Arbitration Act | Arbitrator Can't Appoint Advocate Commissioner U/S 26, 27: Kerala High Court

Justice Murali Purushothaman added that the extent of judicial intervention in arbitration proceedings was limited, with parties generally having to wait for the arbitration award or follow the appeal process specified in the law.

"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, but cannot be invoked for appointment of an Advocate Commissioner to conduct inspection of the property to ascertain the market value of the land. Therefore, Ext. P4 application for appointment of an Advocate Commissioner cannot be entertained by the Arbitrator either under Section 26 or Section 27 of the Arbitration Act." 

The petitioner’s property was acquired for widening National Highway 66. The competent authority under the National Highways Act (NH Act), 1956 determined the compensation payable to the petitioner and an award was passed. Dissatisfied with the award, he filed an arbitration application before the 1^st respondent arbitrator under Section 3G (5) of the NH Act.

During the pendency of the arbitration application, the petitioner filed an application for the appointment of an Advocate Commissioner, along with a Surveyor and Technical person, to inspect the properties and provide a report on various aspects. The Arbitrator rejected the application.

Aggrieved by this, the petitioner approached the High Court contending that the Arbitrator's refusal to appoint an Advocate Commissioner amounted to a jurisdictional error and that the Arbitrator had jurisdiction under Section 26 of the Arbitration Act to appoint an Advocate Commissioner with Surveyor and Technical person.

Section 3G(5) of the Arbitration Act provides that when there is a dispute regarding compensation determined by the competent authority, then it shall be resolved by an arbitrator and the provisions of the Arbitration Act will apply. Section 26 deals with the appointment of one or more experts by the arbitral tribunal to report on specific issues which will be determined by the tribunal. Section 27 states that a party or arbitral tribunal can take assistance from the Court for obtaining evidence from witnesses.

The Counsel for the petitioner relied upon Harbanslal Sahnia & Anr v. Indian Oil Corporation Ltd & Ors(2003) to argue that the High Court can exercise its writ jurisdiction even when an alternative remedy was available.

The Counsel for the respondents contended that the petitioner ought to have challenged the final award under Section 34 of the Arbitration Act and that the writ petition was not maintainable by relying upon SBP and Co. v. Patel Engineering Ltd and Anr (2005) and National Highway Authority of India v. Jabeena Beevi & Ors (2021).

The main question 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 Arbitrator's powers to appoint experts were examined under Section 26 and the court found that this provision did not apply to the appointment of an Advocate Commissioner unless the advocate was an expert on specific issues. 

“The said provision cannot be invoked for 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.”

The Court also determined that Section 27 could be invoked for seeking the court's assistance in taking evidence from witnesses or obtaining documents but not for appointing an Advocate Commissioner for property inspection.

“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, but cannot be invoked for appointment of an Advocate Commissioner to conduct inspection of the property to ascertain the market value of the land.”

The court cited the non-obstante clause in Section 5 of the Act, highlighting that judicial intervention in arbitration matters is limited unless explicitly provided for in the Act. The Court also relied upon SBP and Co. (supra) to state that every order passed by the Arbitral Tribunal cannot be corrected by writ courts under Article 226 or 227 of the Constitution.

Thus, the Court held that an arbitrator cannot appoint an Advocate Commissioner under Section 26 or 27 of the Arbitration Act.

In SBP and Co. (supra), the Apex Court established that parties involved in arbitration should generally wait until the award is pronounced before seeking remedies unless there is an appeal under Section 37 of the Arbitration Act. It also stated there must be minimal judicial intervention when matters were being arbitrated upon.

With these observations, the Court dismissed the petition.

Counsel for the Petitioner: Advocates M.K.Sumod, Vidya M.K., Raj Carolin V., Thushara.K

Counsel for the respondents: Senior Advocate K.P.Satheesan, Advocates P.Mohandas, K.Sudhinkumar, Sabu Pullan, Gokul D. Sudhakaran, R. Bhaskara Krishnan, Bharath Mohan, E.C.Kuriakose, B.G.Bidan Chandran, Lejo Joseph George, Bimal K. Nath

Citation: 2023 LiveLaw (Ker) 577

Case title: M/S Punarnava Ayurveda Hospital Pvt Ltd V The Arbitrator For Nh 66 & District Collector

Case number: WP(C) No. 29228 of 2023

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