9911796707
TMI Blog1998 (10) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... inches to 2 feet, on their lands which had made them unfit for cultivation untill such time as they were reclaimed. The second respondent had not done anything to redress the grievancees of the writ petitioners. The writ petition, therefore, prayed for a direction to the second respondents to close its plant until effluent disposal arrangements were made and "to pay the damages of Rs. One crore for the destruction of residential houses, crops and Mango Garden. The respondent No.2 may also be directed to reclaim the agricultural land of the petitioners which has been rendered unfit for cultivation. The respondents No. 1 and 3 may be directed to take steps for civil and criminal (action) against the respondent No.2". The writ petition was dismissed by a learned single Judge because it raised disputed questions of fact which could not be resolved in proceedings under Article 226. The order of the learned Single Judge was upheld by a Division Bench, the appeal being summarily dismissed. The appellants (being five of the writ petitioners) filed a petition for special leave to appeal against the order of the Division Bench. Notice thereon was issued to the respondents. Learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the land was completely destroyed. ....... The land being completely destroyed and having become worthless both for commercial and non-commercial use, the party No.1 is claiming the entire value of the land estimated at (Rs.)2 crores and 40 lakhs as damage of property being total loss in the year 1991." The appellants claimed interest "on the sum of entire loss or damages incurred ever since 1984 at the rate of 18% upto August 1991" and "interest at the rate of 18% per annum till the date of re-payment of the entire amount". The appellants quantified their claim at Rs.5 crores 28 lakhs, including Rs.2 crores 40 lakhs for "total loss suffered on account of the destruction of land making it worthless both for agricultural use ever since the year 1991". The respondents filed a written statement in which they drew attention to the order of reference passed by this court on 21st July, 1997 and the arbitration agreement and submitted that the claim made in the statement of claim went beyond the scope of the writ petition and therefore .......... ............... arbitration. On 2nd January, 1998 the learned umpire and arbitrators made an award. The relief given to the appellants read th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st, the learned Attorney General relied upon the judgment of this Court in State of Orissa vs. B.N. Agarwalla, 1997 (2)S.C 469, and the provisions of Section 3(1)(b) of the Interest Act, 1978. Mr. D.D. Thakur, learned counsel for the appellants, drew our attention to the prayers in the writ petition and to an application made before the High Court pending the writ petition. It alleged that the writ petitioners had been deprived of their livelihood, which was dependent on the soil; the write petitioners' lands had been rendered unfit for cultivation and their houses had suffered great loss on account of floods; the environment of the area had been rendered unfair due to pollution and the residents were living in great stress and strain, which had caused depression, on account of the constant fear of leakage of gas. Learned counsel drew attention to the arbitration agreement. He submitted that the learned arbitrators and umpire found that the appellants' land could not be reclaimed; they, therefore, gave the alternate relief of compensation for the land. He submitted that arbitrators had in this behalf the same powers as a court of law, to mould the relief having regard to the circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orchard was at one time the most fertile land yielding considerable annual income as depicted in the average produce statement, Exhibit TW1/1. The land under the orchard measuring 17 acres similarly fetched considerable income to Party No.1 as stated by Shri Vineet Khanna. Now this land is unfit for cultivation. However, as was notice and observed by us in our inspection note, many residential houses belonging to people of lower strata of society, seemingly below poverty line, have been constructed on a part of the disputed land in the recent years. After the agriculture and horticulture activity stopped, part of the land other than the land under the orchard before 1991 was sold at the rate of Rs.200/- per sq. yard....". In paragraph 15 of the award, to which reference was made, the learned arbitrators were unable to agree with "the amount of compensation claimed by the claimants as admittedly the market value of their land in recent years was not higher than Rs.200/- per square yard as the use of the land, for the reasons aforesaid, is confined to job of trivial nature or at best its use is limited for residential purpose of the lower strata of the society. The potential of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 34(1) of the Act states that recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-sections (2) and (3). Under sub-section (2), Clause (iv) an award amy be set aside if it "deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration". The proviso to clause (iv) says that if the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside. The first question, therefore, is : What were the terms of the submission to arbitration. The order of reference to arbitration is material in the context, it refers to the arbitration agreement that the parties had filed. Clause 1 thereof refers to arbitration "the disputes and differences arising between the parties hereto in S.L.P (Civil) No.17106 of 1996". The S.L.P. arose out of the writ petition filed by the appellants (and others) in the High Court. It is, therefore, reasonable to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraphs of the award quoted by learned counsel, or for that matter, anywhere else in the award, a discussion or conclusion by the learned arbitrators that the appellants' land could not be reclaimed. In fact, the award quotes a witness as explaining 'reclamation' thus : "By this I mean bringing the soil to its natural position. The natural position of the soil can be had after the total removal of the coal ash". A perusal of the award suggests that the learned arbitrators did not think that they could award compensation for the alleged lost potential of the land only if they found that the land could not be reclaimed; there is therefore no such evidence or discussion or finding in the award. In any event, we do not find it possible to accept learned counsel's submission that granting compensation for the alleged lost potential of the land was permissible moulding of the relief. It was not the case of the appellants in the writ petition, even in the alternative, that the land could not be reclaimed and there was no claim for compensation for the slleged lost potential of the land or averments or particulars in support thereof. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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