IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 RP.No. 829 of 2008() -------------------- AGAINST ORDER IN AR.11/2008 .................... REVIEW PETITIONERS: RESPONDENTS: ------------------------------------------ 1. UNION OF INDIA, REP. BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF DEFENCE, NEW DELHI. 2. FLAG OFFICER, COMMANDING-IN-CHIEF, HEADQUARTERS, SOUTHERN NAVAL COMMAND, KOCHI-682 004. BY ADV. SRI.S.KRISHNAMOORTHY, CGC RESPONDENT: APPLICANT ----------------------------- M.T. SUKUMARAN, S/O.LATE N. KORAN, SNEHA NIVAS, RAMANTHALI.P.O, KANNUR DISTRICT. BY ADV.MR.KALEESWARAM RAJ THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 05/08/2008 ALONG WITH A.R.11/08, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - R.P.No.829 of 2008 & A.R.No.11 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 5th August, 2008 ORDER The petitioners seek review of my order dated 26.5.2008 on various grounds. Though the grounds do not appeal much this court's narrow jurisdiction for review, in deference to the persuasion of Mr.S.Krishnamoorthy, I have heard him again. I have heard Mr.Kaleeswaram Raj also. 2. A.R.No.11 of 2008 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 over and in respect of the agreement entered into between the applicant and the second respondent for taking usufructs from Block No.II of Naval Academy Project, Ezhimala for a period of three years from 1.6.2001 to 30.6.2004. It is alleged by the applicant 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 construction purpose and from those areas the applicant was unable to take any usufructs. According to the applicant, though this aspect of the matter was brought to the notice of the second RP 829/08 & AR 11/08 - 2 - respondent, there was no favourable response. Ultimately, a letter was issued to the second respondent to which a reply was sent contending that the Government has got right to enter into any of the areas and carry out any work which may be necessary without payment of any compensation. The petitioner claims that he is entitled for compensation since damages have been sustained by him due to the acts of the respondents. Annexure V letter was sent by the petitioner requesting for appointment of an arbitrator in terms of the agreement. Since there was no response to Annexure V, the petitioner has become obliged to approach this court. 3. A detailed counter affidavit has been filed on behalf of the second respondent by the Chief Staff Officer (P & A), Office of the Flag Officer in the Southern Naval Command, Kochi. It is contended therein that no dispute coming within the scope of Annexure 1 has arisen between the parties and therefore this request is not maintainable. Through the counter affidavit, all the averments in the A.R. raising the claims for compensation are denied. It is also contended that due to dely and the principles of limitation, the request has become not maintainable. It is also contended that at any rate in terms of clause 27, appointment is to be made by the Flag RP 829/08 & AR 11/08 - 3 - Officer Commanding-in-Chief, Southern Naval Command, Kochi. 4. Having considered the rival submissions of counsel on either sides, 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 however 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 if this court becomes inclined to allow the A.R. There is no objection to the appointment of Sri.A.K.Joseph, Retired District Judge, Aryappallil House, Pakalomattom P.O., (via) Kuravilangad, Kottayam District as arbitrator. Hence allowing the A.R. Sri.A.K.Joseph, Retired District Judge is appointed as arbitrator for resolving all the disputes between RP 829/08 & AR 11/08 - 4 - 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. The Arbitrator will enquire into all the contentions and address them while passing the award. The arbitrator will enter on reference at his earliest and pass the award in accordance with law as expeditiously as possible. The R.P. and the A.R. are allowed as above. srd PIUS C.KURIAKOSE, JUDGE