Get documents about "Kombi Vs. National Highway Authority of India_ 2013 _1_ KLT 12
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
WEDNESDAY, THE 21ST DAY OF NOVEMBER 2012/30TH KARTHIKA 1934
OP(C).No. 3899 of 2012 (O)
--------------------------
IA.1235/2012 of D.C & SESSIONS COURT, PALAKKAD
PETITIONER(S):
-------------
KOMBI, AGED 65 YEARS
S/O. RAMAN PONNAN,MANNATH HOUSE,PANNIAMKARA POST
VADAKKANCHERY -I VILLAGE, ALATHUR TALUK
PALAKKAD DISTRICT.
BY ADV. SRI.RAJESH SIVARAMANKUTTY
RESPONDENT(S):
--------------
1. THE NATIONAL HIGHWAY AUTHORITY OF INDIA
NEW DELHI, REP.BY THE PROJECT DIRECTOR, NHAI
PALAKKAD.
2. THE DEPUTY COLLECTOR AND SPECIAL LAND
ACQUISITION OFFICER,LANH, PALAKKAD.
3. THE DISTRICT COLLECTOR
PALAKKAD (ABITRATION UNDER NH ACT) PALAKKAD-678001.
R1 BY ADV. SRI. THOMAS ANTONY
R BY SR. GOVERNMENT PLEADER SRI.M.P.PRAKASH
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21-11-2012, ALONG
WITH OPC.3902/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OPC.3899/2012
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT-P1-TRUE COPY OF THE ORDER DATED 19/03/2011 IN ARBITRATION
APPLICATION NO. 409/2010 IN LAC 26 OF 2009 OF SLAO, LANH, PALAKKAD.
EXHIBIT-P2-TRUE COPY OF THE UNNUMBERED ARBITRATION O.P OF 2012P
EXHIBIT-P3-TRUE COPY OF THE PETITION AND AFFIDAVIT NUMBERED AS I.A 1235/2012
EXHIBIT-P4-TRUE COPY OF THE ORDER DATED 19/09/2012IN I.A 1235/2012 IN
UNUMBERED ARBITRATION ORIGINAL PETITION OF 2012 PASSED BY THE DISTRICT
JUDGE, PALAKKAD.
RESPONDENTS' EXHIBITS : NIL
// True Copy //
PA to Judge
'C.R.'
P.N.RAVINDRAN, J.
`````````````````````````````````````````````````````````````
O.P.(C) Nos.3899, 3902, 3903, 3904, 3905, 3906,
3907, 3908, 3909, 3910, 3911 & 3917 of 2012
`````````````````````````````````````````````````````````````
Dated this the 21st day of November, 2012
JUDGMENT
~~~~~~~~~
A common issue arises in these Original Petitions
filed under Article 227 of the Constitution of India. They
were therefore heard together and are disposed of by this
common judgment.
2. The petitioners in these Original Petitions are
land owners, who own lands in Alathur Taluk. Portions of
their lands were acquired for widening the National Highway
47. Dissatisfied with the land value awarded by the Special
Land Acquisition Officer, the petitioners filed separate
applications before the Arbitrator appointed under section 3
G(5) of the National Highway Act, 1956. By separate orders
passed on different dates, the Arbitrator held that the
petitioners will be entitled to enhanced land value together
OP(C) No.3899/2012 & connected cases
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with interest at 9% per annum on the enhanced amount
from the date of dispossession of the acquired land till the
date of actual deposit thereof.
3. The petitioners thereafter filed separate petitions
under section 34 of the Arbitration and Conciliation Act,
1996 in the Court of the District Judge of Palakkad. The
petitions were returned as defective for various reasons on
different dates, to be re-presented within 15 days. The
defects were cured and the petitions were represented after
the period of 15 days along with applications to condone the
delay in re-presentation. The delay in re-presentation
exceeded 30 days in all these cases. By the impugned
orders, the Court of the District Judge held that under
section 148 of the Code of Civil Procedure, the court does
not have the discretion to condone delay in re-presentation
exceeding 30 days. The applications to condone delay in
re-presenting the petitions filed under section 34 of the
Arbitration and Conciliation Act, 1996, were accordingly
OP(C) No.3899/2012 & connected cases
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dismissed. Hence, these Original Petitions under Article
227 of the Constitution of India.
4. The order passed by the Court of the District
Judge of Palakkad on 19-09-2012 in I.A. No.1235 of 2012 in
unnumbered Arbitration Original Petition of 2012 from which
O.P.(C) No.3899 of 2012 arises reads as follows:-
" Petition filed under Section 5 of the
Limitation Act and Section 151 of the Code
of Civil Procedure.
2. It is submitted as follows:
The Arbitration O.P. is filed under
Section 34 of the Arbitration and
Conciliation Act seeking to set aside the
award of the Arbitrator dated 19.10.2011 in
Arbitration Application No.409/2010 in LAC
No.26/2009 of SLAO, LANH, Palakkad.
3. Petition is filed under Section 34
of the Arbitration and Conciliation Act,
1996. It was filed belatedly on 21.05.2012
without an application seeking condonation
of delay and the Registry has returned the
petition to be presented after curing the
OP(C) No.3899/2012 & connected cases
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defect. The petition was returned on
24.05.2012, granting two weeks' time to cure
the defect and to resubmit the same in proper
form. But the defect was cured and the
Arbitration O.P. was resubmitted only on
06.08.2012. The petition ought to have been
resubmitted after curing the defect on or
before 07.06.2012. But, it was resubmitted
belatedly after 60 days with a petition
seeking condonation of the delay.
4. Section 148 of the Code of Civil
Procedure provides that:-
"Where any period is fixed or granted
by the Court for the doing of any act
prescribed or allowed by this Code, the
Court may, in its discretion, from time to
time, enlarge such period [not exceeding
thirty days in total], eventhough the period
originally fixed or granted may have
expired."
5. In the case in question two weeks
time has been fixed by this court for
re-submitting the case file after curing the
defect. As per Section 148 of the Code of
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Civil Procedure, this court is conferred with
a discretion to condone the delay, at the most
of 30 days and not beyond that. The delay
being 60 days, this court has no authority to
condone the same.
In the result, the Interlocutory
Application is dismissed. No order as to
costs."
5. Identical orders have been passed in the other
cases also. A reading of the impugned orders discloses that
the court below has dismissed the applications filed by the
petitioners to condone delay in re-presenting the Arbitration
Original Petitions on the short ground that the court has no
power to condone delay beyond 30 days under section 148
of the Code of Civil Procedure. The Apex Court has in
Salem Advocate Bar Association, T.N. Vs. Union of India
[(2005) 6 SCC 344] held as follows:-
"41. The amendment made in Section
148 affects the power of the court to enlarge
time that may have been fixed or granted by
the court for the doing of any act prescribed
OP(C) No.3899/2012 & connected cases
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or allowed by the Code. The amendment
provides that the period shall not exceed 30
days in total. Before amendment, there was
no such restriction of time. Whether the
court has no inherent power to extend the
time beyond 30 days is the question. We
have no doubt that the upper limit fixed in
Section 148 cannot take away the inherent
power of the court to pass orders as may be
necessary for the ends of justice or to
prevent abuse of process of the court. The
rigid operation of the section would lead to
absurdity. Section 151 has, therefore, to be
allowed to operate fully. Extension beyond
maximum of 30 days, thus, can be permitted
if the act could not be performed within 30
days for reasons beyond the control of the
party. We are not dealing with a case where
time for doing an act has been prescribed
under the provisions of the Limitation Act
which cannot be extended either under
Section 148 or Section 151. We are dealing
with a case where the time is fixed or
granted by the court for performance of an
OP(C) No.3899/2012 & connected cases
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act prescribed or allowed by the court.
42. In Mahanth Ram Das Vs. Ganga
Das this Court considered a case where an
order was passed by the Court that if the
court fee was not paid by a particular day,
the suit shall stand dismissed. It was a
self-operating order leading to dismissal of
the suit. The party's application filed under
Sections 148 and 151 of the Code for
extension of time was dismissed. Allowing
the appeal, it was observed:
"How undesirable it is to fix time
peremptorily for a future happening which
leaves the Court powerless to deal with
events that might arise in between, it is not
necessary to decide in this appeal. These
orders turn out often enough to be
inexpedient. Such procedural orders,
though peremptory (conditional decrees
apart) are, in essence, in terrorem, so that
dilatory litigants might put themselves in
order and avoid delay. They do not,
however, completely estop a court from
taking note of events and circumstances
OP(C) No.3899/2012 & connected cases
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which happen within the time fixed. For
example, it cannot be said that, if the
appellant had started with the full money
ordered to be paid and came well in time but
was set upon and robbed by thieves on the
day previous, he could not ask for extension
of time, or that the Court was powerless to
extend it. Such orders are not like the law
of the Medes and the Persians."
43. There can be many cases where
non-grant of extension beyond 30 days
would amount to failure of justice. The
object o the Code is not to promote failure of
justice. Section 148, therefore, deserves to
be read down to mean that where sufficient
cause exists or events are beyond the control
of a party, the court would have inherent
power to extend time beyond 30 days."
6. It was held that the upper limit fixed in section
148 of the Code of Civil Procedure cannot take away the
inherent power of the court to pass orders as may be
necessary for the ends of justice or to prevent abuse of the
OP(C) No.3899/2012 & connected cases
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process of the court, that the rigid operation of section 148
of the Code of Civil Procedure would lead to absurdity and,
therefore, section 151 of the Code of Civil Procedure has to
be allowed to operate fully. The Apex Court also held that
the object of the Code of Civil Procedure is not to promote
failure of justice and therefore, section 148 will have to be
read down to mean that where sufficient cause exists or
events are beyond the control of a party, the court would
have inherent power to extend time beyond 30 days.
7. In Indian Statistical Institute Vs.
M/s.Associated Builders and others [1978 (1) SCC 483],
the Apex Court held that the delay in re-presentation is not
subject to the rigorous tests which are usually applied in
excusing the delay in a petition filed under section 5 of the
Limitation Act, 1963. Paragraphs 10 and 11 thereof are
extracted below:-
"10. The High Court was in error in
holding that there was any delay in filing the
objections for setting aside the award. The
OP(C) No.3899/2012 & connected cases
: 10 :
time prescribed by the Limitation Act for
filing of the objections is one month from the
date of the service of the notice. It is
common ground that the objections were
filed within the period prescribed by the
Limitation Act though defectively. The
delay, if any, was in re-presentation of the
objection petition after rectifying the defects.
Section 5 of the Limitation Act provides for
extension of the prescribed period of
limitation if the petitioner satisfies the Court
that he had sufficient cause for not
preferring the objections within that period.
When there is no delay in presenting the
objection petition, Section 5 of the
Limitation Act has no application and the
delay in representation is not subject to the
rigorous tests which are usually applied in
excusing the delay in a petition under
Section 5 of the Limitation Act. The
application filed before the lower Court for
condonation of the delay in preferring the
objections and the order of the Court
declining to condone the delay are all due to
OP(C) No.3899/2012 & connected cases
: 11 :
misunderstanding of the provisions of the
Civil Procedure Code. As we have already
pointed out in the return the Registrar did
not even specify the time within which the
petition will have to be re-presented.
11. In a recent judgment of this
Court delivered on August 3, 1977 in
Mahant Bikram Dass Vs. Financial
Commissioner, it is pointed out that the
petition under Section 5 of the Limitation
Act seeking to condone the delay in
preferring an appeal is different from a
petition for excusing the delay in
re-presentation."
8. Referring to the proviso to sub-section (3) of
section 34 of the Arbitration and Conciliation Act, 1996, the
learned counsel for the respondents submitted that the
Court entertaining an application filed under section 34 of
the Arbitration and Conciliation Act, 1996 can condone the
delay in filing the application only up to a period of 30 days.
The learned counsel also invited my attention to the
OP(C) No.3899/2012 & connected cases
: 12 :
decision of the Apex Court in Consolidated Engineering
Enterprises Vs. Principal Secretary, Irrigation
Department and Others [(2008) 7 SCC 169], wherein it
was held that, the court has no discretion to condone the
delay beyond 30 days, even if sufficient cause is shown.
The said principle cannot, in my opinion, govern applications
to condone the delay in re-presenting the Arbitration Original
Petitions and can be pressed into service by the
respondents only when petitions to condone the delay, if
any, in filing the Arbitration Original Petitions are taken up
for consideration. The right of the respondents to put
forward the contention that in view of the proviso to sub-
section (3) of section 34 of the Arbitration and Conciliation
Act, 1996 and the principles laid down by the Apex Court in
Consolidated Engineering Enterprises (Supra), the delay,
if any, in filing the petitions under section 34 of the
Arbitration and Conciliation Act, 1996 cannot be condoned if
it exceeds 30 days, is kept open to be raised at the
OP(C) No.3899/2012 & connected cases
: 13 :
appropriate stage.
9. In the light of the authoritative pronouncements of
the Apex Court referred to above, I am of the opinion that
the impugned orders cannot be sustained. Apart from
holding that the court has no power to extend the time for
re-presentation beyond the period of 30 days stipulated in
section 148 of the Code of Civil Procedure, the court below
has not given any reason for dismissing the applications to
condone the delay in re-presentation. I accordingly hold
that the impugned orders cannot be sustained. They are
accordingly set aside and the applications to condone the
delay in representing the Arbitration Original Petitions are
allowed. Consequently, the delay in re-presenting them
shall stand condoned and the Arbitration Original Petitions
shall stand restored to file.
The Original Petitions are disposed of as above.
Sd/-
(P.N.RAVINDRAN, JUDGE)
aks/04/12
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