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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 :2: 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 :3: 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 :4: 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 OP(C) No.3899/2012 & connected cases :5: 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 :6: 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 :7: 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 :8: 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 :9: 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
"Kombi Vs. National Highway Authority of India_ 2013 _1_ KLT 12"