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2023 DIGILAW 502 (HP)

Narender Singh v. National Highways Authority of India

2023-12-08

SUSHIL KUKREJA

body2023
JUDGMENT : SUSHIL KUKREJA, J. The present appeal is maintained by the appellants/respondents (hereinafter referred to as “the respondents”), against the judgment dated 04.12.2021, passed by the learned District Judge, Mandi, District Mandi, H.P. in Arbitration Petition No. 49 of 2018, whereby, award dated 28.11.2017, passed by the learned Arbitrator-cum-Divisional Commissioner, Mandi, was set aside. 2. Succinctly, the facts giving rise to the present appeal are that Central Government issued a notification dated 21.04.2012 for acquisition of the land comprised in revenue estate, Chamukha, Hadbast No. 41, Tehsil Sundernagar, District Mandi, H.P. qua f our laning of National Highway 21 on the stretch ofo land from Kms. 126.500 to Kms. 188.917 (Bilaspur-Ner Chowk Section). The aforesaid notification under Section 3(A) (1) of the National Highways Act, 1956 (for short “Act”) was published in the official Gazette on 21.04.2012, in Tribune and Amar Ujala on 22.05.2012 and in Times of India & Divya Himachal on 17.09.2012. The publication was made in the locality and entries No. 50, dated 09.10.2012 and 408, dated 07.06.2012 were made in Patwar Halqua Churad. The notification under Sub Section 1 of Section 3D of the Act was published in the official Gazette on 01.04.2013, the Tribune and Dainik Bhaskar on 14.01.2013, Punjab Kesari and Hindustan Times on 14.01.2013. It was published in the locality and entries No. 243, dated 02.03.2013, 190, dated 01.02.2013 and 358, dated 31.05.2013 were made in the Patwar Halqua Churad. The notification under Sub Section 3 of Section 3G of the Act was published in the Tribune on 14.01.2013, Dainik Jagran on 22.02.2013. The competent authority assessed the market value of the acquired land as Rs. 50,000/- per bigha for all kinds of lands irrespective of their classification and nature. o 3. Feeling aggrieved and dissatisfied with the impugned award passed by the competent authority, a reference was made under Section 3G(5) of the Act for enhancement of compensation. The learned Arbitrator vide common award dated 28.11.2017, allowed the petitions filed by the petitioners by holding that the claimants shall be entitled for solatium at the rate of 30% on the entire compensation amount of the acquired property including structures/buildings wherever applicable and 9% interest on the enhanced compensation amount from the date of taking possession of land and structures, till actual deposit. The claimants were also held entitled for the compensation of trees as per assessment, if any, made by the expert who is technically qualified for the purpose. 4. The appellants individually preferred objections under Section 34 of the Arbitration and Conciliation Act, 1996 (for short “A & C Act”) before the learned District Judge, Mandi. However, vide common judgment dated 04.12.2021, the learned District Judge, Mandi had s et aside the award of the learned Arbitrator on thoe ground that the learned Arbitrator had erred in proceeding with the matter after the expiry of one year without taking consent or without seeking an extension from the Court as required under Section 29A of A & C Act. 5. I have heard the learned counsel for the parties and gone through the material available on record carefully. 6. It is not in dispute that petition filed by the appellants was received on 23.11.2015 while the award was pronounced on 28.11.2017, i.e. after the period of more than two years. It is also not in dispute that Section 3G (6) of the National Highways Act provides that provisions of A & C Act governs the arbitration proceedings conducted under the National Highways Act. 7. Section 29A of A & C Act provides for the time limit for arbitral award, which reads as under:- “29A. Time limit for arbitral award.-(1) The award in matters other than international commercial aPrbitration shall be made by the arbitral tribunal within a period of twelve months from the date of completion of pleadings under sub-section (4) of section 23: Provided that the award in the matter of international commercial arbitrat ion may be made as expeditiously as possible andf endeavour may be made to dispose of the matter within a period of twelve months from the date of completion of pleadings under sub-section (4) of section 23: (2) If the awatrd is made within a period of six months from rthe date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree. (3) The parties may, by consent, extend the period specified in sub-section (1)for making award for further period not exceeding six months. (3) The parties may, by consent, extend the period specified in sub-section (1)for making award for further period not exceeding six months. (4) If the award is not made within the period specified in sub-section (1) or the extended period hspecified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified,extended the period. i Provided that while extending the period under H this sub-section, if the Court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then,it may order reduction of fees of arbitrator(s) by not exceeding five percent for each month of such delay. Provided further that where an application under sub-section (5) is pending, the mandate of the arbitrator shall continue till the disposal of the said application: Provided also that the arbitrator shall be given an opportunity of being heard before the fees is reduced. (5) The extension of period referred to in sub-section (4) may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the Court. (6) While extending the period referred to in sub- section (4), it shall be open to the Court to substitute one or all of the arbitrators and if one or all of the arbitrators are substituted, the arbitral proceedings shall continue from theo stage already reached and on the basis of the evidence and material already on record, and the arbitrator(s) appointed under this section shall be deemed to have received the said evidence and material. (7) Iun the event of arbitrator(s) being appointed under this section, the arbitral tribunal thus reconstituted shall be deemed to be in continuation of the previously appointed arbitral tribunal. (8) It shall be open to the Court to impose actual or exemplary costs upon any of the parties under this section. (9) An application filed under sub-section (5) shall be disposed of by the Court as expeditiously as g possible and endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party.” 8. (9) An application filed under sub-section (5) shall be disposed of by the Court as expeditiously as g possible and endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party.” 8. Thus, the perusal of the aforesaid provision shows that the award shall be made by the arbitral tribunal within a period of twelve months from the date of completion of pleadings under Sub-Section (4) of Section 23 and the parties may by consent extend the period specified in Sub- Section (1) for making award for a further period not exceeding six months. It also provides that if the award is not made within the period specified in Sub-Section (1) or the extended period specified under Sub-Section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the exp iry of the period so specified, extended the period. 9. As observed earlier, in the present case, reference petition of the appellants was received on 23.11.2015 and award came to be announced on 28.11.2017, i.e. after a period of two years. There is nothing to suggest that the parties had consented to extend the peri od for making the award beyond the period of twelve months. The learned Arbitrator has passed the award much after the expiry of twelve months and extended period of six months without there being any extension order by the Court. 10. Hence, in view of the aforesaid discussion, the impugned judgment dated 04.12.2021, passed by learned District Judge, Mandi, in Arbitration Petition No. 49 of 2018 does not require any interference. The award passed by the learned Arbitrator, which was suffering from patent illegality has been rightly set aside by the learned District Judge, Mandi, in exercise of his jurisdiction under Section 34 of A & C Act. 11. In view of what has been discussed hereinabove, the appeal is dismissed. Pending applicationo(s), if any, stands disposed of.