IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 WP(C).No. 28948 of 2010(O) -------------------------- AOP.281/2010 of DISTRICT COURT, THRISSUR .................... PETITIONERS: --------------- 1. AIMUTTY, S/O.KURUTHADATHIL VEETIL KUNJIKOYA, VANIYAMPARA DESOM, PEECHI VILLAGE, THRISSUR TALUK. 2. AISHA, W/O.KURUTHADATHIL VEETIL KUNJIKOYA, VANIYAMPARA DESOM, PEECHI VILLAGE, THRISSUR TALUK. 3. C.C.THOMAS, AGED 74 YEARS, S/O.CHERUVALLIL VEETIL CHERIYAN, PANANCHERY PANCHAYAT, KOMBAZHA DESOM, PEECHI VILLAGE, THRISSUR TALUK. 4. N.M.BHASKARAN, AGED 53 YEARS, S/O.NELLIYAMPADATH MANI, VANIYAMPARA DESOM, PANANCHERY VILLAGE, THRISSUR TALUK. 5. V.V.RAPPAI, AGED 50 YEARS, S/O.VARGHESE, VADAKKEN HOUSE, KOMBAZHA DESOM, PANANCHERY VILLAGE, THRISSUR TALUK. 6. GEORGEKUTTY, AGED 38 YEARS, S/O.KAVANAMATTATHIL VEETIL KUNJUKUNJU, VANIAMPARA, KOMBAZHA DESOM, PEECHI VILLAGE, THRISSUR TALUK. 7. KUNJIMON, AGED 47 YEARS, S/O.VANIYAMPARA PULLITTAYIL VEETIL KURIAKOSE, KOMBAZHA DESOM, PANANCHERY VILLAGE, THRISSUR TALUK. 8. T.C.ALEXANDER, AGED 58 YEARS, S/O.THARAMEL VEETIL CHACKO, KOMBAZHA DESOM, PEECHI VILLAGE, THRISSUR TALUK. 9. N.K.VIJAYAN, AGED 44 YEARS, S/O.NELLIYAMPADAM KRISHNAN, VANIYAMPARA DESOM, PEECHI VILLAGE, THRISSUR TALUK. 10. T.C.PAILY, AGED 69 YEARS, S/O.THEKKE PUTHANPURAYIL CHACKO, VANIYAMPARA DESOM, PEECHI VILLAGE, THRISSUR TALUK. 11. T.CHANDY, AGED 67 YEARS, S/O.THACHEMPERIL VEETIL THOMAS, VANIYAMPARA DESOM, PEECHI VILLAGE, THRISSUR TALUK. BY ADV. SRI.V.M.KRISHNAKUMAR SRI.ROBSON PAUL RESPONDENTS: --------------- 1. THE SPECIAL DEPUTY COLLECTOR, LAND ACQUISITION, (N.H.D.P.), THRISSUR-680 020. 2. STATE OF KERALA, REP.BY DISTRICT COLLECTOR, THRISSUR-680 003. GOVERNMENT PLEADER : ADV. SRI P R JAYAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.28948 of 2010 --------------------------------------- Dated this 27th day of September, 2010 JUDGMENT This writ petition is in challenge of a common order passed by learned District Judge, ThrissurA.O.P.Nos.281 of 2010 to 290 of 2010 filed by petitioners under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, “the Act”) seeking appointment of an Advocate Commissioner to inspect their respective properties notified by the respondents for acquisition for widening NH-47 and submit reports regarding its present condition and value of improvements including buildings thereon. Learned District Judge dismissed the applications on the ground that in view of Section 5 of the Act jurisdiction of the court is limited only to matters specified in the Act and that Section 9 of the Act does not take in the power to appoint Advocate Commissioner to collect evidence. Learned counsel for petitioners contend that the order passed by Learned District Judge is not correct and that Section 9 of the Act confers power on the principal civil court of original jurisdiction to entertain such application. It is also submitted by learned counsel that as per Section 3E of the National Highways Act, 1956 owner of the W.P.C.No.28948 of 2010 : 2 : property is to hand over possession of the same to the authorities concerned after demolishing the structures thereon and if that happens affected parties will not be able to prove nature of improvements and value of buildings before the Arbitral Tribunal. Learned counsel for petitioners has brought to my notice some orders passed by the Learned District Judge on prior occasions allowing a request under Section 9 of the Act to appoint Advocate Commissioner to inspect the property and submit report. Learned Government Pleader who took notice for respondents contends that Section 26(1)(a) of the Act enables the Arbitral Tribunal to appoint experts to report on specific issues determined by such tribunal and in the circumstance, there is no reason for appointing Advocate Commissioner under Section 9 of the Act. 2. Learned District Judge was of the view that Section 5 of the Act curtailed power of the court. As the learned Government Pleader points out under Sec.26(1)(a)) of the Act, Arbitral Tribunal itself has jurisdiction to appoint expert for deciding issues before such tribunal. Section 9 of the Act deals with interim measures, etc by the court. It is therefore clear that what is provided by Section 9 is not in relation to interim measures alone. Under subsection (c) of Sec.9, principal civil court of original jurisdiction has the power to pass appropriate W.P.C.No.28948 of 2010 : 3 : orders for 'the detention, preservation or inspection of any property or thing which is the subject matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence.' That power could be exercised during the arbitral proceedings as well. 3. Going by the said provision it is within the power of learned District Judge to pass appropriate orders for inspection of any property which is the subject matter of dispute in arbitration which may be necessary or expedient for the purpose of obtaining full information or evidence. It is true that Sec.9 does not specifically use the words relating to appointment of an Advocate Commissioner but when the provision empowers the court to pass orders for inspection of any property which is the subject matter of the dispute in arbitration which may be necessary or expedient for the purpose of obtaining full information or evidence it follows that it is open to the learned District Judge to get the property inspected to collect information or evidence through an officer of the court. I am therefore to understand Sec.5 as subject to the power conferred under Sec.9 of the Act. Hence learned District Judge was not correct W.P.C.No.28948 of 2010 : 4 : in holding that he has no authority to appoint an Advocate Commissioner. But I do not mean to say that in every case learned District Judge has to appoint an Advocate Commissioner. Whether an Advocate Commissioner has to be appointed or not, has to be decided by the learned District Judge on the facts and circumstances of the case. Here, petitioners have a contention that value of improvements and buildings have not been correctly ascertained by the Arbitral Tribunal. In such a situation, it would necessary to appoint an Advocate Commissioner to inspect the property and collect information and evidence. Having regard to these aspects I find no reason why applications preferred by petitioners should not be allowed. The order o on I.A.Nos.2745 of 2010 to 2754 of 2010 in f learned District Judge in the circumstances cannot be sustained. Resultantly this petition is allowed in the following lines: (i) Impugned common order on I.A.Nos.2745 of 2010 to 2754 of 2010 dated 18-08-2010 in A.O.P.Nos.281 of 2010 to 290 of 2010 of the court of learned District Judge, Thrissur is set aside and those applications will stand allowed. (ii) Learned District Judge shall appoint an Advocate Commissioner (or Commissioners) to be assisted by expert (experts) as the learned District Judge considers suitable, for assessment of value of improvements and structures in the property of petitioners. W.P.C.No.28948 of 2010 : 5 : (iii) The batta payable to the Commissioner(s) and expert(s) shall be fixed by the learned District Judge after hearing counsel for petitioners and learned Government Pleader. (iv) Respondents are directed not to alter the present condition of the properties involved until the Commissioner(s) and expert Commissioner(s) inspected the property. (v) Learned District Judge may issue appropriate direction to the Commissioner(s) and expert Commissioner(s) to expedite their proceeding so that the highway authorities are not put to difficulties on account of any delay in the matter. (THOMAS P JOSEPH, JUDGE) Sbna/-