under that particular provision declares the issue involved. Any further exercise to frame issues will only delay the proceedings. It is thus clear that issues need not be framed in applications under Section 34 of the Act.” 36. In the case of Emkay Global Finance Services Limited Vs. Girdhar Sondhi (2018) 9 SCC 49 , the Apex Court considered two judgments of the Delhi High Court wherein Delhi High Court refused to grant permission to the judgment debtor to lead oral evidence at the stage of objections raised against an arbitral award on the ground that if it is permitted, that will defeat the very object of the Act, 1996 i.e. the expeditious disposal of objection and minimal interference by the court which is manifest from the statement of objects and reasons of the Act, 1996. Paragraph 21 of the said judgment is reproduced herein below:- “21. It will thus be seen that speedy resolution of arbitral disputes has been the reason for enacting the 1996 Act, and continues to be the reason for adding amendments to the said Act to strengthen the aforesaid object. Quite obviously, if issues are to be framed and oral evidence taken in a summary proceeding under Section 34, this object will be defeated. Quite obviously, if issues are to be framed and oral evidence taken in a summary proceeding under Section 34, this object will be defeated. It is also on the cards that if Bill No.100 of 2018 is passed, then evidence at the stage of a Section 34 application will be dispensed with altogether. Given the current state of the law, we are of the view that the two early Delhi High Court judgments cited by us hereinabove, correctly reflect the position in law as to furnishing proof under Section 34(2)(a). So does the Calcutta High Court judgment. We may hasten to add that if the procedure followed by the Punjab and Haryana High Court judgment is to be adhered to, the time-limit of one year would only be observed in most cases in the breach. We therefore overrule the said decision. We are constrained to observe that Fiza Developers (supra) was a step in the right direction as its ultimate ratio is that issues need not be struck at the stage of hearing a Section 34 application, which is a summary procedure. However, this judgment must now be read in the light of the amendment made in Sections 34(5) and 34(6). So read, we clarify the legal position by stating that an application for setting aside an arbitral award will not ordinarily require anything beyond the record that was before the arbitrator. However, if there are matters not contained in such record, and are relevant to the determination of issues arising under Section 34(2)(a), they may be brought to the notice of the Court by way of affidavits filed by both parties. Cross-examination of persons swearing to the affidavits should not be allowed unless absolutely necessary, as the truth will emerge on a reading of the affidavits filed by both parties. We, therefore, set aside the judgment of the Delhi High Court and reinstate that of the learned Additional District Judge dated 22.09.2016. The appeal is accordingly allowed with no order as to costs.” 37. In the case of Canara Nidhi Limited Vs. We, therefore, set aside the judgment of the Delhi High Court and reinstate that of the learned Additional District Judge dated 22.09.2016. The appeal is accordingly allowed with no order as to costs.” 37. In the case of Canara Nidhi Limited Vs. M. Shashikala and Others (2019) 9 SCC 462 , the Apex Court set aside the order of the High Court whereby the High Court has permitted the applicant under Section 34 of the Act, 1996 to adduce additional evidence in the absence of any grounds made out by the applicant as to the necessity of adducing the evidence. The Apex Court considered the scope of Section 34 of the Act, 1996 and also the object of providing one year time under sub-Sections 5 and 6 of Section 34 of the Act, 1996 for disposal of the application under Section 34 of the Act, 1996. 38. A conspectus view of the reasons elaborated by the Apex Court in the light of the scheme of the Act, 1996 in all the aforesaid judgments narrates that the scope of objection against the award under Section 34 of the Act, 1996 is limited to the grounds mentioned in Section 34(2)(a) & (b) of the Act, 1996, which has been specified only with a purpose to restrict the interference of court in the award and expeditious culmination of arbitration proceedings. Therefore, to permit the framing of issues or permit to lead oral evidence as provided under Section 34 of the Act, 1996 would completely negate the object underlying the Act, 1996. The Apex Court also emphasised that the legislative intent underlying the Act, 1996 is to minimize the supervisory role of the court in the arbitration process and leave all contentious issues to be urged and reiterated before the arbitral tribunal itself. However, to subserve the interest of justice, the court has held that in exceptional circumstances, the parties in proceeding under Section 34 of the Act, 1996 may adduce additional evidence only to establish the grounds mentioned in Section 34(2)(a)(b) of the Act, 1996 for setting-aside the arbitral award. 39. However, to subserve the interest of justice, the court has held that in exceptional circumstances, the parties in proceeding under Section 34 of the Act, 1996 may adduce additional evidence only to establish the grounds mentioned in Section 34(2)(a)(b) of the Act, 1996 for setting-aside the arbitral award. 39. Learned counsel for the petitioners has laid much emphasis upon the words 'furnishes proof' in Section 34(2)(a) as it existed before amendment in Section 34(2)(a) by Act No.33 of 2019 to contend that the petitioners can furnish proof before the court in proceeding under Section 34 of the Act, 1996, and once the petitioners have made out a case for accepting the documents as additional evidence, the court should permit the petitioners to adduce additional evidence on record. This Court does not find merit in the said submission of the learned counsel for the petitioners for the reason that under Section 34 of the Act, 1996, the Court may set aside the arbitral award on the existence of grounds contemplated under Section 34(2)(a)(i) to (v) or Section 34(2) (b) of the Act, 1996, therefore, the word 'furnishes proof' used in Section 34(2)(a)(i) to (v) has to be interpreted in the context of Section 34(2)(a) of the Act, 1996 to achieve the object with which the word 'furnishes proof' has been used in Section 34(2)(a) of the Act, 1996. 40. The Apex Court in the cases, referred above, has held that the parties may be allowed to adduce additional evidence in exceptional circumstances where documents which parties want to bring on record were not available on record before the Arbitral Tribunal to demonstrate that the grounds enumerated in Section 34(2)(a)(i) to (v) are present calling for interference with the arbitral award to subserve the interest of justice. In the opinion of the Court, the word 'furnishes proof' has been used to permit a party to adduce additional evidence to demonstrate the existence of any of the grounds contemplated under Section 34(2)(a)(i) to (v) is present which warrants setting aside the award under Section 34 of the Act, 1996 and not beyond it. Thus, the only inevitable conclusion which can be reached is that the parties can bring on record or adduce only that additional evidence which is germane to establish the grounds available for setting aside the award under Section 34(2)(a)(i) to (v). Thus, the only inevitable conclusion which can be reached is that the parties can bring on record or adduce only that additional evidence which is germane to establish the grounds available for setting aside the award under Section 34(2)(a)(i) to (v). Thus, a party cannot be allowed to lead at the stage of the application under Section 34 of the Act, 1996 additional evidence as it would defeat the object of the Act, 1996 that there should be minimum judicial interference by the Court in the arbitral award and there should be prompt disposal of the case. 41. The Act, 1956 has adopted the procedure contemplated under the Act, 1996 by Section 3(G)(6) of the Act, 1956 by substituting 3G and 3I of the Act, 1956 by Act 16 of 1997. To achieve the object of the Act, 1996 adopted by 1956 Act, the Act, 1956, the competent authority is vested with certain powers of the Civil Court enumerated from subclause (a) to (e) of Section 3-I, which also includes bestowing the power upon the competent authority to require or summon the discovery and production of any document. So, the parties have the opportunity before the Arbitral Tribunal to request the Arbitrator under Section 3-I of the Act, 1956 to summon or direct for production of any document necessary and germane to the issues involved in the proceedings for correct and proper adjudication of the dispute in the interest of justice. 42. Now coming to the judgment of Apex Court in the case of M/s Alpine Housing Development (supra) relied upon by the learned counsel for the petitioners, this Court is of the view that the said judgment is of no help to the petitioners since the said case is distinguishable from the facts of the present case which is evident from paragraph 21 of the judgment, wherein the Apex Court has stated the question posed before it for consideration was whether the applicant can be permitted to adduce evidence to support the grounds relating to public policy in an application filed under Section 34 of the Act, 1996? 43. 43. To answer the said question, the Apex Court held that so far as the arbitral proceedings concluded before amendment in Section 34(2)(a) by Act no.33 of 2019 shall be dealt with by unamended act and the Apex Court found that as the case of the appellant falls in the exceptional case, therefore, it is necessary to grant opportunity to the appellant to produce additional evidence. Consequently, it allowed the application of the appellant. Paragraphs 24 and 25 of the said judgment are reproduced herein below:- “24. The ratio of the aforesaid three decisions on the scope and ambit of section 34(2)(a) pre-amendment would be that applications under sections 34 of the Act are summary proceedings; an award can be set aside only on the grounds set out in section 34(2)(a) and section 34(2) (b); speedy resolution of the arbitral disputes has been the reason for enactment of 1996 Act and continues to be a reason for adding amendments to the said Act to strengthen the aforesaid object; therefore in the proceedings under section 34 of the Arbitration Act, the issues are not required to be framed, otherwise if the issues are to be framed and oral evidence is taken in a summary proceedings, the said object will be defeated; an application for setting aside the arbitral award will not ordinarily require anything beyond the record that was before the arbitrator, however, if there are matters not containing such records and the relevant determination to the issues arising under section 34(2)(a), they may be brought to the notice of the Court by way of affidavits filed by both the parties’ the cross-examination of the persons swearing in to the affidavits should not be allowed unless absolutely necessary as the truth will emerge on the reading of the affidavits filed by both the parties. Therefore, in an exceptional case being made out and if it is brought to the court on the matters not containing the record of the arbitrator that certain things are relevant to the determination of the issues arising under section 34(2)(a), then the party who has assailed the award on the grounds set out in section 34(2)(a) can be permitted to file affidavit in the form of evidence. However, the same shall be allowed unless absolutely necessary. 25. However, the same shall be allowed unless absolutely necessary. 25. Now so far as the submission on behalf of the appellant that the requirement of “furnishing proof” as per pre-amendment of section 34(2) (a) of the Arbitration Act shall not be applicable to the application for setting aside the award on the grounds set out in section 34(2)(b) and the submission that in the execution proceedings the subsequent development of refusing to grant permission for amalgamation of the plots can be considered and it will be open for the applicants to point out in the execution proceedings that the award is not capable of being executed is concerned, at the outset, it is required to be noted that even for establishing that the arbitral award is in conflict with Public Policy of India, in a given case, the evidence may have to be led and by leading evidence, the person who is challenging the award on that ground can establish and prove that the arbitral award is in conflict with Public Policy of India and/or the subject matter of dispute is not capable of settlement by arbitration under the law for the time being in force. However, at the same time, from the record before the arbitrator, if the same can be established and proved that the subject matter of the dispute is not capable of settlement by arbitration under the law for the time being in force or the arbitral award is in conflict with the Public Policy of India, in that case, the person may not be permitted to file the affidavit by way of evidence/additional evidence.” 44. Now in the instant case, a glance at the application 58Ga reveals that the application is vague and does not disclose the object and purpose for which the petitioners want to summon the documents referred to in application 58Ga. The said application lacks pleading as to whether these documents are needed to furnish proof to establish the grounds enumerated in Section 34(2)(a)(i) to (v). The documents which are sought to be summoned through application 58Ga, extracted above, reflect that they are not germane to the controversy in dispute nor are relevant to establish the existence of grounds contemplated under Section 34(2)(a)(i) to (v) for setting aside the award. 45. The documents which are sought to be summoned through application 58Ga, extracted above, reflect that they are not germane to the controversy in dispute nor are relevant to establish the existence of grounds contemplated under Section 34(2)(a)(i) to (v) for setting aside the award. 45. It is pertinent to note that the proceedings under Section 34 of the Act, 1996 are summary in nature and not like a regular civil suit. The court under Section 34 is empowered to set aside an award only on the existence of any of the grounds mentioned in Section 34(2)(a)(i) to (v) and Section 34(2)(b) of the Act, 1996 and not otherwise. 46. The word 'furnishes proof' is incorporated in Section 34(2)(a) to produce in exceptional cases only those documents which could prove the existence of grounds enumerated under Section 34(2)(a)(i) to (v). In the case in hand, application 58Ga lacks the necessary pleading that the documents required to be summoned through the said application are for the purpose of establishing or proving that the grounds enumerated in Section 34(2)(a)(i) to (v) are present warranting interference by the Court with the arbitral award. 47. The subordinate court in rejecting the said application has also recorded a finding that the arbitration proceeding commenced in the year 2011 and petitioners sat quiet for about 12 years in filing the said application without disclosing any reason for not filing the said application before the Arbitral Tribunal. In such view of the fact, this Court does not find any illegality in the order passed by the subordinate court in rejecting the application 58Ga. 48. Now coming to the order of the subordinate court in rejecting the application 63Ka, the subordinate court has held that the said application under Section 23(3) is not maintainable before the court in proceedings under Section 34 of the Act, 1996 inasmuch as it is the Arbitrator who is empowered under Section 23(3) of the Act, 1996 to amend or supplement the claim or defence during the arbitral proceedings. 49. In the instant case, the petitioners by means of amendment want to incorporate those grounds in the application under Section 34 which they had not pleaded in reference application under Section 3(G) before the Arbitrator. 49. In the instant case, the petitioners by means of amendment want to incorporate those grounds in the application under Section 34 which they had not pleaded in reference application under Section 3(G) before the Arbitrator. The petitioners want to incorporate the grounds for enhancement of compensation as is evident from the amendment sought by the petitioners, extracted above, which was not their case in reference application which is evident from the reference application extracted above. 50. Since the reference was made by the petitioners mainly on the ground that acquired land had the potential of commercial land, and therefore, considering this fact, the Tribunal should have awarded the compensation at the rate of Rs.12,000/-per square meter, this Court finds that subordinate court has rightly held that it has no power under Section 34 of the Act, 1996 to allow amendment to bring out new facts which were not pleaded before the Tribunal, and it is only Arbitrator who is empowered under Section 23(3) to permit the amendment or supplement the claim or defence before it, and no such power is vested with the subordinate court dealing with the proceeding under Section 34 of the Act, 1996. Hence, this Court is of the view that the subordinate court has not committed any illegality in rejecting the application 63Ka. 51. Thus, for the reasons given above, the present petition lacks merit and is hereby dismissed with no order as to costs.