# Writ -C No. 30711 of 20003 Union of India & Ors v. Addl. District Judge & Ors

- **Citation:** (2015) 1 ILRA 347
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-24
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/writ-c-no-30711-of-20003-union-of-india-ors-v-addl-district-judge-ors-43151
- **Pages:** 6

## Headnote

Act-Section-30-Jurisdiction
of
arbitrator-once award made rule-appellate
authority remanded for fresh considerationarbitrator already retired before order of
remand-held-can not be allowed to take
breath of hot and cold wave-once petitioner
participated proceeding before arbitratorcan
not
be
allowed
to
say
without
jurisdiction.
Held: Para-14
Thus, in the facts and circumstances of the
case and in view of the various decisions of
Hon'ble Apex Court, it is no longer open to
the petitioners, Union of India to challenge
that the award was without jurisdiction as
Shri Ashok Kumar, the Sole Arbitrator had
no jurisdiction to proceed with the matter
after his retirement.
Case Law discussed:
AIR 1988 SC 205; (2012) 12 SCC 513; (1998)
2 SCC 89; (2014) 11 SCC 366.

## Text

1 All] Union of India & Ors. Vs. Addl. District Judge & Ors.
347
case no.1548 of 2012 (Mohd. Sarfaraz Vs.
Kahkashan Begum and others), as well as
summoning order 10.7.2013 are hereby
quashed.
The
present
482
Cr.P.C.
application stands allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2015
BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.
Writ -C No. 30711 of 20003
Union of India & Ors.
 ...Petitioners
Versus
Addl. District Judge & Ors. ..Respondents
Counsel for the Petitioners:
Ajit Kumar Singh
Counsel for the Respondents:
S.C., Sri P.K. Jain, Sri Vikrant Rana
Arbitration
Act-Section-30-Jurisdiction
of
arbitrator-once award made rule-appellate
authority remanded for fresh considerationarbitrator already retired before order of
remand-held-can not be allowed to take
breath of hot and cold wave-once petitioner
participated proceeding before arbitratorcan
not
be
allowed
to
say
without
jurisdiction.
Held: Para-14
Thus, in the facts and circumstances of the
case and in view of the various decisions of
Hon'ble Apex Court, it is no longer open to
the petitioners, Union of India to challenge
that the award was without jurisdiction as
Shri Ashok Kumar, the Sole Arbitrator had
no jurisdiction to proceed with the matter
after his retirement.
Case Law discussed:
AIR 1988 SC 205; (2012) 12 SCC 513; (1998)
2 SCC 89; (2014) 11 SCC 366.
(Delivered by Hon'ble Vivek Kumar Birla, J.)
1. Heard learned counsel for the
petitioners
and
Shri
Vikrant
Rana
appearing for the contesting respondents.
2. The facts of the case in brief are
that a contract was entered into between
the Union of India and the respondent
no.3 (M/s P.A.B.(India) Private Ltd.,
Partapur (hereinafter referred to as the
'Firm") on 22.02.1990 for construction of
Air Conditioning Accommodation for
data entry system at Ordinance Factory,
Muradnagar. Subsequently, the time for
completion of work was extended till
30.09.1991. Thereafter, certain disputes
arose between the parties and as per
clause 70 of the agreement, the matter
was referred to sole Arbitrator. The Chief
Engineer
Bareilly
Zone,
Bareilly
appointed Shri Ashok Kumar, Additional
Chief
Engineer
(Planning),
CEBZ
Bareilly as Arbitrator by letter dated
15.12.1992. The Arbitrator gave its award
on 21.01.1994 awarding certain amount in
favour of the Firm. The Firm also filed an
application under Section 14 of the
Arbitration Act for making the award,
Rule of the Court. The petitioners filed
objection under Section 30 of the
Arbitration Act before the Court below.
By order dated 26.10.1996, the IVth
Additional Civil Judge (Senior Division),
Meerut rejected the objections of the
petitioners and allowed the case of the Firm.
This order dated 26.10.1996 was further
challenged by the Union of India before the
IVth Additional District Judge, Meerut by
filing Misc. Appeal No.414 of 1996. On
18.11.1997, the appeal was allowed and the
order dated 26.10.1996 passed by the Civil
Judge (Senior Division) Meerut making the
award, Rule of the Court was set aside and the
matter was remanded back to the sole
Arbitrator, Shri Ashok Kumar, Additional
Chief Engineer for decision afresh. Certain
findings were recorded by the Lower
348
 INDIAN LAW REPORTS ALLAHABAD SERIES
Appellate Court to the effect that the
Arbitrator has not accepted the claim of
the Firm, insofar as, claim nos.2, 3, 4, 6, 7
and 9 are concerned but while deciding
item no.8 interest was awarded, which
was a gross illegality and therefore, the
same could not have been awarded. The
Appellate Court remanded back the
matter by judgment and order dated
18.11.1997
to
Shri
Ashok
Kumar,
Additional Chief Engineer and it is not in
dispute that Shri Ashok Kumar had retired
on 31st August, 1995 i.e. much prior to
the date of decision of the Appellate
Court
given
on
18.11.1997.
This
judgment was not challenged by Union of
India before any higher Court and thus
attained finality.
3. Shri Ashok Kumar proceeded
with the arbitration proceedings and no
objection was taken by the Union of India
before him that after retirement he was no
longer competent to proceed with the
arbitration proceedings. Ultimately, a
fresh award was passed on 15.06.1998
(which may be referred to as the "last
award"). The Firm filed an application to
make the (last) award, Rule of the Court.
Against the last award, an objection was
also filed by the Union of India under
Section 30 of the Arbitration Act before
the concerned Court. By judgement and
order dated 15.09.1999, the Vth Additional
Civil Judge (Senior Division), Meerut
rejected the objection of the petitioners and
directed that the Award dated 15.06.1998 be
made, Rule of the Court. Against the
aforesaid judgment of the Additional Civil
Judge dated 15.09.1999, two miscellaneous
appeals came to be filed by the Union of
India being Misc. Appeal No.54 of 1999 and
Misc. Appeal No.80 of 2000. Both the
appeals were dismissed by the Lower
Appellate Court on 31.03.2003.
4.
In nutshell, the objection of the
Union of India was dismissed and application
of the Firm was allowed to the effect that the
award be made, Rule of the Court.
5. The present petition has been filed
primarily
challenging
the
aforesaid
decisions on the ground that the Arbitrator
had no jurisdiction to proceed with the
Arbitration Proceedings as he had retired
from service and was not competent to
proceed with the arbitration proceedings.
6. The counsel for the petitioners has
also weakly attempted to show that the
Firm specifically gave an undertaking that
for the unfinished work done during the
extended period the Firm shall not claim
any excalation of cost. He submits that the
Arbitrator has illegally granted the same
for the work done in extended time and
that
the
same
is
wholly
without
jurisdiction and contrary to the terms
agreed between the parties.
7. Per contra, Shri Vikrant Rana,
Advocate appearing for the Firm had
submitted that the objections, which are
now being taken regarding competence of
the Arbitrator, were never taken by the
petitioners before the Arbitrator. He submits
that it was well within the knowledge of the
petitioners that the arbitrator had already
retired from service during the pendency of
the appeal whereby first award was
challenged by the Union of India, and
subsequent thereto no objection was raised
before
the
Arbitrator
regarding
his
competence to proceed with the arbitration
proceedings. He, therefore, submits that it is
no longer open to the petitioners to claim that
Shri Ashok Kumar had no jurisdiction to
proceed with the arbitration after his
retirement. He further pointed out that the
judgment and order dated 18.11.1997 passed
1 All] Union of India & Ors. Vs. Addl. District Judge & Ors.
349
by the Lower Appellate Court in Appeal
No.414 of 1996 was never challenged by the
petitioners and thus, became final and the
petitioners
also
submitted
before
the
Arbitrator and completed their arguments
without raising any such objection. He further
submits that insofar as, claim of payment of
escalated cost against work done during
extended period, the same was never
challenged before the Arbitrator as well as by
filing objections under Section 30 of the
Arbitration
Act while
challenging
the
judgment and order dated 15.09.1999 passed
by the Vth Additional Civil Judge (Senior
Division), Meerut in appeal, hence now the
same is not open to challenge as it will be
deemed that the Union of India, by its
conduct
has
waived
the
terms
of
agreement. In support of his arguments,
Shri Rana has relied upon several
judgements of Hon'ble Apex Court to
contend that once the petitioners failed to
raise any objection with regard to
competence of the Arbitrator that he
cannot proceed with the arbitration
proceedings after his retirement, it is no
longer open to the petitioners to challenge
the same and the present petition deserves
to be dismissed as the order passed by
Lower Appellate Court are perfectly just
and legal.
8. I have considered the rival
submissions and perused the record. A
perusal of record demonstrates that the
objections filed by the Union of India
under Section 30 of the Arbitration Act
against the last award are too vague in
nature and except one line objection that
the Arbitrator after retirement was not
competent to give award, there is no
specific challenge to the last award.
Further, there is nothing on record to
show that any attempt was made by the
petitioners before the lower appellate
court, before or at the time of passing of
the judgment dated 18.11.1997 in Misc.
Appeal No. 414 of 196 when matter was
remanded back to Shri Ashok Kumar, to
intimate the Court that he had already
retired and therefore was not competent to
proceed with arbitration. Undisputedly,
after remand the petitioners pursued their
case before Shri Ashok Kumar.
9. Insofar as the competence of the
Arbitrator
after
his
retirement
is
concerned, it is very much clear from the
operative portion of the judgment of the
Lower Appellate Court dated 18.11.1997
that Shri Ashok Kumar, Additional Chief
Engineer was directed to pass the fresh
award
within
three
months.
This
judgement and order dated 18.11.1997
was never challenged by Union of India
by filing writ petition or by availing any
other remedy available in law. Not only
this, Union of India appeared before the
Arbitrator, Shri Ashok Kumar, who had
already retired during the pendency of the
appeal before the Court below with full
knowledge. It is also clear from the record
that arguments were also advanced before
the Arbitrator only on merits and his
competence
to
proceed
with
the
arbitration proceedings was never raised
before him.
10.
In Prasun Roy Vs. Calcutta
Metropolitan Development Authority and
others, AIR 1988 SC 205, the Hon'ble Apex
Court held that the principle is that a party
shall not be allowed to blow hot and cold
simultaneously. Long participation and
acquiescence in the proceeding preclude
such a party from the contending that the
proceedings
were
without
jurisdiction.
Paragraphs 6, 7 and 8 of the said judgment
are quoted hereinunder:-
"6. Mr. Kacker submitted that this
principle could be invoked only in a situation
350
 INDIAN LAW REPORTS ALLAHABAD SERIES
where the challenge is made only after the
making of an award, and not before. We are
unable to accept this differentiation. The
principle is that a party shall not be allowed
to blow hot and cold simultaneously. Long
participation and acquiescence in the
proceedings preclude such a party from
contending that the proceedings were
without jurisdiction.
7. Russel on Arbitration, 18th Edition
page 105 explains the position as follows:
"If the parties to the reference either
agree beforehand to the method of
appointment, or afterwards acquiesce in the
appointment made, with full knowledge of all
the circumstances, they will be precluded
from objecting to such appointment as
invalidating
subsequent
proceedings.
Attending and taking part in the proceedings
with full knowledge of the relevant fact will
amount to such acquiescence."
8. The Judicial Committee in decision
in
Chowdhury
Murtaza
Hossein
V.
Mussumat Bibi Bechunnissa (1876) 3 Ind
App 209 observed at p. 220:
"On the whole, therefore, their
Lordships think that the appellant, having
a clear knowledge of the circumstances on
which he might have founded an objection to
the arbitrators proceedings to make their
awards, did submit to the arbitration going
on; that he allowed the arbitrators to deal
with the case as it stood before them, taking
his chance of the decision being more or less
favourable to himself; and that is too late for
him, after the award has been made, and on
the application to file the award, to insist on
this objection to the filing of the award."
Relying on the aforesaid observations
this Court in N. Chellappan V. Secy, Kerala
State Electricity Board, (1975) 1 SCC 289:
(AIR 1975 SC 230) acted upon the principle
that acquiescence defeated the right of the
applicant at a latter stage. In that case the
facts were similar. It was held by conduct
there was acquiescence. Even in a case
where initial order was not passed by
consent
of
the
parties
a
party
by
participation and acquiescence can preclude
future challenges."
11. In the case of Durga Charan
Rautray Vs. State of Orissa, (2012) 12
SCC 513, in paragraph 16 the Hon'ble
Apex Court held that once the disputes
raised by appellant were referred for
arbitration and the rival parties submitted
to the arbitration proceedings without any
objection, it is no longer open to either of
them to contend that arbitral proceedings
were not maintainable.
12. In M/S Construction India Vs. The
Secretary, Works Department, Government
of Orissa and others, (1998) 2 SCC 89, the
Hon'ble Apex Court held that a conscious
acquiescence on the part of the respondents
in the continued jurisdiction of the arbitrator,
it is no longer open to them to challenge the
same on the ground of jurisdiction. In this
case also (as in the case in hand) the
appointment of arbitrator was by name and
he continued even after he was no longer
Chairman of Orissa Arbitration Tribunal.
The decision of the Hon'ble Apex Court in
Prasun Roy Vs.
Calcutta Metropolitan
Development Authority and others, AIR
1988 SC 205 = 1987 (4) SCC 217 is also
cited with approval in paragraph 13 of this
decision. Paragraph 6 of the said judgment is
quoted hereinunder:-
"6. The order of appointment clearly
shows that the appointment of Shri G.S.
Patnaik, Chairman of the Orissa Arbitration
Tribunal, is of a named arbitrator. The order
of appointment does not qualify this
appointment either by prescribing that he can
1 All] Union of India & Ors. Vs. Addl. District Judge & Ors.
351
act as an arbitrator so long as he continues as
Chairman of the Orissa Arbitration Tribunal;
nor is there any implication to this effect in the
Sub-Court's
order.
The
reference
to
arbitration is also not to the Orissa
Arbitration Tribunal. This would require three
members constituting the Tribunal to sit
together. Therefore, it is difficult to hold that
the arbitrator who was named was to act as
an arbitrator only so long as he held the office
of the Chairman of the Orissa Arbitration
Tribunal. The parties may choose an
arbitrator for various reasons. They may rely
on his expertise or his special skills at the time
when they choose the arbitrator. According to
the respondents they agreed to the name
because there were departmental instructions
to refer disputes to the arbitration of any
member of the Orissa Arbitration Tribunal.
But when the arbitrator is named, unless there
is a clear intention spelt out in the agreement
of reference to indicate that he would continue
to be an arbitrator only so long as he holds a
particular office, a mere reference to the office
held by the arbitrator will not disqualify him
from being an arbitrator after he ceases to
hold that office. The arbitrator, therefore, had
jurisdiction to give the awards."
13.
Recently again while considering
the competence/jurisdiction of the Arbitrator,
the Hon'ble Apex Court in Union of India
Vs. Pam Development (P) Ltd. (2014) 11
SCC 366 clearly held that since the appellant
has not raised the objection with regard to the
competence/jurisdiction
of
the
Arbitral
Tribunal before the learned Arbitrator, the
same is deemed to have been waived in view
of the provisions contained in Section 4 read
with Section 16 of the Arbitration Act, 1996.
Relevant paragraphs no. 16, 17, 18 and 19
are quoted hereunder:
16. As noticed above, the appellant
has not only filed the statement of defence
but also raised a counterclaim against the
respondent. since the appellant has not
raised the objection with regard to the
competence/jurisdiction of the Arbitral
Tribunal before the learned Arbitrator,
the same is deemed to have been waived
in view of the provisions contained in
Section 4 read with Section 16 of the
Arbitration Act, 1996.
17. Section 16 of the Arbitration Act,
1996 provides that the Arbitral Tribunal
may rule on its own jurisdiction. Section
16 clearly recognises the principle of
kompetenz-kompetenz. Section 16 (2)
mandates that a plea that the Arbitral
Tribunal does not have jurisdiction shall
be raised not later than the submission of
the statement of defence. Section 4
provides that a party who knows that any
requirement
under
the
arbitration
agreement has not been complied with
and yet proceeds with the arbitration
without stating his objection to such noncompliance without undue delay shall be
deemed to have waived his right to so
object.
18. In our opinion, the High Court
has correctly come to the conclusion that
the appellant having failed to raise the
plea of jurisdiction before the Arbitral
Tribunal cannot be permitted to raise for
the first time in the Court. Earlier also,
this Court had occasion to consider a
similar objection in BSNL v. Motorola
India (P) Ltd. Upon consideration of the
provisions contained in Section 4 of the
Arbitration Act, 1996, it has been held as
follows: (SCC p. 349, para 39)
"39. Pursuant to Section 4 of the
Arbitration and Conciliation Act, 1996, a
party which knows that a requirement under
the arbitration agreement has not been
complied with and still proceeds with the
arbitration without raising an objection, as
soon as possible, waives their right to object.
352
 INDIAN LAW REPORTS ALLAHABAD SERIES
The High Court had appointed an arbitrator
in response to the petition filed by the
appellants (sic respondent). At this point, the
matter was closed unless further objections
were to be raised. If further objections were
to be made after this order, they should have
been made prior to the first arbitration
hearing. But the appellants had not raised
any such objections. The appellants therefore
had clearly failed to meet the stated
requirement to object to arbitration without
delay. As such their right to object is deemed
to be waived."
19. In our opinion, the obligations are
fully applicable to the facts of this case. The
appellant is deemed to have waived the right
to object with regard to the lack of
jurisdiction of the Arbitral Tribunal."
14.
Thus, in the facts and
circumstances of the case and in view of
the various decisions of Hon'ble Apex
Court, it is no longer open to the
petitioners, Union of India to challenge
that the award was without jurisdiction as
Shri Ashok Kumar, the Sole Arbitrator
had no jurisdiction to proceed with the
matter after his retirement.
15. In my opinion, except the aforesaid
ground, no other ground to challenge the
award and the judgements passed by the
Court below can be now raised. This Court
cannot sit in appeal over the decision of the
Arbitrator by examining and re-examining
the material and evidence before him.
Further, no challenge to the finding of facts
was made in the objections filed by the
Union of India before the Courts below.
Even otherwise apparently on the basis of
arguments findings have been recorded by
both the Courts below against the petitioners,
which in my opinion are not open to
challenge and cannot be re-appreciated under
Article 226 of the Constitution of India.
16. No other point is pressed by the
counsel for the petitioners.
17. In view of the aforesaid, the
petition lacks merit and is accordingly,
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Writ-C No. 33430 of 2012
Raghvendra Jeet Singh
...Petitioner
Versus
Board of Revenue & Ors.
...Respondents
Counsel for the Petitioner:
Sri Triveni Shankar, Sri Ajay Shankar, Sri
Rajendra Kumar Pandey.
Counsel for the Respondents:
C.S.C.
Stamp
Act,
Art.-55
Schedule
I-BSurrender
of
title
and
interest-by
coparcener in favor of Karta of Joint
hindu family-whether can be termed
release
on
gift?-
held-'release'-each
coparcener having common interest and
title-can not be treated transfer-hence
treating gift deed demand of additional
stamp duty with penalty-held illegal in
view
of
Dharmapal
Case-petition
allowed.
Held: Para-36
In the facts of the present case, the
releasors together released 1/3rd share
(each having 1/9th share) in favour of
Karta and other co-parcener and not to a
particular co-owner, the property was
being held jointly and there was no
partition of the interest in the property
among co-owners, the document in
question would be a release deed and
not
conveyance
or
a
gift
deed.