UNION OF INDIA Vs. P M IMBICHIBI

JUDGEMENT

(1.) O.S. No. 281/86 was filed by the respondents herein under the provisions of the Arbitration Act, 1940 before the Court of the Subordinate Judge, Kozhikode seeking leave to revoke the authority of an appointed arbitrator, to direct the respondents therein to file the agreement before the Court and also for an order to refer the dispute between the parties for arbitration of an arbitrator appointed by the Court. The Court below allowed the prayer for revoking the authority of the appointed arbitrator and it also appointed an arbitrator to adjudicate the dispute between the parties. Aggrieved by the above judgment and decree, the respondents in O.S. 281/86 have come up in appeal.

(2.) Petitioner in O.S. No. 281/86 was in possession of certain area belonging to the respondents. His father, Khan Sahib Koonhammedkoya, was originally in occupation of land measuring 4265.75 square feet, as per an entrustment from the 2nd respondent under an agreement dated 2-8-1929. On his death in 1943 the petitioner came into possession of the land, on 30-5-1960 a portion of the land was surrendered by the respondents and a fresh agreement was executed on 21-1-1971 in respect of 2025.75 square feet of land, which was in the possession of the petitioner. He was made liable to pay ground rent of Rs. 104.64, shed rent of Rs. 120/- and the Municipal tax of Rs. 16/- p.m. The rent was revised from time to time and on 5-12-1977 it was fixed at Rs. 1,252.25. Thereafter under communication dated 30-9-1981 the petitioner was informed that he was liable to pay the enhanced amount of Rs. 17,345.58 towards licence fee, shed rent and Municipal tax. The petitioner protested against the revision of rent. On receipt of a communication terminating his licence with effect from 5-12-1982 the petitioner moved this Court by filing O.P. No. 9267/82. The original petition was disposed of by this Court on 29-8-1986. While denying relief to the petitioner this Court observed that the dismissal of the original petition was without prejudice to his seeking remedy by way of arbitration.

(3.) The petitioner thereupon sent a registered notice dated 24-9-1986 to the 2nd respondent requesting to appoint a retired Judge of High Court of Kerala as the arbitrator to adjudicate the dispute specified in that notice. No favourable reply was received. Clause 19 of Ext. B-1 agreement between the parties provided that in case of any dispute between the parties the difference or dispute shall be referred to the General Manager of Southern Railway and his decision thereon shall be final, binding and conclusive. Thus as per the provisions in the agreement the General Manager of Southern Railway has to be appointed as the arbitrator for resolving the dispute between the parties. The petitioner felt that he will not get any justice at the hands of designated arbitrator in view of the fact that he had already expressed his view as to the result of the proceedings by filing a counter-affidavit before this Court in O.P. No. 9267/82. It was alleged that the General Manager of Southern Railway had already expressed his view in the counter-affidavit that the enhancement of licence fee by communication dated 30-9-81 was valid, proper and justified. Contending that the 2nd respondent was clearly biased in favour of the Railway administration and against the petitioner he sought an order under S. 5 of the Arbitration Act, 1940 for revoking the authority of the appointed arbitrator. As mentioned earlier, there was also a prayer for appointment of an arbitrator by the Court to adjudicate the dispute and the petitioner suggested the name of a retired Judge of the High Court of Kerala. During the pendency of the suit the petitioner died and his legal representatives are impleaded as supplemental petitioners 2 to 9. They put forward the same contentions as in the original petition.