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2023 DIGILAW 417 (PAT)

State of Bihar v. Rambriksha Singh

2023-04-05

KHATIM REZA

body2023
ORDER Heard learned counsel for the petitioners and learned counsel for the opposite parties. 2. All these revision applications have been filed against the different Awards, passed by the Bihar Public Works Contract Disputes Arbitration Tribunal in different Reference Cases, alongwith the interlocutory applications for condonation of dealy. 3. At the time of consideration of the limitation petition the opposite party raised preliminary objection with regard to Section 5 of the Limitation Act, 1963. Learned counsel for the opposite party submits that the application of Section 5 of the Limitation Act, 1963 to a proceedings under Section 13 of Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008 (the Act of 2008) has been excluded by necessary implication, by virtue of language employed in Section 17 of the said Act. 4. This Court has considered Section 17 of the Act of the 2008, which reads as follows: – “In computing the period of limitation laid down in sub-section (1) of Section 8, and sub-section (2) of Section 11 and sub-section (1) of Section 12, the provisions of Sections 4 and 12 of the Limitation Act, 1963, shall, so far as may be, apply.” 5. Mr. Rajendra Narayan, learned Senior counsel for the opposite party submits that the Arbitration Act means the Arbitration and Conciliation Act, 1996, as prescribed in Section 2 of the said Act. The question of applicability of the provisions contained in Section 5 of the Limitation Act to the proceeding under Section 34 Clause 3 of the Arbitration and Conciliation Act, 1996. It is further submitted that the Act of 2008 shall follow the principle of Arbitration and Conciliation Act, 1996. The provisions contained in Section 34 of the Arbitration and Conciliation Act, 1996 came up for consideration. The relevant provisions contained in Section 34 of Arbitration and Conciliation Act, 1996 is extracted, which is as follows: – “34. Application for setting aside arbitral award: – (3). An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal. An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal. Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.” 6. Learned Senior counsel for the opposite party has further submitted that proviso to Section 34 of the Arbitration and Conciliation Act, 1996 merely provided for a period within which the Court could exercise its discretion that would not have been sufficient to exclude Section 4 to 24 of the Limitation Act. However, expression in Section 34 of the Arbitration and Conciliation Act, 1996 “but not thereafter” would amount to express exclusion within the meaning of Section 29(2) of the Limitation Act. Learned Senior counsel further submitted that the application of Section 5 of the Limitation Act is excluded in the aforesaid expression. 7. The question involved while exercising revisional power under Section 13 of the Act of 2008 contained the delay in case as the revision is under Section 13 of the Act of 2008 if filed beyond 90 days from the date on which the Award or interim Award is made or reviewed under this Act or it excludes the applicability of Section 29 of the Limitation Act, 1963 and inconsequent of Section 5 of the Limitation Act, 1963. 8. 8. The provisions contained in Section 13 of the Act of 2008 relating to the revisional power of the High Court reads as under: – “(1) The High Court may, suo moto at any time or on an application made to it within three months from the date on which the award or interim award is made or reviewed under this Act, by any party aggrieved by the award or interim award so made or reviewed, call for the record of any case in which an award or interim award has been made or as the case may be reviewed and if the Tribunal appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. (2) For the purpose of exercising its powers of revision under this section, the High Court shall have the same powers as it has, and as far as may be, follow the same procedure as it follows, under the Code of Civil Procedure, 1908 while exercising its powers of revision under Section 115 of the Code and for that purpose the Tribunal shall be deemed to be a Court subordinate to it.” 9. The provisions contained in Section 29 Clause 2 of the Limitation Act, 1963 deals with Savings, which is extracted, hereunder: – “29. Savings. – (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provision of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provision contained in Section 4 to 24 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law” 10. In case of Mangu Ram vs. Municipal Corporation of Delhi reported in (1976) 1 SCC 392 , the question came up for consideration when the application of Section 5 of the Limitation Act, 1963 has to be excluded and whether peremptory or imperative language of the special or local law can exclude the application of Section 5. The provision of Section 5 of the Limitation Act, 1963 have been held to be applicable to condone the delay in applying under Section 417 of the Criminal Procedure Code. 11. In the case of State of State of Madhya Pradesh and others Vs Anshuman Shukla reported in (2014) 10 SCC 814 , Hon’ble Supreme Court has held that even if the amendment of Section 19 of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 was made in 2009 as the Court had the power to take suo moto cognizance and call for record of an Award at any time, there was no legislative intent to exclude the applicability of Section 5 of the Limitation Act, 1963. Apart from that, the Hon’ble Supreme Court has observed that Section 19 of the Act of the 1983 did not contain any express rider on the power of the High Court to entertain an application for revision after the expiry of prescribed limitation thereunder. The provisions of Section 29(2) of Indian Limitation Act are applicable in absence of such rider and delay in filing the revision was condoned. 12. In case of Project Director National Highways No. 45 E and 220, National Highways Authority of India Vs M. Hakeem and another reported in (2021) 9 SCC 1 Hon’ble Supreme Court has held that to assimilate the Section 34 jurisdiction with the revisional jurisdiction under Section 115 of the Code of Civil Procedure is again fallacious. Section 115 of the Code of Civil Procedure expressly sets out the three grounds on which a revision may be entertained and then states that the High Court may make “such order as it thinks fit”. These latter words are missing in Section 34 given the legislative scheme of Arbitration act, 1996. 13. Under the provision of Section 13 of the Act of 2008, revision is provided to High Court suo moto at any time or on an application made to it within three months from the date on which the Award is made. These latter words are missing in Section 34 given the legislative scheme of Arbitration act, 1996. 13. Under the provision of Section 13 of the Act of 2008, revision is provided to High Court suo moto at any time or on an application made to it within three months from the date on which the Award is made. The High Court under the provision of Section 13 (1) may make such order in the case as it thinks fit. There is no prescribed period for suo moto exercise of revisional jurisdiction, however, an aggrieved party made by the Award or interim Award may file the revision. Under Section 13(1) nowhere expressly exclude the applicability of provisions of the limitation Act, 1963. The provisions of Section 5 are applicable to Section 13 as they are not expressly excluded by the provisions under the Act of 2008. Because of the scheme of the Act, it can not be inferred that by implication, the provisions of Section 5 of the Limitation Act, 1963 are excluded. Provisions contained in Section 29(2) of the Limitation Act, 1963 would be extracted as there is no express exclusion or implication, in view of the provision of the Act of 2008. Moreover, Section 13(2) of the Act of 2008 for the purpose of exercising its power of revision under this Section, the High Court shall have the same power as it has, and as far as it may be, follow the same procedure as it follows, under the Civil Procedure Code while exercising its power of revision under Section 115 of the Code and for that purpose the Tribunal shall be deemed to be a Court Subordinate to it. 14. In case of Superintending Engineer/Dehar Power House Circle Bhakra Beas Management Board vs. Excise And Taxation Officer reported in (2020) 17 SCC 692 it is held that Section 5 of the Limitation Act, 1963 would apply to proceedings under Section 48 of the Act of 2005. 15. They have the play for condoning the limitation under Section 48 of the Act, 2005. Suo moto provision of revisional power is also provided to the commissioner within five years. Thus the intendment is not to exclude the Limitation Act, 1963. 16. 15. They have the play for condoning the limitation under Section 48 of the Act, 2005. Suo moto provision of revisional power is also provided to the commissioner within five years. Thus the intendment is not to exclude the Limitation Act, 1963. 16. In view of the decisions of the Hon’ble Supreme Court and submissions made by the parties, the provisions of Section 5 of the Limitation Act, 1963 is applicable to the revisional power of the High Court under Section 13 of the act of 2018. 17. List all these cases for consideration of delay in filing of the revision application as per statement given in interlocutory application for condoning the delay.