C.R. No. 3865 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 3865 of 2008 Date of Decision: August 7, 2009 Greater Ludhiana Area Development Authority and another …..Petitioners Vs. Meenu Sood and another …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Harsh Aggarwal, Advocate for the petitioners. Mr.T.S. Dhindsa, Advocate for the respondents. -.- M.M.S. BEDI, J. Punjab Urban Planning and Development Authority which is now known as Greater Ludhiana Area Development Authority has preferred this petition under Article 227 of the Constitution of India, aggrieved by the order dated April 17, 2008, dismissing the application filed by the C.R. No. 3865 of 2008 [2] petitioners for referring the matter to the Arbitrator i.e. Chief Administrator, PUDA. A brief reference to the relevant facts appears to be necessary for adjudication of the present revision petition. Meenu Sood, plaintiff- respondent No.1 has filed a suit for declaration to the effect that Rajesh Kumar son of Baldev Raj (not impleaded as party) was lawful allottee to a residential plot No.5088 in Urban Estate Dugri Road, Phase II and III, Bye- pass Ludhiana and that plaintiff is the lawful allottee/ owner of the plot being a transferee of the said plot from Rajesh Kumar, the original allottee. She has also claimed a permanent injunction against the petitioner- defendants from cancelling the allotment of the said plot. Defendant No.1- petitioner has filed a written statement taking up the plea that suit is not maintainable and that the plaintiff is not entitled for the relief of declaration and injunction. The plea of the defendant- petitioner No.1, as per the written statement is as follows:- “1. That the plaintiff has no locus-standi to file the present suit. 2. That the suit is not maintainable. 3. That the plaintiff has not come to the court with clean hands rather the plaintiff is guilty of suppression of material facts from the Hon'ble Court, as such the plaintiff is not entitled to the discretionary relief of injunction from the Hon'ble Court. It is a settled law that a person who seeks C.R. No. 3865 of 2008 [3] equity must do equity. In the present case the plaintiff herself is guilty as such cannot seek any relief from the Hon'ble Court. The plaintiff has concealed material facts from the Hon'ble Court and tried to mislead the court by mis-stating the facts. The Punjab Urban Planning and Development Authority now GLADA floated a scheme for allotment of free hold residential plots at Urban Estate, Phase II/III, Dugri Road, Ludhiana upon the terms and conditions mentioned in the brochure itself. One Mr. Rajesh Kumar son of Shri Baldev Raj resident of 103, Bazar No.2, Ferozepur Cantt has applied for allotment of the residential plot of land measuring to 611.11 Sq. yards under the Physically Handicapped category under application No.3428. The eligibility criteria for the reserved category has been mentioned in the column of reservation at page No.4 of the brochure in which it has been specifically mentioned that physically handicapped person should be 40% or above disabled, so it was the pre-requisite that the applicant must be physically handicapped minimum 40% or above and further the applicant C.R. No. 3865 of 2008 [4] should be a bonafide permanent resident of Punjab. The said Rajesh Kumar alongwith his application form submitted a medical certificate bearing No.775 dated 6.8.1982 issued by Civil Surgeon, Ferozepur in which it has been mentioned that he is Residual Polio-Myelitis of the left lower limb hence handicapped but fit for clerical post. There is no finding of the percentage of the disablement of Rajesh Kumar in the aforesaid medical certificate. The said Rajesh Kumar has not appended any residence certificate alongwith the said application. There is a condition in the brochure itself at page No.5 under “How to apply” heading that the applications found incomplete or defective in any respect or which are not duly singed by the applicant are liable to be rejected. So the application of Rajesh Kumar was not tenable even at the first stage and was liable to be rejected out-rightly. Even as per the terms and conditions of the brochure only the eligible applicants should have been considered for draw. It has been specifically made clear in the terms of the brochure under the heading “Mode of Allotment” under clause “B” that the applicants C.R. No. 3865 of 2008 [5] will be allotted plots on he basis of documents submitted by them and found eligible as per the eligibility criteria, will be issued allotment letter and after the allotment, the candidates found not eligible, their applications shall be rejected. It has further been made clear in clause” that the applications of successful applicants shall be scrutinized “on the basis of information given in the application form and the declaration made therein. As such the scrutiny was to be done in the light of the documents and the information submitted alongwith the application form. Further under clause “f” it has been provided that any applicant whose affidavit/documents are not found in order shall not be considered for final allotment even if he/she found eligible after the scrutiny of the application form after the date of draw. So in the present case the only document required to be considered for eligible for Rajesh Kumar was the medical certificate bearing No. 775 dated 6.8.1982 submitted by him along with the application form. It is worth mentioning here that in the said medical certificate no percentage of the disablement has been mentioned. As along with the application C.R. No. 3865 of 2008 [6] only a photocopy of the medical certificate was appended, as such Rajesh Kumar was asked to submit an attested copy of that medical certificate and the domicile certificate. Then the said Rajesh Kumar has failed to comply with the same and then he was against called to supply the requisite documents and to submit attested copy of the medical certificate which he has already appended with the application and the attested copy of the domicile certificate. Then Rajesh Kumar instead of submitting the attested copy of already submitted medical certificate i.e. Medical certificate No. 755 dated 6.8.1992, has submitted an other medical certificate bearing No. 3064 dated 11.6.2007 issued by the office of Civil Surgeon, Ferozepur. He procured this medical certificate by misstating the facts from the issuing authority. He has intentionally made a wrong statement before the Civil Surgeon, Ferozepur that he has not got any other medical certificate in this regard prior to that but as a matter of fact he has already submitted an earlier medical certificate which bears No.755 dated 6.8.1982. Such medical certificate was though not to be considered by the defendants C.R. No. 3865 of 2008 [7] authority but the Estate Officer has wrongly considered that medical certificate and has issued the allotment letter bearing Memo. No.5075 dated 18.6.2007 for allotment of plot No.5088, Phase II measuring 611.11 sq. yards Urban Estate Dugri Road, Ludhiana, with the terms and conditions mentioned in the allotment letter itself. It has been specifically mentioned in the allotment letter that this allotment shall be governed by the provisions of Punjab Regional and Town Planning and Development Act, 1995, rules and regulations framed thereunder and amended from time to time. It has also been mentioned in clause 7 (vii) that breach of any condition of the allotment or of regulation or non-payment of any amount due together with penalty, the plot or the building, as the case may be, shall be liable to be resumed. As the allotment was made due to negligence and misinterpretation of the rules and regulations and the complaints in this regard were made by defendant No.3 to the concerned authorities. In the complaints made by defendant No.3 she has pointed out that Rajesh Kumar was not eligible for allotment of the plot under the handicapped C.R. No. 3865 of 2008 [8] category as such his name should not considered for the allotment. Upon the said complaints filed by defendant No.3 the Chief Administrator GLADA has ordered to probe into the matter and accordingly Shri R.K. Sharma, XEN CII was appointed as Enquiry Officer to look into the allotment made in the compliant and to submit report within 15 days. Shri R.K. Sharma, XEN CII, Ludhiana has conducted a through enquiry with regarding to the matter in question. In such enquiry all the pros and coins of the case have been taken into consideration and the statement of concerned official have also been recorded by the Enquiry Officer and ultimately Shri R.K. Sharma, XEN CII has submitted his detailed enquiry report and held that the allotment made to Shri Rajesh Kumar on the basis of the medical certificate submitted seven month later after the closure of the scheme was not as per law. Thereafter the matter was considered by the Additional Chief Administrator as well as the Chief Administrator GLADA who are competent authority in this regard, who opined that the said allotment is liable to be cancelled. Rajesh Kumar then purposely C.R. No. 3865 of 2008 [9] transferred the said plot in the name of his relative Meenu Sood the present plaintiff. As the original allotment in the name of Rajesh Kumar is not in accordance with the terms and conditions of the brochure as such the subsequent transfer in the name of the plaintiff also do not hold good. The plaintiff was well aware of this facts but has not intentionally disclosed the same to this Hon’ble Court, as such the plaintiff being guilty of concealment as suppression of the material facts from the Hon’ble Court is not entitled to any relief. 4. That this Hon’ble Court has no jurisdiction to try and entertain the present suit in view arbitration clause in the allotment letter itself. It has been specifically provided that all the disputes and or differences which may arise in any manner touching or concerning the allotment shall be referred to the sole arbitrator, Chief Administrator, PUDA or any person nominated or appointed by him in this behalf and the award of such Arbitrator shall be binding upon the parties and the arbitration shall be governed by the Arbitration and Conciliation Act, 1996 as amended from time C.R. No. 3865 of 2008 [10] to time. As such the jurisdiction of this Hon’ble Court is barred. Even otherwise the jurisdiction of the Hon’ble Court is also barred as the Administrative order of defendant department cannot be challenged or called into question in any civil suit and the jurisdiction of the Hon’ble Court relating to such matter is under the provisions of Punjab Regional and Town Planning and Development Act, 1995, rules and regulations framed thereunder and other enactments applicable in this regard.” An application was filed by the petitioner- defendant No.1 for referring the matter to Arbitrator pleading that since the plaintiff claims the allotment of plot of land which was allotted to Rajesh Kumar, any dispute or difference which arises concerning the allotment require to be referred to Arbitrator. Reliance has been placed on the following arbitration clause which exists in the allotment letter issued by petitioner No.1 in the name of Rajesh Kumar, dated June 18, 2007:- “8. Disputes: Subject to the provisions of the Act, all the disputes and/ or difference which may arise in any manner touching or concerning this allotment shall be referred to the Sole Arbitrator, Chief Administrator, Punjab C.R. No. 3865 of 2008 [11] Urban Planning and Development Authority (PUDA) or any person appointed/ nominated by him in this behalf. The award of such Arbitrator shall be final and binding on the parties. Arbitration shall be governed by the Arbitrator and Conciliation Act, 1996 as amended from time to time.” The application was contested by plaintiff, inter-alai on the ground that there is no agreement between petitioner No.1 and defendant No.3- Ashneet Kaur and she has no right to pray for referring the matter to Arbitrator. Even defendants No.2 and 3 have got no right for referring the matter to the Arbitrator as defendants No.1 and 2 had already submitted detailed written statement. An application for amendment of the written statement had also been filed reflecting the intention of the Estate Officer of GLADA, to submit to the jurisdiction of Civil Court for adjudication of the matter. The trial Court dismissed the application, inter-alia on the grounds that the defendants have already submitted to the jurisdiction of the Court and they had not pressed for arbitration clause. They have got intention to submit the jurisdiction of the Court. Counsel for the petitioners has contended that the defendants have not submitted to the jurisdiction of the Court and referred to preliminary objection No.4 in the written statement wherein a specific plea has been taken that the Court has got no jurisdiction as all the disputes and C.R. No. 3865 of 2008 [12] differences touching or concerning the allotment shall be referred to sole Arbitrator. Mr.T.S. Dhindsa, counsel for the respondents, has contended that no doubt, there is an arbitration agreement existing as per annexure P-1 between petitioner No.1 and allottee but said agreement does not bound the third party especially defendant No.3 and in order to effectively adjudicate upon the rights of the parties, the jurisdiction of civil Court cannot be deemed to have been ousted especially when the petitioners have surrendered to the jurisdiction of the Civil Court. I have heard counsel for the parties and carefully gone through the facts and circumstances of the case. The provisions of Sections 8 (1) and 8 (2) of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as ‘the Act’) are required to be satisfied by a party seeking for a remedy under the said Act. Section 8 of the Act stipulates the procedure for referring the parties to arbitration where there is an arbitration agreement. The provisions of Section 8 of the Act reads as follows:- “Section 8:- Power to refer parties to arbitration where there is an arbitration agreement- (1) A judicial authority before which an action is brought in a matter, which is the subject of an arbitration agreement, shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. C.R. No. 3865 of 2008 [13] (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made” A perusal of the abovesaid section indicates that following conditions are necessary before a Court is called upon to exercise its powers under Section 8 of the Act:- “i) there is an arbitration agreement; ii) a party to the agreement brings an action in the court against the other party; iii) subject matter of the action is the same as the subject matter of the arbitration agreement; and iv) the other party moves the court for referring the parties to arbitration when submitting his first statement on the substance of the dispute.” A perusal of the plaint filed by respondent No.1 indicates that though the plaintiff claims that the original allotment in favour of Rajesh Kumar against handicapped quota was valid but Rajesh Kumar has not been impleaded as a party. There is an arbitration agreement between Rajesh C.R. No. 3865 of 2008 [14] Kumar and petitioner. Claim of the petitioner is that Rajesh Kumar was not eligible at first stage and his application was not to be considered being incomplete and defective but due to over-sight his name was put in the draw of lots and he was considered as successful candidate. The allotment made to Rajesh Kumar was against the terms and conditions of the brochure and against the rules. Rajesh Kumar had failed to produce physical handicapped medical certificate. Rajesh Kumar was sponsored by Rakesh Kumar and he had got the plot transferred in the name of his wife who is plaintiff in the case. Defendant No.3 Ashneet Kaur has filed a complaint before the competent authority regarding the wrong allotment of plot in the name of Rajesh Kumar against rules and regulations. The plaintiff has claimed that the petitioners in connivance with defendant No.3 are bent upon to cancel the allotment. After carefully considering the averments in the plaint it is apparent that there is no agreement between the petitioner and the complainant- defendant No.3. It is thus debatable whether there can be said to be an arbitration agreement between the plaintiff and defendant No.3 or between defendant No.1-petitioner and defendant No.3- respondent.. So far as the second ingredient is concerned, the plaintiff has not placed on record any agreement indicating that there is an arbitration agreement between petitioner No.1 and the plaintiff, however, the factum of existence of arbitration agreement between petitioner and plaintiff has not been brought to my notice and impliedly it stands admitted that the action has been brought by the plaintiff and that she is a party to the arbitration agreement. It has to be determined on the basis of evidence produced on the record by C.R. No. 3865 of 2008 [15] the plaintiff whether the subject of the action is same as the subject matter of the arbitration agreement. No doubt, in its first statement petitioner No.1 has taken up a plea that the matter is referable to arbitration but the detailed written statement indicates that the rights of Rajesh Kumar are to be determined, who had been allotted residential plot against reserved category and was sent allotment letter C/o Rakesh Kumar who is none else but the husband of plaintiff- respondent No.1. In view of the above circumstances, the order passed by the trial Court dismissing the application for reference of the dispute by Arbitrator seems to be valid. Counsel for the petitioner has placed reliance on the judgment of Ramakrishna Theatre Ltd. Vs. M/s General Investments and Commercial Corpn. Ltd., AIR 2003 Karnataka 502, wherein it has been observed that under Section 8 of the Act, application could be presented alongwith the first statement and it is not necessary that application under Section 8 of the Act should be filed prior to the first statement. There is no dispute regarding the dictum of Karnataka High Court. A perusal of the judgment indicates that in the said case also the order of dismissing an application under Section 8 of the Act was upheld on the ground of waiver observing as follows:- “A right once waived by a party in respect of the course to be adopted for settlement of a dispute between himself and the other side is lost for ever and cannot be reclaimed or re-agitated later on, on being visited by the C.R. No. 3865 of 2008 [16] consequences that followed such waiver of the right to a specific course to which he was entitled to as a matter of right. This is so because when a party to an arbitration agreement gives up his right to refer the dispute to arbitration, a right comes to vest in the other party to take recourse to the other remedies that are open to him in law and when such a recourse is resorted to by the other party, the party who had waived his right to settle the dispute in an arbitration proceedings cannot be permitted to turn around and contend that he is entitled to the remedy of arbitration and the recourse to the suit by the other party under the common law is bad. The petitioner-defendant is estopped from taking up such a stand by his own conduct and the principle of law that no party to a legal proceeding can be permitted to approbate and reprobate in the matter of defending a cause has general application to all matters and the choice of the legal process to which one can stake claim in defending his legal rights is also governed by the said general principle.” Although it was held in the said case that an application under Section 8 of the Act can be presented alongwith the first statement but following the principle of waiver and estopple, the order passed by the Civil Judge dismissing the application under Section 8 of the Act was upheld. C.R. No. 3865 of 2008 [17] The said judgment is thus not of much assistance to the counsel for the petitioners. In view of above circumstances, the present revision petition is dismissed without prejudice to the rights of the defendant- petitioner regarding adjudication of the preliminary objection raised regarding the jurisdiction of the civil Court. It is clarified that anything said in this order will not affect the adjudication of issue regarding jurisdiction framed on the basis of Preliminary Objection No.4. August 7, 2009 (M.M.S.BEDI) sanjay JUDGE