# Nagar Nigam Meerut v. Dr. Sharad Rohtagi & Ors

- **Citation:** (2022) 10 ILRA 1086
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-12
- **Case number:** Matters under Art. 227 No. 4745 of 2019
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nagar-nigam-meerut-v-dr-sharad-rohtagi-ors-47670
- **Pages:** 11

## Headnote

A. Civil Law - Reference of dispute to
Arbitrator - Arbitration and Conciliation
Act, 1996 - Section 8 - Transfer of
Property Act, 1982 - Section 111(a); U.P.
Municipal Corporation Act, 1959 - Section
571 - An agreement or a clause in an
agreement can be construed as an arbitration
agreement, only if,

(i) it provides for or contemplates reference of
disputes or difference by either party to a
private forum (other than a Court or Tribunal) or
decision;
10 All. Nagar Nigam Meerut Vs. Dr. Sharad Rohtagi & Ors.
1087
(ii) it provides either expressly or impliedly, for
an enquiry by the private forum giving due
opportunity to both parties to put forth their
cases; and

(iii) it provides that the decision of the forum is
final and binding upon the parties, without
recourse to any other remedy and both would
abide by such decision.
Where there is no provision either for
reference of disputes to a private forum,
or for a fair and judicious enquiry, or for a
decision which is final and binding on
parties to the dispute, there is no
arbitration agreement. (Para 25)

B. The definition of arbitration agreement
and one of the necessary condition to
construe
an
agreement
to
be
an
arbitration agreement is that the parties
had desired and intended that a dispute
must
be referred to arbitration
for
decision and they would undertake to
abide by the decision. On the presence of
such condition, there cannot be any difficulty
to hold that the intention of the parties was to
have an arbitration agreement, and thus, the
arbitration agreement immediately comes into
existence. Though, it is true that the
mention of word 'Arbitration' in the
clause may not be necessary to construe
an
agreement
to
be
an
arbitration
agreement, but the relevant clause which
is
being
termed
as
'arbitration
agreement'
has
to
conform
to
the
requirement of arbitration as contained
in Section 7 of the Arbitration Act - It is
evident from the clause extracted, which has
been relied upon by the petitioner for referring
the dispute to the arbitrator in the opinion of
the Court lacks necessary ingredients of
arbitration agreement that the decision of the
arbitrator shall be binding upon the parties.
(Para 26, 27)

Perusal of the clause does not in any way
indicate the intention of the parties that the
decision of the United Province shall be binding
upon the parties, therefore, in absence of such
a mandatory condition, the aforesaid clause
cannot be termed as arbitration clause. Since,
this Court has held that the clause referred, is
not an arbitration clause, therefore, there is no
question of referring the matter to the
arbitration and application u/s 8Ga2 of the
defendant/petitioner
was
not
maintainable.
(Para 28)

C. Parties to the lease deed - If the
plaintiff/respondents have not stepped into the
shoes of the lessor Haji Sheikh Alauddin and
lease deed is not considered to have been
executed between the plaintiffs/respondents
and Chairman, Municipal Board, Meerut, the
terms and conditions of the lease deed was not
binding upon the plaintiffs/respondent which
means that the above clause which the
defendant/petitioner
is
referring
to
an
arbitration agreement, even otherwise, shall not
be binding upon the plaintiffs/respondents.
(Para 30)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

1086 INDIAN LAW REPORTS ALLAHABAD SERIES
when the bona fide of the applicant could
not be doubted and also when it was
absolutely essential to bring on record the
additional evidence to meet the ends of
justice. In the instant case the Court finds
that, definitely the plaintiff had not
exercised the right which she had, to file
the relevant evidence at the time of filing of
the suit and also before the settlement of
the issues. The Court, however, finds that
when the case of the plaintiff was
dependent upon the two wills dated
29.4.1974 and 19.5.2002 then definitely the
two wills ought to have been brought on
record either at the time of filing of the suit
or before the settlement of the issues.
Keeping in mind that injustice may not
occur, the Court under its powers under
section
151 C.P.C.
directs
that
the
documents which find place in the list of
documents at Serial Nos.4, 5 and 6, which
were filed on 22.2.2019, may be taken on
record as additional evidence.

9. Under such circumstances, the
impugned order by which the documents at
Serial Nos.4 to 6 were allowed to be taken
on record, is not being interfered with. Any
other document should not be allowed to be
taken as evidence. These documents
definitely, if proved or disproved, would
give a different turn to the case. When the
documents are taken on record, the parties
shall be allowed to lead evidence which
shall definitely be concluded within a
period of one month and thereafter the suit
itself would be decided within a period of
six months.

10. Since, the Court finds that the
documents which have been permitted to
be taken on record by this Court were
available to the plaintiff at the time when
the suit was filed and also at the time when
the issues were settled, the Court concludes
that the plaintiff for this carelessness and
laxness should be penalized and, therefore,
the documents which are sought to be taken
in as additional evidence which were there
in the list of documents at Serial Nos.4, 5
and 6, be admitted only if the plaintiff
deposits a cost of Rs.10,000/-.

11. The impugned order, accordingly,
stands modified.

12. The instant application under
Article 227 of the Constitution of India,
accordingly, stands party allowed.
----------
(2022) 10 ILRA 1086
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 12.09.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters under Art. 227 No. 4745 of 2019

Nagar Nigam Meerut ...Petitioner
Versus
Dr. Sharad Rohtagi & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pankaj Srivastava, Archana Srivastava

Counsel for the Respondents:
Sri Vinayak Mithal, Sri P.K. Jain (Se. Adv.)

A. Civil Law - Reference of dispute to
Arbitrator - Arbitration and Conciliation
Act, 1996 - Section 8 - Transfer of
Property Act, 1982 - Section 111(a); U.P.
Municipal Corporation Act, 1959 - Section
571 - An agreement or a clause in an
agreement can be construed as an arbitration
agreement, only if,

(i) it provides for or contemplates reference of
disputes or difference by either party to a
private forum (other than a Court or Tribunal) or
decision;
10 All. Nagar Nigam Meerut Vs. Dr. Sharad Rohtagi & Ors.
1087
(ii) it provides either expressly or impliedly, for
an enquiry by the private forum giving due
opportunity to both parties to put forth their
cases; and

(iii) it provides that the decision of the forum is
final and binding upon the parties, without
recourse to any other remedy and both would
abide by such decision.
Where there is no provision either for
reference of disputes to a private forum,
or for a fair and judicious enquiry, or for a
decision which is final and binding on
parties to the dispute, there is no
arbitration agreement. (Para 25)

B. The definition of arbitration agreement
and one of the necessary condition to
construe
an
agreement
to
be
an
arbitration agreement is that the parties
had desired and intended that a dispute
must
be referred to arbitration
for
decision and they would undertake to
abide by the decision. On the presence of
such condition, there cannot be any difficulty
to hold that the intention of the parties was to
have an arbitration agreement, and thus, the
arbitration agreement immediately comes into
existence. Though, it is true that the
mention of word 'Arbitration' in the
clause may not be necessary to construe
an
agreement
to
be
an
arbitration
agreement, but the relevant clause which
is
being
termed
as
'arbitration
agreement'
has
to
conform
to
the
requirement of arbitration as contained
in Section 7 of the Arbitration Act - It is
evident from the clause extracted, which has
been relied upon by the petitioner for referring
the dispute to the arbitrator in the opinion of
the Court lacks necessary ingredients of
arbitration agreement that the decision of the
arbitrator shall be binding upon the parties.
(Para 26, 27)

Perusal of the clause does not in any way
indicate the intention of the parties that the
decision of the United Province shall be binding
upon the parties, therefore, in absence of such
a mandatory condition, the aforesaid clause
cannot be termed as arbitration clause. Since,
this Court has held that the clause referred, is
not an arbitration clause, therefore, there is no
question of referring the matter to the
arbitration and application u/s 8Ga2 of the
defendant/petitioner
was
not
maintainable.
(Para 28)

C. Parties to the lease deed - If the
plaintiff/respondents have not stepped into the
shoes of the lessor Haji Sheikh Alauddin and
lease deed is not considered to have been
executed between the plaintiffs/respondents
and Chairman, Municipal Board, Meerut, the
terms and conditions of the lease deed was not
binding upon the plaintiffs/respondent which
means that the above clause which the
defendant/petitioner
is
referring
to
an
arbitration agreement, even otherwise, shall not
be binding upon the plaintiffs/respondents.
(Para 30)

Writ petition dismissed. (E-4)

Precedent followed:

1. Bharat Sanchar Nigam Ltd. Vs Ashok Kumar,
2014 (138) L.I.C. 901, All. (Para 12)

2. P. Anand Gajapati Raju Vs P.V.G. Raju, 2000
(4) SCC 539 (Para 16)

3. Hindustan Petroleum Corp. Vs Pinkcity
Midway Petroleums, 2003 (6) SCC 503 (Para
16)

4. Mallikarjun Vs Gulbarga University, 2004 (1)
SCC 372 (Para 16)

5. Ford Credit Kotak Mahindra Ltd. Vs M.
Swaminathan, 2005 (2) CTC 487 (Para 16)

6.
National
Agricultural
Corp.
Marketing
Federation India Ltd. Vs Cains Trading Ltd., 2007
(5) SCC 692 (Para 16)

7. Punjab State & ors. Vs Dina Nath, 2007 (5)
SCC 28 (Para 16)

8. M/s A.R.C. Overseas Pvt. Ltd. Vs M/s
Bougainvillea Multiplies & Entertainment Centre
Pvt. Ltd., 2008 (2) Alld. ALJ 663 (Para 16)

9. Branch Manager, Magma Leasing & Finance
Ltd. & anr. Vs Potluri Madhavilata & anr., 2009
(10) SCC 103 (Para 16)
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
10. P. Dasaratharama Reddy Complex Vs Govt.
of Karn. & ors., 2014 (2) SCC 201 (Para 18)

11. Bharat Sanchar Nigam Ltd. Vs Ashok Kumar,
2014 (5) ADJ 644 (Para 16)

12. Booz Allen and Hamilton Inc. Vs SBI Home
Finance Ltd. & ors., 2011 (5) SCC 532 (Para 16)

13. Vidya Drolia & ors. Vs Durga Trading
Corporation & ors., 2021 (2) SCC 1 (Para 16)

14. Syed Sughra Zaidi Vs Laeeq Ahmad (Dead)
through L.Rs. & ors., 2018 (2) SCC 21 (Para 16)

Present
petition
assails
order
dated
21.08.2014, passed by Additional Civil
Judge (Senior Division), Meerut, rejecting
the application 28Ga of the petitioner for
referring the dispute to the Arbitrator u/s
8 of the Arbitration and Conciliation Act,
1996, and order dated 28.02.2019 passed
by 1st Additional District Judge, Meerut
dismissing the revision of petitioner.

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Pankaj Srivastava,
learned counsel for the petitioner and Sri
P.K. Jain, learned Senior Counsel assisted
by Sri Vinayak Mithal, learned counsel for
the respondents.

2. The petitioner, by means of the
present writ petition under Article 227 of
the Constitution of India, has assailed the
order
dated
21.08.2014
passed
by
Additional Civil Judge (Senior Division),
Meerut in Original Suit No.539 of 2011
(Dr. Jagat Narayan Vs. Nagar Nigam,
Meerut) rejecting the application 28Ga of
the petitioner for referring the dispute to the
Arbitrator
under
Section
8
of
the
Arbitration and Conciliation Act, 1996
(hereinafter referred to as the 'Act, 1996')
and order dated 28.02.2019 passed by the
1st Additional District Judge, Meerut in
Civil Revision No.05 of 2015 (Nagar
Nigam
Meerut
Vs.Sharad
Rohtagi)
dismissing the revision of the petitioner.

3. The facts in brief are that Original
Suit No.539 of 2011 has been instituted by
respondent Nos. 1 to 7 (hereinafter referred
to as ''plaintiff/respondents) against the
petitioner
(hereinafter
referred
to
as
''defendant/petitioner') alleging that by a
registered sale deed dated 18.06.2013,
predecessor
in
title
of
the
plaintiffs/respondents, Late Haji Sheikh
Alauddin, son of Late Shaikh Gulam
Muhiuddin of Lalkurti Bazar, Meerut had
let out part of land measuring about 11
Bighas, 16 Biswas pukhta situated at
Budhana Gate, Meerut, formally known as
''Barfkhana' to the then Municipal Board,
Meerut and now occupied under Gymkhana
Maidan, Bachcha Park and Ladies Park
under the terms and conditions stipulated in
the said lease deed on payment of Rs.1/-
per annum by the then Municipal Board to
the lessor Late Haji Sheikh Alauddin.
Besides others stipulation in the lease deed,
the lease was for the term of 99 years
commencing w.e.f. 01.04.1911. Another
relevant clause of the lease deed in the
instant case is that the lease shall be
renewable at the option of the lessor at the
expiration of original term of 99 years on
same term for a period of not less than 30
years. If on the determination of the lease,
the lessor shall not elect to renew the lease,
it shall be the duty of the lessee to make
over the land hereby demised, to the lessor
in a condition not worse than its condition
at present, but it shall not be bound in that
case to restore any trees that may have been
removed or otherwise have ceased to exist.

4. According to the plaint, the
defendant/respondent
i.e.,
Municipal
Corporation (Nagar Nigam), Meerut now
represents the former Municipal Board,
10 All. Nagar Nigam Meerut Vs. Dr. Sharad Rohtagi & Ors.
1089
Meerut which is bound by the terms and
conditions
of
the
lease
deed
dated
18.06.2013. It is further stated that Late
Haji Sheikh Allauddin, son of Sheikh
Gulam Mohiuddin had transferred his
rights in the land to Sheikh Manzoor
Mohiuddin,
son
of
Sheikh
Gaush
Mohiuddin of Lal Kurti, Meerut by
registered
Gift
Deed
dated
13.06.1939/21.06.1939
registered
on
22.06.1941, therefore, Sheikh Manzoor
Mohiuddin stepped into the shoes of
original lessor. Subsequently the said
Sheikh Manzoor Mohiuddin made an
Exchange Deed with Gulzari Mal, the
successor of plaintiff/respondent in respect
of 2/3rd portion of the said leased land vide
registered deed dated 11.07.1945 and
transferred the remaining 1/3rd share in the
said leased land to the said Gulzari Mal
vide registered sale deed dated 18.04.1949.

5. In para-8 of the plaint, the
plaintiffs/respondents had stated the details
as to how the property has devolved on the
plaintiffs/respondents. It is further stated
that Late Gulzari Mal (predecessors of
respondents) in the year1978 informed the
then Municipal Board about his right to
realize rent from the Municipal Board,
Meerut under the said lease deed dated
18.06.1913 (herein-after referred to as the
'lease deed'). In reply to the said letter, the
then Municipal Board, Meerut vide letter
dated 179/ME/PWD dated 26.07.1978
asked for some clarification regarding his
ownership and rights and other particulars.
It is further stated that Sri Awadh Bihari
Lal, son of Late Gulzari Mal replied the
said letter addressing to the application of
Civil Abhiyanta, Nagar Palika, Meerut on
15.07.1978, clarifying about his ownership
and his rights as one of the lessor after the
transfer of property by Haji Sheikh
Allauddin.

6.

Further
case
of
the
plaintiffs/respondents is that the period of
lease has expired by efflux of time on
31.03.2010, and thereafter the possession
of the defendant/revisionist is unauthorized,
illegal and is that of trespasser. It is also
stated that the defendant/revisionist in
contravention of the terms and conditions
of the lease deed had raised unauthorized
constructions
on
the
land which
is
absolutely illegal and liable to be removed.

7. It is further stated that since the
tenancy has been determined by efflux of
time under Section 111 (a) of the Transfer
of of Property Act, 1982 (herein-after
referred to as ''T.P.Act'), therefore, there is
no need to serve notice under Section 106
of the T.P. Act. The plaintiffs/respondents
served
a
notice
upon
the
defendant/revisionist through their counsel
Sri Ashutosh Garga, Advocate, Meerut on
14.03.2011 under Section 571 of the U.P.
Municipal Corporation Act, 1959 stating
therein that after the expiry of period of
two months, the suit for the arrears of rent,
eviction and mesne profit shall be filed in
the competent court having jurisdiction.

8. In the aforesaid backdrop, the
plaintiff/respondents
prayed
for
the
following reliefs:-

"(a) That by a decree of this
Hon'ble Court, the plaintiffs be got
delivered the actual physical and vacant
possession of the demised land and
measuring about 11 Bigha, 16 Biswa
situated at Budhana Gate Meerut formely
known as Barf Khana and Now occupied
under Gymkhana Maidan, Bachcha Park
and Ladies Park, the boundaries of which
are mentioned at the foot of this Plaint,
from the defendant or any other person
found in occupation thereof, after removing
1090 INDIAN LAW REPORTS ALLAHABAD SERIES
the superstructures/ constructions raised
on the said land.

(b) That the plaintiffs be got
awarded a sum of Rs.3,00,000/- (Rs. Three
lacs only) towards mesne profit for
17.05.2011.

(c) That the plaintiffs be got
awarded mesne profit at the rate of
Rs.3,00,000/- (Rs. Three lacs only) per day
from the date of filing of the suit till the
date of delivery of the possession of the
demised
property
as
mentioned
in
paragraph (A) supra the court fees on the
said amount shall be paid at the time of
execution.

(d) That such other relief as the
Hon'ble Court may deem think fit and
proper may kindly be awarded to the
plaintiffs again the defendant under the
facts and circumstances of the present case.

(e) That the cost of the suit be
awarded to the plaintiffs against the
defendant."

9.

In
the
aforesaid
suit,
defendant/revisionist filed an application
28Ga2 under Section 8 of the Arbitration
and Conciliation Act,1996 (herein-after
referred to 'Act 1996') stating therein that
under Clause 9 of the lease deed, if any
dispute arises between the parties, the
matter shall be referred to the State of U.P.
and the decision taken thereon by the State
of U.P. shall be final and binding upon the
parties.

10. Plaintiff/respondents filed an
objection against the said application 28Ga
2 of the defendant/revisionist taking a plea
that Clause 9 of the lease deed cannot be
termed to be an arbitration clause as alleged
by the defendant/revisionist. It is further
stated that there is no dispute in respect of
covenants of the deed or proper fulfillment
of the deed. The term mentioned in the
lease deed has already expired, thus, the
present case does not fall within the ambit
of purview and scope of clause 9 of the
lease
deed
as
alleged
by
the
defendant/revisionist.

11. It is further stated that it is not
mentioned in the clause that the decision
shall be binding on the parties to the deed
as alleged by the defendant/revisionist.

12. The trial Court by order dated
21.08.2014 by placing reliance of a
judgement of this Court in the case reported
in 2014 (138) L.I.C. 901, All., Bharat
Sanchar Nigam Limited Vs. Ashok
Kumar held that the terms and conditions
of the lease deed are binding upon the
parties during the subsistence of lease deed,
and as the term of the lease deed has
expired on 31.03.2010, therefore, the
dispute is not referable under Section 8 of
the Act, 1996.

13. In the revision, preferred by the
petitioner/defendant, the revisional Court
after considering various clauses of the
agreement found that after expiry of the
lease
deed,
the
lessor
i.e.,
plaintiffs/respondents are entitled to regain
the possession of the leased property. The
revisional court further held that the suit is
for possession of the property leased out to
the defendant/petitioner for a fixed period
of 99 years and after expiry of the term of
the lease, the lease has not been renewed
between the parties. Accordingly, it held
that as the dispute between the parties
about the rights of the plaintiffs to regain
the possession of the property is not one
which relates to the rights and liabilities to
10 All. Nagar Nigam Meerut Vs. Dr. Sharad Rohtagi & Ors.
1091
the parties under the terms of the lease deed
and the claim of the plaintiffs/respondents
is clearly one that arose only after expiry of
the term of the lease, and thus, the dispute
is beyond the term of lease deed executed
between the parties in the year 1911.
Accordingly, it held that the matter is not
referable to the Arbitration under Section 8
of the Act, 1996 and accordingly,it
dismissed the revision.

14. Challenging the said order,
learned counsel for the petitioner has
contend that the finding of the trial Court in
rejecting the application 28Ga2 of the
defendant/petitioner is perverse and illegal
as there was no lease agreement between
the
plaintiffs/respondents
and
defendant/petitioner. It is further submitted
that the Court below has incorrectly
narrated the basic facts which clearly
indicate that the impugned orders have
been passed in a very casual manner. He
further
contends
that
the
defendant/petitioner
cited
number
of
judgements before the Court below but
none of the judgements cited by the
defendant/ petitioner have been dealt with
by the Court below and this reflects that
very casual approach had been adopted by
the Court below in deciding the application
28Ga2, therefore, the impugned orders are
liable to be set aside.

15. Lastly, it is urged that there is an
arbitration clause and even after the lease
deed is expired, the arbitration clause shall
remain in existence and is binding upon the
parties, and thus, both the Courts below were
obliged to refer the dispute under Section 8 of
the Act, 1996 and it is only the domain of the
Arbitrator to see whether the dispute falls
within the ambit of the arbitration clause or
not, and, thus, it is contended that the Court
below has committed jurisdictional error in
rejecting
the
revision
of
the
defendant/petitioner.

16. In support of his case, learned
counsel for the defendant petitioner has
placed reliance upon the judgement of the
Apex Court reported in 2000 (4) SCC 539 P.
Anand Gajapati Raju Vs. P.V.G Raju, 2003
(6)
SCC
503
Hindustan
Petrolium
Corporation Ltd. Vs. Pinkcity Midway
Petroleums, 2004 (1) SCC 372 Mallikarjun
vs. Gulbarga University, 2005 (2) CTC 487
Ford Credit Kotak Mahindra Ltd., vs M.
Swaminathan , 2007 (5) SCC 692 National
Agricultural Corp. Marketing Federation
India Ltd. vs Cains Trading Ltd., 2007 (5)
SCC 28 Punjab State and Ors. Vs Dina
Nath, 2008 (2) Alld. ALJ 663, M/S A.R.C
Overseas
Private
Limited
vs
M/S
Bougainvillea Multiplies and Entertainment
Centre Pvt. Ltd.& 2009 (10) SCC 103,
Branch Manager, Magma Leasing And
Finance Ltd and Another vs Potluri
Madhavilata And Another.

17. Per contra, learned counsel for the
plaintiffs/respondents has submitted that the
Clause on which reliance is placed by the
defendant/petitioner is not an arbitration
agreement as it does not conform to Section 7
of the Arbitration Act,1996.It is further
contended that the cause of action for filing
the suit for eviction had arisen after expiry of
the lease deed on 31/03/2010,therefore, there
is no claim with regard to the period during
which the lease was in subsistence, hence,
there is no dispute regarding the terms and
conditions of the agreement or breach of any
terms and conditions of the agreement when
lease deed was in force, therefore, the dispute
does not come within the ambit of alleged
arbitration clause.

18. It is further contended that the
defendant/petitioner did not hand over the
1092 INDIAN LAW REPORTS ALLAHABAD SERIES
actual physical vacant possession of the
land after expiry of the lease deed on
31.03.2010. The plaintiffs/ respondents did
not consent to the occupation of the tenant
after the expiry of the lease deed, therefore,
the status of the defendant/petitioner is that
of a tenant at sufferance (unauthorized
occupant), hence, is liable to be ejected
forthwith without issuance of any prior
notice. In support of his case, he has relied
upon the upon the judgement of the Apex
Court as well as this Court reported in 2014
(2) SCC 201 P. Dasaratharama Reddy
Complex vs. Government of Karnataka
and Ors., 2014 (5) ADJ 644, Bharat
Sanchar Nigam Limited vs. Ashok Kumar,
2011 (5) SCC 532 Booz Allen and
Hamilton Inc. vs. SBI Home Finance Ltd.
and Ors., 2021 (2) SCC 1 Vidya Drolia
and Ors. vs. Durga Trading Corporation
and Ors & 2018 (2) SCC 21 Syed Sughra
Zaidi vs. Laeeq Ahmad (Dead) through
L.Rs. and Ors.

19. I have heard learned counsel for
the parties and perused the record.

20. The fact as to how the
plaintiffs/respondents came to be the owner
of the property has been delineated in the
earlier part of the judgement. They claimed
the eviction of the petitioner/ defendant
from the property on the ground that the
term of the lease period has expired and
after expiration of the lease period, the
possession of the petitioner/defendant is
illegal and their status is that of a
trespasser.

21. Now, the petitioner/defendant has
instituted an application 28Ga2 under
Section 8 of the Act, 1996 on the basis of
stipulation referred as arbitration clause in
the lease deed contending that the dispute
in the instant case is covered under the said
stipulation and as such, the suit is not
maintainable and it is only the Arbitrator
who has jurisdiction to decide the dispute.
The
stipulations
on
which
the
petitioner/defendant
are
harping
is
reproduced herein-below:-

"Provided further that should any
dispute arise at any time in future between
the parties to the deed as to the proper
fulfillment or otherwise covenants or of any
matter with reference to this deed, the
dispute shall be referred to the Government
of the United of Province of Agra and
Oudh, and the decision of the Government
shall be accepted as final by the parties
and their representative and assigns;"

22.

According
to
the
defendant/petitioner, the aforesaid clause is
an arbitration agreement and conforms to
the requirement of Section 7 of the Act,
1996
which
defines
the
arbitration
agreement. It is contended that even if the
word 'Arbitration' is not used in a clause
relating to the settlement of disputes, it
does not detract from the clause being an
arbitration agreement if it has the attributes
or elements of an arbitration agreement.

23. In support of the aforesaid
contention, petitioner has relied upon the
judgement of the Apex Court reported in
2007 (5) SCC 28. Paras- 8 & 10 of the said
judgement are reproduced herein-below:-

"8. A bare perusal of the
definition of arbitration agreement would
clearly show that an arbitration agreement
is not required to be in any particular form.
What is required to be ascertained is
whether the parties have agreed that if any
dispute arises between them in respect of
the subject matter of the contract, such
dispute shall be referred to arbitration. In
10 All. Nagar Nigam Meerut Vs. Dr. Sharad Rohtagi & Ors.
1093
that case, such agreement would certainly
spell out an arbitration agreement. [See
Rukmani Bai Gupta v. Collector of
Jabalpur AIR 1981 SC 479. However, from
the definition of the arbitration agreement,
it is also clear that the agreement must be
in writing and to interpret the agreement as
an "arbitration agreement" one has to
ascertain the intention of the parties and
also treatment of the decision as final. If
the parties had desired and intended that a
dispute must be referred to arbitration for
decision and they would undertake to abide
by that decision, there cannot be any
difficulty to hold that the intention of the
parties
was
to
have
an arbitration
agreement, that is to say, an arbitration
agreement
immediately
comes
into
existence.

10. We have already noted clause
4 of the Work Order as discussed
hereinabove. It is true that in the aforesaid
clause 4 of the Work Order, the words
"arbitration" and "arbitrator" are not
indicated; but in our view, omission to
mention the words "arbitration" and
"arbitrator" as noted herein earlier cannot
be a ground to hold that the said clause
was not an arbitration agreement within
the meaning of Section 2[a] of the Act. The
essential requirements as pointed out
herein earlier are that the parties have
intended to make a reference to an
arbitration and treat the decision of the
arbitrator as final. As the conditions to
constitute an "arbitration agreement" have
been satisfied, we hold that clause 4 of the
Work Order must be construed to be an
arbitration agreement and dispute raised
by the parties must be referred to the
arbitrator. In K.K. Modi v. K.N. Modi
[1998] 3 SCC5 73 this Court had laid
down the test as to when a clause can be
construed to be an arbitration agreement
when it appears from the same that there
was an agreement between the parties that
any dispute shall be referred to the
arbitrator. This would be clear when we
read para 17 of the said judgment and
Points 5 and 6 of the same which read as
under:

5. that the agreement of the
parties to refer their disputes to the
decision of the tribunal must be intended to
be enforceable in law, and lastly

6.
the
agreement
must
contemplate that the tribunal will make a
decision upon a dispute which is already
formulated at the time when reference is
made to tribunal. "

24. On the other hand, learned
counsel for the plaintiffs/ respondents has
contended that stipulation extracted above,
is not an arbitration clause, inasmuch as it
does not fulfill the test laid down by the
Apex Court for it to be a valid arbitration
agreement. It is submitted that the
aforesaid clause does not refer to word
'Arbitration' as the mode of settlement of
dispute between the parties. The perusal of
the said clause does not indicate the
intention of the parties that the decision of
the Government of United Province of
Agra and Awadh is binding on either
party, therefore, the aforesaid clause is not
an arbitration clause.

25. In support of the said argument,
learned counsel for the respondent has
placed reliance upon the judgment of the
Apex Court reported in 2014 (2) SCC 201
P. Dasaratharama Reddy Complex vs.
Government of Karnataka and Ors. He
has placed reliance upon paras-14 & 27 of
the said judgement, which are being
reproduced herein-below:-
1094 INDIAN LAW REPORTS ALLAHABAD SERIES

"14. In Mysore Construction Co.
v. Karnataka Power Corporation Limited
and Ors. (supra), the learned Designated
Judge referred to the passage from Russell
on Arbitration (19th Edition, page 59), the
judgments of this Court in K.K. Modi v.
K.N. Modi and Ors. (supra), Chief
Conservator of Forests, Rewa v. Ratan
Singh Hans MANU/SC/0066/1966 : AIR
1967 SC 166; Smt. Rukmanibai Gupta v.
the Collector, Jabalpur (supra); State of
Uttar Pradesh v. Tipper Chand (1980) 2
SCC 341; State of Orissa v. Damodar Das
(1996) 2 SCC 216; Bharat Bhushan Bansal
v.
Uttar
Pradesh
Small
Industries
Corporation Limited, Kanpur (1999) 2
SCC 166 and observed:

The above decisions make it clear
that an agreement or a clause in an
agreement can be construed as an
arbitration agreement, only if,

(i) it provides for or contemplates
reference of disputes or difference by either
party to a private forum (other than a
Court or Tribunal) or decision;

(ii) it provides either expressly or
impliedly, for an enquiry by the private
forum giving due opportunity to both
parties to put forth their cases; and

(iii) it provides that the decision
of the forum is final and binding upon the
parties, without recourse to any other
remedy and both would abide by such
decision.

Where there is no provision
either for reference of disputes to a private
forum, or for a fair and judicious enquiry,
or for a decision which is final and binding
on parties to the dispute, there is no
arbitration agreement.

27. To the aforesaid proposition,
we may add that in terms of Clause 29(a)
and similar other clauses, any dispute or
difference irrespective of its nomenclature
in matters relating to specifications,
designs, drawings, quality of workmanship
or material used or any question relating to
claim, right in any way arising out of or
relating to the contract designs, drawings
etc. or failure on the contractor's part to
execute the work, whether arising during
the progress of the work or after its
completion, termination or abandonment
has to be first referred to the Chief
Engineer or the Designated Officer of the
Department. The Chief Engineer or the
Designated Officer is not an independent
authority or person, who has no connection
or control over the work. As a matter of
fact, he is having over all supervision and
charge of the execution of the work. He is
not required to hear the parties or to take
evidence, oral or documentary. He is not
invested with the power to adjudicate upon
the rights of the parties to the dispute or
difference and his decision is subject to the
right of the aggrieved party to seek relief in
a Court of Law. The decision of the Chief
Engineer or the Designated Officer is
treated as binding on the contractor subject
to his right to avail remedy before an
appropriate
Court.
The
use
of
the
expression 'in the first place' unmistakably
shows that non-adjudicatory decision of the
Chief Engineer is subject to the right of the
aggrieved party to seek remedy. Therefore,
Clause 29 which is subject matter of
consideration in most of the appeals and
similar clauses cannot be treated as an
Arbitration Clause.

26. Para-8 of the judgment in the case
of Punjab State and Ors vs Dina Nath
(supra) relied upon by the learned counsel
for the petitioner, extracted above, also
10 All. Nagar Nigam Meerut Vs. Dr. Sharad Rohtagi & Ors.
1095
defines
the
definition
of
arbitration
agreement and one of the necessary
condition to construe an agreement to be an
arbitration agreement is that the parties had
desired and intended that a dispute must be
referred to arbitration for decision and they
would undertake to abide by the decision.
On the presence of such condition, there
cannot be any difficulty to hold that the
intention of the parties was to have an
arbitration
agreement,
and
thus,
the
arbitration agreement immediately comes
into existence. Though, it is true that the
mention of word 'Arbitration' in the clause
may not be necessary to construe an
agreement to be an arbitration agreement,
but the relevant clause which is being
termed as 'arbitration agreement' has to
conform to the requirement of arbitration as
contained in Section 7 of the Arbitration
Act and elaborated by the judgement of the
Apex Court .

27. The Court now on the principles
set out by the Apex Court proceeds to find
out whether in the instant case, the
stipulation
referred
as
an
arbitration
agreement, can be termed an arbitration
agreement; it is evident from the clause
extracted above, which has been relied
upon by the petitioner for referring the
dispute to the arbitrator in the opinion of
the Court lacks necessary ingredients of
arbitration agreement that the decision of
the arbitrator shall be binding upon the
parties.

28. Perusal of the aforesaid clause
does not in any way indicate the intention
of the parties that the decision of the United
Province shall be binding upon the parties,
therefore, in absence of such a mandatory
condition, the aforesaid clause cannot be
termed as arbitration clause. Since, this
Court has held that the clause referred
above, is not an arbitration clause,
therefore, there is no question of referring
the matter to the arbitration and application
under Section 8Ga2 of the defendant/
petitioner was not maintainable.

29. It is also pertinent to note one of
the arguments raised by the counsel for the
petitioner that the Court below has noted
wrong fact in the order that the lease deed
was executed between the plaintiffs/
respondent and defendant/petitioner and
this reflects that the impugned orders were
passed in a most casual manner. In this
regard, para-39 of the writ petition is being
reproduced herein-below:-

"39. That the additional Civil
Judge (Senior Division) Meerut in its order
dated
21.08.2014
has
incorrectly
mentioned and discussed the facts which
were not even the case of the plaintiff. The
court below stated that there was a Lease
deed dated 1.4.1911 between the plaintiff
and defendant. But it was not even the case
set up in the plaint.

A bare perusal of the lease deed
also however shows that there was no lease
deed executed between the plaintiffs and
defendant Rather it was between Haji
Sheikh Alauddin and Chairman Municipal
Board, Meerut. The court below had
incorrectly narrated the basis facts which
clearly indicate that the impugned order
was passed in a most casual manner."

30. If that argument of the learned
counsel for the petitioner is accepted,
which
means
that
if
the
plaintiff/respondents have not stepped into
the shoes of the lessor Haji Sheikh
Alauddin and lease deed is not considered
to have been executed between the
plaintiffs/respondents
and
Chairman,
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
Municipal Board, Meerut, the terms and
conditions of the lease deed was not
binding upon the plaintiffs/respondent
which means that the above clause which
the defendant/petitioner is referring to an
arbitration agreement, even otherwise,
shall not be binding upon the plaintiffs/
respondents.

31. In view of the finding that the
stipulation
referred
as
'arbitration
agreement' of the lease deed is not an
'arbitration agreement', therefore, in the
opinion of the Court, the application 8Ga2
under Section 8 of the Act, 1996 filed by
the defendant/petitioner is misconceived
and was not maintainable. In such view of
the fact, the Court is not proceeding to
deal with the other contentions of the
parties
to
unnecessarily
burden
the
judgement.

32. Thus, for the reasons given above,
the
writ
petition
lacks
merit.
It
is,
accordingly, dismissed.
----------
(2022) 10 ILRA 1096
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Matters under Art. 227 (Civil) No. 6178 of 2022

Naval Kishor Sharma ...Petitioner
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
In Person, Sri Mohammad Iftekhar

Counsel for the Respondents:
G.A.

A. Criminal Law - Hate Speech - Indian
Penal Code: Section 295(A), 298, 419,
420, 501; Code of Criminal Procedure:
Section 200, 202, 203.

Jurisdiction - Summoning of a person is a
serious issue and a person cannot be
summoned
merely
by
making
an
allegation against him - The Apex Court in
the case of Mahendra Singh Dhoni (infra) has
specifically sounded word of caution to the
Magistrates conferred with the power of taking
cognizance and issuing summons to satisfy
themselves with regard to concept of territorial
jurisdiction apart from the other aspects of the
matter. In the present case, the trial court has
rightly followed the procedure and passed the
impugned order dated 11.03.2022. The trial
court was even cognizant of the fact that
summoning of a person in a criminal case is a
serious matter. The order of the trial court is
thus found to be a proper and judicious exercise
of its power. The revisional court while deciding
the revision against the order dated 11.03.2022
passed by the trial court has also considered
every aspect of the matter and then has come
to its conclusion that the order impugned
therein does not suffer from any illegality and
has dismissed the revision. The place of
occurrence in the present case is Malakheda,
District Alwar (Rajasthan). The complaint,
inquiry on it in the nature of statements u/s 200
and 202 Cr.P.C. are vague in so far as accruing
of the cause of action to the complainant at the
place of filing of the complaint is concerned.
This Court does not find any irregularity,
illegality or perversity in the judgment and order
dated 26.04.2022 passed by the revisional court
also.
Thus
looking
to
the
facts
and
circumstances of the case, this Court comes to
the conclusion that the Court at Mau had no
territorial jurisdiction to entertain the said
complaint. (Para 27, 28)

B. It is trite law that there has to be legal
evidence in support of the allegations
levelled against a person. In the present
case the only evidence relied upon is the
newspaper reporting and nothing else. As per
the settled legal position, a newspaper
report is not a "legal evidence". (Para 21)