IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.3.2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.8413 OF 2008 P. PERUMAL PETITIONER Vs 1 THE DEPUTY SALT COMMISSIONER OFFICE OF THE SALT COMMISSIONER GOVERNMENT OF INDIA SHASTRI BHAVAN, 26, HADDOWS ROAD CHENNAI-6 2 NTPC TAMIL NADU ENERGY COMPANY LTD., RASHMI TOWERS IV FLOOR 1 VILLAGE ROAD, NUNGAMBAKKAM, CHENNAI-34 3 HINDUSTAN PETROLEUM CORPORATION LTD. THALAMUTHU NATARAJAN BUILDINGS, NO. 8, GANDHI IRWIN ROAD EGMORE CHENNAI-8 RESPONDENTS Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus to direct the 1st Respondent to appoint an Arbitrator. For petitioner : Mr.K.V.Subramanian Senior Advocate for Mr.M.A.Abdulwahab For respondents : Mr.K.Ravindranath SCCG for R1 Mr.O.R.Santhanakrishnan for R3 O R D E R This writ petition has been filed praying for a writ of Mandamus to direct the first respondent to appoint an Arbitrator, to resolve the disputes arising in respect of the lease agreement, dated 3.8.1999, entered into between the petitioner and the first respondent. https://hcservices.ecourts.gov.in/hcservices/ 2. It has been stated that Clause 23 of the said agreement provides for appointment of an Arbitrator to decide the issues arising for consideration, in case of certain disputes and differences arising between the parties to the said agreement. Clause 23 of the agreement, dated 3.8.1999, reads as follows: "23. In the event of any question, dispute or difference arising in respect of or in connection with these presents (except as to any matters, the decision of which is specially provided for by these presents) the same shall be referred to the sole arbitration of the Salt Commissioner to the Government of India or of some other person appointed by him. It will be no objection that the Arbitrator is a Government Servant, that he has to deal with matters to which these presents relate or that in the course of his duties as Government Servant, he has expressed views, on all or any of the matters in dispute or difference. The award of the arbitrator shall be final and binding on the parties to this indenture. It is a term of this clause that no person other than the Salt Commissioner, Government of India or the person appointed by him shall act as arbitrator and that, if for any reason, that is not possible, the matter shall not be referred to arbitration at all. The arbitrator, may, with the consent of the parties, enlarge the time from time to time for making and publishing the award. Subject as aforesaid, the Arbitration Act, 1940 and the rules thereunder and any statutory modification thereof for the time being in force shall be deemed to apply to the arbitration proceedings under this Clause." 3. The learned counsel appearing for the petitioner had submitted that this Court can appoint an Arbitrator, as provided under clause 23 of the agreement, by invoking its extra ordinary jurisdiction, under Article 226 of the Constitution of India. 4. In the counter affidavit filed on behalf of the first respondent, the averments made in the affidavit filed in support of the writ petition had been denied. It has been stated that, as per Clause 23 of the lease agreement, the Salt Commissioner, Jaipur, is the competent authority to appoint an Arbitrator. Before any action could be initiated in the matter, the writ petitioner had received the compensation amount from the second respondent, as a final settlement, on 29.1.2008, without any pre-condition. Accordingly, the request for appointment of the Arbitrator had become infructuous. 5. In the rejoinder filed on behalf of the petitioner, it has been stated that the petitioner had accepted the compensation amount, subject to the arbitration proceedings. The respondents are estopped from contending that the petitioner is not entitled for the relief of referring the matter to be settled by arbitration. As the respondents are coming under the definition of ‘State’, they are duty bound to follow the constitutional mandate. Thus, the property of the petitioner cannot be deprived by the respondents, without following the due process of law. https://hcservices.ecourts.gov.in/hcservices/ 6. In view of the averments made on behalf of the petitioner, as well as the respondents and in view of the contentions raised by the learned counsels appearing on their behalf and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for this Court to grant the reliefs, as prayed for by the petitioner, in the present writ petition. 7. The contention of the learned counsel appearing for the petitioner is that this Court could appoint an Arbitrator, as per Clause 23 of the lease agreement, dated 3.8.1999, by invoking Section 8 of the Arbitration and Conciliation Act, 1996, cannot be countenanced. Provisions of Section 8 of the Arbitration and Conciliation Act, 1996, will not be applicable to the present case, as suggested by the learned counsels appearing for the respondents. The procedure for appointment of an Arbitrator is provided, under Section 11 of the Arbitration and Conciliation Act, 1996. As such, it is not appropriate for this Court to appoint an Arbitrator, invoking its extra-ordinary jurisdiction, under Article 226 of the Constitution of India. As the writ petition is devoid of merits, it is liable to be dismissed. Hence, it is dismissed. However, it goes without saying that it would be open to the petitioner to approach the first respondent, who is said to be the Competent Authority for appointing an Arbitrator, as per Clause 23 of the lease agreement, dated 3.8.1999. On such request being made by the petitioner, it is for the first respondent to consider and pass appropriate orders thereon, as expeditiously as possible. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. lan To: 1 THE DEPUTY SALT COMMISSIONER OFFICE OF THE SALT COMMISSIONER GOVERNMENT OF INDIA SHASTRI BHAVAN, 26, HADDOWS ROAD CHENNAI-6 2 THE NTPC TAMIL NADU ENERGY COMPANY LTD., RASHMI TOWERS IV FLOOR 1 VILLAGE ROAD, NUNGAMBAKKAM, CHENNAI-34 https://hcservices.ecourts.gov.in/hcservices/ 3 THE HINDUSTAN PETROLEUM CORPORATION LTD. THALAMUTHU NATARAJAN BUILDINGS, NO. 8, GANDHI IRWIN ROAD EGMORE CHENNAI-8 1 cc to Mr.M.A. Abdul Wahab, Advocate, SR. 13746 1 cc to M/s. K. Ravindranath, Advocate Sr. 13166 1 cc to Mr.R. Santhanakrishnan, Advocate, SR. 13263 Writ Petition No.8413 OF 2008 AKR (CO) kk 24/3 https://hcservices.ecourts.gov.in/hcservices/