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Kombi Vs. National Highway Authority of India_ 2013 _1_ KLT 12

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Kombi Vs. National Highway Authority of India_ 2013 _1_ KLT 12 Powered By Docstoc
					           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
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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
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

				
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