# Markandey Singh and others v. The State of U.P. and others

- **Citation:** (2002) 2 ILRA 327
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-03-15
- **Case number:** Civil Misc. Review/Correction Application No. 101974 of 2000
- **Bench:** Sudhir Narain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/markandey-singh-and-others-v-the-state-of-u-p-and-others-39829
- **Pages:** 3

## Headnote

The Arbitration and Conciliation Act,
1996- section 11 (4)- the parties are free
to determine the number of Arbitrators,
provided that such number 'shall not be
an
even
number'-
in
arbitration
proceedings
with
more
than
one
arbitrator, the decision of the Tribunal
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
328
shall be made by a majority of its
members.

Held (para 8 and 9)

In the facts and circumstances of the
present case, the Act of 1996 shall be
applicable.
Sri P.K. Sharma was appointed as Umpire
by this Court. There was no dispute
regarding the proposal of his name. He
shall
now
be
treated
as
Presiding
Arbitrator of the Tribunal instead of
Umpire.
Case law discussed:
(1601) G SCC p. 356
(1998) 5 SCC p.599

## Text

2 All] Markandey Singh and others Vs. The State of U.P. and others
327
Annexure 6 shows that it is a letter dated
13.6.2000 allegedly written by Mehi Lal
Patel representative of the M.L.A. Sri
B.R. Verma to one J.E. Saheb (it does not
show as to whom it has been addressed)
requesting him to arrange for Rs.1 lac and
that he will meet tomorrow in Jaunpur
Ganna Office and this obligation will be
definitely compensated. Annexure 6A is a
note or letter dated 29.11.2000 written
again by Mehi Lal to J.E. Ganna Vibhag,
asking him to meet him tomorrow dated
30.11.2000 intimating that he is in dire
need of money and that the second
instalment of the M.L.A. Fund is under
encashment.

6. The correspondence prima-facie
shows, interalia, that there appears to be
some under-hand transactions between the
accused
persons
and
the
M.L.A.
concerned. This is a serious aspect of the
matter. The M.L.A. is a representative of
the people who has been given funds for
development of the society. The members
of the Legislative Assembly are also
trustees of the public and they cannot
squander money allotted to them to be
used for their personal purpose or for any
other purposes except under the Scheme
for which it has been allotted. He has tried
to illegally collect or obtain money for his
personal gains. A civil servant cannot be
coerced by anyone to breach his loyalties
to the Government. He is a trustee and he
must discharge his duty without any
influence of any one and strictly in
accordance with law. In our socialistic
welfare democratic fabric if people, who
are representatives of the people will act
collusively then the God alone can save
the fate of our country. We, thus, direct
the Investigating Officer of the Crime
Case in question to find out the truth in
this regard under the supervision of the
Superintendent of Police, Jaunpur and
also to find out who others were
responsible
for
misappropriating
the
Government money and to book all of
them under appropriate laws.

7. With these directions this writ
petition is dismissed.

8. Let a copy of this order be
handed-over within one week to Sri L.V.
Singh, learned A.G.A. for its intimation to
and follow up action by the Police
authority concerned.

9. The office will also dispatch a
copy of this order within one week to the
Chief Secretary of the State for its
intimation.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.3.2002

BEFORE
THE HON'BLE SUDHIR NARAIN, J.

Civil Misc. Review/Correction Application
No. 101974 of 2000

M/s Vidyawati Construction Co.

...Applicant
Versus
Union of India and others...Respondent

Counsel for the Applicant:
Sri S.K. Garg

Counsel for the Respondents:
Lalji Sinha

The Arbitration and Conciliation Act,
1996- section 11 (4)- the parties are free
to determine the number of Arbitrators,
provided that such number 'shall not be
an
even
number'-
in
arbitration
proceedings
with
more
than
one
arbitrator, the decision of the Tribunal
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
328
shall be made by a majority of its
members.

Held (para 8 and 9)

In the facts and circumstances of the
present case, the Act of 1996 shall be
applicable.
Sri P.K. Sharma was appointed as Umpire
by this Court. There was no dispute
regarding the proposal of his name. He
shall
now
be
treated
as
Presiding
Arbitrator of the Tribunal instead of
Umpire.
Case law discussed:
(1601) G SCC p. 356
(1998) 5 SCC p.599

(Delivered by Hon'ble Sudhir Narain, J.)

1. The applicant has prayed that Sri
P.K. Sharma, who was earlier appointed
as Umpire may be treated as the Presiding
Arbitrator of the Arbitral Tribunal.

2. Briefly, the facts are that the
applicant filed Civil Misc. (Arbitration)
Application
No.
36
of
1998
for
appointment of arbitrators under section
11 (4) of the Arbitration and Conciliation
Act, 1996 (in short the Act). The
application was allowed by this Court on
26.8.1998
appointing
Smt.
Taneja
Pandey,
Deputy
F.A.
and
C.A.O./Core/A.L.D. and Sri O.P. Narang,
Deputy Chief Engineer (Retired) Track
Machines, Northern Railway, G-101,
Prayag Kunj Apartments, 3, Stratchy
Road, Allahabad as arbitrators.

3. The applicant also filed another
application
No.
47
of
1998
for
appointment
of
an
Umpire.
This
application was disposed of on 1.11.1999
and Sri P.K. Sharma, as agreed between
the parties, was appointed as Umpire.

4. In the present application it has
been stated that Sri P.K. Sharma be
treated as Presiding Arbitrator instead of
as an Umpire.

5. Learned counsel for the applicant
submitted that under Section 10 of the
Act, 1996 the parties are free to determine
the number of Arbitrators, provided that
such number 'shall not be an even
number. Similarly Section 29 of the Act
provides that in arbitration proceedings
with more than one arbitrator, the
decision of the Tribunal shall be made by
a majority of its members. A reading of
both the sections clearly indicates that the
Arbitral Tribunal cannot consist of an
even number of arbitrators and the
composition of a Tribunal contrary to
these provisions could be one of the
grounds for setting aside the Arbitral
award as provided under Section 34 of the
Act. This Court had passed an order
appointing Sri P.K. Sharma, as Umpire
but a Presiding Arbitrator of the Tribunal
can be appointed. It is submitted that Sri
P.K. Sharma be treated as Presiding
Arbitrator of the Arbitral Tribunal instead
of appointing him as Umpire.

6.

Learned
counsel
for
the
respondent urged that the provisions of
the Arbitration Act, 1940 would be
applicable in the present proceedings as
the new Act came into force on 22.8.1996
vide Notification dated 22.8.1996. The
applicant is alleged to have given the
notice on 18.5.1996 and, therefore, the
Arbitral proceedings shall be deemed to
commence on 18.5.1996 prior to the
coming into force of the Act and,
therefore, the provisions of the Arbitration
Act, 1940 would be applicable. The 1996
Act was preceded by three Ordinances,
the first of which was promulgated on
2 All] M/s Vidyawati Construction Co. Vs. Union of India and others
329
16.1.1996 to be effective from 25.1.1996.
The second Ordinance came into force on
26.3.1996 and it was replaced by a third
Ordinance on 26.6.1996. All these three
Ordinances were made effective from
25.1.1996. The first Ordinance itself had
repealed the Act of 1940. The new Act
numbered as 26 of 1996 received the
assent of the President on 16.8.1996 and
was
published
in
the
Gazette
on
19.8.1996. The notification reads as
under:-

"In exercise of the powers conferred
by sub-section (3) of Section 1 of the
Arbitration and Conciliation Act, 1996
(26 of 1996) the Central Government
hereby appoints the 22nd day of August
1996 as the date on which the said Act
shall come into force.

7. As the old Act stood repealed
w.e.f. 25.1.1996 and the Ordinances
referred to above, were effective, the
Arbitral proceedings shall be deemed to
have been commenced under the Act of
1996 and the provisions of 1996 Act will
be applicable. The controversy has now
been settled by the decision of the Apex
Court in Fuerst Day Lawson Ltd. vs.
Jindal Exports Ltd. (2001) 6 Supreme
Court Cases 356 wherein the award was
given on 13.8.1996 and, thereafter the
execution proceedings were commenced.
It was urged that as the award was given
on 13.8.1996, the Act of 1940 was
applicable.
Their
Lordships
of
the
Supreme Court held that the Act of 1996
was a continuation of the Ordinance and
deemed to have been effective from
25.1.1996 and the execution application
under the Act of 1996 was applicable.

8.

Learned
counsel
for
the
respondent has placed reliance upon the
decision Shetty's Construction Co. Vs.
Konkan Railway Construction and
others 1998 (5) SCC 599 wherein it was
held that if the request is made prior to the
commencement of Act of 1996 then the
proceedings could be governed by the Old
Act. In this case it was not shown that the
proceedings were started after 25.1.1996.
This case has no application to the facts of
the present case. In the facts and
circumstances of the present case, the Act
of 1996 shall be applicable.

9. Sri P.K. Sharma was appointed as
Umpire by this Court. There was no
dispute regarding the proposal of his
name. He shall now be treated as
Presiding Arbitrator of the Tribunal
instead of Umpire.

10. The application is, accordingly,
allowed and the parties shall bear their
own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2002

BEFORE
THE HON'BLE S.R. SINGH, J.
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Writ Petition No. 7299 of 2002

Ghaziabad
Development
Authority,
Ghaziabad

...Petitioner
Versus
Umesh Chand and others ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Misra

Counsel for the Respondents:
S.C.

Land Acquisition Act- Section 18- even if
the reference is wrongly made by the