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Judgment
,
1.This petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as ‘the Act’) has been",
filed by the petitioner against the respondent in respect of an agreement dated 10.11.2017 executed between them.,
2.The brief facts as alleged by the petitioner are as follows:,
(a)The petitioner is one of India's leading adventure sports company with over 25 years of experience in the field of adventure sports having,
worldwide affiliations and technical collaborations in U.K, U.S.A and Germany. The petitioner is approved by the Ministry of Tourism, Government of",
India and is a member of ATOAI, IATO, PATA, TUV, TAAI and other internationally recognized organizations in adventure sports. The petitioner",
has set up and successfully operated over 1000 adventure events for government as well as private sectors in the last 25 years and various,
stakeholders have lauded the efforts of the petitioner. The respondent in the past has been involved in the conduct of adventure sports at the Garden,
of Five Senses (""the premises"");",
(b)the petitioner since the year 2013 has been conducting adventure sports activities ranging from few days up to 6 months at the premises on,
instructions of the respondent. The respondent after realizing the long term viability of an adventure sports park at the premises after following the,
requisite legal procedure awarded the legal tender to set up and operate adventure park at the premises to the petitioner vide its letter dated,
11.08.2017;,
(c)on 15.09.2017, the officials of the respondent visited the premises to earmark the area for establishing the adventure sports activities in front of the",
rocky terrain (allegedly referred as ""the Topiary Garden""). In absence of any mention of the exact dimension on the ground with specifications of area",
the above team keeping in mind the concerns of the Horticulture Department not to disturb any shrubs & plants did the due allocations at the unused,
and banjar land. The petitioner Company had been allocated only banjar, wasteland unused area which had been covered with dried thorny waste;",
(d)on 11.10.2017 the agreement has been executed between the petitioner and the respondent vide which the respondent granted the permission to,
use the premises for setting up and operation of adventure park at the premises for a period of 5 years at a monthly rent of 50,000/- along with",
revenue share @ 2% of the revenue generated from the ticket sales.,
(e)from 02.11.2017 onwards the petitioner allegedly started installing the equipment in the area ear-marked by the team as detailed above and vide e-,
mail dated 02.11.2017 addressed to Mr.Vikram, Manager of the respondent categorically represented the area of activity as well as the space to be",
occupied by the Company and detailed the same in the e-mail dated 02.11.2017 and vide said email the location as well as the area had been,
categorically specified and communicated to the respondent to which the respondent did not object and in fact allowed the installation process as it,
was as per the earmarked area decided by the respondent in front of the rocky terrain allegedly referred as ""the Topiary Garden"" by the respondent;",
(f)on 13.11.2017 the respondent vide letter bearing reference number F.No.Adv/DTTDC/2016-17/0050/827 to the Additional Commissioner of Police,
(Licensing), P.S, Defence Colony, New Delhi recognized the fact that the installation work is almost complete and requested him to grant permission",
to the petitioner to operate the adventure sports activities as mentioned in the agreement;,
(g)vide another letter dated 13.11.2017 bearing reference No. F. No.Adv/DTTDC/2016-17/0050/ 828 asked the petitioner (if possible) to submit the,
drawings, measurements and structure safety certificate to the respondent. In turn the petitioner vide letter dated 18.11.2017, categorically responded",
to the respondent that completion certificate as well as structure safety shall be handed over after the full erection is done. That after the receipt of,
the letter dated 18.11.2017, the respondent did not respond. However, the work could not be completed due to the incident dated 27.11.2017;",
(h)on 27.11.2017 at around 05.30PM, in the process of installation of the zip line wire by the employee of company's contractor; some of the wires got",
entangled in the branches of one tree (species- ""Ficus Suila) and in the process of sorting out the entangled wires, the top branches of the tree broke",
off. The matter was reported to the petitioner and immediately on the very next day i.e morning of 28.11.2017, Mr.Anuj Garg, General Manager of the",
petitioner visited the site and found out that the tree trunk was still intact and had not been uprooted and that the top branches of the tree inadvertently,
came down due to the installation process by the employee of the petitioner's contractor. It is pertinent to mention that as per the Horticulture,
department stated that the tree eventually would regain back it original life condition;,
(i)on 29.11.2017 the petitioner through its Managing Director-Major S.K. Yadav met the Deputy Conservator of Forest, South Range in person and",
vide letter dated 29.11.2017(duly received by the forest department) appraised him about the inadvertent incident and also the corrective measures,
undertaken by the Petitioner. The Deputy Conservator of Forest, South Range informed Major S.K. Yadav that no action was required, as the tree",
had not been uprooted; therefore as per the concerned official from the forest department, no penal action would be required in such case.",
Accordingly, the petitioner vide letter dated 30.11.2017 to the GM, of the respondent appraised about the stand of the forest department and also",
submitted the duly received copy of the letter as submitted to the Department Conservator of Forest by the petitioner and accordingly requested the,
GM, DTTDC to allow the petitioner to resume the installation process as the dead line was short approaching;",
(j)on 01.12.2017 the petitioner again submitted a representation to the department of forest detailing the inadvertent incident along with the,
photographs and the corrective measures already taken by the petitioner. The petitioner also requested the concerned forest department to give in,
writing regarding their decision upon the inadvertent incident, which was accordingly done on the letter dated 1.12.2017 itself;",
(k)on 06.12.2017 petitioner addressed the letters to both the General Manager as well as the Managing Director of the respondent and apprised them,
about the clearance note given by the Deputy Conservator of Forest, South Range pertaining to the inadvertent incident of accidental pruning of the",
tree by the employee of Company's contractor. The petitioner again clarified that not only the redressal step as advised the respondent officials of,
planting 31 trees of the same height have been executed but also a clearance from the forest department has also been taken; therefore the petitioner,
be allowed to resume with the installation process as otherwise the petitioner shall suffer irreparable loss/harm as the work had been stalled from,
27.11.2017 and it is incurring heavy losses by each passing day;,
(l)on 14.12.2017 in spite of the above-stated diligent efforts taken by the petitioner to redress the issue of inadvertent pruning of tree, the respondent",
has issued the Show Cause Notice bearing No.F.No.Adv/6301/2013-14/DTTD/CIPF-I dated 14.12.2017 (""the first Show Cause Notice""), which had",
been received by the petitioner on 16.12.2017;,
(m)on 18.12.2017 the petitioner submitted a detailed reply to the notice and requested the respondent to afford an opportunity for personal hearing. But,
till date no communication has been received from the respondent;,
(n)on 28.12.2017 respondent again issued the Show Cause Notice bearing no.ADV /DTTDC/2017-18/0083/2023/RRI (""the second",
Show Cause Notice/arbitrary directive' received on 29.12.2017 by the petitioner. The petitioner has been issued the correspondence dated 28.12.2017,
worded as 'Show Cause Notice' alleging the encroachment by the Company of the notional area that was allotted to it.; however, in reality it is an",
arbitrary directive to the Company to vacate the premises and suffer irreparable loss as no opportunity had been granted to the Company to explain its,
version. The respondent vide this arbitrary directive/second Show Cause Notice has directed the Company to remove the legally installed equipment's,
of Zip Line Tower, Zip Line Landing Tower, Bungee Jumping, Bunging landing within 5 working days without even giving an opportunity to the",
Company to put forth its version. It is shocking to know that the respondent in spite of being a governmental instrumentality has chosen to bypass,
the cardinal principles of natural justice viz an opportunity to the Company to put forth their version of the present case/allegations raised by the,
DTTDC. The said action has impinged both legal as well as fundamental right of the petitioner;,
(o)on 04.01.2018 the respondent again called upon the petitioner to submit the response to the notices and hence this petition.,
S.No.,"Adventure
Activities
1,Velcro Wall
2,Sumo Wresting
3,Human Gyro
4,Zip Line + Free fall
5,Wooden Rock Wall
6,Rope obstacle Wall
7,Paint Ball Battle Game
8,Burma Bridge
9,Water Zorb
10,Water Roller
11,Human Zorb
12,Bungee Jumping+scad
13,ATV's
14,Land Zorbing
15,Big Glove Boxing
16,Gladiator
17,Bungee tug off war
18,Olympic Archery
19,Air Rifle Shotting
20,Inflatable Rock Wall
21,Rocket Boom
22,Inflatable Sumo Wresting
23,Mountain Bike
24,Multiple activity tower
25,Human Sling shot
26,Army Obstacle Course
27,Revolving Obstacle
28,Human Fussball
29,Remote Controlled Catpult
30,Trampoline Cataplut
31,Bull Ride
32,Running Bungee