IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 AR.No. 12 of 2008() ------------------- APPLICANT -------------------------- T.P.JAGADEESAN, S/O.A.NARAYANAN, NEAR PALA, ANNUR P.O., KANNUR DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: OPPOSITE PARTIES ----------------------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF DEFENCE, NEW DELHI. 2. THE FLAG OFFICER COMMANDING IN CHIEF HEADQUARTERS, SOUTHERN NAVAL COMMAND KOCHI 682 004. BY ADV. SRI.P.J.PHILIP -(SC) THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- A.R. No. 12 OF 2008 ----------------------------------------------- Dated this the 26th day of May, 2008 O R D E R This is an application under section 11 of the Arbitration and Conciliation Act, 1996 seeking appointment of an independent and impartial arbitrator for resolution of the disputes and difference which have arisen between the applicant and the opposite parties viz. Union of India represented by Secretary to Government Department of Defence, New Delhi and the Flag Officer Commanding in Chief, Southern Naval Command over and in respect of the agreement entered into between the applicant and the 2nd respondent for taking usufructs from Block No.III of Naval Academy Area, Ramanthali for a period of three years from 1-7-2001 to 30-6-2004. Applicant alleges that after entering into the agreement a large number of high yielding coconut trees were cut and removed from the area allotted to the applicant for the purpose of construction of canal and from those areas the applicant was unable to take any usufructs. When this aspect of the matter was brought to the notice of the second respondent through several representations there was no response. Ultimately a lawyer notice was issued to the 2nd respondent to which a reply was sent claiming that the Government has got right to enter into any of the areas and carry out any work that may be necessary without payment of any compensation. According to the petitioner he is -2- entitled for compensation since damages have been sustained by him due to the acts of the respondents. Noticing that nothing has been forthcoming the applicant on 18-9-2007 sent a letter requesting for appointment of an arbitrator and Annexure VII is copy of that letter. There was no favourable response to Annexure VII and hence the arbitration request. No counter affidavit has been filed on behalf of the respondents. 2. I have heard the submissions of Sri.Kaleeswaram Raj, learned counsel for the applicant and those of Sri.S.Krishnamoorthy, learned standing counsel for the Union Government. Having considered the rival submissions of counsel on either side I am not prepared to say that the contention of the respondents that the applicant's claim is highly belated and barred by principles of waiver and estoppel is totally without merit. In my opinion whether the claims of the applicant are barred due to any legal principle itself can be made an issue for arbitration and settled by the arbitrator. I am not impressed by the contention that the arbitration request is not maintainable because in the demand for arbitration the applicant had not stipulated the period of thirty days for appointment of arbitrator by the second respondent. All the legal contentions and the contentions on merits raised by respondents can be raised by them before the arbitrator in which case the contentions will be enquired into and settled by the arbitrator. Both sides agree that a retired District Judge can be appointed as Arbitrator. Both sides agree that a -3- retired District Judge can be appointed as arbitrator. There is no objection to the appointment of Sri. P.Gopakumaran Nair, Advocate, Retired District Judge, Kamalalayam, 5th Lane, Opp. Kaloor – Elamkulam Road, Ernakulam as the arbitrator. Hence allowing the arbitration request, Sri.P.Gopakurmaran Nair, Retired District Judge is appointed as arbitrator for resolving all the disputes between the parties. The arbitrator will invite pleadings and the respondents are permitted to raise all the contentions they have raised before this court regarding the maintainability of the claim for arbitration before the arbitrator. Arbitrator will enquire into all the contentions and address them while passing the award. The arbitrator will enter on reference at his earliest and will pass award in accordance with law as expeditiously as possible. (PIUS C.KURIAKOSE, JUDGE) ksv/-