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2013 DIGILAW 132 (ALL)

Sharda Prasad v. Union of India and Others

2013-01-10

A.P.SAHI

body2013
Amreshwar Pratap Sahi, J.— Heard Sri N.L.Pandey learned counsel for the review application who submits that there is no deliberate delay in filing the review application. The delay is condoned. In view of this the review application is entertained. Sri Pandey submits that there is no error on the face of record. This Court has virtually dismissed the petition on the ground of alternative remedy under Section 34 of the Arbitration and Conciliation Act, 1996 to enable the petitioner to file his objection in respect of the award given under National Highways Act, 1956. Learned counsel for the petitioner submits that the ingredients under Section 34 of the Arbitration and Conciliation Act, 1996 are not attracted and therefore an objection would not be maintainable. Sri Pandey relied on the observations in the interim order dated 12.8.2010 in Writ Petition No.45026 of 2010 copy whereof has been filed along with the review application. Sri Mohd. Ali learned counsel for the National Highways Authority contends that the aforesaid argument is misconceived and the observations of the interim order as relied upon by the learned counsel for the petitioner does not expound the law which has already been clarified by the Apex Court and the Division Bench of this Court . Sri Ali has relied on the judgment in the case of M/s Oil & Natural Gas Corporation Ltd.vs. SAW Pipes Ltd reported in 2003 (5) SCC 705 and the Division Bench judgment of this Court in Writ Petition No.64369 of 2006 M/s Reyance Enterprises Ltd. Vs. Union of India and others decided on 5.12.2006. I have heard learned counsel for the parties. The award given in proceedings under the National Highways Act, 1956 is subject to the provisions of Section 3G(6) of the National Highways Act, 1956. The said section has been quoted in the judgment dated 21.3.2012 at the time of dismissing the writ petition . A perusal thereof leaves no room for doubt that all the provisions of the Arbitration and Conciliation Act, 1996 are clearly attracted. Section 34 in turn provides for the forum before the Civil Court to raise objections. The said section has been quoted in the judgment dated 21.3.2012 at the time of dismissing the writ petition . A perusal thereof leaves no room for doubt that all the provisions of the Arbitration and Conciliation Act, 1996 are clearly attracted. Section 34 in turn provides for the forum before the Civil Court to raise objections. The contention of the learned counsel for the petitioner is that the said forum does not provide for challenging the award on all possible grounds and therefore he contends that the challenge can be raised only on limited grounds and not on the correctness of the merits of the award itself. I am unable to agree with the aforesaid submission on account of the clear pronouncement made by the Division in M/s Reyance Enterprises Private Ltd (supra). The reason is also to be found in the Apex Court judgment in the case of Oil & Natural Gas Corporation Ltd Vs. Saw Pipes Ltd. (supra) The Apex Court in para 26 has observed that the legislature has not incorporated exhaustive grounds for challenging the award passed by the Tribunal but has observed in para 28, and then finally in para 31, that keeping in view the phrase public policy of India the award can be challenged and can be be set aside, if it is contrary to any fundamental policy of Indian law, or the interest of India, or against justice or morality and lastly if it is patently illegal. While explaining the said contingencies the Apex Court observed that illegality must go to the root of the matter and if the illegality is of a trivial nature it cannot be held that award is against public policy. An award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. The aforesaid reasons given by the Apex Court in the case of ONGC Ltd Vs. SAW Pipes would also squarely apply in the present case and therefore the contention of Sri Pandey is unacceptable. It shall be open to the petitioner to challenge the award before the Civil Court as indicated above. The interim order of the Division Bench as relied on by Sri Pandey does not even have a persuasive value. The review application is rejected. _____________