MUNICIPAL COUNCIL, MANDI Vs. ABDUL HAMID

JUDGEMENT

(1.) THE petitioner had instituted proceedings against respondent No.1 before the Collector, Mandi in case No.4/99 in terms of Sections 4 and 5 of the Himachal Pradesh Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (1971 Act for short) for the eviction of respondent No.1 from the Vide an order passed on 29th premises in question. September, 2001, the Collector ordered the eviction of respondent No.1. Feeling aggrieved, respondent No.1 filed an appeal under Section 9 of the 1971 Act before the Commissioner, Mandi Division, Mandi who vide the impugned order dated 16th April, 2004 referred the parties to arbitration.

(2.) MR . Neeraj Gupta, learned counsel appearing for respondent No.1 has submitted that this respondent at the very threshold of the proceedings, at the very outset had submitted a written application dated 23rd April, 1999 to the Collector specifically requesting and praying therein to refer the parties to arbitration in view of the fact that Clause No.12 of the agreement between the parties provided for adjudication of disputes between the parties through arbitration. He has shown me a copy of this document which even though purports to be the "reply" of this respondent to the notice issued under Section 4 of 1971 Act yet it does clearly say in its concluding part that this is the "preliminary objection" contained in the said "reply" with respect to the adjudication of the disputes through arbitration and that this issue/request may be decided first before calling upon the respondent to file the reply on merits. Mr. Dogra does not dispute or controvert this factual assertion of Mr. Neeraj Gupta.

(3.) THE legal prescription contained in Section 8 of 1996 Act is very clear. Also, it is mandatory and binding. It clearly lays down that if a written request is made by a party in proceedings before a judicial authority, the judicial authority has no discretion but to refer the parties to arbitration, subject to the observance of stipulations contained in Section 8 itself. In the present case, all the stipulations contained in Section 8 having been complied with, and the request in writing having been made by respondent No.1, it was the statutory obligation on the part of the Collector to have immediately taken himself off from the task of conducting the proceedings under 1971 Act and to have referred the parties to arbitration under 1996 Act. By not doing so and by continuing with the proceedings under 1971 Act which ultimately culminated in the passing of the eviction order, the Collector committed an illegality. The eviction order therefore, stood vitiated as being illegal on this ground alone.