{"id":248203,"date":"2011-03-10T00:00:00","date_gmt":"2011-03-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bharat-tewari-vs-union-of-india-on-10-march-2011"},"modified":"2017-01-25T03:25:48","modified_gmt":"2017-01-24T21:55:48","slug":"bharat-tewari-vs-union-of-india-on-10-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bharat-tewari-vs-union-of-india-on-10-march-2011","title":{"rendered":"Bharat Tewari vs Union Of India on 10 March, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Bharat Tewari vs Union Of India on 10 March, 2011<\/div>\n
Author: Mool Chand Garg<\/div>\n
*      IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n+      FAO 432\/2007\n\n                                                 Reserved on :15.02.2011\n                                                  Decided on :10.03.2011\n\n       BHARAT TEWARI                                     ..... Appellant\n                         Through:     Mr. B.L. Chawla, Adv.\n\n                   versus\n\n       UNION OF INDIA                                    .... Respondent<\/pre>\n
                         Through:     Mr.S.R. Narayan, Adv.\n\n       CORAM:\n       HON'BLE MR. JUSTICE MOOL CHAND GARG\n\n<\/pre>\n
1.     Whether the Reporters of local papers may be allowed\n       to see the judgment?                                            Yes\n2.     To be referred to Reporter or not?                              Yes\n3.     Whether the judgment should be reported in the Digest?          Yes\n\n:      MOOL CHAND GARG,J\n\n<\/pre>\n
1.     This appeal arises out of an order dated 27.08.2007 passed by
\nthe learned ADJ whereby the Learned Additional District judge after
\nhearing the parties and finding no merit in the Objection Petition filed
\nby the appellant dismissed the objection petition and upheld the award
\npassed by the Arbitrator dated 02.08.2006. The appellant, thus being
\naggrieved by the order of the Learned Additional District judge has
\nimpugned it before us. Hence the present appeal.\n<\/p>\n
2.     Briefly stated the facts of the case are, Appellant was allotted a
\nparking lot at (PRS) Sarojini Nagar Railway Station, New Delhi for a
\nperiod of two years w.e.f. 1.5.2003 on a payment of a lump sum amount
\nof `14,80,005\/-. An agreement to that effect was executed between the
\nparties on 6.5.2003. The parking lot allotted to the appellant consisted
\nof ground accommodation measuring 770 square meters at the existing
\nsite at the station. The appellant however alleged that he had deposited
\nfour months advance license fee besides a sum of `1,48,000\/-towards
\nsecurity with Northern Railway at the station as per terms and
\nconditions of the agreement and therefore now no license fee was due
\nFAO 432\/2007                                                  Page 1 of 13<\/span>
\n from him.\n<\/p>\n
3.     The appellants also alleged that after the allotment of parking
\nsite, he could not utilize the entire parking area, as a wall was
\nconstructed in the parking lot (near new building of reservation) by
\nRailway Administration. Further on the closure of the gate, the vehicles
\nwere restricted from parking inside the parking lot, thus depriving
\nappellant of almost half of the parking lot which resulted in loss of
\ncollection of parking charges to him. Appellant was also aggrieved by
\nthe fact that he was left with only an area of 330 sq. meters which he
\ncould use from 8.3.2004 till the end of the contractual period and hence
\nwas deprived of the remaining area of 440 sq. meters.\n<\/p>\n
4.     The appellant thus claimed proportionate refund of monthly
\nlicense fee\/contractual charges of the parking lot which was paid to the
\nRailway        Administration.   The   appellant   further   claimed      that
\nproportionate amount payable by the respondent towards the parking
\nlot came to `26,428.71 per month against the total monthly sum of
\n`61,667\/- and appellant was entitled to refund of monthly sum of
\n`35,239.29 and the total amount refundable to him by Railway
\nAdministration came to `4,43,811.77 . The appellant also claimed that
\nhe suffered a loss of `2000\/- per day in collection of parking charges
\nfrom 08.03.2004 onwards and till completion of contractual period in
\nApril, 2005 on account of construction of wall and closure of gate by the
\nRailway Administration, which came to `60,000\/- per month and total
\namount for the entire period came to `7,66,000\/- hence appellant
\nclaimed to be entitled to the said amount from the Railway
\nAdministration.\n<\/p>\n
5.     The appellant thereafter brought these facts to the notice of the
\nRailway Administration and requested for resolution of the controversy.
\nThe appellant, in this regard, also made a written request for removal of
\nencroachment and obstruction caused and for making available the
\nentire parking lot to him during the period of the contract, but
\naccording to appellant even the written request met with no success
\nand appellant continued to suffer financial loss. Thereafter, on account
\nof the failure on part of Railway Administration to resolve controversy or
\nto have dispute settled in accordance with terms of the agreement dated
\nFAO 432\/2007                                                    Page 2 of 13<\/span>
\n 06.05.2003, the matter was taken for adjudication in a court and
\nsubsequently Railway Administration expressed its willingness to refer
\nthe dispute to the Arbitration of Chief Commercial Manager, Northern
\nRailway and accordingly petition was filed by the appellant before the
\ncourt for appointment of Arbitrator which was disposed of vide order
\ndated 17.08.2005.\n<\/p>\n
6.     Before the Trial Court, the appellant had submitted that he had
\nfiled his claim statement dated 3.3.2006 before the Arbitrator which
\nwas replied by the respondent\/Northern Railway and then rejoinder
\ndated 13.4.2006 was filed by the appellant before the Arbitrator and
\nthereafter no date of hearing was fixed. According to appellant, in the
\ncase, neither any issue was framed in the arbitral proceedings nor the
\nappellant was given an opportunity to adduce evidence in support of his
\nclaim. Further the appellant was also not given an opportunity to
\naddress arguments in the case and as a result of which the appellant
\nfiled an application dated 31.7.2006 thereby requesting Ld. Arbitral
\nTribunal for grant of opportunity to adduce evidence in support of his
\nclaim and address oral argument to substantiate the same but the Ld.
\nArbitrator did not consider the application dated 31.07.2006 and
\nthereafter passed the impugned Award dated 2.8.2006 and as such it
\nwas contended by the appellant that the impugned Award was liable to
\nbe set aside on the ground that the appellant was not given adequate
\nand fair opportunity of being heard in the matter and further that Ld.
\nArbitral Tribunal acted in haste as after receiving application dated
\n31.7.2006, request of the appellant was ignored and Award was passed
\non 2.8.2006.\n<\/p>\n
7.     It was further contended by the appellant that section 19<\/a> of the
\nArbitration    and   Conciliation   Act<\/a>   provide   for   determination        of
\nrules\/procedure and liberty is given to the parties to agree on the
\nprocedure to be followed by the arbitral tribunal in conducting the
\nproceedings and also entitle the tribunal to conduct the proceedings in
\nthe manner it considers appropriate, if the parties fail to agree to the
\nsame but in the present case no such opportunity was given to the
\nparties by the learned Arbitral Tribunal and the tribunal proceeded to
\nmake the award of his own after filing of rejoinder dated 13.4.2006 .\n<\/p>\n
FAO 432\/2007                                                    Page 3 of 13<\/span><\/p>\n
 8.     It was further contended by the appellant that section 24<\/a> of the
\nact further provides that unless otherwise agreed by the parties the
\narbitral tribunal shall decide whether to hold oral hearings for
\npresentation of evidence or oral arguments or whether the proceedings
\nshall be conducted on the basis of documents and other materials,
\nprovided that arbitral tribunal shall hold oral hearings on a request by
\nany party but in this case the Arbitrator had not given any opportunity
\nto the appellant and had overlooked his application dated 31.07.2006
\nand had passed the impugned order.\n<\/p>\n
9.     On the other hand respondent, opposing the maintainability of
\nthe objection petition submitted that the objection petition was not
\nmaintainable and was beyond the scope of provisions of section 34<\/a> of
\nthe Arbitration and Conciliation Act<\/a> 1996 and further that the section
\n34<\/a> (2) of the Act stipulates the grounds on which an Arbitral Award can
\nbe set aside by the court. It was further submitted that the objections
\nwere not maintainable as the objector was seeking reappraisal of the
\nevidence and the material which the parties had produced before Ld.
\nArbitrator and further that such reappraisal of the evidence and the
\nmaterial by the court was not permissible in law. It was also contended
\nby the respondent that Arbitrator was the judge of facts and the law
\nand further that the court was not competent to sit as a court of appeal
\nto scrutinize the evidence produced before learned Arbitrator and to
\ncome to its own conclusion on facts and the law.\n<\/p>\n
10.    Respondent further submitted that during inspection of area on
\n31.1.2005, it was found that the appellant had encroached upon
\nadditional area and the actual area available with the appellant was in
\ntwo parts i.e. part A comprising of 312.09 sq. meters and part B of 540
\nsq. meters, however, the total area occupied by the appellant was
\n852.09 sq. meters and the same was measured in presence of the
\nappellant and the site plan was duly signed by the him. Thus it was
\naccordingly submitted by the respondent that total area of 852.09 Sq.
\nmeters which was being used by the appellant was against allotted area
\nof 770 Sq. meters. Respondent also submitted that the appellant was
\ngiven adequate and fair opportunity of being heard and also that due
\nopportunity was given due opportunity to adduce evidence and address
\nFAO 432\/2007                                                Page 4 of 13<\/span>
\n arguments.\n<\/p>\n
11.    After hearing the parties, the Ld. ADJ had observed here as
\nunder:-\n<\/p>\n
       24. Learned Arbitrator at page 2 of the Award has categorically
\n       mentioned as under :-”AND WHEREAS both the parties have
\n       given their undertaking in writing that they have been
\n       given\/afforded full opportunity to represent their case and have
\n       nothing more to produce\/say in the matter and have further
\n       requested to make and publish the Award”<\/p>\n<\/blockquote>\n
       25. Ld. Arbitrator has further observed as follows :-\n<\/p><\/blockquote>\n
       ”AFTER having heard and fully considered all arguments and
\n       evidence of the parties concerning the said disputes and
\n       differences and having gone through all the materials, papers and
\n       documents, and having considered all the matter submitted to me
\n       in connection with the aforesaid disputes and differences”<\/p>\n<\/blockquote>\n
       26. After considering the material on record and relying upon the
\n       authorities as relied upon by Ld counsel for respondent no. 1 I
\n       am of opinion that this court cannot act as a court of appeal and
\n       to reappraise the facts and evidence adduced during the arbitral
\n       proceedings and it is to be seen whether adequate and fair
\n       opportunity of being heard has been given to both the parties by
\n       Arbitrator.\n<\/p><\/blockquote>\n
       27. The impugned Award shows that only two hearings were held
\n       by Ld. Arbitrator before passing impugned Award. First hearing
\n       was held on 24.3.2006 and on the said date the representative of
\n       Northern Railway filed reply and copy of same was supplied to the
\n       claimant and the claimant asked for 15 days to go through the
\n       reply of the Northern Railway and accordingly second hearing was
\n       held on 13.4.2006 and on which date counter was filed by the
\n       claimant and copy of same was supplied to the representative of
\n       the railway and on that day a copy of joint survey report was also
\n       supplied to claimant on his demand.\n<\/p><\/blockquote>\n
       28. Furthermore the proceedings dated 24.3.2006 and 13.4.2006
\n       were also signed by claimant Sh Bharat Tewari and the
\n       proceedings dated 13.4.2006 clearly shows that claimant has
\n       raised no other point to add to what has already been given by
\n       him and whereas on the said date counsel for railways had also
\n       indicated that he has no other fact to be placed before Arbitrator.\n<\/p><\/blockquote>\n
       29. In the proceedings dated 13.4.2006 it is also mentioned by
\n       Arbitrator that a copy of joint survey report dated 31.1.2005 as
\n       well as plan was prepared in the presence of the petitioner
\n       showing that the petitioner is using parking site at two places i.e.
\n       site A and Site B having measurement mentioned earlier. 30.
\n       When the petitioner has himself appeared before the Arbitrator
\nFAO 432\/2007                                                   Page 5 of 13<\/span>
\n        and has indicated that no other point is to be added and no other
\n       document is to be submitted and as such I find no force in the
\n       arguments raised by Ld. counsel for petitioner that adequate and
\n       fair opportunity of being heard was not given by Arbitrator and I
\n       am of opinion that the petitioner is only interested in delaying the
\n       matter and is raising a futile controversy.\n<\/p><\/blockquote>\n
       31. Moreover, I also find no weight in the contention of counsel
\n       for petitioner that no hearing was given by the Arbitrator on the
\n       application dated 31.7.2006 sent to the Arbitrator by the counsel
\n       for objector by regd. AD post. In this regard a perusal of the
\n       arbitration proceedings held by Arbitrator clearly shows that
\n       Arbitrator has been vigilant in protecting the envelope and the
\n       same shows that said application was received by the Arbitrator
\n       on 2.8.2006 and that the Award is also passed on the same date.
\n       Firstly the said application is not signed by the petitioner and
\n       furthermore on none of the date fixed by the Arbitrator for
\n       hearing, Sh. B. L. Chawla Adv. had appeared before the
\n       Arbitrator. I am accordingly of the opinion that Arbitrator has
\n       rightly decided not to give any weight to the representation dated
\n       31.7.2006.\n<\/p><\/blockquote>\n
12.    Thus aggrieved by the impugned order passed by the Learned
\nAdditional District Judge, appellant has now appealed before us.\n<\/p>\n
13.    In his written submission, the learned counsel for the appellant
\nhas primarily raised the plea that the application dated 31.07.2006 sent
\nby them seeking an opportunity to adduce evidence and address
\narguments in the matter upon receipt of which the learned Arbitrator
\npassed the award dated 02.08.2006 was not correct.            It has been
\nsubmitted that the provisions contained under Section 19<\/a> and 24<\/a> of the
\nArbitration and Conciliation Act<\/a>, 1996 were ignored by the Arbitrator
\ninasmuch as fair and reasonable opportunity to contest the arbitral
\nproceedings were denied to the appellant.\n<\/p>\n
14.    It is also the case of the appellant that the Arbitrator has also
\ngone beyond the scope of submissions to arbitration and has failed to
\nappreciate the controversy raised by the appellant who was only for
\nrefund of the license fee for the area which was reduced out of the area
\nallotted to him to the extent of 440 sq. mts. for the period 08.03.2004 to
\n30.04.2005. According to the appellant, the Arbitrator went wrong in
\nobserving that no loss was caused to the contractor in terms of the
\nrecovery of parking fees from the customer whereas the claim was for
\nthe refund of proportionate refund of the license fee. The appellant also
\nFAO 432\/2007                                                   Page 6 of 13<\/span>
\n submits that even the learned ADJ was wrong in holding that the
\napplication dated 31.07.2006 was not signed by the appellant despite
\nthe said application having been signed by the counsel for the
\nappellant.\n<\/p>\n
15.    On the other hand it has been argued on behalf of the respondent
\nthat in this matter, the Arbitrator gave full opportunity to the parties. It
\nis only after the appellant took a stand that he is not to address any
\nother point, the award was passed. No doubt, an application was filed
\non 31.07.2006 but the said application was basically an afterthought
\nand it was not even signed by the appellant. It is, thus, submitted that
\nthere is no error in the decision given by the Arbitrator. There is no
\ninfirmity in the approach adopted by the Arbitrator or the decision given
\nby the learned ADJ. It is, therefore, submitted that the appeal filed by
\nthe appellant is liable to be dismissed.\n<\/p>\n
16.    I have heard the parties and have also perused the impugned
\norder as well as the award passed by the Arbitrator.\n<\/p>\n
17.    Though it is correct that the Arbitrator had given only two
\nhearings to the parties i.e 24.03.2006 and 13.04.2006 but the
\nproceedings of in these two hearings goes to show that the Arbitrator
\nhad given sufficient opportunity to both the parties to present their
\ncase. In this regard, I would like to quote the order sheet dated
\n13.04.2006 passed by the Arbitrator wherein the appellant had
\nappeared before the Arbitrator and had accepted that no other point or
\ndocument was to be submitted. Hence the objection taken by the
\nappellant that fair opportunity was not given to him to present his case
\nis not correct.\n<\/p>\n
18.    The order dated 13.04.2006 is quoted here under:-\n<\/p>\n
       Arbitration meeting held on 13.4.2006 at 15.00 hrs., was
\n       attended by:\n<\/p><\/blockquote>\n
       1. Shri Bharat Tiwari -        Contractor\n       2. Shri K.D.Sharma -           Railway Advocate\n       3. Shri Arun Shankar -         Assistant Commercial\n                                      Manager, Delhi Division,\n                                      New Delhi\n\n       4. Shri R.C.Dhiman-       Chief Office\n                                 Superintendent\/Commercial, Delhi\nFAO 432\/2007                                                    Page 7 of 13<\/span>\n                                Division, New Delhi\n\n<\/pre>\n
       Rejoinder was filed by Shri Bharat Tiwari, and a copy of the
\n       same was handed over to the representative of Commercial
\n       Department of Delhi Division.\n<\/p><\/blockquote>\n
       In the above-mentioned rejoinder given by Shri Bharat
\n       Tiwari, it has been indicated that the Joint Survey Report
\n       was not handed over along with the rejoinder filed earlier by
\n       Railways which was given along with the additional points
\n       on 22.04.2006. A copy of the same was handed over to Shri
\n       Bharat Tiwari. Photocopy of the same was also placed before
\n       the Arbitrator<\/p>\n
       Proceedings:-\n<\/p><\/blockquote>\n
       Counsel for the Railways pointed out that in the Plaint filed
\n       by Shri Bharat Tiwari there was no mention that out of the
\n       area allotted as part of the contract, some portion was raised
\n       and was like a footpath, which could not be used.\n<\/p><\/blockquote>\n
       Shri Bharat Tiwari agreed that the issue regarding
\n       availability of footpath was not mentioned in the plaint, but
\n       it was mentioned verbally before the Court of Addl. District
\n       Judge, Delhi Tis Hazari.\n<\/p><\/blockquote>\n
       Shri Bharat Tiwari indicated that he has no further points to
\n       add to what has already been given by him.\n<\/p><\/blockquote>\n
       Counsel for the Railways indicated that he has no other facts
\n       to be placed before the Arbitrator”\n<\/p><\/blockquote>\n
19.    Further the objection taken regarding the application dated
\n31.07.2006 that the Arbitrator had not heard the application, it is
\nobserved that the Arbitrator was aware of the application as he had
\nbeen vigilant in protecting the same, however the perusal of the
\napplication shows that the appellant had not put his signatures on the
\napplication which raises doubt on the veracity of it, further in none of
\nthe hearing before the Arbitrator the Advocate B.L Chawla appeared,
\nwhich shows that the appellant and his advocate himself were not
\nserious with the application. Hence the Arbitrator was right in not
\ngiving weightage to the application.\n<\/p>\n
20.    It may be also observed that the Arbitrator while delivering the
\naward has considered the impact of reduction of the area as well as
\nuser of excess area by the appellant which goes to show that the total
\nFAO 432\/2007                                                  Page 8 of 13<\/span>
\n area which the appellant had been using was more than the area for
\nwhich he was allowed to do parking business.          In this regard, the
\nobservation made by the Arbitrator on the first issue are relevant. The
\nsame are reproduced hereunder for the sake of reference:-\n<\/p>\n
       “a)     1st Issue:\n<\/p>\n
       “Whether applicant has been deprived of an area of 440 sq.
\n       Mts. Since 8.3.2004 as claimed by him, &
\n       Whether railway’s contention is to be accepted that the
\n       applicant has occupied an area of 852.09 Sq. Mts., i.e. 82.09
\n       Sq. Mts., extra as against 770 Sq. mts., given as per the
\n       contract”?\n<\/p>\n
       It is not disputed that 770 sq. mts., of area was to be given
\n       to the plaintiff as per the contract. This is also mentioned in
\n       the agreement executed between the plaintiff and the
\n       Railways. The applicant has, however claimed that the area
\n       was reduced on 8.3.2004 to only 330 sq. mts., i.e. reduced
\n       by 440 sq. mts. In support of this contention, the claimant
\n       has given no proof of measurement or joint signatures with
\n       the railway authorities or any letter from the railways to
\n       substantiate the claim that the area of 440 sq. mts., was
\n       taken away by the railways on 8.3.2004.             They have,
\n       however, represented again and again on this issue.\n<\/p>\n
       The railways, on the other hand, have claimed that the
\n       applicant occupied an area of 852.09 sq. mts., w.e.f.
\n       1.5.2003 against 770 sq. mts., of area allotted for the
\n       parking contract. It has been mentioned by the railways
\n       that during measurement of the area on 31.1.2005 on the
\n       request of party, it was found that prior to 8.3.2004, the
\n       actual area available with the applicant was in two separate
\n       parts, which totaled to 852.09 sq. mts. The contention that
\n       this area was measured in presence of the applicant and Site
\n       Plan duly signed by him on 31.1.2005 cannot be made
\n       relevant for the period prior to 8.3.2004. It may be true that
\n       the area was made available in two parts where the parking
\n       contractor was operating from. What is relevant is whether
\n       the contractor was initially using a total area of 852.09 sq.
\n       mts., but this has to be proved by records. As per the joint
\n       survey done on 31.1.2005, it is brought out that the area
\n       initially used by the parking Contractor (Claimant) was
\n       852.09 sq. mts. It is difficult to accept and believe that the
\n       parties could know with certainty as to what was the status
\n       of actual occupation of the area during the period 8 months
\n       earlier. If the Parking Contractor (Claimant) ahs encroached
\n       on an additional area, the Railways (respondents) should
\n       have given notices for vacation of the unauthorized land.
\n       None of this had been brought out on record in the
\nFAO 432\/2007                                                   Page 9 of 13<\/span>
\n        Arbitration proceedings by the Railways. The Railway had
\n       also not raised this issue before the learned ADJ. I find it
\n       difficult to accept this contention of railways, which in any
\n       case, has been disputed by the applicant in his counter to
\n       the rejoinder.”\n<\/p>\n
21.    Regarding the actual loss suffered by the appellant on account of
\nreduction of parking area, the Arbitrator has further observed as under:\n<\/p>\n
       “In the claim made by the petitioner, the only reason
\n       mentioned for reduction in the contractual amount is by
\n       linking the value of contract with the land area allotted. The
\n       claimant has accordingly claimed that once a specific area
\n       has been reduced, the contractual amount should be
\n       proportionately revised downwards.\n<\/p><\/blockquote>\n
       The railways have countered this argument by having a
\n       survey conducted of the cycles, scooters, cars parked during
\n       3-day timings i.e. 10:00 hours, 14:00 hours and 18:00 hours
\n       (These are especially peak timings for parking) for a period of
\n       7 days i.e. from 4.2.2006 to 10.2.2006. The period of survey
\n       is beyond the contractual period and, therefore, the initial
\n       reaction is to teat as irrelevant. A close look of the survey
\n       report shows that the representative of contractor has also
\n       signed the survey report and hence it is proved that initial
\n       contract was valid only up to 30.04.05; this was, however,
\n       extended much beyond this period as a new contact could
\n       not be finalized.       The existing contractor, therefore,
\n       participated in the survey. The survey report brings out that
\n       the space available caters to parking of 125 scooters. That
\n       is, if one car is equated to 3 scooters for the purpose of
\n       working out the requirement of total area, the total area
\n       available after the reduction in space was for 125 scooter
\n       parking.\n<\/p><\/blockquote>\n
       As per the number of cycles, scooters and cars parked,
\n       (taking one car requiring an area equivalent to parking of
\n       three scooters), the space available is much more as
\n       compared to the number of cycles. Scooters & cars parked
\n       at any given time at any given date of the survey. As per the
\n       survey report, the parking area had a substantial vacant
\n       space during the peak timings on all the 7 days of the survey\n<\/p><\/blockquote>\n
       – the remaining vacant space available was equal to the
\n       parking of 50-100 more scooters.\n<\/p><\/blockquote>\n
       The land area given is to be used only for parking of
\n       cycles, scooters or cars. After reducing the area, if the
\n       space for parking is adequate for the requirement,
\n       there would obviously be no loss to the contractor in
\n       terms of recovery of parking fees or the customers.
\n       This issue is decided against the applicant.”\n<\/p><\/blockquote>\n
FAO 432\/2007                                                   Page 10 of 13<\/span><\/p>\n
 22.    It is a matter of record that before filing the application dated
\n31.07.2006, at no stage prior thereto any request was made by the
\nappellant or his counsel that the appellant wanted to lead any evidence.
\nThe application was received by the Arbitrator on the same day when he
\nmade the award and, therefore, the Arbitrator has not taken any
\ncognizance of such an application which, of course, was a device to
\nsomehow delay the proceedings and bring the material on record which
\nwas never sought to be brought by the appellant.\n<\/p>\n
23.    An Arbitral forum is selected by the parties as per their choice. In
\nthis case, the Arbitrator has been appointed after the appellant agreed
\nfor appointment of the Arbitrator in accordance with the terms of the
\ncontract between the parties.     Before the Arbitrator both the parties
\nhave filed their claims and counter-claims. Both the parties have stated
\nthat whatever has been stated by them in their pleadings is the only
\nthing that they wish to state. None of the parties have led any evidence.
\nThe application dated 31.07.2006 was received by the Arbitrator on the
\ndate when he passed the award.\n<\/p>\n
24.    No doubt, there was a wall constructed at a place where, the
\nparking lot was allotted to the appellant and which reduced the place
\navailable for using as a parking lot by the appellant but it is also a fact
\nthat the appellant had also been using another portion of the parking
\nlot unauthorizedly and, therefore, total area used by him was about
\n852.09 sq. meters instead of 770 sq. meters. Moreover, there was no
\nloss to the appellant on account of reduction of area as apparent from a
\nreading of survey report. The relevant part of the survey report is re-
\nproduced hereunder:-\n<\/p>\n
       “3 to 5.     The party had submitted that some railway
\n       employee came to PRS Parking near new PRS building and
\n       constructed a concrete wall at the covered parking side near
\n       new PRS building and due to the closer of gate, vehicles
\n       cannot be parked inside the parking. He further stated that
\n       this situation is effecting collection of parking charges and
\n       loss of revenue to him and approximate half of the area has
\n       become unutilized due to closing of gate. On the receipt of
\n       the representation of the party, efforts were made to conduct
\n       a joint inspection immediately but the party could have
\n       made available himself on 31.01.2005.           As such the
\n       inspection was conducted on the same day.              During
\nFAO 432\/2007                                                   Page 11 of 13<\/span>
\n        inspection, it was noticed that prior to 08.03.2004, 852.09
\n       sq. mtrs. area was used by the contractor against the
\n       allotted area of 770 sq. mtrs i.e. 82.09 sq. mtrs extra area
\n       was used by the contractor upto 08.03.04 and after
\n       08.03.2004 the area in use was 540 sq. mtrs. Area was
\n       measured in the presence of the contractor and site plan was
\n       signed by him also on 31.01.2005. As per para 2 of the
\n       agreement, the railway administration reserve the right to
\n       alter location and measurement of the said land if necessary
\n       without assigning any reason and no compensation will be
\n       granted to the licensee on this account.\n<\/p><\/blockquote>\n
       Since, the applicant has encroached extra land upto
\n       08.03.2004, as para 3(a) of the agreement, the licensee is
\n       liable to pay the damage to railway administration @12% of
\n       the marketing value of the land.\n<\/p><\/blockquote>\n
       There is no loss in collection of the parking charge caused to
\n       the parking contractor due to closer of gate and construction
\n       of wall. In this connection, a survey was conducted from
\n       04.02.2006 to 10.02.2006. During the survey it was found
\n       that the area available with the contractor was not fully
\n       occupied with vehicles even during peak hours. More space
\n       was available for parking more vehicles. Details of survey
\n       enclosed. There was no congestion and adequate area was
\n       available to accommodate more vehicles thus there was no
\n       loss on account of less area.\n<\/p><\/blockquote>\n
       The reserve price for parking to allot contract was fixed on
\n       the basis of number of car\/scooter\/cycle expected for
\n       parking and revenue earned. The contract was not given on
\n       the basis of recovery of land license fee per sq. mtrs.\n<\/p><\/blockquote>\n
       6,7 After receipt of representation from party, several
\n       attempts were made to conduct joint inspection in presence
\n       of contractor.     On 31.01.05 when the contractor was
\n       available, a joint inspection was conducted and a site plan
\n       was signed by the contractor also. In view of the reason
\n       explained in above para, it is observed that contractor has
\n       not suffered any financial loss. Contractor did not suffer any
\n       financial loss due to the construction of wall, closer of gate
\n       and taken over area from the contractor has encroached
\n       extra area and sufficient area was available with him to
\n       accommodate the volume of vehicular traffic even after
\n       08.03.2004.\n<\/p><\/blockquote>\n
       8.    The claim for refund of license fee of 40 sq mtrs. area
\n       is not admissible as the party has already encroached extra
\n       area measuring 82.09 sq. mtrs from the date of allotment of
\n       contract upto 08.03.04 and there is no loss on account of
\n       less area however, as per para 2 of the agreement, the
\n       railway administration reserve the right to alter location and
\nFAO 432\/2007                                                  Page 12 of 13<\/span>
\n        measurement of the said land if necessary without assigning
\n       any reason and no compensation will be granted to the
\n       license on this account.\n<\/p><\/blockquote>\n
       As per para 21(a) of the agreement, right is given only to
\n       the Railway Administration to revise the area and
\n       change in site of parking within the station premises
\n       during the currency of contract.\n<\/p><\/blockquote>\n
       As per para 15(c) of the agreement, in the event of breach of
\n       agreement or non-observations of any terms and condition,
\n       the licensee would be liable to pay a fine upto maximum of
\n       `1,000\/- for single irregularity.”\n<\/p><\/blockquote>\n
25.    I have also gone through Section 19<\/a> and 24<\/a> of the Arbitration and
\nConciliation Act<\/a>, 1996. However, in view of the proceedings conducted
\nby the Arbitrator, none of the parties were considering to lead any
\nevidence and have concluded their points in the form of reply\/rejoinder.
\nThus, there being no other procedure agreed to between the parties, no
\nbenefit can be taken by the appellant. More so, as per paragraph 2 of
\nthe agreement, the Railway Administration reserved its right to alter
\nlocation and measurement of the said land if necessary without
\nassigning any reason and no compensation will be granted to the
\nlicensee on this account.\n<\/p>\n
26.    In these circumstances, the Arbitrator having considered all the
\naspects of the matter and having given an award against the appellant
\nwhich has been upheld by the learned ADJ calls for no interference by
\nthis Court inasmuch as nothing has been brought to my notice which
\nmay entitle this Court to cause any interference in the order passed by
\nthe learned ADJ who has considered all the aspects of the matter
\nincluding the pleadings of the parties and the records as available
\nbefore the Arbitrator.\n<\/p>\n
27.    Thus, I find no infirmity with the order passed by the learned ADJ
\nand consequently, the appeal is dismissed with no order as to costs.\n<\/p>\n
28.    TCR be sent back forthwith along with a copy of this judgment.\n<\/p>\n
                                                MOOL CHAND GARG, J
\nMARCH 10, 2011
\n‘sg\/anb’
\nFAO 432\/2007                                                 Page 13 of 13<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Bharat Tewari vs Union Of India on 10 March, 2011 Author: Mool Chand Garg * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO 432\/2007 Reserved on :15.02.2011 Decided on :10.03.2011 BHARAT TEWARI ….. Appellant Through: Mr. B.L. Chawla, Adv. versus UNION OF INDIA …. Respondent Through: Mr.S.R. Narayan, Adv. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-248203","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nBharat Tewari vs Union Of India on 10 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bharat-tewari-vs-union-of-india-on-10-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bharat Tewari vs Union Of India on 10 March, 2011 - 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