Arbitrator Not Entitled To Appoint Advocate Commissioner Under Arbitration Act: Kerala High Court

Arbitrator Not Entitled To Appoint Advocate Commissioner Under Arbitration Act: Kerala High Court

The bench cites the decision of the Supreme Court in a previous case

The Kerala High Court has held that an arbitrator is not authorized to appoint an advocate commissioner under Section 26 or 27 of the Arbitration Act to conduct inspections in land acquisition disputes.

The bench of Justice Murali Purushothaman stated that the extent of judicial intervention in arbitration proceedings was limited, wherein the parties had to wait for the arbitration award or follow the appeal process specified in the law.

The Court held, “The provisions under Section 27 of the Arbitration Act can be invoked to request the Court for its assistance in taking evidence like issuance of commission for recording evidence of witnesses beyond the competence of the arbitral tribunal. However, it cannot be invoked for the appointment of an advocate commissioner to conduct an inspection of the property to ascertain the market value of the land. Therefore, Ext. P4 application cannot be entertained by the arbitrator under Sections 26 or Section 27.”

The petitioner’s property was acquired for widening the National Highway-66. Under the National Highways Act, 1956, the competent authority determined the compensation payable to the petitioner, and an award was passed.

Dissatisfied with the award, the petitioner filed an application before the 1st respondent arbitrator under Section 3G (5) of the NH Act. During its pendency, he filed an application for appointing an advocate commissioner, a surveyor, and a technical person, to inspect the property and provide a report on various aspects. The application was rejected by the arbitrator.

Aggrieved by it, the petitioner approached the High Court. He contended that the arbitrator's refusal to appoint an advocate commissioner amounted to a jurisdictional error. Under Section 26 of the Arbitration Act, the arbitrator could appoint an advocate commissioner, a surveyor, and a technical person.

As per the law, Section 3G(5) provides that in a dispute regarding compensation determined by the competent authority, it shall be resolved by an arbitrator, and the Arbitration Act provisions would apply. Section 26 deals with the appointment of one or more experts by the arbitral tribunal to report on specific issues to be determined by it. Section 27 states that a party or arbitral tribunal could take the Court’s assistance in obtaining evidence from witnesses.

While relying on the Harbanslal Sahnia & Anr v. Indian Oil Corporation Ltd & Ors (2003) case, the counsel for the petitioner argued that the High Court could exercise its writ jurisdiction even when an alternative remedy was available.

Whereas the respondent’s counsel contended that the petitioner should have challenged the final award under Section 34. The writ petition was not maintainable by relying on the SBP and Co. vs. Patel Engineering Ltd and Anr (2005) case and the National Highway Authority of India v. Jabeena Beevi & Ors (2021) case.

The issue before the Court was whether the arbitrator had the authority to appoint an advocate commissioner under Section 26 or Section 27 of the Arbitration Act.

The bench examined the arbitrator's powers to appoint experts under Section 26. It held, “The provision cannot be invoked for the appointment of an advocate commissioner unless the concerned advocate is an expert in relation to any specific issue to be determined by the arbitral tribunal.”

It added, “Section 27 of the Arbitration Act could be invoked to request the Court for assistance in taking evidence like issuance of commission for recording evidence of witnesses beyond the competence of the arbitral tribunal. It cannot be invoked for appointment of an advocate commissioner to conduct an inspection of the property to ascertain the market value of the land.”

The judge cited the non-obstante clause in Section 5, highlighting that judicial intervention in arbitration matters was limited unless explicitly provided for in the Act. He cited the SBP and Co. (supra) case, wherein the Supreme Court ruled that parties involved in arbitration should wait until the award was pronounced before seeking remedies unless there is an appeal under Section 37. It had stated that there must be minimal judicial intervention when matters were being arbitrated upon.

Thus, while dismissing the petition, the bench stated that every order passed by the arbitral tribunal could not be corrected by writ Courts under Article 226 or 227 of the Constitution of India.