The writ of Habeus corpus is provided in the constitution in Article 226. The definition of habeas corpus has not been in the constitution but has been interpreted in zillions of different cases in India. The literal meaning of habeas corpus is “you shall have the body”. Mr Amit Kumar Pandey has not been allowed for this writ as he had not been illegally and unauthorizedly detained provided in the case, Smt. Astha Pandey v. State of Chhattisgarh & Ors.[WPHC/13/2021] through the division bench led by Mr Justice Arup Kumar Goswami and Mr Justice Sanjay K. Agarwal in the High Court of Chhattisgarh.

The facts of case are Shri Amit Kumar Pandey has been produced before this Court though this Court has not directed for his production. The petitioner was seeking directions to the respondents to free her husband from the crutches of respondents stating enter earlier that she has married Shri Amit Kumar Pandey but the respondents have illegally detained him without the authority of law. The petitioner in person had submitted that Shri Amit Kumar Pandey was her legally wedded husband and has been detained unauthorisedly and without the authority of law by respondents specifically No. 5 to 7. The petitioner argued that the husband was willing to stay with her and she wanted to continue his treatment as he was unwell. But the petitioner wants to stay with him.

Shri Amit Kumar Pandey was present in the court and he submitted that though he was married to the petitioner but due to some objectionable behaviour read by the petitioner he was not ready and willing to stay with the petitioner and wanted to stay with his parents. He clearly stated that he was not willing to meet his wife, the petitioner. He submitted that he is staying with his parents out of his free will and there is no pressure or force applied by the respondent No. 5 to 7 to stay with them as was submitted by the petitioner.

The High Court decided that “We are of the considered opinion that it is not the case where Shri Amit Kumar Pandey has been illegally and unauthorizedly detained by respondents No.5 to 7 and we hereby close the present Habeas Corpus petition accordingly. However, the petitioner is at liberty to avail other remedies available under the law for redressal of her grievances, if any. It is also made clear that we have not expressed any opinion on rights of the parties.”

The court closed the writ petition accordingly.

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Judgement reviewed by- Pranav Vyas.

The landlord-tenant disputes are arbitrable but landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations as was provided by the Supreme Court in the case of Vidya Drolia and Other’s case. But it was not applicable in the case of Swaroop Sen v. Ajay Kumar Boral & Anr.[AP/512/2019] through the Hon’ble Court of Calcutta through the single bench led by Hon’ble Mr Justice Rajesh Bindal.

The facts of the concerned case are that the application was filed under section 11(6) of the Arbitration and Conciliation Act,1996 for the appointment of an arbitrator in a tenant-landlord matter.

The counsel from the applicant side argued that there was an arbitration clause in the lease and license agreement dated August 10, 1987 between both the parties. Further, the albatross proceedings could not be commenced as both the parties fail to appoint an umpire. Thus, an application was filed for the appointment of arbitrator. It had been greatly argued through the Vidya Drolia and Others vs. Durga Trading Corporation, (2021) [2 SCC 1], that landlord/tenant disputes or arbitrable, and resend that through the readings in the Vidya Drolia and Other’s case, any issue regarding the arbitrability of a dispute was also to be decided by an arbitrator, the counsel for the applicant pleaded.

The counsel for the respondent side submitted that the arguments raised by the applicant’s counsel were not applicable in this hand as the 1997 act had come after the signing of the lease agreement also that the present agreement was a mere Leave and License agreement rather a lease agreement.

The court after a perusal of Section 3(c) of the Arbitration and Conciliation Act, 1996, decided that for exemption from application the provisions of the 1997 Act, the lease deed has to be registered after the commencement of the 1997 Act, which came into force w.e.f. July 10, 2001. In the case in hand, neither the agreement in question is lease agreement nor the same was signed after the coming into force of the 1997 Act as the agreement is dated August 10, 1987. The court also took notice, “the Vidhya Drolia and Other’s case also does not come to the rescue of the applicant for the reason that long drawn complicated arguments are not required to be addressed and considered in dealing with the arguments raised regarding non-arbitrability of the dispute in question. Once it is found that the dispute is non-arbitrable, it will be waste of time to refer the same for arbitration.”

The High Court of Calcutta dismissed the application for the appointment of the arbitrator.

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Judgment Reviewed By Pranav Vyas.              

It is of the considered opinion that there is no material on record that necessitates the continuance of the criminal proceedings against the petitioner when there is even no recorded confession of the co-accused except the disclosure statement as upheld by the High Court of Jammu and Kashmir and Ladakh through the learned bench led by Justice Rajnesh Oswal in the case of Sandeep Kumar Vs State of J&K (Bail App No. 253/2021 [CrlM No. 1515/2021])

The brief facts of the case are that the petitioner through the medium of the present petition under section 561-A Cr.P.C. (now 482 Cr.P.C.) has prayed for quashing of the criminal proceedings titled “State versus Ghulam Mohammed & Anr”, those are pending against him before the Court of learned Principal Sessions Judge, Kishtwar (hereinafter to be referred as trial court) arising out of FIR bearing No. 13 of 2013 for commission of offences under sections 295, 457, 380, RPC. The petitioner has sought the quashing of the criminal proceedings primarily on the grounds that the evidence relied upon by the prosecution is legally inadmissible because as per the prosecution case the accused No. 1 in the case i.e., Ghulam Mohd made an admission/confession of the guilt before them, where he stated that the petitioner herein was also an accomplice in that act and in law, no confession is admissible, if the same is made not only to Police Officer but even if it is made in presence of Police Officer. Further the proceedings those are pending against him do not disclose commission of any offence by the petitioner, as such, the proceedings are nothing but an abuse of process of law.

After the perusal of facts and arguments, the Hon’ble Court held, “ In the instant case, there is even no recorded confession of the co-accused except the disclosure statement as mentioned above. So, this Court is of the considered opinion that there is no material on record that necessitates the continuance of the criminal proceedings against the petitioner. In view of this, the present petition is allowed and the criminal proceedings titled “State versus Ghulam Mohammed & Anr” pending before the court of learned Principal Sessions Judge, Kishtwar are quashed qua the petitioner only and the proceedings against the Ghulam Mohd shall continue. Since the petition has been allowed and the charge-sheet filed against the petitioner before the trial court has been quashed, therefore, the application has been rendered infructuous.”

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Judgment reviewed by Vandana Ragwani

The petitioner has filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996, and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR JUSTICE VIBHU BAKHRU, in the matter GVK JAIPUR EXPRESSWAY PRIVATE LIMITED V. NATIONAL HIGHWAY AUTHORITY OF INDIA dealt with an issue mentioned above.

The impugned award was rendered in the context of disputes that had arisen between the parties in connection with the Concession Agreement dated 08.05.2002, The petitioner’s also claimed for the cost of constructing additional toll lanes was rejected as the Arbitral Tribunal, were inter alia, found that the same was covered within the ‘scope of work’ under the Concession Agreement and, the petitioner was not entitled to any further payment in respect of the same.

The petitioner contends that the said view is patently erroneous and disregards the express terms of the Concession Agreement. Later, the obligations of the petitioner under the Concession Agreement did not end with the issuance of the Final Completion Certificate. It was also required to operate and maintain the Project Highway in terms of the said Concession Agreement. The project review meetings were held between the parties periodically and, the issue of increase in traffic volume was discussed at the said meeting.

The IC sent a letter dated 03.07.2012, inter alia, stating that since the Project Highway had already been completed with COD on 09.04.2005, the petitioner’s proposal could not be considered as additional work under the provisions for ‘change of scope’ under Article XVII of the Concession Agreement, And the petitioner did not concur with the aforesaid view and requested the IC to reconsider the same. The IC thereafter sought legal O.M.P. (COMM) 377/2020 opinion on the question of whether the ‘change of scope notice’ was required under Clause 17.2(b) of the Concession Agreement.

Meanwhile, a letter dated 30.10.2012, which was filed by the petitioner, once again, requested a ‘change of scope’ notice in terms of its proposal submitted earlier. NHAI did not concur with the said suggestion. According to NHAI, the petitioner was responsible for the smooth operation of the toll plaza and was required to take all measures for the same. They also mentioned that the parties attempted to resolve their disputes amicably but were unsuccessful and the disputes were referred to arbitration. The parties had agreed that the arbitration shall be conducted following the rules of the Indian Council of Arbitration (ICA), New Delhi. In terms of the Arbitration Clause, the respondent nominated an arbitrator.

Mr Sarangi, learned counsel appearing for the petitioner that the impugned award is vitiated on the ground of patent illegality as it is contrary to terms of the Concession Agreement and particularly Clause 18.4 of the Concession Agreement. He submits on a plain reading of the Concession Agreement, it is clear that the construction of additional toll lanes was not a part of the scope of works. Later He also contends that although the petitioner had relied upon Clause 18.4 of the Concession Agreement in support of its contention, the Arbitral Tribunal had completely disregarded the same and the O.M.P. (COMM) 377/2020 impugned award does not even mention the said clause and therefore, the impugned award is unreasoned.

Mr Chandra learned counsel for NHAI also fairly stated that the finding of the Arbitral Tribunal that the construction of additional toll lanes/booths fell within the scope of work under the Concession Agreement was at the core of the controversy in this petition. Thus, the decision on whether the finding is contrary to the terms of the Concession Agreement would be dispositive of the present petition.

Because of the above, there was merit in the petitioner’s contention that since one of the principal contentions advanced by the petitioner regarding the interpretation of Article XVIII of the Concession Agreement has not been considered and the impugned award rests substantially on the interpretation of a sub-clause of Article XVIII of the Concession Agreement; the award must be construed to be unreasoned.

The court perused the facts and argument’s presented, it thought that-“In the aforesaid context, this Court is of the view that the impugned award is contrary to the expressed terms of the contract as it ignores Clause 18.4 of the Concession Agreement, which expressly provides that extension of pavements or ‘other civil works’ would not be included as a part of maintenance unless such construction is a part of the project. There is no clause in the Concession Agreement, which specified the construction of additional toll lanes as a part of the project. Because of the above, the impugned award is set aside. The petitioner is at liberty to seek a reference of the disputes to arbitration. The petition is allowed in the aforesaid terms”.

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Judgment Reviewed by: Mandira BS