S.K. Agarwal, J.@mdashPetitioner has filed this petition u/s 9 of the Arbitration and Conciliation Act (for short the ''Act'') against the National Capital Territory of Delhi (for short ''NCT of Delhi'') and Engineer-in-Chief, PWD (for short ''PWD''), praying for an ad-interim order restraining the respondent PWD, its agents, etc. including the National Highway Authority of India (for short "NHAI"), from taking down or defacing the advertisements boards or allowing any third party, including the National Highway Authority of India, to display their boards on the NH-II Road stretch from Ashram Crossing to Apollo Hospital (for short ''the road in question'').
2. Petitioner claims itself to be a voluntary agency, planting and maintaining trees and shrubs in and around stretches of roads, round-abouts and areas belonging to and owned by the government/local authorities. Petitioner entered into separate agreements/memorandums of understanding for different stretches of roads in Delhi, numbering 15, on different dates (as detailed in para 17 of the petition), with respondent No. 1, including the road NH II stretching from the Ashram crossing to Apollo Hospital as well as NH-8 from the domestic Airport up to Radisson Hotel and in return for the services provided, petitioner is permitted to display advertisement boards for other through kiosks on electric poles. It is pleaded that vide agreement dated 12.2.1999, Secretary, PWD, through its Deputy Director (Horticulture), assigned to the petitioner work in respect of development/maintenance of-piece of land on NH-II from Ashram Crossing up to Apollo Hospital, for a period of 5 (five) years, from the date of the Agreement, i.e. up to 2003. Clause 21 of the Agreement provides that all disputes and differences arising out of or in any way touching or concerning this Agreement, shall be referred to the sole arbitration of the Secretary, PWD, or his nominee. The petitioner executed the work to the utmost satisfaction of the respondents and incurred huge expenditure. On 8.1.2002, petitioner noticed that kiosks put up by it and displayed at NH-8, i.e. Daula Kuan round-about to Haryana Boarder have been removed. On enquiry petitioner came to know that NHAI had displaced the kiosks on the said road. Petitioner recorded his grievance by addressing a communication dated 9.1.2002 to respondent No. 1, NCT of Delhi, calling upon them to restore status-quo ante and take action against NHAI. On 9.1.2002, petitioner, in terms of Clause 21 of the Agreement, served a notice on the respondents, invoking arbitration clause and calling upon the Secretary, PWD, to adjudicate the disputes. Petitioner apprehended that respondent PWD may pull down the remaining kiosks put up by it in terms of other agreements, as detailed in para 17 of the petition, Therefore, this petition u/s 9 of the Act.
3. By order dated 11.1.2002, notice of the petition was issued and by way of ex-parte ad-interim order, respondents, their agents, officers, etc. were restrained from violating the terms of Clauses 16(b) & (c) of the Agreement dated 12.2.1999. On 7.2.2002, learned counsel for the respondents pleaded that similar relief was sought by the petitioner by way of a writ petition in which ex-parte relief was declined and this fact was concealed by the petitioner. Respondent was directed to move an appropriate application. Interim order dated 11.1.2002 was continued. On 29.2.2002, petitioner moved application (IA.2023/2002) seeking clarification of the orders dated 11.1.2002 and 7.2.2002, pleading that in place of the word ''agent'', the National Highway Authority of India (NHAI) be substituted as it was working in its capacity as the agent of respondent No. 2. The request of the petitioner was declined on the ground that NHAI is an autonomous authority and there was no document to show that NHAI is the agent of respondent No. 2. It was, however, observed, "if it is found at any stage that NHAI has been acting as an agent of respondent appropriate action against NHAI will be taken in the light of the orders dated 11.1.2002 and 7.2.2002." Petitioner, thereafter, moved IA.2270/2002 under Order I Rule 10, CPC, for impleading NHAI as a party to the petition and by order dated 29.5.2002, NHAI was ordered to be imp leaded s a party and the were asked to file their reply. It was also observed that NHAI shall be bound by the interim order dated 26.2.2002.
4. Respondents have filed reply contesting the allegations, inter alia, pleading that the petitioner is guilty of concealing material facts and making false statement. Respondents 1 & 2 also filed application (IA No. 4322/2002) praying for vacation of the ex-parte ad-interim order dated 7.2.2002 and for initiation of contempt proceedings against the petitioner. NHAI has filed its reply, pleading therein that by Notification dated 4.2.1999, the stretch of road in dispute was entrusted to it and was formally handed over by the PWD on 31.12.2001. The road in question was handed over free from all encumbrances after removing all kiosks and advertisements, stated to have been put up by the petitioner. NHAI thereafter signed the Memorandum of Understanding with M/s. Image Advertising for construction and maintenance of bus shelters and toilet blocks by the sponsors on the national highway, with increased public utilities. It is pleaded that petition is not maintainable and liable to be dismissed.
5. I have heard learned counsel for the parties and have been taken through the record.
6. To recall the facts, as per averments made in the petition, by Agreement dated 12.2.1999, Deputy Director (Horticulture), acting on behalf of respondent No. 2, PWD, entrusted the road in question to the petitioner for plantation of trees, shrubs, etc. for a period of five years. The Agreement could be terminated by three months notice on either side. PWD Officers had the right under the Agreement, to enter the said land at any time, without assigning any reason or giving compensation to the petitioner. The forest produce was required to be credited to the PWD. Petitioner''s grievance is that the Agreement was in force till 11.2.2003 and on 8.1.2002, petitioner found that kiosks and advertisement boards displayed by it on NH-8 road stretch from Daula Kuan to Haryana Border had been removed. He lodged a protest through communication dated 9.1.2002. Ex-parte ad-interim injunction was granted in its favor on 11.1.2002, which continues to operate.
7. Admittedly, prior to the filing of this petition, petitioner preferred the following legal proceedings, with prayers for similar reliefs in respect of different roads including the road in question:
1. Civil Suit No. 91/2000 in the District Court for similar relief, wherein prayer for ex-parte ad-interim relief was declined.
2. Civil Writ Petition No. 4314/2001, with CM.7411/2001, which was dismissed with the following observations:-
"Learned counsel for the petitioner has prayed for ex-parte ad interim injunction. A perusal of para 25 of the Writ Petition reveals that a Civil Suit No. 91/2000, for almost similar relief, was filed in the District Courts and is pending for 3.9.2001, before learned Civil Judge. The pendency of the Civil Suit filed by the petitioners puts a question mark on the maintainability of the writ petition. No good grounds for ex-parte injunction."
8. All these facts have not been placed on record in this petition. On the contrary, petitioner has specifically pleaded that applicant has not instituted any similar petition/application before this Hon''ble Court or before any other Court. Para 29 of the petition reads as under:
"The applicant has not instituted any similar petition/application before this Hon''ble Court or before any other Court, praying inter-alia for the similar relief as is being prayed for in the instant petition."
9. There is no averment in the entire petition to show that petitioner filed any civil suit or writ petition concerning the land in question. Notice on the application of the respondents, IA.4322/2002 was served on the petitioner on 24.4.2002 but no reply has been filed till date. A perusal f the relief claimed in Civil Writ Petition No. 4314/2001 as well as this petition reveals that the reliefs claimed in the two petitions are similar. It appears that subsequently petitioner also filed two petitions, viz. OMPs.29/2002 and 30/2002, seeking similar reliefs. The Court declined to grant ex-parte ad-interim relief. Petitioner took the matter in appeal and filed FAO(OS).32/2002 and FAO)OS.33/2002, where the Division Bench declined to interfere with the order of the learned Single Judge.
10. Section 9 of the Act provides for interim protection, as may appear ''just'' and ''convenient'' to the Court. The words ''just'' and ''convenient'' mean that the Court is empowered to pass orders for interim protection of the rights of the parties pending adjudication of their rights in the arbitral proceedings. Grant of interim relief isa discretionary remedy. The discretion has to be exercised in the light of well-settled principles of law as to whether there is a prima facie case, balance of convenience and the probability of irreparable loss or injury. While seeing the discretionary relief, the petitioner is bound to approach the court with clean hands and not to conceal any facts. As noticed above, prior to the filing of the above petition u/s 9 of the Act, petitioner had filed a civil suit as well as a writ petition. Both, in the civil suit as well as in the writ petition, similar relief regarding the road in question was sought. It may be that the scope of the civil suit and the writ petition is different, as argued by learned counsel for the petitioner, but as the reliefs are similar, petitioner was bound to disclose the same, particularly, when the interim injunction had been declined. Having not done that and having deliberately made a wrong statement of fact, the petition is liable to be dismissed on this short ground alone.
11. So far as facts in this case are concerned, petitioner claims itself to be a voluntary agency. By agreement dated 4.2.1999 petitioner was required to maintain a stretch of the road in question. Respondent PWD could enter the land at any point of time. The Agreement could be terminated with three months'' notice on either side. As per the case set20;1H up by the respondents NHAI was constituted under the National Highway Authority Act, 1988 and for the purpose of development, management and maintenance, the National Highways are entrusted to it by the Central Government. The national highway which vest with the Central Government and not entrusted to the NHAI are developed and maintained by the PWD of the State Government in whose state such highways pass. Here, vide the notification dated 4.2.2000 the land in question was entrusted to the NHAI and the road was formally handed over by respondent No. 2 to the NHAI on 31.12.2001 for maintenance and development. In view of this, there is no merit in the petition.
12. Learned counsel for the petitioner also argued that under Article 239A of the Constitution of India NHAI was bound by the Agreement executed in favor of the petitioner by respondent No. 1 and, Therefore, action of the respondents is highly illegal, arbitrary and not sustainable in law and that petitioner is entitled to the relief claimed. This argument is again without merit. Whether the agreement was validly entered into and whether it was validly terminated, is not a question to be determined in this petition. This question can be determined only in the arbitration proceedings and if the petitioner succeeds, he may be entitled to damages.
For the foregoing reasons, no case for grant of relief as prayed for, is made out. The petition has no merit and is dismissed with costs of Rs. 10,000/-.
