# India Waste Energy Developmemnt Ltd v. Greater Noida I.D.A. & another

- **Citation:** (2013) 1 ILRA 48
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-01-23
- **Case number:** Civil Misc. Writ Petition No. 2672 of 2012
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/india-waste-energy-developmemnt-ltd-v-greater-noida-i-d-a-another-42528
- **Pages:** 3

## Headnote

Constitution
of
India,
Article
227
readwith Arbitration an Conciliation Act
1996 Section 34/42-petition against the
award made by the Arbitration can not
be challenged before the High Court as
according to definition of Court means
the Principal Civil Court of Original
Jurisdiction of the District Judge-heldpetition
under
Article
227
of
the
Constitution or Section 34 readwith
Section 42 not maintainable in the High
Court-petition dismissed.

Held: Para-12 and 13

The 'court' is defined under Section 2(e)
of the Act to mean the Principal Civil
Court of original jurisdiction in a district
and may include a High Court in exercise
of its ordinary civil jurisdiction having
jurisdiction to decide the questions
forming
the
subject
matter
of
the
arbitration, if it had been the subject
matter of the suit and would not include
any civil court of a grade inferior to such
principal Civil Court.

It has been settled by various authorities
that the court of District Judge in district
1 All] India Waste Energy Developmemnt Ltd V. Greater Noida I.D.A. & another
49
would be a Principal Civil Court of
original jurisdiction for the purposes of
court under the Act.
Case Law discussed:
AIR 2006 SC 540; AIR 2007 SC 465

## Text

48 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
complicate a matter to arrive at a conclusion
which may suit a person competent in doing
such stretching or jugglery.

9. In Babloo Pasi's case (Supra) Babloo
Pasi was the appellant of the case and the
accused was respondent no.2. In para 11 of
the said judgment the Apex Court has said
that in its opinion having regard to the nature
of controversy before the High Court and the
scheme of the relevant statutory provisions
whereunder the High Court was exercising
its jurisdiction, the 'fairness in action' did
demand that the complainant(appellant of the
said case) should have been given an
opportunity of hearing in the revision
preferred by the accused(respondent no.2 of
the said case). It is true that the Apex Court
has further said in the following lines that the
appellant of the said case was impleaded as
party respondent, but this by itself does not
mean that if he did not appear before the trial
Court he should not be heard by the High
Court when the revision was argued before
it. From bare perusal of Para 11 of Babloo
Pasi's case it is evident that complaint of such
type of cases should be heard in revision
under section 53 of the Act.

10. On the basis of the above
discussions I am of the view that in such type
of cases the complainant of the FIR is
definitely an aggrieved person and must be
given an opportunity of hearing before
passing an order in such type of revisions.

11. Accordingly, the revisionist is
directed to implead the complainant of the
F.I.R. of the case as respondent no.2 in this
revision. For the purpose an impleadment
application may be moved within 7 days
from today. Put up on 23.1.2013 for orders.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 2672 of 2012

India Waste Energy Development Ltd.

 ...Petitioner
Versus
Greater Noida Industrial Development
Authority And Another ...Respondents

Counsel for the Petitioner:
Sri Anoop Trivedi
Sri Anil Mullick

Counsel for the Respondents:
Sri Nisheeth Yadav

Constitution
of
India,
Article
227
readwith Arbitration an Conciliation Act
1996 Section 34/42-petition against the
award made by the Arbitration can not
be challenged before the High Court as
according to definition of Court means
the Principal Civil Court of Original
Jurisdiction of the District Judge-heldpetition
under
Article
227
of
the
Constitution or Section 34 readwith
Section 42 not maintainable in the High
Court-petition dismissed.

Held: Para-12 and 13

The 'court' is defined under Section 2(e)
of the Act to mean the Principal Civil
Court of original jurisdiction in a district
and may include a High Court in exercise
of its ordinary civil jurisdiction having
jurisdiction to decide the questions
forming
the
subject
matter
of
the
arbitration, if it had been the subject
matter of the suit and would not include
any civil court of a grade inferior to such
principal Civil Court.

It has been settled by various authorities
that the court of District Judge in district
1 All] India Waste Energy Developmemnt Ltd V. Greater Noida I.D.A. & another
49
would be a Principal Civil Court of
original jurisdiction for the purposes of
court under the Act.
Case Law discussed:
AIR 2006 SC 540; AIR 2007 SC 465

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Supplementary affidavit filed, is
taken on record.

2. Heard Sri Anoop Trivedi, learned
counsel for the petitioner. Sri Nisheeth
Yadav, learned counsel appearing for
respondents No. 1 and 2.

3. Petitioner in this petition under
Article 227 of the Constitution of India read
with Section 34/42 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred
to as the Act) is challenging the award of
the arbitral tribunal dated 8th September,
2012.

4. Petitioner has described the petition
as a writ petition.

5. The award of an arbitral tribunal
cannot directly be challenged by means of a
writ petition under Article 226 of the
Constitution of India in view of statutory
remedy available to move an application for
setting aside the award under Section 34 of
the Act before the competent court.
Therefore, a writ petition under Article 226
of the Constitution of India is not the proper
remedy and is not maintainable.

6. The petition under Article 227 of
the Constitution of India is also not
maintainable
as
the
power
of
superintendence of this court over all courts
and tribunals is not available where the
award is made by an arbitrator under the
Act as the arbitrator in adjudicating the
dispute does not exercise the States inherent
power of judicial function and is not a
tribunal in the real sense though described
as tribunal.

7. The seven Judges Bench of the
Supreme Court in M/s S.B.P. & Co. Vs.
M/s Patel Engineering Ltd. AIR 2006 SC
540 has clearly laid down that orders passed
by arbitral tribunal are not open to challenge
under Article 226 or 227 of the Constitution
of India.

8. Thus basically this is an application
in the form of a petition under Section 34/42
of the Act for setting aside the arbitral
award.

9. A preliminary objection has been
raised that an application for setting aside an
arbitral award under Section 34 of the Act
cannot be filed before the High Court and it
should be before the Principal Civil Court
of original jurisdiction.

10. Sri Anoop Trivedi, learned
counsel for the petitioner contends that the
arbitrator was appointed by this court and
therefore, in view of Section 42 of the Act
all subsequent applications would lie before
this court only.

11. No doubt Section 42 of the Act
postulates that all subsequent applications
under the Act in respect of an arbitration
agreement shall lie before the same court in
which any application had been made
earlier but the reference to applications in
Section 42 of the Act by necessary
implication is to the applications other than
applications referred to in Section 11 of the
Act i.e. all applications which are supposed
to be filed before a Court.

12. The 'court' is defined under
Section 2(e) of the Act to mean the
50 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Principal Civil Court of original jurisdiction
in a district and may include a High Court
in exercise of its ordinary civil jurisdiction
having jurisdiction to decide the questions
forming the subject matter of the arbitration,
if it had been the subject matter of the suit
and would not include any civil court of a
grade inferior to such principal Civil Court.

13. It has been settled by various
authorities that the court of District Judge in
district would be a Principal Civil Court of
original jurisdiction for the purposes of
court under the Act.

14. It is well acknowledged that the
High Court of Judicature at Allahabad is not
a court exercising ordinary civil jurisdiction
and therefore, is outside the ambit of the
word 'Court' used in the Act.

15. The Apex Court in M/s Pandey
and Co. Builders Pvt. Ltd. Vs. State of
Bihar AIR 2007 SC 465 with reference to
the definition in Section 2(e) of the Act laid
down that High Court not exercising
original civil jurisdiction is not a court.

16. The Chief Justice as referred in
Section 11 of the Act in making a reference
to an arbitral tribunal has not been referred
to and included within the ambit of a 'court'
as defined under Section 2(e) of the Act.
The power which has been vested in the
Chief Justice by virtue of Section 11 of the
Act is different and not that which has been
conferred upon any court as contemplated
by the Act. Therefore, for the purposes of
making an application under Section 11 of
the Act, the authority of the Chief Justice
cannot be equated to that of a court so as to
permit filing of subsequent applications in
respect of the matters relating to the said
arbitration before the Chief Justice or to the
High Court concerned.

17. In view of the aforesaid facts and
circumstances, I am of the view that this
petition whether under Article 226/227 of
the Constitution of India or under Section
34 read with Section 42 of the Act is not
maintainable before this court and the
proper remedy available to the petitioner, if
any, is to make proper application under
Section 34 of the Act to the Court i.e. the
Principal Court of original jurisdiction of
the concern district.

18. The petition lacks merit and is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.01.2013

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI, J.

Misc. Bench No. 2971 of 2001

Smt. Kanak Garg

 ...Petitioner
Versus
U.P. Avas Evam Vikas Parishad, Through
Its Chairman

 ...Respondents

Counsel for the Petitioner:
Sri A.K. Srivastava
Srib Hans Raj Yadav
Sri Rajesh Kumar Tripathi
Sri Santosh Kumar

Counsel for the Respondents:
Sri Mahesh Chandra
Sri Mahesh Chandra
Sri Nakul Dubey
Sri R.K. Mehrotra

U.P. Awas Evam Vikas Adhiniyam 1965,
Section 12, Section 18-demolition of
unauthoizd
construction-construction
made after sanction of lay out plan-non
application and callous attitude of the