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[Cites 36, Cited by 0]

Gujarat High Court

Viralbhai Natwarbhai Patel vs Bharatbhai Pravinbhai Patel on 20 January, 2023

Author: Biren Vaishnav

Bench: Biren Vaishnav

    C/SCA/12158/2022                             CAV JUDGMENT DATED: 20/01/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 12158 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
================================================================
1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

================================================================
                       VIRALBHAI NATWARBHAI PATEL
                                  Versus
                       BHARATBHAI PRAVINBHAI PATEL
================================================================
Appearance:
MR MEHUL SHAH, SR COUNSEL assisted by MR MANAN A SHAH(5412) for
the Petitioner(s) No. 1,2
MR SHAKEEL A QURESHI(1077) for the Respondent(s) No. 1,2,3
MR PARAS K SUKHWANI(8284) for the Respondent(s) No. 4
==========================================================
    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                     Date : 20/01/2023
                     CAV JUDGMENT

1. Rule. Respective learned advocates waive service of notice of Rule for and on behalf of the respective respondents.

2. Heard Mr. Mehul Shah, learned Senior Counsel assisted Page 1 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 by Mr. Manan Shah, learned advocate for the petitioners, Mr. Shakeel A. Qureshi, learned advocate for respondent Nos.1 to 3 while Mr. Paras K. Sukhwani, learned advocate for respondent No.4.

3. In this petition, under Article 226 of the Constitution of India, the petitioners have sought a writ, order or direction declaring that the entire arbitration proceedings initiated and concluded by respondent No.4 and the consequent award dated 30.05.2016 are illegal, without jurisdiction and competence, null and void abinitio, without having any force of law and contrary to the settled principle of law. A further prayer is made to set aside the entire proceedings.

4. The facts in brief are that the subject lands are agricultural lands bearing survey No.1106 and 1109, block Nos.1406 admeasuring 23426 situated at village Variav, Taluka Choryasi, District Surat. The lands were Page 2 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 originally owned by Mr. Rajubhai Manilal Patel and Mr. Rameshbhai Manilal Patel. The original owners executed a registered sale deed in favour of petitioner No.1 - Mr. Viral Natvarbhai Patel on receipt of entire consideration. It is the case of the petitioners that on 15.03.2004, a purported settlement agreement came to be executed between the present petitioners and respondent Nos.1 to 3, whereby, it was agreed that the subject lands would be divided amongst themselves in the ratio as stated in the agreement. The agreement had an arbitration clause which stated that in case of any dispute between the parties, all the parties to the agreement shall appoint the sole arbitrator.

* The case of the petitioners is that to their shock and surprise, the petitioners received a notice dated 19.02.2016 from respondent No.4 - the sole arbitrator who informed the petitioners of date of hearing as 28.02.2016. A second notice was issued on Page 3 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 04.03.2016 fixing the hearing on 12.03.2016. On 09.03.2016, the petitioners replied to the arbitrator -

the respondent No.4 stating that the petitioners had neither given any consent to appoint respondent No.4 as the sole arbitrator nor had appointed the respondent No.4 for resolving the dispute between the parties and the unilateral decision of the respondent Nos.1 to 3 in appointing the respondent No.4 as an arbitrator, was contrary to the settlement agreement. On this, the arbitrator issued a further notice on 28.03.2016 keeping the hearing on 09.04.2016. On 16.04.2016, the Arbitral Tribunal rejected the reply of the petitioners. It is the case of the petitioners that this order of rejection dated 16.04.2016 was not served on the petitioners and, therefore there was no point of challenging an order which they had not received. The Arbitral Tribunal passed the impugned award dated 30.05.2016. It is the case of the petitioners that since the award is without jurisdiction and is a nullity in the eye of law and by the Page 4 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 award, respondent No.4 drew a decree, the entire arbitration proceedings being null and void as the appointment was unilateral and contrary to the settlement agreement, the award deserves to be quashed and set aside.

* It is the case of the petitioners that since the respondents had filed an Execution Application on 07.01.2017 for execution of the award to which the petitioners had filed a reply on 08.08.2017 and the execution proceedings were pending and in view of the proceedings pending before the Revenue Authorities with regard to change in the mutation entry pursuant to the award in question, there has been some delay in filing the petition and therefore, the period where the petitioners were bonafide prosecuting before the Executing Court must be excluded. The revenue proceedings are a subject matter of challenge as respondent Nos.1 to 3 have consistently failed to get Page 5 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 the revenue entry mutated in their favour and a Revision Application at their hands is pending before the SSRD.

5. Mr. Mehul Shah, learned Senior Counsel assisted by Mr. Manan Shah, learned advocate for the petitioners made the following submissions:

* Mr. Mehul Shah would submit reading the Arbitration Agreement so purported to have been made that the clause in the Arbitration Agreement clearly stated that all the parties will jointly appoint an arbitrator. However, without the consent of the petitioners in clear contravention of the arbitration clause, respondent Nos.1 to 3 went ahead in appointing respondent no.4 as an arbitrator. That position is also admitted by respondent Nos.1 to 3 in their reply.
Page 6 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023
C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 * Mr. Shah would therefore submit that the appointment of the Arbitral Tribunal unilaterally is impermissible in law being without jurisdiction null and void. In support of his submission, Mr. Mehul Shah would rely on a decision in the case of Dharma Pratishtanam V. Medhock Construction reported in 2005(9) SCC, 686. He would rely on paragraph Nos.12, 20, 29 and 36 of the decision.
* Mr. Shah would submit that it was the specific case of the petitioners right from the beginning that is from the time when the Arbitral Tribunal had issued notices to the petitioners that the petitioners have not submitted to the jurisdiction of the Arbitral Tribunal - respondent No.4. However, on the basis of this unilateral appointment, the Arbitrator proceeded with the Arbitration Proceedings and since the appointment of the Arbitrator was Page 7 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 unilateral, the entire arbitral proceedings are null and void and liable to be quashed and set aside. In support of his submission, Mr. Shah would rely on a decision of the Division Bench of this Court in Letters Patent Appeal No.1011 of 2021 in the case of Varshaben Naranbhai Dantani v.
Radheshyam Tarachand Agarwal. He also would rely on a decision in the case of Sidhrajsinhji Pragrajsinhji (Since Deceased) Through Legal Heirs v. Bengal Cynosure Development Pvt.
Ltd. reported in 2020(1) GLR, 262 and in the case of Narmada Clean-Tech and another v.
Indian Council of Arbitration reported in 2021(1) GLR, 821.
* Mr. Shah would submit that the respondent No.4 is an advocate practicing in the Surat Court and respondent Nos.1 to 3 have unilaterally appointed respondent No.4 as an Arbitrator for Page 8 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 extraneous consideration and the entire arbitration proceedings are not only without jurisdiction amounting to abuse of the process of law but also amounts to abuse of the judicial system and the impugned award being devoid of jurisdiction can be challenged at any stage and can also be set up as a defence in collateral proceedings. In support of his submissions, Mr. Mehul Shah relied on the following decisions:
(a) Union of India v. Sube Ram and others reported in 1997(9) SCC, 69,
(b) Balvant N. Viswamitra and others v.

Yadav Sadashiv Mule reported in 2004(8) SCC, 706 &

(c) Sarup Singh and another v. Union of India reported in 2011(11) SCC, 198.

* Mr. Mehul Shah would submit that for appointment of Arbitrators only two modes are available that is either the parties to the arbitration agreement agree to appoint one arbitrator or in Page 9 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 absence of such an agreement, resort can be had to section 11 of the Arbitration Act. Once the petitioners had raised objection to the appointment of respondent No.4 as an arbitrator, the only procedure that the parties could have adopted is to start proceedings under Section 11(5) of the Arbitration Act. For all these grounds, in the submission of the learned Senior Counsel Mr. Shah, the petition deserves to be allowed and the award passed by the Arbitral Tribunal deserves to be quashed and set aside.

6. Mr. Shakeel Qureshi, learned advocate appearing for respondent Nos.1 to 3 would take the Court to the affidavit-in-reply filed on their behalf. He would make the following submission:

* Mr. Qureshi would submit that the petition deserves to be rejected on the ground of Page 10 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 suppression of material facts and proceedings. He would submit that the petitioners have not disclosed in the petition, a material fact in respect of initiation of revenue proceedings under the Gujarat Land Revenue Code and that after the order of the Collector and the Deputy Collector where respondent Nos.1 to 3 have failed, the matter is at large before the SSRD in the revision proceedings pending before it of which the petitioners were aware and there is no reason for explanation of delay in the petition filed to point out that such proceedings were pending. The second ground for rejection on the plea of suppression is, that it is not disclosed in the petition that the petitioners had filed objections to the arbitral award in the Arbitral Tribunal which objections were decided on 16.04.2016 against the petitioners which is not disclosed.
Page 11 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023

C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 * Mr. Qureshi would therefore submit that there is a delay of more than six years in challenging the Arbitration Proceedings as well as the award passed way back in the year 2016 and except a vague averment made in paragraph No.3.18 of the petition, there is no explanation for the delay that has resulted in challenging the award.

* The alternative ground raised by Mr. Qureshi, learned advocate for respondent Nos.1 to 3 is that the petition is barred by an alternative remedy. He would submit that if the petitioners are aggrieved by an award passed by the Tribunal, the only remedy available to the petitioners is of challenging the same in proceedings under Section 34 of the Arbitration Act. The petition under Article 226 of the Constitution of India is therefore not maintainable.

Page 12 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023

C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 * On the ground of suppression of material facts, Mr. Qureshi would rely on a decision of Division Bench of this Court in the case of Chandraprabha Nathalal Damani v. State of Gujarat reported in 2018(1) GLR, 12. He would rely on paragraph No.19 of the said decision. He also would rely on a decision in the case of Heirs of Nathalal Jethabhai Damani v. State of Gujarat reported in 2017(1) GLH, 43. He would read paragraph Nos.14 and 20.

* On the aspect of delay and latches, Mr. Qureshi, learned counsel for respondent Nos.1 to 3 would rely on the following decisions:

(a) Dharasana Group Co-Op. Salt Producers & Sale Society Limited v. Union of India reported in 2019(4) GLR, 3092, relevant paragraph Nos.9, 14 and 15 thereof.

(b) N.N. Global Mercantile Private Page 13 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 Limited v. Indo Unique Flame Limited reported in 2021(4) SCC, 379, relevant paragraph Nos.9.1, 9.2 and 10 thereof.

(c) Government of Maharashtra (Water Resources Department) Represented by Executing Engineer v. Borse Brothers Engineers and Contractors Private Limited reported in 2021(6) SCC, 460, relevant para 58 thereof. &

(d) Kuldip N. Sharma v. State of Gujarat reported in 2022(2) GLH, 146, relevant paragraph Nos.6, 7, 9 & 10 thereof.

7. On the aspect of alternative remedy, Mr. Qureshi, learned counsel for respondent Nos.1 to 3 had relied on the following decisions: 

                    (a)   Nivedita    Sharma     v.    Cellular
                    Operators     Association       of   India

reported in 2011(14) SCC, 337, relevant paragraph Nos.15 to 19 thereof.

(b) Bhaven Construction Through Authorized Signatory Premjibhai K. Shah v. Executive Engineer, Sardar Sarovar Narmada Nigam Limited reported in 2022(1) SCC, 75, relevant paragraph Nos.11, 12, 15, 16, 17, 19, 24, 25 and 26 thereof.

Page 14 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023

C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023

8. Mr. Qureshi would submit that the judgments relied upon by the learned counsel for the petitioners would not be applicable, inasmuch as, the judgment is under the Code of Civil Procedure. The Division Bench Judgment dated 18.01.2022 of Letters Patent Appeal No.1011 of 2021, in the case of Varshaben Naranbhai Dantani v. Radheshyam Tarachand Agrawal was totally different, inasmuch as, it was a case where there was no agreement between the parties against the Arbitrator and, therefore, the judgment of the Division Bench.

9. Having considered the submissions made by the learned advocates for the respective parties, the question that needs to be considered is whether in exercise of powers under Article 226 of the Constitution of India, is it open for the Court to set aside an award passed by the Arbitral Tribunal, Page 15 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 especially when the award is passed in the year 2016 i.e. on 30.05.2016. Facts have been narrated hereinabove and need reiteration only relevant to the decision rendered hereinafter.

10. The petitioner Nos.1 and 2 purchased the parcel of land by virtue of sale deed of 03.03.2004. A settlement agreement, arrived at between the petitioners and respondent Nos.1 to 3 which according to the petitioners was a disputed settlement agreement entered into between the parties. Even assuming that the agreement is not disputed, what needs to be considered is that the agreement contend an arbitration clause which require that in the event of any dispute between the parties, all the parties jointly would agree to appoint a sole arbitrator.

11. On receipt of notices from the Arbitral Tribunal -

Page 16 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023

C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 respondent No.4 on whose behalf Mr. Chirag Sukhwani appears and has filed a reply, it is evident that these notices to submit a reply were received by the petitioners. On 09.03.2016, the respondent No.4 before whom the petitioners appeared contended by filing a written reply that they have not given any consent to the appointment of the respondent No.4 as the sole arbitrator nor had they appointed him for resolving the disputes between the parties and the appointment so made was a unilateral act of the respondent Nos.1 to 3.

12. Reading the objections or the reply so filed would indicate that the petitioners refused to submit to the jurisdiction of the Arbitral Tribunal as it was their case that the appointment of the Arbitral Tribunal was unilateral. The Tribunal taking this as an objection to the jurisdiction rejected the Page 17 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 objection on 16.04.2016. The contention of the respondent is that though the objections were rejected, on 16.04.2016, no averment to the effect has been made by the petitioners of having so received the order under objection and its rejection.

The case of the petitioners to their oral submission is based on the RPAD slip covered produced with the reply by respondent Nos.1 to 3. That the cover does not bear the signature of the petitioners and it shows that the recipient is outside and therefore the order of the rejection of the objections cannot be treated to have been received by the petitioners.

13. Be that as it may. If the Court were to take a decision on the question of delay, the order recording objections and rejection and the date on which the award was finally passed, had a time of gap of only one month. The award was finally Page 18 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 decreed on 30.05.2016. The question that needs to be considered is that when the petitioners had specifically pleaded in their repeated replies to the Tribunal that the Constitution of the Tribunal was unilateral, can the proceedings before the Tribunal be treated as valid and legal. Once it was the case of the petitioners that they had never consented to the appointment of the Arbitrator, the proceedings ought to be treated as null and void as they were contrary to the terms of the settlement agreement which required that the appointment of the Arbitrators was to be made only after mutual consent of all the parties to the agreement including the petitioners. What is also evident is that the petitioners had filed objections to the execution agreement, the non-disclosure of the fact of the revenue proceedings filed and which were pending and the notices were issued in the year 2019 is a fact which the petitioners may not have Page 19 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 disclosed in the petition. But from the orders that have been passed by the revenue authorities, what is indicated is that all the authorities in the hierarchy of the revenue proceedings are in favour of the petitioners and it is a subject matter of a challenge at the hands of respondent Nos.1 to 3.

Proceedings in favour of the petitioners therefore and the non-disclosure thereof cannot be a fatal omission of non-disclosure. Had the case been otherwise that is if in the revenue proceedings, the petitioners had failed and such a fact was not disclosed would be a case of serious suppression.

14. It is in light of these factual aspects that the Court is of the opinion that when the arbitral award passed by respondent No.4 was pursuant to his appointment without mutual consent of all partners and the petitioners had objected to the proceeding with the Tribunal for the hearing and passing an Page 20 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 award, the award of the tribunal has to be treated as null and void and being without jurisdiction. It will be relevant to reproduce the relevant paragraphs of the decision of Dharma Pratishtanam (Supra) which read as under:

"12. On a plain reading of the several provisions referred to hereinabove, we are clearly of the opinion that the procedure followed and the methodology adopted by the respondent is wholly unknown to law and the appointment of the sole arbitrator Shri Swami Dayal, the reference of disputes to such arbitrator and the ex parte proceedings and award given by the arbitrator are all void ab initio and hence nullity, liable to be ignored. In case of arbitration without the intervention of the Court, the parties must rigorously stick to the agreement entered into between the two. If the arbitration clause names an arbitrator as the one already agreed upon, the appointment of an arbitrator poses no difficulty. If the arbitration clause does not name an arbitrator but provides for the manner in which the arbitrator is to be chosen and appointed, then the parties are bound to act accordingly. If the parties do not agree then arises the complication which has to be resolved by reference to the provisions of the Act. One party cannot usurp the jurisdiction of the Court and proceed to act unilaterally. A unilateral appointment and a unilateral reference both will be illegal. It may make a difference if in respect of a unilateral appointment and reference Page 21 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 the other party submits to the jurisdiction of the arbitrator and waives its rights which it has under
the agreement, then the arbitrator may proceed with the reference and the party submitting to his jurisdiction and participating in the proceedings before him may later on be precluded and estopped from raising any objection in that regard. According to Russell (Arbitration, 20th Edition, p. 104) "An Arbitrator is neither more nor less than a private judge of a private court (called an arbitral tribunal) who gives a private judgment (called an award). He is a judge in that a dispute is submitted to him;.". "He is private in so far as (1) he is chosen and paid by the disputants (2) he does not sit in public (3) he acts in accordance with privately chosen procedure so far as that is not repugnant to public policy (4) so far as the law allows he is set up to the exclusion of the State Courts (5) his authority and powers are only whatsoever he is given by the disputants' agreement (6) the effectiveness of his powers derives wholly from the private law of contract and accordingly the nature and exercise of these powers must not be contrary to the proper law of the contract or the public policy of England, bearing in mind that the paramount public policy is that freedom of contract is not lightly to be interfered with."

20. Thus, there is ample judicial opinion available for the proposition that the reference to a sole arbitrator as contemplated by para 1 of the First Schedule has to be a consensual reference and not an unilateral reference by one party alone to which the other party does not consent.

29. In the event of the appointment of an Page 22 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 arbitrator and reference of disputes to him being void ab initio as totally incompetent or invalid the award shall be void and liable to be set aside de hors the provisions of Section 30 of the Act, in any appropriate proceedings when sought to be enforced or acted upon. This conclusion flows not only from the decided cases referred to hereinabove but also from several other cases which we proceed to notice.

36. In the present case, we find that far from submitting to the jurisdiction of the Arbitrator and conceding to the appointment of and reference to the Arbitrator-Shri Swami Dayal, the appellant did raise an objection to the invalidity of the entire proceedings beginning from the appointment till the giving of the Award though the objection was belated. In ordinary course, we would have after setting aside the impugned judgments of the High Court remanded the matter back for hearing and decision afresh by the learned Single Judge of the High Court so as to record a finding if the award is a nullity and if so then set aside the same without regard to the fact that the objection petition under Section 30 of the Act filed by the appellant was beyond the period of limitation prescribed by Article 119(b) of the Limitation Act, 1963. However, in the facts and circumstances of the case, we consider such a course to follow as a futile exercise resulting in needless waste of public time. On the admitted and undisputed facts, we are satisfied, as already indicated hereinabove, that the impugned Award is a nullity and hence liable to be set aside and that is what we declare and also do hereby, obviating the need for remand."

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C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023

15. Even in the decision of Varshaben Naranbhai Dantani (Supra), the Division Bench of this Court held as under:

"13. Though we have answered Point No.(1) in the affirmative by holding that appeals are not maintainable, in light of the peculiar facts and circumstances that has unfolded in the instant case, we have gone into merits and we answer Point No. (2) also in the negative for reasons indicated herein below.
14. In the instant case, the 11th respondent claims to be an arbitrator and had acted under the Act to conduct arbitration proceedings. As to his authority and the source of his appointment is not forthcoming from the pleadings. They are silent. Obviously, appellants herein had set up 11th respondent to act as an arbitrator and on the said right given to him, he had assumed jurisdiction under the Act, which he did not possess. Thus, commencement of the arbitration proceedings is not only illegal but also void-ab-initio and nullity from its inception. It would be apt to deal with the first contention raised in these appeals by appellants viz., whether learned Single Judge could have exercised extra- ordinary jurisdiction to set aside the awards/proceedings initiated by 11th respondent and he ought to have directed the appellants/respondent Nos.1 and 2 herein to avail the alternate remedy of filing an application under Section 34 of the Act.
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C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023
15. The High Court would not act as a court of appeal against the decision of a Court or a Tribunal to correct errors of fact and does not assume the jurisdiction under Article 226 of the Constitution when an alternate remedy is provided by the Statute for obtaining the relief is available, where it is open to the aggrieved person to avail such alternate remedy for redressal of the grievance. This Court will not permit entertaining a petition under Article 226 of the Constitution of India and thereby the machinery provided under the Statute is by-passed.

16. The Hon'ble Apex Court in the case of Nivedita Sharma Vs. Cellular Operators Association of India reported in (2011)14 SCC page 337 has held as under:

"11. We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation--L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] .
However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by Page 25 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 the State and/or its agency/instrumentality or any public authority or order passed by a quasi- judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."

17. In the matter of M/s Deep Industries Ltd. Vs. Oil and Natural Gas Corporation reported in 2020 (15) SCC 706, their Lordships of the Hon'ble Apex Court have held that extraordinary jurisdiction can be exercised for entertaining of writ petition filed for enforcement of fundamental rights or where there has been violation of principles of natural justice or where order under challenge is wholly without jurisdiction or the vires of the Statute is under challenge. It has been further held thus:

"16. It can, thus, be said that this Court has recognized some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal v. Supt. of Taxes [Thansingh Nathmal v. Supt. of Taxes, AIR 1964 SC 1419] and other similar judgments that Page 26 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. In SBP & Co. (supra), this Court while considering interference with an order passed by an Arbitral Tribunal under Articles 226/227 of the Constitution laid down as follows :
"45. It is seen that some High Courts have proceeded on the basis that any order passed by an Arbitral Tribunal during arbitration, would be capable of being challenged under Article 226 or 227 of the Constitution. We see no warrant for such an approach. Section 37 makes certain orders of the Arbitral Tribunal appealable. Under Section 34, the aggrieved party has an avenue for ventilating its grievances against the award including any in between orders that might have been passed by the Arbitral Tribunal acting under Section 16 of the Act. The party aggrieved by any order of the Arbitral Tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The Arbitral Tribunal is, after all, a creature of a contract between the Page 27 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 parties, the arbitration agreement, even though, if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the Arbitral Tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the Arbitral Tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution. Such an intervention by the High Courts is not permissible.
46. The object of minimizing judicial intervention while the matter is in the process of being arbitrated upon, will certainly be defeated if the High Court could be approached under Article 227 or under Article 226 of the Constitution against every order made by the Arbitral Tribunal. Therefore, it is necessary to indicate that once the arbitration has commenced in the Arbitral Tribunal, parties have to wait until the award is pronounced unless, of course, a right of appeal is available to them under Section 37 of the Act even at an earlier stage."

18. In this background, when the facts on hand are examined, following facts would clearly emerge from the pleadings :

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C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 (1) Admittedly there is no agreement between the parties namely, the appellants and respondent Nos.1 to 4 herein of any sort whatsoever agreeing for disputes between them would be resolved through arbitration;
(2) The 11th respondent herein has assumed the role of an arbitrator based on the unilateral consent given by the appellants.
(3) Neither the respondent Nos.1 to 4

herein nor the appellants have agreed upon any dispute much less the dispute relating to the property in question being resolved through arbitration.

19. In other words, the parties never at ad-idem for resolving their dispute by taking recourse to the alternate dispute redressal mechanism namely, arbitration. The provisions of the Act would be applicable only in the circumstances where the parties are at ad-idem and have agreed for resolution of their disputes through arbitration process. The Hon'ble Apex Court in Dharma Prathishthanam Vs. Madhok Construction Pvt. Ltd. reported in 2005 (9) SCC 686 has held as under:

"12. On a plain reading of the several provisions referred to hereinabove, we are clearly of the opinion that the procedure followed Page 29 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 and the methodology adopted by the respondent is wholly unknown to law and the appointment of the sole arbitrator Shri Swami Dayal, the reference of disputes to such arbitrator and the ex parte proceedings and award given by the arbitrator are all void ab initio and hence nullity, liable to be ignored. In case of arbitration without the intervention of the court, the parties must rigorously stick to the agreement entered into between the two. If the arbitration clause names an arbitrator as the one already agreed upon, the appointment of an arbitrator poses no difficulty. If the arbitration clause does not name an arbitrator but provides for the manner in which the arbitrator is to be chosen and appointed, then the parties are bound to act accordingly. If the parties do not agree then arises the complication which has to be resolved by reference to the provisions of the Act. One party cannot usurp the jurisdiction of the court and proceed to act unilaterally. A unilateral appointment and a unilateral reference -- both will be illegal. It may make a difference if in respect of a unilateral appointment and reference the other party submits to the jurisdiction of the arbitrator and waives its rights which it has under the agreement, then the arbitrator may proceed with Page 30 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 the reference and the party submitting to his jurisdiction and participating in the proceedings before him may later on be precluded and estopped from raising any objection in that regard.
According to Russell (Arbitration, 20th Edn., p. 104).
"An arbitrator is neither more nor less than a private judge of a private court (called an Arbitral Tribunal) who gives a private judgment (called an award). He is a judge in that a dispute is submitted to him; ... He is private insofar as (1) he is chosen and paid by the disputants, (2) he does not sit in public, (3) he acts in accordance with privately chosen procedure so far as that is not repugnant to public policy, (4) so far as the law allows he is set up to the exclusion of the State courts, (5) his authority and powers are only whatsoever he is given by the disputants' agreement, (6) the effectiveness of his powers derives wholly from the private law of contract and accordingly the nature and exercise of these powers must not be contrary to the proper law of the contract or the public policy of England, bearing in mind that the paramount public policy is that freedom of contract is not lightly to be interfered with." xxxx xxxx xxxx Page 31 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023

20. Thus, there is ample judicial opinion available for the proposition that the reference to a sole arbitrator as contemplated by para 1 of the First Schedule has to be a consensual reference and not a unilateral reference by one party alone to which the other party does not consent. xxxx xxxx xxxx

29. In the event of the appointment of an arbitrator and reference of disputes to him being void ab initio as totally incompetent or invalid the award shall be void and liable to be set aside de hors the provisions of Section 30 of the Act, in any appropriate proceedings when sought to be enforced or acted upon. This conclusion flows not only from the decided cases referred to hereinabove but also from several other cases which we proceed to notice. xxxx xxxx xxxx

36. In the present case, we find that far from submitting to the jurisdiction of the arbitrator and conceding to the appointment of and reference to the arbitrator Shri Swami Dayal, the appellant did raise an objection to the invalidity of the entire proceedings beginning from the appointment till the giving of the award though the objection was belated. In ordinary course, we would have after setting aside the Page 32 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 impugned judgments of the High Court remanded the matter back for hearing and decision afresh by the learned Single Judge of the High Court so as to record a finding if the award is a nullity and if so then set aside the same without regard to the fact that the objection petition under Section 30 of the Act filed by the appellant was beyond the period of limitation prescribed by Article 119(b) of the Limitation Act, 1963.

However, in the facts and circumstances of the case, we consider such a course to follow as a futile exercise resulting in needless waste of public time. On the admitted and undisputed facts, we are satisfied, as already indicated hereinabove, that the impugned award is a nullity and hence liable to be set aside and that is what we declare and also do hereby, obviating the need for remand."

20. The agreement of arbitration is the very foundation on which the jurisdiction of arbitrators to act rests and where it is not in existence, the proceedings must be held to be wholly without jurisdiction. Appearance of the parties submitting to the jurisdiction would not confer the jurisdiction on the arbitrator or the Arbitral Tribunal. However, the parties can enter into an agreement even at that point of time. In the instant case, as noticed hereinabove and at the cost of Page 33 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 repetition, there is no such agreement entered into between the parties much less the arbitration agreement which gave rise for the 11th respondent herein to assume the jurisdiction and donned the role of an arbitrator to conduct the arbitration proceedings. It is in this factual scenario the 11th respondent appeared before the learned Single Judge and conceded for his orders being set aside. In fact, he filed an affidavit to the said effect which has already been noticed by us hereinabove. In that view of the matter, we are of the considered view that order passed by the learned Single Judge in setting aside the orders passed in the arbitration proceedings commenced by the 11th respondent does not suffer from any infirmity either in law or on facts as it was without jurisdiction and a nullity. Said order does not call for our interference.

RE: POINT NO.(3)

21. The learned Single Judge obviously did not mulct the appellants herein with costs who are the private respondents, for the reason, they had conceded for the arbitral proceedings being set at naught as it was wholly without jurisdiction. Despite such order by consent having been passed and without any fear of law or respect to the rule of law, they have filed the present appeals raising hyper technical plea, which cannot be countenanced. At this juncture, it would Page 34 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 be apt and appropriate to note the judgment of the Hon'ble Apex Court in the case of Dalip Singh Vs. State of Uttar Pradesh and Others reported in 2010 (2) SCC 114 wherein their Lordships have expressed that two basic values of life "satya" (truth) and "ahimsa" (non- violence), which was guided by the Father of the Nation has been over shadowed by greed. It was observed by the Hon'ble Apex Court as under:

"1. For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahimsa" (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post- Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed Page 35 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. xxxx xxxx xxxx
4. In Welcom Hotel v. State of A.P. [(1983) 4 SCC 575 : 1983 SCC (Cri) 872 : AIR 1983 SC 1015] the Court held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case. xxxx xxxx xxxx
7. In Prestige Lights Ltd. v. SBI [(2007) 8 SCC 449] it was held that in exercising power under Article 226 of the Constitution of India the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution is duty-bound to place all the facts before the Court without any reservation. If there is suppression of material facts or Page 36 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution. This Court referred to the judgment of Scrutton, L.J. in R. v. Kensington Income Tax Commissioners [(1917) 1 KB and observed: (Prestige Lights Ltd. case [(2007) 8 SCC 449] , SCC p. 462, para 35) In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become Page 37 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 impossible. xxxx xxxx xxxx
24. From what we have mentioned above, it is clear that in this case efforts to mislead the authorities and the courts have transmitted through three generations and the conduct of the appellant and his son to mislead the High Court and this Court cannot, but be treated as reprehensible. They belong to the category of persons who not only attempt, but succeed in polluting the course of justice. Therefore, we do not find any justification to interfere with the order under challenge or entertain the appellant's prayer for setting aside the orders passed by the prescribed authority and the appellate authority."

22. Keeping the aforesaid authoritative principles in mind, when the facts on hand are re-looked into, it would clearly indicate that in the absence of any agreement between the parties, the appellants herein vested the 11th respondent herein with the jurisdiction to conduct arbitration proceedings and despite there being no authority of law namely, there being no order of appointing the 11th respondent by virtue of any agreement having been entered into between the appellants and respondent Nos.1 and 2 herein, the 11th respondent proceeded to conduct the arbitration proceedings and has passed Page 38 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 certain orders/directions in favour of the appellants herein which was wholly without jurisdiction and it would not only amount to abuse of the process of law but also amounts to abuse of the judicial system, inasmuch as 11th respondent herein had donned the robes of an arbitrator by colourable exercise of power and if such instances were to go unchecked, the situation may go out of hands and, as such, such acts or deeds are required to be dealt with iron hands. But for 11th respondent herein conceding before the learned Single Judge for the arbitration awards and the proceedings commenced by him being set aside, we would have mulcted the 11th respondent herein also with costs. However, we desist from doing so since the 11th respondent had conceded before learned Single Judge for his orders being set aside. Though appellants herein had also virtually conceded and the records would also indicate that 11th respondent in similar circumstances had passed awards and criminal cases having been initiated against him for having assumed the role of an arbitrator without authority of law, costs deserve to be imposed on appellants herein for filing such frivolous appeals.

Hence, we proceed to pass the following ORDER

(i) Appeals are dismissed with costs.

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C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023

(ii) Orders dated 27.9.2021 passed in Special Civil Application No.2425 of 2021 with Special Civil Applications Nos.2473, 2897, 2901 and 2899 of 2021 are confirmed.

(iii) Appellants herein are directed to pay in each of the appeals a sum of Rs.20,000/- (Rupees Twenty Thousand only) to respondent Nos.1 and 2 herein failing which, the respondent Nos.1 and 2 would be at liberty to recover the same by initiating execution proceedings before jurisdictional Court.

(iv) In the event of cost as ordered herein is not deposited or paid by the appellants to the respondent Nos.1 and 2 within an outer limit of six weeks, the Registry of this Court shall issue a certificate to the said effect in favour of the respondent Nos.1 and 2 herein so as to enable them to recover the same by initiating execution proceedings before jurisdictional Court as if it were to be a decree passed by Civil Court."

16. In the case of Sidhrajsinhji Pragrajsinhji (Supra), relevant paras of the decision that is paras 12 to 15 read as under:

Page 40 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023
C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 "12. Considering the fact regarding the manner in which arbitration has proceeded from stage of executing agreement to sale with arbitration clause till passing of the arbitration award and nature of ex parte directions, the Court deems it fit to interfere.
13. On the point of alternative remedy, Section 34 of the Act provides for appeal.

However, it also stipulates grounds for appeal. Sub-section 2(a) provides for setting aside the arbitral award where party challenging it furnishes proof that the arbitration agreement is not valid under law to which the parties have subjected it, the party making the application has not been given proper notice of the appointment of Arbitrator or the arbitral proceedings or was otherwise unable to present his case or the arbitral award deals with dispute not contemplated by or not falling within the terms of the submission of arbitration or it contains decisions on matters beyond the scope of the submission to arbitration. The Arbitrator has therefore assumed the jurisdiction, which otherwise the Arbitrator could not exercise in the facts of this case.

14. From the record, even after perusing documents of the Postal Department annexed with the sur-rejoinder, the respondents are unable to establish even reasonably that the notices for invoking arbitration have been served upon the Page 41 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 petitioners.

15. In the facts of this case, where bias and interest of the Arbitrator is writ large, on the question of alternative remedy in such gross facts, the Court is therefore inclined to exercise powers under Article

226."

17. This judgment would take care of the objection of the respondent that the petition is barred by alternative remedy. In the case of Sidhrajsinhji Pragrajsinhji (Supra), when it is the case of the party to the arbitration proceedings that the arbitrator could not exercise jurisdiction in the facts of the case, the alternative remedy under Section 34 will not be a bar, is an issue that is decided by the judgment referred to hereinabove.

18. In the case of Narmada Clean-Tech (Supra) Paras Nos.34, 39, 46, 47 and 55 of the decision read as under:

Page 42 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023
C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 "34 We have no doubt in our mind that an Arbitral Tribunal would come within the purview of Article 227 of the Constitution of India. In other words, an Arbitral Tribunal under the Act, 1996 is a Tribunal within the meaning of Article 227 of the Constitution of India as the Act, 1996 has conferred upon such Tribunal the inherent judicial power of the State.
39 Thus, our understanding of the ratio of the Supreme Court decision in SBP and company (supra) is that the High Court should not interfere with each and every order passed by the Arbitral Tribunal and judicial intervention should be minimal. We find it difficult to take the view interpreting the SBP and company (supra) that the High Court has no power at all to intervene either in exercise of its writ jurisdiction or supervisory jurisdiction under Article 227 of the Constitution of India with any of the orders that may be passed by the Arbitral Tribunal or the Arbitrator.

46 In M/s. Deep Industries Limited (supra), the Supreme Court observed as under:

"At the same time, we cannot forget that Article 227 is a constitution provision which remains untouched by the nonobstane clause of section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against the judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory Page 43 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction."

47 The bare reading of the aforesaid observations of the Supreme Court makes it clear that it was a case which had travelled right upto the stage of Section 37 of the Act. It is suggestive of the fact that an appeal was filed before the High Court against the order passed by the District Court under Section 34 of the Act. In such circumstances, a petition under Article 227 of the Constitution of India would definitely be maintainable with a rider that the High Court should be extremely circumspect in interfering with the same. In other words, the interference should be restricted to orders that are passed, which are patently lacking any inherent jurisdiction. However, the ratio, as propounded in M/s. Deep Industries (supra) does not, in any manner, dilute the principles propounded by the Supreme Court in the SBP and company (supra). This decision, in our opinion, is not in any manner helpful to Mr. Trivedi, the learned senior counsel appearing for the appellant.

55 To the aforesaid extent, we find it difficult to agree with the learned Single Judge. It would have been altogether a different matter if the learned Single Judge would have said that having regard to the nature of the order passed by the Arbitral Tribunal, no case is made out for interference. The learned Single Judge is very clear in his mind. The learned Single Judge says that His Lordship has not gone into the merits of the order passed by the Arbitral Tribunal as no order passed by the Page 44 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 Arbitral Tribunal can be questioned before the High Court either under Article 226 or 227 of the Constitution as the petition itself is not maintainable."

19. The Division Bench of this Court had considered the question of the maintainability of a petition to a challenge of the award under Articles 226 and 227 of the Constitution of India and had held that, a petition against the award was maintainable.

20. On the question of delay in challenge to the award of the year 2016, it is a well settled principle of law set out by the Hon'ble Supreme Court in various decisions that if the award or an order is without jurisdiction, the same can be challenged at any point of time. In the case of Union of India V. Sube Ram (Supra), in paragraph No.5 the Hon'ble Supreme Court held as under:

"5. It is now settled legal position that the Page 45 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 claimants would be entitled to the enhanced solatium and interest only if the proceedings were pending either before the Land Acquisition Officer or Court. The Court defined under Section 2 (d) of the Act as on the date of Amendment Bill was introduced and Act made by the Parliament. Therefore, the question that arises is: whether the High Court has jurisdiction to entertain the application for enhancement under the Amendment Act 68 of 1984 came into force. It is true that if it were a case of a superior Court having interpreted the law and the law having become final, by order 47 Rule 1, CPC it could not constitute a ground for review of the judgment. But here is the case of entertaining the application itself; in order words, the question of jurisdiction of the Court. Since the appellate Court has no amend the decree and grant the enhanced compensation by way of solatium and interest under Section 23 (2) and proviso to Section 28 of the Act, as amended by Act 68 of 1984, it is a question of jurisdiction of the court. Since courts have no jurisdiction, it is the settled legal position that it is a nullity and it can be raised at any stage."

21. In the case of Balvant N. Viswamitra and others (Supra), in paras 9 and 10, the Hon'ble Supreme Court held that where a court lacks inherent jurisdiction in passing a decree on making an order, a decree or an order passed by such Court would be Page 46 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 without jurisdiction and it can be challenged at any stage even in execution of collateral proceedings.

Paras 9 and 10 of the said decision are reproduced hereunder:

"9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be 'null and 'void'. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings.
10. Before five decades, in Kiran Singh & Ors. v. Chaman Paswan & Ors., [1955] l SCR 117 this Court declared;
"It is a fundamental principle well established that a decree passed by a court Page 47 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 without jurisdiction is a nullity and that its invalidity could be set up wherever and whenever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction......strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties. "

(Emphasis Supplied.)

22. Even in the case of Sarup Singh (Supra), paragraph Nos.20 to 24 of the decision read as under:

"20. In so far as the second issue is concerned, it is true that the executing court cannot go behind the decree and grant interest not granted in the decree as submitted by the counsel appearing for the appellants in the light of the decision rendered by this Court in State of Punjab & Others v. Krishan Dayal Sharma reported in AIR 1990 SC 2177.
19.But, if a decree is found to be nullity, the same could be challenged and interfered with at any subsequent stage, say, at the execution stage or even in a collateral proceeding. This is in view of the fact that if a particular Court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such Court would be without jurisdiction and the same is non-
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C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 est and void ab initio.
21. The aforesaid position is well-settled and not open for any dispute as the defect of jurisdiction strikes at the very root and authority of the Court to pass decree which cannot be cured by consent or waiver of the parties. This Court in several decisions has specifically laid down that validity of any such decree or order could be challenged at any stage. In Union of India v. Sube Ram & Others reported in (1997) 9 SCC 69 this court held thus:
"5. [...] here is the case of entertaining the application itself; in other words, the question of jurisdiction of the court. Since the appellate court has no power to amend the decree and grant the enhanced compensation by way of solatium and interest under Section 23(2) and proviso to Section 28 of the Act, as amended by Act 68 of 1984, it is a question of jurisdiction of the court. Since courts have no jurisdiction, it is the settled legal position that it is a nullity and it can be raised at any stage."

22. In yet another case of Amrit Bhikaji Kale & Others v. Kashinath Janardhan Trade & Anothers reported in (1983) 3 SCC 437 this Court has held that when a Tribunal of Page 49 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 limited jurisdiction erroneously assumes jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision are wholly unwarranted with regard to the jurisdictional fact, its decision is a nullity and its validity can be raised in collateral proceeding.

23. In Balvant N. Viswamitra & Others v. Yadav Sadashiv Mule (Dead) Through Lrs. & Others reported in (2004) 8 SCC 706 this Court stated thus:

"9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be "null" and "void". In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a Page 50 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings."

24. In Chiranjilal Shrilal Goenka (deceased) Through Lrs. v. Jasjit Singh & Others reported in (1993) 2 SCC 507 this Court stated thus:

"18. It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. ............."

23. In light of this position of law, even the submission Page 51 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023 C/SCA/12158/2022 CAV JUDGMENT DATED: 20/01/2023 of the learned counsel for the respondents that the petition is grossly belated and barred on the ground of delay and latches deserves to be an objection which does not defeat consideration.

24. For all these grounds therefore, the award of the Arbitral Tribunal dated 30.05.2016 is held to be illegal, without jurisdiction and has to be treated as null and void. The award is therefore quashed and set aside. The petition is allowed accordingly.

25. Rule is made absolute to the aforesaid extent.

Direct Service is permitted. No order as to costs.

(BIREN VAISHNAV, J) VATSAL Page 52 of 52 Downloaded on : Fri Jan 20 20:54:08 IST 2023