IN THE HIGH COURT OF KERALA AT ERNAKULAM
AR.No. 12 of 2008()
1. T.P.JAGADEESAN, S/O.A.NARAYANAN,
... Petitioner
Vs
1. UNION OF INDIA, REPRESENTED BY
... Respondent
2. THE FLAG OFFICER COMMANDING IN CHIEF
For Petitioner :SRI.KALEESWARAM RAJ
For Respondent :SRI.P.J.PHILIP -(SC)
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :26/05/2008
O R D E R
PIUS C. KURIAKOSE, J.
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A.R. No. 12 OF 2008
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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
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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
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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/-