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2022 DIGILAW 988 (ALL)

Rahul Agarwal v. Govt. of India Railway Ministry

2022-07-04

SARAL SRIVASTAVA

body2022
JUDGMENT : 1. Heard Sri Pankaj Agarwal, learned counsel for petitioners and learned Standing Counsel for respondent no.2. 2. The petitioners by means of the present writ petition have assailed the order dated 12.09.2017 passed by District Judge, Alilgarh in Arbitration Misc. Case No.10 of 2014 whereby he has rejected the application of the petitioners under Section 5 of Limitation Act for condoning the delay in filing the application under Section 34 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'Act, 1996'). 3. The facts in brief are that petitioners claim that they are the owner of Gata No.78/3 situated at village Padiyawali, Tehsil-Koil, District Aligarh. The land was acquired under Railways Act, 1989 as amended in 2008 and a notification was issued under Section 20 (A) and 20 (E) of the Act, 1989. Consequently, an award was made on 18.05.2012 in respect of land of petitioners respondent no.2-Competent Authority/Special Land Acquisition Officer (Joint Organisation), Aligarh. 4. It is stated that though it was mentioned in the award that copy of award shall be dispatched to the tenure holder, but at no point of time, petitioners were ever informed about the award dated 18.05.2012 or certified copy of award duly signed by the competent authority was ever sent or served upon the petitioners or to any of their family members. It is further stated that the petitioners never came to know about the award dated 18.05.2012 and came to know about the award through other villagers. 5. The petitioners, thereafter, on 03.03.2014 applied for certified copy of the award which was made available to them on 12.03.2014. After obtaining certified copy of award, petitioners contacted their counsel who advised them to challenge the award under Section 34 of the Act, 1996. The petitioners, thereafter, filed an application under Section 34 read with Section 20 H (6) of the Railways Amendment Act, 2008 on 15.04.2014. 6. According to petitioners, application under Section 34 of the Act, 1996 was filed by them was within time from the date of receiving the certified copy of the award. 7. The application under Section 34 of the Act, 1996 was contested by respondents by filing objection stating therein that application under Section 34 of the Act, 1996 was barred by limitation and hence, deserves to be dismissed. 8. 7. The application under Section 34 of the Act, 1996 was contested by respondents by filing objection stating therein that application under Section 34 of the Act, 1996 was barred by limitation and hence, deserves to be dismissed. 8. According to petitioners, though objection with regard to limitation raised by the respondents was frivolous, but as abandoned caution, they moved an application under Section 5 of the Limitation Act for condoning the delay in filing the application under Section 34 of the Act, 1996. The application was filed on the ground that the petitioners were not aware about the legal provision that under the new Arbitration Act, 1996, limitation of filing application under Section 34 is 90 days with one month grace period. It is stated that petitioners filed application under Section 34 of the Act, 1996 within time after obtaining certified copy of the award dated 18.05.2012. 9. The respondents filed objection to the said application contending inter alia that Act, 1996 is a special act and provisions contained therein are special provisions, therefore, provisions of limitation act are not applicable. The further objection raised by the respondents was that ignorance of law is not an excuse to condone the delay in filing the application. 10. The court below vide order dated 12.09.2017 dismissed the application under Section 5 of limitation act holding that in view of the judgement of this Court in the case of State of U.P. and Others Vs. M/s Harnam Singh reported in 2015 All. C.J. 1763, provisions of Limitation Act are not applicable in proceeding in application under Section 34 of the Act, 1996. Accordingly, the court below found that as the application under Section 34 of the Act, 1996 was to be filed maximum within 120 days i.e. 90 days plus 30 days grace period as provided in Section 34 (3), but the same has been filed after the period of limitation as provided under Section 34(3) of the Act, 1996 has expired, the court below found that it has no power to condone the delay if delay in filing the appeal is beyond the period provided in Section 34 (3) of the Act, 1996. Consequently, it dismissed the same. 11. Consequently, it dismissed the same. 11. Challenging the aforesaid order, learned counsel for the petitioners has contended that though it is specifically mentioned in the award that copy of the award shall be sent to all the land owners, but it was never sent or dispatched to the petitioners, and petitioners for the first time came to know about the award on 03.03.2014 and application was filed on 15.04.2014, therefore, application under Section 34 of the Act, 1996 was in time, and court below has erred in holding that there is delay in filing the application under Section 34 of the Act, 1996. It is further contended that the limitation for filing the award commences from the date the certified copy of the award had been received by the petitioners as provided under Section 34 (3) of the Act, 1996, therefore, order passed by the court below is based upon misinterpretation of law. 12. It is further submitted that in view of Section 43 of the Act, 1996, provision of Section 5 of Limitation Act is applicable to application under Section 34 of the Act, 1996, and thus, the approach adopted by the court below ignoring Section 43 of the Act, 1996 suffers from manifest error of law and requires interference by this Court in its supervisory jurisdiction under Article 227 of Constitution of India. 13. On the other hand, learned Standing Counsel would contend that it is settled in law that limitation provided under Section 34 of the Act, 1996 for filing objection against the award shall prevail over the Limitation Act being special act. He further submits that there is no pleading in the application under Section 5 of Limitation Act of the petitioners that certified copy of the award was never sent to them, and since no such plea had been taken by the petitioners in Section 5 of the Limitation Act, therefore, such plea cannot be allowed to be taken for the first time in writ petition. 14. I have considered the rival submissions of the parties and perused the record. 15. Before appreciating the controversy in hand, it would be apposite to reproduce application under Section 5 of the Limitation Act filed by the petitioner dated 09.08.2017:- "In the Court of District Judge, Aligarh Misc. Arbitration Case No.10 of 2015 Rahul Agrawal and another V/s Govt. 14. I have considered the rival submissions of the parties and perused the record. 15. Before appreciating the controversy in hand, it would be apposite to reproduce application under Section 5 of the Limitation Act filed by the petitioner dated 09.08.2017:- "In the Court of District Judge, Aligarh Misc. Arbitration Case No.10 of 2015 Rahul Agrawal and another V/s Govt. of India and another Application under Section 05 of Limitation Act: Sir, 1. That the applicants have filed objections against award dated 18.5.2012 under Section 34 of Arbitration and Reconciliation Act. 2. That, objectors received compensation under protest on 1.2.2013 and certified copy of award was made available on 12.3.2014. 3. That from the date of obtaining certified copy, the objections were filed within time, but the O.Ps have taken defence that objections should have been filed within three months from the date of award and there is relaxation period of one month and such objections are barred by time. 4. That, objectors were not aware with the amended provisions of Section 34 of Arbitration Act and were under the impression that objections can be filed after obtaining certified copy of award. 5. That, delay in filing objections was not deliberate but on account of ignorance of said legal provision. 6. That, objectors have been advised to move this application for condonation of delay in filing objections. PRAYER It is, therefore, respectfully prayed that Hon'ble Court may be pleased to condone the delay in filing objections and treat the objections as is filed within time." 16. The perusal of the application under Section 5 of the Limitation Act, extracted above, reveals that petitioners have stated in paragraph 3 of the application that objections were filed within time, but respondents have taken defence that objections should have been filed within three months. In paragraph 5 of the said application, it is stated that petitioners could not file objections within time after obtaining the award and delay in filing the objections occurred due to ignorance of relevant provision, therefore, delay in filing the objections deserves to be condoned. 17. In paragraph 5 of the said application, it is stated that petitioners could not file objections within time after obtaining the award and delay in filing the objections occurred due to ignorance of relevant provision, therefore, delay in filing the objections deserves to be condoned. 17. The perusal of application under Section 5 of the Limitation Act does not reflect any plea as argued by the learned counsel for the petitioners that copy of the award was not sent to the petitioners, and the petitioners came to know about the award for the first time on 03.03.2014, therefore, there was no delay in filing the objections under Section 34 of the Act, 1996 rather petitioners have admitted in paragraph 3 of the application under Section 5 of the Limitation Act that they had obtained certified copy of the award, but on account of ignorance of provisions contained in Section 34 of the Act, 1996 with respect to limitation in filing the objection, they could not file the objections under Section 34 of the Act, 1996. 18. This Court in the case of M/s Harnam Singh (supra) has held that provision of Section 5 of Limitation Act is not applicable in a proceeding under Section 34 of the Act, 1996. Paragraph 10 of the said judgement is reproduced herein below:- "10. The issue having been settled by the decision of the Hon'ble Apex Court in M/s. Popular Construction Co (supra), the argument advanced by the learned Standing Counsel for the appellant that the provisions of the Limitation Act will be applicable in proceedings under Section 34 of the Act, 1996 is rendered without any force and are not liable to be accepted. We find no illegality in the impugned order passed by the District Judge rejecting the application of the appellant for setting aside the arbitral award as barred by limitation." 19. Since, it is settled in law that provision of Section 5 of Limitation Act is not applicable in proceeding under Section 34 of the Act, 1996, this Court does not find any error in the finding of the court below that provisions of Limitation Act are not applicable to proceeding under Section 34 of the Act, 1996 and application has to be filed within time prescribed under Section 34 (3) of the Act, 1996. 20. 20. Now, so far as the judgement of Apex Court in the case of Project Director, National Highways Nos.45E and 220, National Highways Authority of India Vs. M. Hakeem and Others reported in AIR 2021 SC 3471 relied upon by the learned counsel for the petitioner is concerned, the said judgement is not applicable in the facts of the present case inasmuch as in the said judgement, Apex Court has considered the question as to whether power of Court under Section 34 of the Act, 1996 to set aside the award of an Arbitrator would include the power to modify such award, and the question raised therein is not involved in the instant case. 21. Now, coming to the other submission of learned counsel for the petitioners that in view of Section 43 of the Act, 1996, provision of Limitation Act is applicable, this Court does not find any merit in the said submission inasmuch as Section 43 of the Act, 1996 refers to its applicability only with reference to Section 3 of the Limitation Act which confers power upon the court to see as to whether the suit is within time as provided in Limitation Act, whereas Section 34 provides period of limitation for filing objections against an award, and Section 34 being special provision incorporated in special act i.e. Act, 1996 shall prevail over the Limitation Act. 22. Thus, for the reasons given above, the writ petition lacks merit and is accordingly, dismissed with no order as to costs.