Patna High Court - Orders
The State Of Bihar And Ors vs M/S Maruti Enterprises, Gudari And Anr on 5 April, 2023
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.9 of 2017
======================================================
1. The State Of Bihar through the Secretary, Road Construction Department,
Vishweshwarraiya Bhawan, Patna.
2. The Engineer in Chief, Road Construction Department, 'Vishweshwarraiya
Bhawan' Bailey Road, Patna.
3. The Chief Engineer (South Bihar Wing) Road Construction Department,
'Vishweshwaraiya Bhawan' Bailey Road, Patna.
4. The Superintending Engineer, Road Construction Department, Magadh
Road Circle, Gaya.
5. The Executive Engineer, Road Construction Department, Road Division 01
Aurangabad.
6. The Assistant Engineer, Road Construction Department, Road Sub Division
No. 01, Aurangabad.
... ... Petitioners
Versus
M/s Rambriksha Singh, Partner Sri Sheo Shankar Prasad Singh Son of Late
Ram Briksha Singh Resident of Jaiprakash Nagar, Karma Road, Aurangabad,
District Aurangabad.
... ... Opposite Party
======================================================
with
CIVIL REVISION No. 181 of 2017
======================================================
1. The State Of Bihar, through the Secretary, Road Construction Department,
Vishwashwarraiya Bhawan, Bailey Road, Patna.
2. The Engineer in Chief, Road Construction Department, Vishwashwarraiya
Bhawan, Bailey Road, Patna.
3. The Chief Engineer, (N.H.) Road Construction Department,
Vishwashwarraiya Bhawan, Baily Road, Patna.
4. The Executive Engineer, Road Construction Department, N.H. Division,
Aurangabad.
... ... Petitioners
Versus
M/s Ram Briksh Singh, Partner Sri Birendra Kumar s/o Sri Ram Briksha
Singh, resident of Mohalla Jaiprakash Nagar, Karma Road, Aurangabad, P.S.
Aurangabad, District Aurangabad.
... ... Opposite Party
======================================================
with
CIVIL REVISION No. 203 of 2017
======================================================
Patna High Court C.R. No.9 of 2017(23) dt.05-04-2023
2/14
1. The State Of Bihar, through the Secretary, Road Construction Department,
Govt. of Bihar, Vishwashwarraiya Bhawan, Bailey Road, Patna.
2. The Chief Engineer (N.H. Wing), Road Construction Department, Govt. of
Bihar, Vishweshwaraiya Bhawan, Bailey Road, Patna.
3. The Superintending Engineer, Road Construction Department, N.H. Circle,
Vishweshwaraiya Bhawan, Bailey Road, Patna.
4. The Executive Engineer, Road Construction Department, N.H. Division,
Biharsharif.
... ... Petitioners
Versus
M/s Jai Maa Bhawani Construction Pvt. Ltd. Managing Director Sri Lalit
Kumar Singh S/o Bhishm Narayan Singh R/o Devdha, P.S. - Deep Nagar,
Distt. - Nalanda.
... ... Opposite Party
======================================================
with
CIVIL REVISION No. 208 of 2017
======================================================
1. The State Of Bihar, through the Principal Secretary, Road Construction
Department, Vishwashwarraiya Bhawan, Bailey Road, Patna.
2. The Engineer-in-Chief, Road Construction Department, Vishweshwaraiya
Bhawan, Bailey Road, Patna - 15
3. The Chief Engineer (South wing), Road Construction Department,
Vishweshwaraiya Bhawan, Bailey Road, Patna-15
4. The Superintending Engineer, Road Construction Department, Works Circle,
Ara (Bhojpur).
5. The Executive Engineer, Road Construction Department, Road Division,
Dehri-on-Sone.
6. Mr. Brindawan Rai, (The Assistant Engineer/S.D.O), Road Construction
Department, Road Sub-Division, Sasararam, Rohtas.
7. Md. Sadik Ali, (The Junior Engineer), Road Construction Department, Road
Division, Dehri-on-Sone.
... ... Petitioners
Versus
M/s Birendra Prasad Singh, through its working partner Mr. Devesh Kumar,
Son of Sri Birendra Prasad Singh, Resident of Village P.O. - Barki Mahuli Via
Takia Bazar, P.S. - Karahgar, District - Rohtas (Sasaram), Correspondence
Address - Mohalla - New Bank Colony, Faizal Ganj, Kaushalya Kutir, P.O.
+P.S. - Sasaram, District - Rohtas (Sasaram).
... ... Opposite Party
======================================================
with
CIVIL REVISION No. 225 of 2017
======================================================
Patna High Court C.R. No.9 of 2017(23) dt.05-04-2023
3/14
1. The State Of Bihar, through the Secretary, Road Construction Department,
Vishwashwarraiya Bhawan, Bailey Road, Patna.
2. The Engineer-in- Chief, Road Construction Department, 'Vishweswaraiya
Bhawan', Bailey Road, Patna.
3. The Chief Engineer (N.H. Wing), Road Construction Department,
'Vishweshwaraiya Bhawan, Bailey Road,
4. The Superintendent Engineer, Road Construction Department, N.H. Circle,
'Vishweshwaraiya Bhawan', Bailey Road, Patna.
5. The Executive Engineer, Road Construction Department, N.H. Division No.-
2, Biharsharif (Nalanda).
... ... Petitioners
Versus
Shri Shailendra Kumar Akela son of Late Keshwar Prasad resident of
Quamruddinganj, P.O.- Biharsharif, P.S.- Laheri, Muradpur, District- Nalanda
(Bihar).
... ... Opposite Party
======================================================
with
CIVIL REVISION No. 258 of 2017
======================================================
1. The State Of Bihar, through the Principal Secretary, Road Construction
Department, Govt. of Bihar, Vishwashwarraiya Bhawan, Bailey Road, Patna.
2. The Engineer-in-chief, Road Construction Department, Govt. of Bihar,
'Vishweshwaraiya Bhawan' Bailey Road, Patna.
3. The Chief Engineer, Road Construction Department, National Highway
Wing, Campus of 'Vishweshwaraiya Bhawan", Bailey Road, Patna.
4. The Superintending Engineer, Road Construction Department, National
Highway Circle, Bihar, Patna.
5. The Executive Engineer, Road Construction Department, National Highway
Division, Gulzarbagh, Patna.
6. The Assistant Engineer, Road Construction Department, N.H. Sub Division
No. 1, Gulzarbagh, Patna.
7. The Junior Engineer, Road Construction Department, N.H. Section,
Gulzarbagh-1, Patna.
... ... Petitioners
Versus
1. M/s Maruti Enterprises, Gudari and Anr Son of Late Ashwani Kumar Verma,
resident of Mohalla- Pokhara, Police Station- Town, District- Vaishali-
844101, through one of its partner namely Niket Kumar Sinha, Son of Late
Ashwani Kumar Verma, resident of Mohalla-Pokhara, Police Station-Town,
District-Vaishali.
2. The Branch Manager, Bank of India, Hajipur Branch, Hazipur.
... ... Opposite Parties
Patna High Court C.R. No.9 of 2017(23) dt.05-04-2023
4/14
======================================================
with
CIVIL REVISION No. 5 of 2018
======================================================
1. The State Of Bihar, through the Secretary, Road Construction Department,
Government of Bihar.
2. The Engineer in Chief, Road Construction Department, Government of
Bihar, Patna.
3. The Chief Engineer, South Bihar (Traffic) Wing, Road Construction
Department, Government of Bihar, Patna.
4. The Superintending Engineer, Road Construction Department, Bhojpur
Road Circle, Ara.
5. The Executive Engineer, Road Construction Department, Sahabad Road
Division, Ara.
... ... Petitioners
Versus
M/s Shaligram Singh S/o Late Jadunandan Singh R/o Deokali, P.S.
Daudnagar, District - Aurangabad.
... ... Opposite Party
======================================================
with
CIVIL REVISION No. 194 of 2018
======================================================
1. The State Of Bihar, through the Secretary, Water Resources Department,
"Sinchai Bhawan", Harding Road, Patna.
2. The Engineer - in - Chief (North), Water Resources Department, "Sinchai
Bhawan", Harding Road, Patna.
3. The Chief Engineer, Water Resources Department, Bhagalpur.
4. The Superintending Engineer, Water Resources Department, Sinchai Anchal,
Bhagalpur.
5. The Executive Engineer, Water Resources Department, Flood Control
Divison, Naugachia, District- Bhagalpur.
... ... Petitioners
Versus
Dilip Kumar Munka, S/o late Navrang Lal Munka, R/o Ward No. 16, P.O. +
P.S. - Naugachia, District - Bhagalpur.
... ... Opposite Party
======================================================
with
CIVIL REVISION No. 9 of 2019
======================================================
1. The State Of Bihar, through the Secretary, Water Resources Department,
Sinchai Bhawan, Bihar, Patna - 800001
Patna High Court C.R. No.9 of 2017(23) dt.05-04-2023
5/14
2. The Chief Engineer, Water Resources Dept. Dehri (Rohtas)
3. The Superintending Engineer, Durgawati Construction Circle Bhitari Bandh
Camp Chenari, Dist. Rohtas, Sasaram.
4. The Executive Engineer, Durgawati Right Bank Canal Division, Chenari,
Rohtas, Sasaram.
5. The Deputy Director, Quality Control Division, Dehri, Rohtas.
... ... Petitioners
Versus
M/s Komal Construction chhawani Mohalla Ward No. 1 Bhabhua (Kaimur)
through its Partner Komal Singh Son of late Bachnu Singh Resident of Village
Ward No. 1 Chhawani Mohalla, P.S. Bhabhua, District- Kaimur,
... ... Opposite Party
======================================================
with
CIVIL REVISION No. 20 of 2019
======================================================
1. The State Of Bihar, through the Secretary, Road Construction Department,
Vishwashwarraiya Bhawan, Bailey Road, Patna.
2. The Executive Engineer, Road Construction Department, N.H. West
Division, Gulzarbagh, Patna.
... ... Petitioners
Versus
M/s Umesh Kumar and Com, Prop. Sri Umesh Kumar Roy Son of Raja
Prasad Roy Resident of Ranjan Path, Near Basudeo Palace, Bailey Road, P.S.
Rupaspur, District- Patna.
... ... Opposite Party
======================================================
with
CIVIL REVISION No. 21 of 2019
======================================================
1. The State of Bihar, through the secretary, Road Construction Department,
Vishwesharraiya Bhawan Bailey Road, Patna
2. The Chief Engineer (N.H) Road Construction Department, Vishwesharraiya
Bhawan Bailey Road, Patna Bihar
3. The Superintending Engineer, Road construction Department, N.H. Circle
Patna, Bihar
4. The Executive Engineer, Road Construction Department, N.H. Division
Gulzarbagh, Patna, Bihar
... ... Petitioners
Versus
M/s Saran construction, Prop. Sri Triguna Nand Singh S/o Late Baldeo Singh
R/O Laxmipur, Kakadia P.S- Dighwara, Saran at Chapra
Patna High Court C.R. No.9 of 2017(23) dt.05-04-2023
6/14
... ... Opposite Party
======================================================
Appearance :
(In CIVIL REVISION No. 9 of 2017)
For the Petitioner/s : Mr. Dinesh Maharaj, Advocate
: Mr. R.B. Prasad Yadav, AAG11
For the Opposite Party/s : Mr. Ashok Kumar Duby, Advocate
: Mr. Ramashray Roy, AC to AAG No. 11
: Mr. Rajendra Narayan, sr. Advocate
: Mr. Raj Kishore Prasad, Advocate
(In CIVIL REVISION No. 181 of 2017)
For the Petitioner/s : Mr. Rakesh Kumar Chandram, Advocate
For the Opposite Party/s : Mr. Rajendra Narayan, Sr. Advocate
: Mr. Raj Kishore Prasad, Advocate
(In CIVIL REVISION No. 203 of 2017)
For the Petitioner/s : Mr. Ravi Bhardwaj, Advocate
For the Opposite Party/s : Mr. Sanjay Kumar, AC to GA 13
: Mr. L.B. Singh, Advocate
(In CIVIL REVISION No. 208 of 2017)
For the Petitioner/s : Mr. Sanjay Kumar, AC to AAG-4
: Mr. Rajendra Narayan, Sr. Advocate
: Mr. Amit Prakash, Advocate
For the Opposite Party/s : Mr. Sanjay Kumar, AC to GA 13
(In CIVIL REVISION No. 225 of 2017)
For the Petitioner/s : Mr. Sanjay Kumar, AC to AAG-4
: Mr. Amit Prakash, Advocate
: Mr. Manish Sahay, Advocate
For the Opposite Party/s : Mr. Sanjay Kumar, AC to GA 13
: Mr. Anil Kumar Singha, Advocate
(In CIVIL REVISION No. 258 of 2017)
For the Petitioner/s : Mr. Sanjay Kumar, AC to AAG-4
: Mr. Amit Prakash, Advocate
For the Opposite Party/s : Mr. Sanjay Kumar, AC to GA 13
: Mr. Manish Sahay, Advocate
: Mr. Anil Kumar Sinha, Advocate
For the Opposite Party No. 2 : Mr. Sanjay Singh, Thakur, AOR No. 02900
(In CIVIL REVISION No. 5 of 2018)
For the Petitioner/s : Mr. Dinesh Maharaj, Advocate
For the Opposite Party/s : Mr. Ashok Kumar Duby, Advocate
: Mr. Ramashray Roy, AC to AAG No. 11
: Mr. Rajendra Narayan, Sr. Advocate
: Mr. Raj Kishore Prasad, Advocate
(In CIVIL REVISION No. 194 of 2018)
For the Petitioner/s : Mr. Sanjay Kumar, AC TO AAG 4
For the Opposite Party/s : Mr. Manish Sahay, Advocate
: Mr. Anil Kumar Sinha, Advocate
(In CIVIL REVISION No. 9 of 2019)
For the Petitioner/s : Mr. Sanjay Kumar, Advocate
For the Opposite Party/s : Mr. Ram Nath Singh Yadav, Advocate
: Mr. Suraj Narain Yadav, Advocate
(In CIVIL REVISION No. 20 of 2019)
For the Petitioner/s : Mr. Dinesh Maharaj, Advocate
For the Opposite Party/s : Mr. Ashok Kumar Duby, Advocate
: Mr. Ramashray Roy, AC to AAG No. 11
: Mr. L.B. Singh, Advocate
(In CIVIL REVISION No. 21 of 2019)
Patna High Court C.R. No.9 of 2017(23) dt.05-04-2023
7/14
For the Petitioner/s : Mr. Dinesh Maharaj, Advocate
For the Opposite Party/s : Mr. Ashok Kumar Duby, Advocate
: Mr. L.B. Singh, Advocate
: Mr. Ramashray Roy, AC to AAG No. 11
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV ORDER
23 05-04-2023Heard learned counsel for the petitioners and learned counsel for the opposite parties.
2. All these revision applications have been filed against the different Awards, passed by the Bihar Public Works Contract Disputes Arbitration Tribunal in different Reference Cases, alongwith the interlocutory applications for condonation of dealy.
3. At the time of consideration of the limitation petition the opposite party raised preliminary objection with regard to Section 5 of the Limitation Act, 1963. Learned counsel for the opposite party submits that the application of Section 5 of the Limitation Act, 1963 to a proceedings under Section 13 of Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008 (the Act of 2008) has been excluded by necessary implication, by virtue of language employed in Section 17 of the said Act.
4. This Court has considered Section 17 of the Act of the 2008, which reads as follows:-
"In computing the period of limitation laid down in sub-section (1) of Section Patna High Court C.R. No.9 of 2017(23) dt.05-04-2023 8/14 8, and sub-section (2) of Section 11 and sub-section (1) of Section 12, the provisions of Sections 4 and 12 of the Limitation Act, 1963, shall, so far as may be, apply."
5. Mr. Rajendra Narayan, learned Senior counsel for the opposite party submits that the Arbitration Act means the Arbitration and Conciliation Act, 1996, as prescribed in Section 2 of the said Act. The question of applicability of the provisions contained in Section 5 of the Limitation Act to the proceeding under Section 34 Clause 3 of the Arbitration and Conciliation Act, 1996. It is further submitted that the Act of 2008 shall follow the principle of Arbitration and Conciliation Act, 1996. The provisions contained in Section 34 of the Arbitration and Conciliation Act, 1996 came up for consideration. The relevant provisions contained in Section 34 of Arbitration and Conciliation Act, 1996 is extracted, which is as follows:
"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 Patna High Court C.R. No.9 of 2017(23) dt.05-04-2023 9/14 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."
6. Learned Senior counsel for the opposite party has further submitted that proviso to Section 34 of the Arbitration and Conciliation Act, 1996 merely provided for a period within which the Court could exercise its discretion that would not have been sufficient to exclude Section 4 to 24 of the Limitation Act. However, expression in Section 34 of the Arbitration and Conciliation Act, 1996 "but not thereafter" would amount to express exclusion within the meaning of Section 29(2) of the Limitation Act. Learned Senior counsel further submitted that the application of Section 5 of the Limitation Act is excluded in the aforesaid expression.
7. The question involved while exercising revisional power under Section 13 of the Act of 2008 contained the delay in case as the revision is under Section 13 of the Act of 2008 if filed beyond 90 days from the date on which the Award or interim Award is made or reviewed under this Act or it excludes the applicability of Section 29 of the Limitation Act, 1963 and inconsequent of Section 5 of the Limitation Act, 1963.
8. The provisions contained in Section 13 of the Act of Patna High Court C.R. No.9 of 2017(23) dt.05-04-2023 10/14 2008 relating to the revisional power of the High Court reads as under:
"(1) The High Court may, suo moto at any time or on an application made to it within three months from the date on which the award or interim award is made or reviewed under this Act, by any party aggrieved by the award or interim award so made or reviewed, call for the record of any case in which an award or interim award has been made or as the case may be reviewed and if the Tribunal appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.
(2). For the purpose of exercising its powers of revision under this section, the High Court shall have the same powers as it has, and as far as may be, follow the same procedure as it follows, under the Code of Civil Procedure, 1908 while exercising its powers of revision under Section 115 of the Code and for that purpose the Tribunal shall be deemed to Patna High Court C.R. No.9 of 2017(23) dt.05-04-2023 11/14 be a Court subordinate to it."
9. The provisions contained in Section 29 Clause 2 of the Limitation Act, 1963 deals with Savings, which is extracted, hereunder:-
"29. Savings:-
(2). Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provision of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provision contained in Section 4 to 24 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law"
10. In case of Mangu Ram Vs. Municipal Corporation of Delhi reported in (1976) 1 SCC 392, the question came up for consideration when the application of Section 5 of the Limitation Act, 1963 has to be excluded and whether peremptory or imperative language of the special or local law can exclude the application of Section 5. The provision of Section 5 of the Limitation Act, 1963 have been held to be applicable to condone the delay in applying under Section 417 of the Criminal Procedure Code. Patna High Court C.R. No.9 of 2017(23) dt.05-04-2023 12/14
11. In the case of State of State of Madhya Pradesh and others Vs Anshuman Shukla reported in (2014) 10 SCC 814, Hon'ble Supreme Court has held that even if the amendment of Section 19 of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 was made in 2009 as the Court had the power to take suo moto cognizance and call for record of an Award at any time, there was no legislative intent to exclude the applicability of Section 5 of the Limitation Act, 1963. Apart from that, the Hon'ble Supreme Court has observed that Section 19 of the Act of the 1983 did not contain any express rider on the power of the High Court to entertain an application for revision after the expiry of prescribed limitation thereunder. The provisions of Section 29(2) of Indian Limitation Act are applicable in absence of such rider and delay in filing the revision was condoned.
12. In case of Project Director National Highways No. 45 E and 220, National Highways Authority of India Vs M. Hakeem and another reported in (2021) 9 SCC 1 Hon'ble Supreme Court has held that to assimilate the Section 34 jurisdiction with the revisional jurisdiction under Section 115 of the Code of Civil Procedure is again fallacious. Section 115 of the Code of Civil Procedure expressly sets out the three grounds on which a revision may be entertained and then states that the High Court may make "such order as it thinks fit". These latter words are missing in Section 34 given the legislative scheme of Arbitration act, 1996. Patna High Court C.R. No.9 of 2017(23) dt.05-04-2023 13/14
13. Under the provision of Section 13 of the Act of 2008, revision is provided to High Court suo moto at any time or on an application made to it within three months from the date on which the Award is made. The High Court under the provision of Section 13 (1) may make such order in the case as it thinks fit. There is no prescribed period for suo moto exercise of revisional jurisdiction, however, an aggrieved party made by the Award or interim Award may file the revision. Under Section 13(1) nowhere expressly exclude the applicability of provisions of the limitation Act, 1963. The provisions of Section 5 are applicable to Section 13 as they are not expressly excluded by the provisions under the Act of 2008. Because of the scheme of the Act, it can not be inferred that by implication, the provisions of Section 5 of the Limitation Act, 1963 are excluded. Provisions contained in Section 29(2) of the Limitation Act, 1963 would be extracted as there is no express exclusion or implication, in view of the provision of the Act of 2008. Moreover, Section 13(2) of the Act of 2008 for the purpose of exercising its power of revision under this Section, the High Court shall have the same power as it has, and as far as it may be, follow the same procedure as it follows, under the Civil Procedure code while exercising its power of revision under Section 115 of the Code and for that purpose the Tribunal shall be deemed to be a Court Sub- ordinate to it.
14. In case of Superintending Engineer/Dehar Power Patna High Court C.R. No.9 of 2017(23) dt.05-04-2023 14/14 House Circle Bhakra Beas Management Board Vs. Excise And Taxation Officer reported in (2020) 17 SCC 692 it is held that Section 5 of the Limitation Act, 1963 would apply to proceedings under Section 48 of the Act of 2005.
15. They have the play for condoning the limitation under Section 48 of the Act, 2005. Suo moto provision of revisional power is also provided to the commissioner within five years. Thus the intendment is not to exclude the Limitation Act, 1963.
16. In view of the decisions of the Hon'ble Supreme Court and submissions made by the parties, the provisions of Section 5 of the Limitation Act, 1963 is applicable to the revisional power of the High Court under Section 13 of the act of 2018.
17. List all these cases for consideration of delay in filing of the revision application as per statement given in interlocutory application for condoning the delay.
(Khatim Reza, J) Shanu/-
U