UNION OF INDIA Vs. ASHOK KATYAL

JUDGEMENT

(1.) THE petitioner has filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award dated 28.1.2002. The brief facts of the case are that the respondent contractor was awarded a contract for two years with effect from October, 1998 for two parking sites measuring 675 sq. mts. and 372 sq. mts. At Hazrat Nizamuddin Railway Station for a total consideration of Rs. 29,52,000/ - as per the agreement executed between the parties dated 27.11.1998. Disputes and differences were referred for adjudication to an arbitrator. As per the claim of the respondent possession of the first site, i.e., 675 sq. mts. was initially handed over to him. However, subsequently he was called upon to surrender a portion of the area for construction of a water tank leaving an area of only 290 sq. mts. The second grievance of the respondent was that possession of the second site of 372 sq. mts was never delivered to the respondent contractor on 1.10.1998.

(2.) THE case of the respondent contractor before the Arbitrator was that since he was handed over a lesser area in accordance with clause 21(b) of the agreement, therefore, license fee on pro rata basis should be charged and he should be refunded the balance amount. The case of the petitioner before the arbitrator was that in view of the area which was taken over for construction of a water tank the respondent was offered two sites and he voluntarily took possession of a much smaller area measuring 290 sq.mts., although he had been offered a site of an area measuring 635 sq. mts. It was submitted that since the respondent himself chose a lesser area he could not now agitate that license fee on pro rata basis be charged. As far as handing over possession of the second site measuring 372 sq. mts. is concerned the stand of the petitioner before the arbitrator was that it is the respondent who refused to accept possession as he did not have any means to carry out the parking at the second site. To buttress his point, counsel for the petitioner relied upon two communications which were issued to the respondent calling upon him to take possession of the site and operate the parking lot. Counsel further relied on letters dated 8.12.1998 and 9.12.1998.

(3.) AFTER hearing learned counsel for the parties, the arbitrator framed the following issues: -