Page No.# 1/6 GAHC040014242024 2025:GAU-AP:296 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Review Pet./8/2024 DSC Hydro Power Private Limited and 2 Ors having its registered office at Room No.1, 3rd Floor, E-9, south Extension, Part - II, New Delhi- 110049 represented by its Director, Shri N S Narula 2: Naying DSC Power Limited Age: Occupation : having its registered office at Room No.1 3rd Floor E-9 South Extension Part- II New Delhi 110049 represented by its Director Shri Naginder Singh 3: DSC Limited Age: Occupation : formerly known as D.S. Construction Limited having its registered office at Room No.2 3rd Floor E-9 South Extension Part- II New Delhi 110049 represented by its Director Shri R K Sain VERSUS The State of AP and 2 Ors represented by the Commissioner and Secretary, Govt of Arunachal Pradesh, Department of Hydro Power Development, having its registered office at 3JM3 JWH, Department of of Hydro Power Development, Govt of Arunachal Pradesh, Jal Vidyut Bhawan, Itanagar, Arunachal Pradesh 791111 Page No.# 2/6 2:The Commissioner and Secretary Age: 0 Occupation : Govt of Arunachal Pradesh Department of Hydro Power Development having its office at 3JM3 JWH Department of Hydro Power Development Govt of Arunachal Pradesh Jal Vidyut Bhawan Itanagar Arunachal Pradesh 791111 3:The Secretary (Power) Age: 0 Occupation : Govt of Arunachal Pradesh Department of Powe Advocate for the Petitioner : Vijay Jamoh, A Lal Advocate for the Respondent : GA (AP), SC(Power),Lissing Perme BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY Date of Hearing : 24.02.2025 Date of Judgement : 06.03.2025 JUDGMENT & ORDER (CAV) 1. Heard Mr. M. Seshadri, learned counsel for the review petitioners. Also heard Mr. N. Ratan, learned Additional Advocate General, State of Arunachal Pradesh representing the State respondents. 2. The present review petition is filed seeking review of the Judgment & Page No.# 3/6 Order (CAV) dated 16.08.2024 passed by this Court in Arb. P. No. 2/2024 only to a limited extent that there is an error apparent on the face of record inasmuch as though the parties were at tandem that the arbitration Tribunal be consisted of a panel of three arbitrator, however, inspite of such clear intention of both the parties that the dispute be referred to a three member arbitral tribunal, this Court had erroneously appointed a sole arbitrator for adjudication of the dispute. 3. Mr. Seshadri, learned counsel for the petitioners argues that in the impugned order, it was erroneously recorded that the petitioners had no objection to a panel of arbitrator adjudicating the dispute inasmuch as the petitioners had consistently requested a three member arbitral panel. It is further contended by Mr. Seshadri, learned counsel for the petitioners that the appointment of Hon’ble Mr. Justice (Retired) H. N. Sarma, as sole arbitrator was not conceded by the petitioners rather a concession was given by the petitioners that they have no objection to appointment Hon’ble Mr. Justice (Retired) H. N. Sarma, as the respondents’ nominee arbitrator. 4. The respondent State by filing an affidavit has taken a stand that they also want a three member of arbitrators panel and the respondent suggested Hon’ble Ms. Justice (Retired) Indu Malhotra, (Retired Judge of Hon’ble Supreme Court) as their nominee arbitrator inasmuch as the State has also opposed for one member Tribunal. 5. Law is well settled that a review application shall be maintainable on account of any such mistake or error apparent on the face of the record or any other sufficient reason. The material error, to exercise the power of review must be manifest on the face of the order and must result in a Page No.# 4/6 miscarriage of justice or undermine its soundness. Such error apparent on the face of the record shall mean an error that is self-evident and no process of reasoning is required to detect such error. 6. In view of the ratio laid down by the Hon’ble Apex Court in Municipal Corporation of Greater Mumbai and Another –Vs- Pratibha Industries Limited and Ors. reported in 2019 3 SCC 203, this Court being a superior Court and a Court of record has its inherent power to recall and review its earlier order, if it otherwise satisfies that there are error apparent on the face of the record. 7. This Court has perused the original arbitration application, the contentions raised by the petitioners as well as the affidavit filed by the respondents. 8. From the materials available on record, it is seen that the parties were at tandem that the disputes should be referred to a panel of three arbitrators. It is also seen that both the learned counsel for the parties are correct in saying that they proposed their names of arbitrators not the name of Hon’ble Mr. Justice (Retired) H. N. Sarma, (Retired Judge of Gauhati High Court). 9. It is equally well settled that while exercising power under Section 11(6) of the Arbitration and Conciliation Act, 1996, precedents should be given to the parties autonomy when appointing arbitrator. 10. In view of the findings recorded hereinabove, this Court is of the opinion that Mr. Seshadri, learned counsel for the petitioners and Mr. N. Ratan, learned Additional Advocate General, State of Arunachal Pradesh Page No.# 5/6 representing the State respondents are correct that they both proposed a panel of arbitrators consisting of three-members. 11. Mr. Seshadri, learned counsel for the petitioners had proposed the name of Hon’ble Mr. Justice (Retired) A.K. Sikri, (Former Judge of Supreme Court of India) as their nominee arbitrator. The respondent State has not objected to such appointment and on the other hand, the respondent State had proposed the name of Hon’ble Ms. Justice (Retired) Indu Malhotra, (Former Judge of Hon’ble Supreme Court of India) as their nominee arbitrator to which Mr. Seshadri, learned counsel for the petitioners has not objected. 12. It is also jointly submitted by the parties that let this two arbitrators nominated by the parties decide the third member of panel arbitrators. 13. In view of the aforesaid consensus and for the reasons recorded hereinabove, the Judgment and Order (CAV) dated 16.08.2024 passed by this Court in Arb. P. No. 2/2024 is recalled so far same relates to the appointment of sole arbitrator. As agreed to by the parties, Hon’ble Mr. Justice (Retired) A.K. Sikri, (Former Judge of Supreme Court of India) be nominated as an nominee arbitrator on behalf of the petitioners and Hon’ble Ms. Justice (Retired) Indu Malhotra, (Former Judge of Hon’ble Supreme Court of India) be nominated as the nominee arbitrator of the respondent State. Both the nominee arbitrators may appoint the third arbitrator in this regard. 14. Accordingly, the present review petition is disposed of to the extent recorded hereinabove. Page No.# 6/6 JUDGE Comparing Assistant