Karnataka High Court
T Younis S/O Hajit Amirsab vs National Highway Authority Of India on 22 January, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC-D:1544
WP No. 105176 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH R
DATED THIS THE 22ND DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 105176 OF 2023 (GM-RES)
BETWEEN:
T YOUNIS
S/O HAJIT AMIRSAB
AGE. 56 YEARS, OCC. BUSINESS,
R/O. BESIDE SATYA SHAMALA SCHOOL,
SHANKALAPUR, HOSAPETE 583201
...PETITIONER
(BY SMT. ARCHANA MAGADUM.,ADVOCATE)
AND:
1. NATIONAL HIGHWAY AUTHORITY OF INDIA
PIU - HOSAPETE, C-10, "SHREE NILAYAM",
1ST MAIN, 2ND CROSS, VIVEKANANDA NAGAR,
BEHIND R.T.O. OFFICE, HOSAPETE-583201
YASHAVANT 2. THE COMPETENT AUTHORITY
NARAYANKAR SPECIAL LAND ACQUISITION OFFICER,
Digitally NATIONAL HIGHWAYS AUTHORITY OF INDIA,
signed by
YASHAVANT
VIDYANAGAR, 5TH CROSS, 4TH MAIN ROAD,
NARAYANKAR OPPOSITE GANGAMATA TEMPLE, BALLARI-583104.
3. THE ARBITRATOR AND
ADDITIONAL DEPUTY COMMISSIONER
BELLARY DISTRICT
HUNGUND-HOSPETE SECTION (NH-13)
OFFICE OF THE DEPUTY COMMISSIONER
AND DISTRICT MAGISTRATE,
OPPOSITE TO RAILWAY STATION,
BALLARI-583101.
...RESPONDENTS
(BY SRI. PRAVEEN UPPAR, AGA FOR R3;
SMT. SHILPA SHAH., ADVOCATE FOR
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WP No. 105176 of 2023
SRI. RAKESH M. BILKI., ADVOCATE FOR R1;
SRI. SHIVASAI M PATIL., ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED
05/08/2023 PRODUCED AT ANNEXURE-A AND A1 PASSED BY THE
LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE BALLARI AND
ETC.
THIS WRIT PETITION, COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
a. Issue a writ in the nature of certiorari quashing the impugned order dated 5/8/2023 produced at Annexure-A & A1 passed by the learned Principal District and Sessions Judge Ballari;
b. Issue any other order or writ in the interest of justice and equity.
2. The petitioner being the owner of the land bearing Sy.No.503/A1 and 503/B2 of Amarathi village, Hospet, being aggrieved by the compulsory acquisition of land sought for by respondent No.2 for widening of the National Highway from 4 to 6 lanes of N.H.13 from Hungund to Hospete, was constrained to approach the Methodology of Compulsory -3- NC: 2024:KHC-D:1544 WP No. 105176 of 2023 Arbitration prescribed under Subsection (g) of Section 3 of the National Highways Act, 1956 ['Act of 1956'for short]. An Arbitral award was passed on 3.02.2022.
3. The respondent No.1-National Highway Authority of India [NHAI] filed an application on 8.3.2022 under Section 33(1)(a) of the Arbitration and Conciliation Act, 1996 ['Act of 1996' for short] contending that the award copy had been received in the second week of February 2022 [date neither given in the application nor before this court]. The said application came to be dismissed by the respondent No.3-Arbitrator-Deputy Commissioner on 4.07.2022.
4. The respondent No.1-NHAI thereafter filed a petition under Section 34 of the Act of 1996 on 29.10.2022, along with the said petition, an application for condonation of delay was filed which came to be allowed condoning a delay of 25 days in filing the petition under Section 34 calculating the time from -4- NC: 2024:KHC-D:1544 WP No. 105176 of 2023 4.07.2022 being the date on which the application under Section 33(1)(a) of the Act of 1996 came to be dismissed. It is aggrieved by the same, the petitioner-land loser is before this Court.
5. Smt.Archana Magadum, learned counsel for the petitioner would submit that, 5.1. The application under Section 33(1)(a) was filed by NHAI only to delay and protract the proceedings so as to make available additional time to the NHAI to file its petition under Section 34 of the Act of 1996.
5.2. She relies on the decision of the Hon'ble Apex Court in State of Arunachal Pradesh -vs- Damani Constructions Company1, more particularly para 8 and 9 thereof which are reproduced hereunder for easy reference:
8. Firstly, the letter had been designed not strictly under Section 33 of the Act because under Section 33 of the Act a party can seek certain correction in computation of errors, or clerical or typographical 1 (2007) 10 SCC 742/ 2007:INSC:230 -5- NC: 2024:KHC-D:1544 WP No. 105176 of 2023 errors or any other errors of a similar nature occurring in the award with notice to the other party or if agreed between the parties, a party may request the Arbitral Tribunal to give an interpretation of a specific point or part of the award. This application which was moved by the appellant does not come within any of the criteria falling under Section 33(1) of the Act. It was designed as if the appellant was seeking review of the award. Since the Tribunal had no power of review on merit, therefore, the application moved by the appellant was wholly misconceived.
Secondly, it was prayed whether the payment was to be made directly to the respondent or through the court or that the respondent might be asked to furnish bank guarantee from a nationalised bank as it was an interim award, till final verdict was awaited. Both these prayers in this case were not within the scope of Section 33. Neither review was maintainable nor the prayer which had been made in the application had anything to do with Section 33 of the Act. The prayer was with regard to the mode of payment. When this application does not come within the purview of Section 33 of the Act, the application was totally misconceived and accordingly the arbitrator by communication dated 10-4-2004 replied to the following effect:
"However, for your benefit I may mention here that as per the scheme of the Act of 1996, the issues/claims that have been adjudicated by the interim award dated 12-10-2003 are final and the same issues cannot be gone into once again at the time of passing the final award."
9. Therefore, the reply given by the arbitrator does not give any fresh cause of action to the appellant so as to move an application under Section 34(3) of the Act. In fact, when the award dated 12-10-2003 was passed the only option with the appellant was either to have moved an application under Section 34 within three months as required under sub- section (3) of Section 34 or within the extended period of another 30 days. But instead of that a totally misconceived application was filed and there too the prayer was for review and with regard to -6- NC: 2024:KHC-D:1544 WP No. 105176 of 2023 mode of payment. The question of review was totally misconceived as there is no such provision in the Act for review of the award by the arbitrator and the clarification sought for as to the mode of payment is not contemplated under Section 33 of the Act. Therefore, in this background, the application was totally misconceived and the reply sent by the arbitrator does not entitle the appellant a fresh cause of action so as to file an application under Section 34(3) of the Act, taking it as the starting point of limitation from the date of reply given by the arbitrator i.e. 10-4-2004. 5.3. She submits that merely filing an application under Section 33 would not provide a benefit of Subsection 3 of Section 34 of Act of 1996, that benefit can only be provided if the application was maintainable under Section 33 of the Act of 1996.
5.4. In the present case, the application filed by NHAI was not for correction of any computation error, clerical error or typographical error or any other error of similar nature occurring in the award, but was more in the nature of review, contending that the finding of the Arbitrator was contrary to the Judgments of the Hon'ble Apex Court and those errors were -7- NC: 2024:KHC-D:1544 WP No. 105176 of 2023 apparent on face of the record. Thus, she submits that the application itself not having been maintainable under Section 33(1)(a) and having been dismissed, as such the benefit Subsection (3) of Section 34 of the Act of 1996 was not available to the NHAI and as such, the period of limitation ought to have been computed from 2nd week of February 2022 and not from 4.07.2022.
6. Ms.Shilpa Shah, learned counsel for the respondent-
NHAI would submit that, 6.1. What is contemplated under Subsection (3) Section 34 is the disposal of the application under Section 33 of the Act of 1996. Subsection (3) Section 34 does not make any distinction between the maintainability or otherwise of the application filed under Section
33. She further submits that Subsection (3) of Section 34 does not make any distinction -8- NC: 2024:KHC-D:1544 WP No. 105176 of 2023 between the applications filed under the various provisions under Section 33. All Applications under various provisions of Section 33 get equal benefit in terms of Subsection (3) of Section 34. Subsection (3) of Section 34 enables the computation of limitation from the date on which a request or application under Section 33 has been disposed. Thus her submission is that whether the application under Section 33 is allowed or rejected would be of no relevance insofar as benefit of extension of limitation under Subsection (3) Section 34 is concerned.
6.2. In this regard, she relies upon the decision of Hon'ble Apex Court in Ved Prakash Mithal and Sons -v- Union of India2, more particularly para 7 and 8 thereof which are reproduced hereunder for easy reference:
7. We are of the view that the judgement of Bombay High Court does not reflect the correct 2 (2018) SCC Online SC 3181 -9- NC: 2024:KHC-D:1544 WP No. 105176 of 2023 position in law. Section 34(3) specifically speaks of the date of which a request under Section 33 has been 'disposed of' by the Arbitral Tribunal.
8. We are also of the view that a 'disposal' of the application can be either by allowing it or dismissing it. On this short ground, in our opinion, the learned single Judge of the Delhi High Court is correct in law.
6.3. Her last submission is that, since Section 34 petition has been filed and limitation has been condoned, the merits of the matter could be adjudicated by the Court and the opportunity to challenge the award made available under Section 34 of the Act of 1996 should not be deprived of to the NHAI.
6.4. As regards the Judgment of the Hon'ble Apex Court in Damani Constructions Company1, she submits that it was a case where the application was filed post the limitation period under Subsection (3) Section 34 and as such, that factor was taken into consideration by the Hon'ble Supreme Court to deny the benefit of Subsection (3) Section 34 of Act of 1996.
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7. Heard Smt.Archana Magadum, learned counsel for the petitioner, Ms.Shilpa Shah, learned counsel for Sri.Rakesh M. Bilki, learned counsel for respondent No.1, Sri.Shivsai M.Patil, learned counsel for respondent No.2 and Sri.Praveen Uppar, learned counsel for respondent No.3. Perused papers.
8. The points that would arise for determination of this Court in the above petition are:
1. Whether to derive the benefit of the extension of limitation under Subsection (3) Section 34 of the Act of 1996, the application under Section 33 is required to be maintainable or not? or to put it in other words, irrespective of whether an application under Section 33 is maintainable or not, would the party making such an application be entitled to the benefit of Subsection (3) Section 34 of the Act of 1996?
2. Whether in the present case, the application filed by the respondent No.1 under Section 33(1)(a) was maintainable so as to claim the benefit of extension of limitation under Subsection (3) Section 34 of the Act of 1996?
3. What Order?
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9. I answer the above points as under.
10. ANSWER TO POINT NO.1: Whether to derive the benefit of the extension of limitation under Subsection (3) Section 34 of the Act of 1996, the application under Section 33 is required to be maintainable or not? or to put it in other words, irrespective of whether an application under Section 33 is maintainable or not, would the party making such an application be entitled to the benefit of Subsection (3) Section 34 of the Act of 1996?
10.1. This aspect as regards maintainability or otherwise of the application under Section 33 has been dealt with in a clear and categorical manner in Damani Construction Company's case1, more particularly para 8 and 9 thereof which have been reproduced hereinabove for easy reference. In that matter, an award having been passed on 12.10.2003 and amount not having been paid within 60 days from the date of award, the period of limitation having expired, the persons suffering from the award wrote a letter to the Arbitrator on 2.04.2004 seeking for a clarification as regards the mode
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 of payment and asking for direction as to whether the payment was to be made to Damani Construction Company or through the Court and in case payment has to be made to Damani construction Company, an equivalent Bank guarantee brought from any nationalized bank to be required from the contractor since it will be an interim payment and final award is awaited.
10.2. The Arbitrator vide his letter dated 10.04.2004 had indicated that he had no jurisdiction to entertain the request for review of the award and informed that the award dated 12.10.2003 was a final award. When execution proceedings were filed on 21.06.2004 by the decree holder, the party suffering from the award, the State of Arunachal Pradesh filed a petition on 06.08.2004 under Section 34 of the Act seeking for setting aside the award, claiming for condonation of delay and delay to be calculated
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 from the date on which the Arbitrator had disposed the application under Section 33 of the Act of 1996.
10.3. The delay having been condoned by the Deputy Commissioner, a writ petition was filed before the High Court which held the condonation of delay to be incorrect which came to be challenged before the Hon'ble Apex Court. 10.4. It is in that background that the Hon'ble Apex court considered the matter and came to a conclusion that the letter which had been sent by the State of Arunachal Pradesh to the Arbitrator was not under Section 33 of the Act of 1996, because under Section 33 the party can seek certain correction in computation of errors, clerical or typographical errors or any other errors of similar nature occurring in the award with notice to the other party. Since the request made did not come within the purview of those errors, the application was not one
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 which was falling under Section 33(1) and as such came to a conclusion that neither a review was maintainable nor the prayer which had been made in the application had anything to do with it and came to a conclusion that the since the application under Section 33 was not maintainable the benefit under Subsection (3) Section 34 could not be made available to the State of Arunachal Pradesh and dismissed the petition under Section 34.
10.5. Ms.Shilpa Shah, learned council for respondent no. 1, has relied upon another decision of the Hon'ble Apex Court in Ved Prakash Mithal case2, relevant portion having been extracted hereinabove. The said decision being a later decision does not refer to Damanai Construction Company case1 since it was apparently not brought the notice of the latter Bench. The said decision only deals with the aspect of whether under Subsection (3) Section
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 34 of Act of 1996, the date of disposal of such application is to be taken into consideration for determination of limitation period. The said decision does not deal with the maintainability or otherwise of an application under Section 33 which has been dealt with categorically by an earlier Bench in Damani Construction Company case1 (supra).
10.6. Thus, reading both the judgements together, it is clear that it is only if the application under section 33 was maintainable that the period of limitation can be calculated from the disposal of such an application in terms of sub-section (3) of section 34. If the Application under section 33 was not maintainable the benefit under sub- section (3) of section 34 would not be available. 10.7. In that view of the matter, it is clear that the decision in Damani Construction case1 would have to apply and therefore, applying so, I answer point No.1 by holding that for a person
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 to avail the benefit under Subsection (3) Section 34, the said person ought to have filed an application under Section 33 of the Act of 1996 which is maintainable under the said provision and not an application which is not maintainable.
10.8. However, there could also be a situation where the other party could have filed an application under Section 33 which would require the person filing under Section 34 to await result thereof. In such a situation the maintainability or otherwise would not be relevant in terms of Subsection (3) Section 34 since the application is not filed by such a person but the other party. Thus, it is reiterated that if a person wants to claim benefit of limitation under Subsection (3) Section 34, then the application filed by that person under Section 33 is required to be maintainable.
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11. ANSWER TO POINT NO.2: Whether in the present case, the application filed by the respondent No.1 under Section 33(1)(a) was maintainable so as to claim the benefit of extension of limitation under Subsection (3) Section 34 of the Act of 1996?
11.1. In the present case as indicated earlier, the award was passed on 3.02.2022 received by the NHAI in the 2nd week of February 2022, an application under Section 33(1)(a) was filed on 8.03.2022. The Arbitrator-Deputy Commissioner passed an order on the said application on 4.07.2022 dismissing the said application and finally a petition under Section 34 came to be filed on 29.10.2022 calculating the period of limitation from 4.07.2022, an application for condonation of delay was filed which has been allowed by the trial court. 11.2. Section 33 of the Act 1996 reads as under;
33. Correction and interpretation of award; additional award.--(1) Within thirty days from the receipt of the arbitral award, unless another period of time has been agreed upon by the parties--
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(a) a party, with notice to the other party, may request the arbitral tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature occurring in the award;
(b) if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.
(2) If the arbitral tribunal considers the request made under sub-section (1) to be justified, it shall make the correction or give the interpretation within thirty days from the receipt of the request and the interpretation shall form part of the arbitral award.
(3) The arbitral tribunal may correct any error of the type referred to in clause (a) of sub-section (1), on its own initiative, within thirty days from the date of the arbitral award.
(4) Unless otherwise agreed by the parties, a party with notice to the other party, may request, within thirty days from the receipt of the arbitral award, the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award. (5) If the arbitral tribunal considers the request made under sub-section (4) to be justified, it shall make the additional arbitral award within sixty days from the receipt of such request.
(6) The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, give an interpretation or make an additional arbitral award under sub-section (2) or sub-section (5).
(7) Section 31 shall apply to a correction or interpretation of the arbitral award or to an additional arbitral award made under this section.
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 11.3. Subsection (3) Section 34 of the Act of 1996 reads as under:
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:
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.
11.4. In the present case, the application which has been filed under Section 33 reads as under:
BEFORE THE HON'BLE ARBITRATOR & ADDITIONAL DEPUTY COMMISSIONER AT BELLARY Case No. Rev: Bhuswa: ARB: 07(24)2012-13 (AMRAVATHI VILLAGE) Between:
National Highways Authority of India Applicant/ Petitioner And Mr. T. Yunis and Another Respondents
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 AND Case No. Rev: Bhuswa: ARB: 07(974)2013-14 Between:
Mr. T. Yunis Petitioner And
National Highways Authority of India and Another Respondents MEMORANDUM OF INTRELOCUTORY APPLICATION UNDER SECTION 33 (1)(a) OF THE ARBITRATION & CONCILITAION ACT, 1996 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908:
That for the reasons stated in the accompanying affidavit, the Applicant/ NHAI humbly prays that this Hon'ble Tribunal be pleased to correct the clerical errors in the Arbitral award 03 February 2022 by way of modifying the following paragraphs at page 13 & 14 of the said Arbitral award to meet the ends of justice:
I. Last paragraph at page 13 of the Arbitral award to be modified by way of deleting the words "additional market value U/S 23(14)" and deleting the words "and Section 34 of the LA Act."
II. Paragraph 2 of the Order at page 14 of the Arbitral award to be modified by way of deleting the words "additional market value and replace the words "as admissible under "relevant provisions of the Land Acquisition Act" by the words "in terms of proviso to Section 28 of the Land Acquisition Act."
Place:
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 Partners Date: 8-3-2022 For Singhania Advocate for Petitioner/NHAI 11.5. Though in the application it is stated that the Tribunal be pleased to correct the clerical errors, what has been sought for is modifying the paragraphs at 13 and 14 as detailed above.
The reason for the same is stated in the affidavit to be that the Tribunal by relying on the Judgment passed by the Hon'ble Supreme Court in the case of Union of India and another -vs- TarSem Singh3 had awarded statutory benefits and solatium and additional market value as regards which the deponent was advised that the Hon'ble Supreme Court while passing the judgment in another matter has held that the provisions of the Land Acquisition Act, 1894 relating to solatium and interest contained under Section 1(a) and 2 and 3 AIR 2019 SC 4689/ 2019:INSC:1061
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 interest payable in terms of Section 22, will apply to acquisition made under the National Highways Act and as such, it was only 30% solatium and additional market value of 12% as provided under Section 23(1)(a) and (2) as well as interest at the rate of 15% as per Section 28 of the LA Act which was made applicable, but the Tribunal has awarded interest under Section 34 of the LA Act which was not provided for by the Hon'ble Supreme Court. In that view of the matter, it was contended that 12% additional market value was not payable.
11.6. At para 7 of the affidavit it was stated that the award to this extent is contrary to the Judgment of the Hon'ble Supreme Court which has been relied upon by the Tribunal. Therefore, the award to that extent is an error apparent on the face of the record which requires modification.
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 11.7. In para 8 of the affidavit, it is contended that in terms of Section 33 the Tribunal has powers to correct the error.
11.8. In view of the decision of the Hon'ble Apex Court in Damani Construction Company case1 what is required to be seen is whether such an application was one which is maintainable under Section 33(1)(a) of the Act of 1996.
11.9. From the said provision which has been extracted hereinabove, it is clear that a party with notice to the other party can make a request the Tribunal to correct any computation error, clerical or typographical error or any other errors of similar nature occurring in the award. Apart from these requirements there is no other requirement or entitlement provided under Section 33(1)(a).
11.10. Section 33(1)(b) provides for where both parties, if they so agree, a party with notice to
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 other party may request the Tribunal to give an interpretation of specific point or part of the award. Thus, Section 33(1)(b) is not attracted to the present case.
11.11. In terms of Subsection (3) of Section 33 the Tribunal may itself correct the error on its own initially within 30 days of the arbitral award. 11.12. Subsection (4) of Section 33 deals with a situation where one of the parties with notice to the other may seek additional arbitral award as to the claims presented in the arbitral proceedings but omitted from the arbitral award. The claim made in the present matter is not one which has been omitted in the award but is one where NHAI claims additional interest have been awarded which ought not to have been awarded. Thus, this would not come under Subsection (4) of Section 33. 11.13. It is required of the Tribunal to consider the request made under Section 33(1)(a) or (b) to
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 pass orders within 30 days from the date of receipt of request. Insofar as one made under subsection (4) of Section 33, the additional award is to be made within 60 days from the date of receipt of request.
11.14. In the present case, as observed above, in the application though no date has been given as to when the award was received but the petitioner does not dispute the time period under which Section 33(1)(a) was filed. The said application dated 8.03.2022 for aforesaid reason and aforesaid corrections, in my considered opinion, would not fall within the purview of Section 33(1)(a) since the request made is a correction of a finding of the Tribunal on the ground that the same is contrary to the Judgment of Hon'ble Supreme Court there being an additional benefit which has not been made available, there is an error apparent on the face of the record. These grounds do not form a
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 basis for filing an application under Section 33(1)(a) which is restricted to correction of computation of errors, clerical or typographical errors or any other errors of a similar nature occurring in the award. The words 'similar nature' cannot include error apparent on the face of the record and as such the application even when filed by NHAI was not maintainable. 11.15. Since it is NHAI which is claiming the benefit of limitation under Subsection (3) of Section 34 as regards which it is required that the application ought to have been one which was maintainable under Section 33(1) (a). The non-maintainability of the application would deny NHAI from claiming benefit of Subsection (3) of Section 34 of Act of 1996.
11.16. There is one another factor which is required to be observed is that though the application was filed on 8.03.2022, the arbitrator has passed an award under Section 33(1)(a) on 4.07.2022
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 when in terms of Subsection (2) of Section 33 such an order had to be passed within 30 days from the date of receipt of request. In that view of the matter, the Principal Secretary, Revenue Department under whose jurisdiction the Deputy Commissioners of each of the District fall under is directed to issue necessary instructions to the said Deputy Commissioner to follow the requirement under Subsection (2) of Section 33 and pass orders on any application if at all received under Section 33(1)(a) or 33(1)(b) within the time stipulated. 11.17. The manner and structuring of the Act is also made taking into account the time which is spent on each of the aspects. This being so, since arbitration is required to be conducted in a speedy manner and the award passed, is also given effect to in a timebound manner. 11.18. The time period fixed for filing application under Section 33(1)(a) or 33(1)(b) is a period of 30
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 days from the date of the award. The time period fixed for the Arbitrator to pass orders on the said application is 30 days therefrom, whereas under Subsection (3) of Section 34, the person wanting to challenge the award is 90 days from the date of receipt of copy of award. Thereby, there is always 30 days buffer which has been provided under Subsection (3) of Section 34 and a further 30 days' time could always be sought for condonation in terms of the proviso to Section 34, even if the application was dismissed.
11.19. Thus, taking into consideration the decision of the Hon'ble Apex Court in Damani Construction Company case1, the present applications filed by the NHAI not being maintainable, the NHAI cannot claim benefit of Subsection (3) of Section 34 of the Act of 1996.
12. ANSWER TO POINT NO.3: What Order?
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NC: 2024:KHC-D:1544 WP No. 105176 of 2023 12.1. In view of my answers to Points No.1 and 2, I pass the following:
ORDER i. The writ petition is allowed.
ii. A certiorari is issued, the order dated 5.08.2023 passed by the Prl. District and Sessions Judge, Bellary is hereby quashed. Consequently orders passed on IA-1 filed in AA No.3/2022 and AA No.4/2022 is set-aside.
iii. The petitions filed under Section 34 of the Act of 1996 in AA No.3/2022 and AA No.4/2022 are dismissed since they have been filed beyond the limitation period.
Sd/-
JUDGE LN List No.: 1 Sl No.: 91