Delhi District Court
India Waste Energy Development Ltd. vs . Govt. Of Nct Of Delhi & Anr. on 3 October, 2019
India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
ARBN. NO. : 26/2017
UNIQUE CASE ID NO. : 797/2017
IN THE MATTER OF :
India Waste Energy Development Ltd.
(Earlier at 161/2, Adchini,
Sri Aurobindo Marg, New Delhi)
Through its Director Sh. B.K. Sahni
Now at H366, Palam Vihar,
Gurgaon122017 (Haryana). ....Petitioner
VERSUS
1. Govt. of NCT of Delhi
Through the Principal Secretary
Ministry of Health & Family Welfare,
Playery Building,
Delhi Government Secretariat,
New Delhi.
2. Justice C.L. Chaudhry (Retired)
Sole Arbitrator,
At D15, Sector20,
Noida201301. ....Respondents
Arbt. No.26/2017 Page 1 of 26
India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
OBJECTIONS UNDER SECTION 34 READ WITH OTHER ENABLING PROVISIONS OF THE ARBITRATION AND CONCILIATION ACT, 1996 FOR SETTING ASIDE THE AWARD DATED 06.04.2017 QUA THE CLAIM NO.2 MADE AND PUBLISHED BY JUSTICE C.L. CHAUDHRY (RETD.) SOLE ARBITRATOR.
Date of institution of the Appeal : 16/08/2017 Date on which Judgment was reserved : 07/09/2019 Date of Judgment : 03/10/2019 :: J U D G M E N T ::
By way of present judgment, this court shall conscientiously adjudicate upon the objections filed on behalf of India Waste Energy Development Ltd. under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the arbitral award dated 06.04.2017.
CASE OF THE OBJECTOR AS PER PETITION Succinctly, the objector/ petitioner has averred the following facts in the objections: (1) Consequent upon certain disputes having been arisen between the petitioner and Govt. of NCT of Delhi, the petitioner filed an Arbitration application under Section 11 of the Arbitration & Conciliation Act, 1996 and the Hon'ble High Court of Delhi vide order dated 12.03.2003 was pleased to appoint Justice C.L. Chaudhry (Retd.) as Arbitrator. The Arbt. No.26/2017 Page 2 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
disputes were referred to the Hon'ble Arbitrator, who has made and published his Award dated 06.04.2017. (2) The petitioner has challenged the said Award qua the Claim no.2 only as the petitioner has claimed Rs.36 Lakhs towards the additional cost for having to treat large quantities of mixed waste, such as municipal waste, blanket, linen etc., dumped by DDU Hospital but the Hon'ble Arbitrator has erroneously and without taking into consideration the evidence and material on record, awarded a meager amount of Rs.15,37,500/. Being aggrieved by the aforesaid Award qua the claim no.2, the petitioner has approached this Court. ARGUMENTS OF THE APPLICANT/OBJECTOR/PETITIONER (1) The Hon'ble Arbitrator has completely ignored that the petitioner worked from 9th August 2000 to June 2003 continuously and the said period is fully covered by the survey carriedout by the Delhi Pollution Control Committee and Centre for Occupational and Environmental Health, a body of Govt. of NCT of Delhi and submitted its report which clearly stipulates that there was average per bed per day bio medical waste generation of 1.200 kgs. against 250 gms. The waste generation was to be as per the waste management manual issued by the Ministry of Urban Affairs, Govt. of India, which prescribes maximum 250 gms. of infectious medical waste per bed per day is generated. As per respondent no.1, the claimant was treating an excess of 950 gms. per day bed Arbt. No.26/2017 Page 3 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
of medical waste which comes to 475 kgs. per day (being 950 gms. X 500 beds). For 35 months i.e. 1065 days, it comes to excess treatment of 5,05,875 kgs. This calculated at Rs.7/ per kg comes to Rs.35,41,125/.
(2) The Hon'ble Arbitrator has erroneously and without any basis reduced the quantity of excess waste to 300 kgs. per day instead of 475 kgs. which is duly confirmed and authenticated by the aforesaid survey report and hence, the said award is liable to be enhanced.
(3) The Hon'ble Arbitrator has completely ignored the agreement between the parties wherein it has clearly been agreed vide clause 6 that "the contractor shall treat the bio medical waste from health care establishments under the GNCTD in the first shift on priority basis and thereafter shall utilize the available spare capacities of the treatment facilities handed over for treating bio medical waste delivered at the facility site from nursing homes/ hospitals and other private health care establishments possessing proper authorization under the Rules for generating waste on payment basis at a rate not exceeding Rs.7.00/ kg uniformly for incineration/autoclaving and shredding." But the Hon'ble Arbitrator without any basis has reduced the rate to Rs.5/ per kg which is against the material on record. The Hon'ble Arbitrator has wrongly concluded that the claimant/petitioner has itself claimed Arbt. No.26/2017 Page 4 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
different quantities of excess Bio Medical Waste treated by it during the period 20.08.2001 to January 2002 at the rate of Rs.5/ per kg.
(4) The Hon'ble Arbitrator has failed to take into account that in Hospitals do not and cannot observe any Holidays and they work throughout the year and hence the waste generation is a continuous process in the Hospitals. So the 40 days deduction of working days is only presumption and without any evidence.
(5) The Annexure C1II does not belong to the petitioner and the claim of petitioner is confirmed and authenticated on the basis of the Survey Report of the Centre of Occupational Environment Health, which shows that in May 2000, DDU Hospital was generating bio medical waste as 1130 kg., which is equivalent to 2.26 per day. However, thereafter, it is constant in August 2002, November 2002 and March 2003 as 604 kg. Per day, which is about 1.2 kg per bed per day. Therefore, the calculation arrived at by the Hon'ble Arbitrator on the basis of AnnexureC1II, which is the document of the respondent, are wrong and uncalled for.
(6) The Hon'ble Arbitrator ought to have based his calculation on the basis of the aforesaid Survey Report, which is an authenticated document and confirmed the claim of the petitioner. The objector/petitioner (2003) (2) Arb. LR 5 (SC) in Arbt. No.26/2017 Page 5 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
the matter of "Oil & Natural Gas Corp. Ltd. Vs. Saw Pipes Ltd. Reliance is placed on Headnote2 & 3 (3) para 12, 13, 31, 68(3) (4) & 69, 74(ii) a, c,(3)a, b, c (4)d (4) of the authorities relied upon.
(7) The total amount claimed by the objector/claimant Rs.35,41,125/ for 1065 days x 475/ Kgs. per day @ Rs.7/ per kg. (+ interest) against preestimated claim amount of Rs.36 Lacs. The amount already awarded by the Hon'ble Arbitrator Rs.15,37,500/ (+ interest), based on calculation 1025 days x300 days @ Rs.5/ per kg.
PRINCIPLES OF SETTING ASIDE OF AWARD UNDER SECTION 34 OF THE ARBITRATION AND CONCILIATION ACT On a panoramic appreciation of the earlier existing judicial thought on the issue, as manifested by decisions ranging from Renu Sagar Power Company Ltd. v. General Electric Company 1994 Supp. (1) SCC 644 to Associated Builders v. DDA (2015) 3 SCC 49, the Hon'ble High Court in its decision in NHAI v. Hindustan Construction Company Ltd. MANU/DE/2699/2017 delineated the following propositions:
(i) The four reasons motivating the legislation of the Act, in 1996, were
(a) to provide for a fair and efficient arbitral procedure,
(b) to provide for the passing of reasoned awards, Arbt. No.26/2017 Page 6 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
(c) to ensure that the arbitrator does not transgress his jurisdiction, and
(d) to minimize supervision, by courts, in the arbitral process.
(ii) The merits of the award are required to be examined only in certain specified circumstances, for examining whether the award is in conflict with the public policy of India.
(iii) An award would be regarded as conflicting with the public policy of India if
(a) it is contrary to the fundamental policy of Indian law, or
(b) it is contrary to the interests of India,
(c) it is contrary to justice or morality,
(d) it is patently illegal, or
(e) it is so perverse, irrational, unfair or unreasonable that it shocks the conscience of the court.
(iv) An award would be liable to be regarded as contrary to the fundamental policy of Indian law, for example, if
(a) it disregards orders passed by superior courts, or the binding effect thereof, or
(b) it is patently violative of statutory provisions, or
(c) it is not in public interest, or Arbt. No.26/2017 Page 7 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
(d) the arbitrator has not adopted a "judicial approach", i.e. has not acted a fair, reasonable and objective approach, or has acted arbitrarily, capriciously or whimsically, or
(e) the arbitrator has failed to draw an inference which, on the face of the facts, ought to have been drawn, or
(f) the arbitrator has drawn an inference, from the facts, which, on the face of it, is unreasonable, or
(g) the principles of natural justice have been violated.
(v) The "patent illegality" had to go to the root of the matter. Trivial illegalities were inconsequential.
(vi) Additionally, an award could be set aside if
(a) either party was under some incapacity, or
(b) the arbitration agreement is invalid under the law, Or
(c) the applicant was not given proper notice of appointment of the arbitrator, or of the arbitral proceedings, or was otherwise unable to present his case, or
(d) the award deals with a dispute not submitted to arbitration, or decides issues outside the scope of the dispute submitted to arbitration, or
(e) the composition of the Arbitral Tribunal was not in accordance with the agreement of the parties, or in accordance with Part I of the Act, or Arbt. No.26/2017 Page 8 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
(f) the arbitral procedure was not in accordance with the agreement of the parties, or in accordance with Part I of the Act, or
(g) the award contravenes the Act, or
(h) the award is contrary to the contract between the parties.
(vii) "Perversity", as a ground for setting aside an arbitral award, has to be examined on the touchstone of the Wednesbury principle of reasonableness.
(A reasoning or decision is Wednesbury unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223).
It would include a case in which
(a) the findings, in the award, are based on no evidence, or
(b) the Arbitral Tribunal takes into account something irrelevant to the decision arrived at, or
(c) the Arbitral Tribunal ignores vital evidence in arriving at its decision.
(viii) At the same time,
(a) a decision which is founded on some evidence, which could be relied upon, howsoever compendious, cannot be treated as "perverse", Arbt. No.26/2017 Page 9 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
(b) if the view adopted by the arbitrator is a plausible view, it has to pass muster,
(c) neither quantity, nor quality, of evidence is open to reassessment in judicial review over the award.
(ix) "Morality" would imply enforceability, of the agreement, given the prevailing mores of the day.
"Immorality", however, can constitute a ground for interfering with an arbitral award only if it shocks the judicial conscience.
(x) For examining the above aspects, the pleadings of the parties and materials brought on record would be relevant.
(xi) The court cannot sit in appeal over an arbitration award. Errors of fact cannot be corrected under Section
34. The arbitrator is the last word on facts."
FINDINGS AND CONCLUSIONS OF THE COURT ON THE QUESTION WHETHER THE PETITION WAS FILED WITHIN THE PRESCRIBED PERIOD AS PER SECTION 34(3) OF ARBITRATION AND CONCILIATION ACT, 1996 The Ld. counsel for respondent no.1 has argued that the objections/petition filed by the petitioner/objector was not filed within the period of Limitation, as prescribed under Section 34(3) of the Arbitration and Conciliation Act, 1996 and the same is liable to be dismissed on this ground alone. It is further argued that there is Arbt. No.26/2017 Page 10 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
no infirmity in the findings qua Claim no.2 in the impugned Award passed by the Hon'ble Arbitrator.
The petitioner has filed the application under Section 34(3) of Arbitration and Conciliation Act, 1996. The petitioner/ objector has submitted in the said application that the petitioner was represented by its Director Shri B.K. Sahni, who is an old and infirm person aged about 79 years and suffering from various ailments and he has developed piles problem as well as the cataract in his right eye and surgery was recommended. He has also suffered dental problem and new set of dentures were to be fixed, for which he had to make several visits at Maulana Azad Institute & Dental Sciences at New Delhi and for this reason, the petition was not filed within the period as prescribed under Section 34(3) of the Arbitration and Conciliation Act, 1996. The said application was vehemently opposed by respondent no.1 by filing the reply. The respondent no.1 has submitted that the petitioner has failed to disclose the number of days, which the petitioner is seeking for condonation of delay, in filing the petition. The respondent no.1 further submitted that petitioner is a Limited Company and many persons are engaged in the business of the Company and although, it is not admitted that Director was not well but it is argued that if a Director is not well, then the entire affair of the company cannot be believed to remain standstill. It is further argued by respondent no.1 that petitioner has not filed any document to show the authenticity of the averments made in the application, therefore, Arbt. No.26/2017 Page 11 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
the application is not only vague but the same is also not maintainable and is liable to be dismissed.
The petitioner has failed to mention in the entire petition and the application that when the petitioner had received the signed copy of the Award from Hon'ble Arbitrator. However, the petitioner has placed on record the letter dated 06.04.2017 of the Hon'ble Arbitrator (Page no.13 of the petition), whereby, the Hon'ble Arbitrator had given the Notice to petitioner and respondent no.1 that Award has been announced today and a duly signed copy of the Award is attached alongwith the said Notice and the said Notice is duly signed by Hon'ble Arbitrator. The perusal of the arbitration record (page no. 5) also reflects the said letter dated 06.04.2017 and it reveals that the original signed copy of Award dated 06.04.2017 has been received by the petitioner on 14.04.2017 and it bears the signatures of Sh. B.K. Sahni, Director of the petitioner company. It is also written that "received copy of Award duly signed" and under the same, it bears the signatures of Sh. B.K. Sahni (Although, it does not contain the name of Sh. B.K. Sahni). The Director, who is present in the Court, has admitted that the said letter in the Arbitration record bears his signatures and he has received the signed copy of Award on behalf of the petitioner on 14.04.2017. In view of categorical submission made by the Director coupled with the Arbitration record, it is manifestly apparent that the petitioner has received the signed copy of the Award on 14.04.2017.
Arbt. No.26/2017 Page 12 of 26India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
The three months from the receipt of the signed copy of Award had expired on 14.07.2017 and even if, we add 30 days in terms of proviso to Section 34(3) of Arbitration and Conciliation Act, 1996 in the said time, then also, the petition was required to be filed on or before 13.08.2017. However, 13.08.2017 was a Sunday. The question arises whether Sunday can be excluded in view of Section 4 of the Limitation Act. In my considered view, Section 4 of the Limitation Act would not apply in case of proviso to Section 34(3) of the Arbitration & Conciliation Act, 1996 for the simple reason that Section 4 of the Limitation Act provides for exclusion of the day from the prescribed period of Limitation and the prescribed period is three months from the date of receiving of the signed copy of the Award. The proviso to Section 34(3) of the Arbitration & Conciliation Act, 1996 provides only the condonation of period of only 30 days. In case, if this Court excludes the 'Sunday' i.e. 13.08.2019, then the Court is required to condone the thirty first day instead of thirty days, which is totally against the well settled law that the condonation can be maximum of thirty days and not thereafter. Even if, this Court gives the benefit of Section 4of the Limitation Act, then also the petition ought to have been filed on 14.08.2017 in order to bring the petition within the period of 30 days, as provided in the proviso to Section 34(3) of the Arbitration & Conciliation Act, 1996. The 14.08.2017 was a working day of the Court and the petition can, at the best, be entertained till the said date i.e. 14.08.2017, if the Court has excluded the 'Sunday' i.e. Arbt. No.26/2017 Page 13 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
13.08.2017. However, the petitioner/objector has filed the petition on 16.08.2017 and the same was accordingly filed beyond the period of three months in terms of Section 34(3) of Arbitration and Conciliation Act, 1996 and also beyond the period of 30 days in terms of proviso to Section 34(3) of Arbitration and Conciliation Act, 1996.
The Hon'ble Supreme Court in catena of Judgments has held that Section 34(3) Arbitration & Conciliation Act, 1996 provides that an application for setting aside an Award shall not be entertained by the Court if it is made after elapse of three months from the date on which the applicant had received the arbitral award. The proviso to Section34 of the Arbitration & Conciliation Act, 1996 further provides that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the prescribed time, it may entertain the application within a further period of thirty days 'but not thereafter'. (vide State of Arunachal Pradesh v. Damini Construction Co. (2007) 10 SCC 742). The words 'but not thereafter' in the proviso are of mandatory nature, and couched in the negative and leave no room for doubt. Proviso to Section34 of the Arbitration & Conciliation Act, 1996 gives discretion to the Court to condone the delay for a sufficient cause, but that discretion cannot be extended beyond the period of thirty days, which is made exclusively clear by use of the words 'but not thereafter'.
Arbt. No.26/2017 Page 14 of 26India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
The Hon'ble Supreme Court in Civil Appeal no. 3486 of 2016 in the case titled as Narayan Vs. Babasaheb & Ors. decided on April 5, 2016 has held as under: "When bare reading of the provision makes it very clear and unequivocally gives a meaning it was to be interpreted in the same sense as the Latin maxim says "dulo lex sed lex", which means the law is hard but it is law and there cannot be any departure from the words of the law."
Considering the totality of facts and circumstances of the present case, the petition was not filed within the prescribed period of limitation, as provided under Section 34(3) of the Arbitration and Conciliation Act, 1996 and the same is liable to be dismissed on this ground alone. However, this Court is also looking into the matter on the merits of the objections qua Claim no.2, which is subject matter under challenge.
ON THE QUESTION MERITS OF THE CASE AS PER SECTION 34(1) & (2) OF ARBITRATION AND CONCILIATION ACT, 1996 The Ld. counsel for the respondent no.1 has argued that the Hon'ble Arbitrator had made and published the Award after considering entire record and submissions before him and had given detailed reasons for his Award in respect of the claim no.2 challenged by the petitioner, though, the Arbitrator is not supposed to give detailed reasons and write judgment like that of the Court. It is further argued that the reasons and findings of the Hon'ble Arbt. No.26/2017 Page 15 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
Arbitrator in respect of the claim no.2 challenged by the petitioner are as per record available before the Arbitrator and the view of the documents, contract and evidence/record available before him taken by the Arbitrator is a plausible view if not the only possible view and the findings of the Arbitrator based on record and interpretation of contract/ documents is a finding of fact and cannot be disturbed even if the Court, by a process of reasoning, come to a different view, because the Court is not sitting in appeal/ revision over the Award of the arbitrator.
The legal position in this regard is well settled, as settled in the case of Santa Sila Devi Vs. Devender Nath Sen three judge Bench judgment reported in AIR 1963 SC 1677 paras 10 and 13 holding that where, therefore, after taking into consideration the arbitration agreement, statements filed by the parties and documents produced, the arbitrator proceeds to give his award in writing as to all disputes referred to him, the Court will assume that the Arbitrator has considered and disposed of every claim made or defence raised. In M/s. Sudershan Trading C. Vs. Govt. of Kerala AIR 1989 SC 890 para 29, it has been held that reasonableness of reasons cannot be challenged and appraisement of evidence by the Arbitrator is never a matter which the Court questions and considers and in para 32, it is held that what is interpretation of the Contract is a matter for the Arbitrator and on which the Court cannot substitute its own decision and it is Arbt. No.26/2017 Page 16 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
observed that if on a view taken of a Contract, the decision of the Arbitrator on certain amount awarded is a possible view, though, not the only correct view, the award cannot be examined by the Court. The three judges bench in the case of The Hindustan Construction Co. Ltd. Vs. State of Jammu & Kashmere reported in JT 1992 (5) S.C. 325 in para 10 has held that the Court had no jurisdiction to do substitution of its own evaluation of the conclusion of law or fact to come to the conclusion that Arbitrator had acted contrary to the bargain between the parties. In State of Rajasthan Vs. Puri Construction reported in (1994) 6 SCC page 485, it has been held that Arbitrator not required to indicate in award computations made for various heads and it is open to the Arbitrator to give lump sum award. It, therefore, does not stand to reason that Arbitrator's award will be per se invalid and inoperative for the simple reason that the Arbitrator has failed to appreciate the facts and has committed error in appreciating correct legal principle in basing the award. Even if it is assumed that on the materials on record, a different view could have been taken and the Arbitrators have failed to consider the documents and materials on record in their proper perspective, the award is not liable to be set aside.
The three judge bench Judgment in the case of K.R. Ravendranathan Vs. State of Kerala reported in (1998) 9 SCC 410 holding that the view taken by the Hon'ble Supreme Court in Arbt. No.26/2017 Page 17 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
the cases of Sudarshan Trading (supra) and Hindustan Construction Company (supra) is the correct view and Court cannot substitute its own view for the view of the contract/ document taken by the Arbitrator.
In the Judgment passed by the Hon'ble Supreme Court in Mcdermott International Inc. Vs. Burn Standard Co. reported in 2006 (2) Arb.L.R. 498 (SC) para 55, the Hon'ble Supreme Court has held that under 1996 Act intervention of the court is envisaged in few circumstances only, like in case of fraud or bias by the arbitrators, violation of natural justice etc. The Court cannot correct errors of the Arbitrator and the construction of the contract agreement, is within the jurisdiction of the Arbitrator having regard to the wide nature, scope and ambit of arbitration agreement and the arbitrator cannot be said to have misdirected in passing the award by taking into consideration the conduct of the parties. Interpretation of contract is a matter for the Arbitrator to determine, even if it gives rise to determination of a question of law. Further as per provisions of Section 19(4) of the Arbitration & Conciliation Act, 1996 the appreciation of evidence and documents is within the sole jurisdiction and power of the Arbitrator.
The relevant portion of para no.13 of the Judgment of the Hon'ble Supreme Court passed in Assam State Electricity Board and others Versus Buildworth Private Limited (2017) 8 SCC 146 is reproduced herein for apt understanding: Arbt. No.26/2017 Page 18 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
"13. The arbitrator has taken the view that the provisions for price escalation would not bind the claimant beyond the scheduled date of completion. This view of the arbitrator is based on the construction of the provisions of the contract, correspondence between the parties and the conduct of the Board in allowing the completion of the contract even beyond the formal extended date of 6.9.1983 to 31.1.1986. Matters relating to the construction of a contract lie within the province of the Arbitral Tribunal. Moreover, in the present case, the view which has been adopted by the arbitrator is based on evidentiary material which was relevant to the decision......"
(Portion bolded in order to highlight) In view of the aforesaid settled position by way of catena of Judgments, the conclusions and findings qua Claim no.2, as passed by the Hon'ble Arbitrator is reproduced as under: "CLAIM NO. 2: RS. 36 LACS (RUPEES THIRTY SIX LACS ONLY) TOWARDS ADDITIONAL COST FOR HAVING TO TREAT LARGE QUANTITIES OF MIXED WASTE SUCH AS MUNICIPAL WASTE, BLANKET, LINEN ETC DUMPED BY DDU HOSPITAL.
i. The claimant has placed reliance on letter dated 15.02.2011, Centre of Occupational Environment Health alongwith documents annexed therewith. ii. As per the said documents, Bio Medical Waste generated by various hospitals during October 1999, May 2000, August 2002, November 2002 Arbt. No.26/2017 Page 19 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
and March 2003 and as per the said chart, bio medical waste generated by DDU Hospital is as under:
S.No. Name of No. of BMW BMW BMW BMW BMW
the Hospital Beds Gen. Gen Gen Gen Gen
Oct.99 May Aug 02 Nov. March
(Kg/day) 2000 (KG/Day) 2002 2003
(KG/Day) (KG/Day) (KG/Day)
4. DDU Hospital 500 300 1130 604 604 604
iii. The aforesaid chart clearly indicates that the
waste generated during various period, as complied by Centre of Occupational Environment Health shows that in May, 2000, DDU Hospital was generating bio medical waste as 1130 Kg which is equivalent to 2.26 Kg Per Bed/Per Day. However, thereafter it is constant in August 20902, November 2002 and March 2003 as 604 Kg Per Day, which is about 1.2 kg per bed per day.
iv. Thesaidchart also indicates Bio Medical Waste generated by most of other hospitals in beween 0.25 kg per bed per day to 0.73 kg per bed per day. The claimant has also led the undersigned through the assessment format for BMW Rules compliance dated 11.9.2002 of DDU Hospital; wherein the CompetentAuthority/Inspecting Team had found incinerable waste to be approximately 100 to125 Kgs per day being generated by DDU Hospital. There are various other observations against the DDU Hospital as has been reported in the said assessment format. It is also recorded in the said assessment format that from incinerating book Arbt. No.26/2017 Page 20 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
taken, it was found that the incinerator remained closed between 25.08.2002 to 04.09.2002 as per the records of the claimant. It was also found that the incinerator was not achieving the requisite, temperature for treatment of the Bio Medical Waste.
v. The claimant has also filed statement of excess Bio Medical treated by the claimant for DDU Hospital for the period 20.08.2002 to January 2002; wherein the claimant has claimed that they have incurred extra expenditure at the rate of Rs.5 perkg and have also indicated the quality incinerated by them. Chart as filed in C1 II,further categories the different periods; quality incinerated; quantity as per the norms for 5090 beds per day; the excess after taking the maximum permissible Bio Medical Waste and the cost incurred by them.
vi. The claimant has also led the undersigned through various letters including the letter dated 23.7.2001, 30.7.2001, 13.8.2001, 29.11.2001, 5.12.2001 and 27.2.2003 whereby the claimant has been requesting the respondent time and again to settle/reconcile the accounts and to see that the Bio Medical Waste sent for treatment is within the permissible limits and not in excess and further the mixing of Bio Medical Waste by the transporter, claiming same to be generated by Govt Hospitals/Dispensaries.
vii. The respondents have submitted that the
agreement dated 02.09.2000 would indicate that
there is no bar on the quantity of the Bio
MedicalWaste to be brought/given to the
Arbt. No.26/2017 Page 21 of 26
India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
claimant for its treatment. The respondent has also filed a statement/chart which indicated Waste Generated in DDU Hospital was about 148kgs per day only as observed by them during the period 21.12.2001 to 12.01.2002. On the said basis it has been submitted by the respondent that any objection as the non presence of a clause with respect to maximum waste generated is liable to be ignored by the claimant as the claimant was/is time bound to treat the Bio Medical Waste being generated by DDU Hospital at no extra cost. It has further been averred that the claimant had been bringing the Bio Medical Waste from Haryana and treating the same at the site given by DDU Hospital.
viii. In rejoinder the claimant has stressed upon that no limit condition in the agreement does not mean that the respondent had got unfeterred right to not to adhere to any norms and mandate of 200250 of Bio Medical Waste per bed per day. It has relied upon Manuals or Municipal Solid Waste, Management Published by Ministry of Urban Development, Government of India as well as papers published by WHOin this regard. ix. In the Manual under Chapter 7Bio Medical Waste, the example quoted under Clause 7.14.4 is reproduced hereunder for ready reference: 7.14.4 Examples:
Authentic data is still not available. However, estimated amounts have been taken here for working out the examples.Arbt. No.26/2017 Page 22 of 26
India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
50 bed hospital/nursing home:
Estimated generation of total
waste @ 1.5 kg/bed 75 kg/day
Estimated generation of
biomedical waste @ 25%
of the total waste generated 1820 kg/day
x. The aforesaid example clarifies the estimated
generation of Bio Medical Waste is @ 25% of the total waste generated. Similarly, WHO has also claimed 20% to be hazardous material that may be infectious, toxic or radioactive.
xi. Further, as regards the waste brought from Haryana for its treatment by the claimant,the claimant states that as per the agreement, respondents were to get Rs.4/ per kg for the said Bio Medical Waste treatment and as such Govt would not be at any loss on that account.
xii. It is a matter of record that the documents so produced with regard to the waste generated by the government hospitals/dispensaries has been confirmed by the letter dated 15.02.2011 of Centre for Environmental and Occupational Health. From the documents, pleas and submissions, as filed and submitted, it is found that on the one hand the claimant has claimed a sum of Rs.7/ per kg towards excess cost and on the other, he himself vide C 1II has claimed charges at Rs.5/ per kg.
CONCLUSION:
Arbt. No.26/2017 Page 23 of 26India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
From the records before the undersigned, it is found that the claimant has on the one hand claimed extra treatment for 1.2 kg per day per bed for 35 months at the rate of Rs.7/ per kg. On that basis has claimed Rs.36 lacs under this claim and on the other the hand vide annexure C1II, the claimant has itself claimed different quantities of excess Bio Medical Waste treated by it during the period 20.8.2001 to January, 2002 at the rate of Rs.5/ per kg totaling Rs.247262.50. It is also matter of record that Centre of Occupational Environment Health vide its letter dated 15.2.2011 have handed over the copies of the records regarding Bio Medical Waste generated by various hospitals during October 1999, May 2000, August 2002, November 2002 and March 2003 and as per the said chart, Bio Medical Waste generated by DDU Hospital is as under: S.No. Name of No. of BMW BMW BMW BMW BMW the Hospital Beds Gen. Gen Gen Gen Gen Oct.99 May Aug 02 Nov. March (Kg/day) 2000 (KG/Day) 2002 2003 (KG/Day) (KG/Day) (KG/Day) 4. DDU Hospital 500 300 1130 604 604 604 The aforesaid chart clearly indicates that the waste generated during various period, as compiled by Centre of Occupational Environment Health shows that in May, 2000, DDU Hospital was generating bio medical waste as 1130 kg which is equivalent to 2.26 Kg Per Day. However, thereafter it is constant in August 2002, November 2002 and March 2003 as 604 Kg Per Day, which is about 1.2 kg per bed per day.
Taking a realistic view from the chart submitted by the claimant itself as Annexure C1II, the Bio Medical Arbt. No.26/2017 Page 24 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
Waste generated comes to around 303.38 Kg per day. The claimant alleges treating the Bio Medical Waste for 35 months (1065 days) i.e. from 09.08.2000 to 20.06.2003. Taking into account number of days being declared as National Holidays and some other days on which no work could be carried out/was possible, and for some days as per report of DPCC, when no work was carried out by the claimant. The number of days to which the claimant should be entitled is restricted to 1025 days only instead of 1065 days.
Further, as per the figure given by the claimant as per annexure C1II, the claim of the claimant is further restricted to 300 Kgs per day for the excess Bio Medical Waste treated by the claimant. Accordingly, this claim is allowed to the extent of 300 Kgs per day for 1025 days at the rate of Rs.5 per kg which comes to Rs.15,37,500/."
The aforesaid Judgments of the Hon'ble Supreme Court are also squarely applicable to the facts and circumstances of the present case. The Hon'ble Arbitrator has done the construction of the contract, which was based upon the documentary evidence and material before him. The findings of the Hon'ble Arbitrator depict the volume about the application of thorough judicial mind coupled with facts, which the Hon'ble Arbitrator has applied while awarding the aforesaid amount. The Hon'ble Arbitrator has dealt with the aforesaid issue meticulously, methodically and scrupulously in detail by giving the findings, which do not suffer from any arbitrariness, infirmity and perversity and the same also do not fall Arbt. No.26/2017 Page 25 of 26 India Waste Energy Development Ltd. Vs. Govt. of NCT of Delhi & Anr.
in any of precinct and parameters of Section 34(2) of Arbitration of Conciliation Act, 1996 calling for any interference by this Court. RELIEF:
Accordingly, in view of the discussions, as adumbrated above, I hereby pass the following :: FINAL ORDER ::
1. The Petition /Application/Objection under Section 34 of the Arbitration and Conciliation Act, 1996 of the petitioner/objector is dismissed both on the ground of Limitation as well as on merits.
2. The impugned Award dated 06.04.2017 is hereby confirmed.
3. No order as to costs in the present petition. The parties shall bear their own respective costs.
File be consigned to Record Room after due compliance. Announced in the open court on this 3rd Day of October, 2019.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi Arbt. No.26/2017 Page 26 of 26