Gujarat High Court
Jayantibhai Narsinhbhai Prajapati & vs Collector on 19 October, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/14776/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14776 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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JAYANTIBHAI NARSINHBHAI PRAJAPATI & 1....Petitioner(s)
Versus
COLLECTOR, VALSAD & 4....Respondent(s)
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Appearance:
MR SH SANJANWALA, SENIOR ADVOCATE with MR DILIP L KANOJIYA,
ADVOCATE for the Petitioner(s) No. 1 - 2
MR AMIT BAROT, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1-2
MS ARCHANA U AMIN, ADVOCATE for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1 - 5
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 19/10/2015
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ORAL JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs: "(a) YOUR LORDSHIPS may be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction quashing and setting aside the order dated 15.9.2014 passed by the learned Arbitrator in Lavad Reference No.251/2013 and 56/14/ Valsad and YOUR LORDSHIPS may be pleased to grant the reliefs as prayed for by the petitioners in the application regarding dismissal of the appeal of the respondent No.3 on preliminary point of limitation and YOUR LORDSHIPS may be pleased to dismiss the appeal filed by the respondent No.3 on the said ground of limitation;
(b) During the pendency and final disposal of this application, YOUR LORDSHIPS may be pleased to direct the respondent Nos.1 to 3 to forthwith pay an amount of Rs.1,32,98,523/ as ordered by respondent No.2 by order dated 7.3.2013 to the petitioners within a period of one week from the date of the order that may be passed by this Hon'ble Court with further running interest @ 5% per month from the date of the order dated 7.3.2013 till its actual realization;"
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2. Following facts emerge from the record of the petition: 2.1 The petitioners were owners of the construction made on land bearing survey No.125, Hissa No.125+126 part 1 and survey No.125, Hissa No.125+126 part 2 situated at Village Retlav, Taluka Pardi, District Valsad, total admeasuring 1417 sq. mtrs. It is the case of the petitioners that a shopping centre came to be constructed over the land in question and the petitioners were carrying on business in the name and style of M/s. Shakti Traders. It is further the case of the petitioners that the petitioners had taken loan from respondent No.4
- Bank and mortgaged the property in question. It appears from the record that as the land in question was required by the railway authorities for Dedicated Freight Corridor Corporation of India Ltd., the same was acquired by the railway authorities under the relevant provisions of the Railways Act, 1989 (hereinafter referred to as "the Railways Act" Page 3 of 53
HC-NIC Page 3 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT for the sake of brevity). It is further averred in the petition that part award was made on 27.9.2012 for an amount of Rs.16,87,050/ and the said amount was paid to the petitioners.
The record indicates that by a further/supplementary award dated 7.3.2013, respondent No.2 further determined an amount of Rs.1,00,74,638.87 with 5% interest per month and further 30% additional amount of Rs.30,22,391/ and 2% contingency charges of Rs.2,01,493/, totalling to Rs.1,32,98,523/ towards compensation for constructed property.
It is further the case of the petitioners that the petitioners requested to pay the said amount as per the award dated 7.3.2013 and they filed a written application dated 22.3.2013 requesting the authorities to pay the said amount as the petitioners were apprehending action by the Bank as the petitioners had taken advance to the tune of Rs.28,56,307/. It is further averred in the petition that the petitioners contacted some officer, however, Page 4 of 53 HC-NIC Page 4 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT the petitioners were informed that because of March ending, there is no one to attend the issue, however, the petitioners were assured that the petitioners shall get the amount in the first week of April, 2013. It further appears from the record that lastly, on 25.4.2013, the petitioners wrote a letter to the District Collector, Valsad complaining that the officers of respondent No.3 are not making payment of the amount as per the award even though promises are being given.
2.2 It also bornes out from the record that the petitioners filed a Civil Suit being Special Civil Suit No.45 of 2013 before the learned Additional Civil Judge (S.D.), Vapi against the District Collector, Valsad and the Bank for a totally different relief concerning the prayer not to dispossess the petitioners. The petitioners have also averred that the said suit is pending and the petitioners undertake to withdraw the same if the petition is allowed.
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2.3 The record of the petition further indicates that being aggrieved by and dissatisfied with the inaction of respondent Nos.1 and 2 in not paying the amount as per the award dated 7.3.2013, the petitioners preferred a writ petition before this Court being Special Civil Application No.8382 of 2013, which came to be withdrawn vide order dated 23.12.2013, wherein this Court (Coram: Anant S. Dave, J.) observed thus: "1. Heard learned advocates for the parties.
2. Mr. S.H.Sanjanwala, learned senior counsel with Mr. Dilip Kanojiya, learned advocate for the petitioners on instruction seeks permission to withdraw this petition and state that when the respondent authorities has invoked the provisions of Section 20 F (6) of Railways Act, 1989 (for short Act 1989), Arbitrator that may be appointed by the Central Government may be directed to complete the proceedings preferably on or before six months.
3. Accordingly permission is granted to withdraw this petition with a view to approach the competent authority of Central Government for appointment of the arbitration and upon Page 6 of 53 HC-NIC Page 6 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT appointment of the Arbitrator proceedings with regard to the subject compensation under the Act endeavor shall be made to complete the proceedings by the Arbitrator preferably within six months from the date of the appointment.
4. It is made clear that this Court has not entered into the merit of the contentions.
5. The petition stands disposed of as withdrawn accordingly. Notice is discharged."
2.4 It appears that as stated in the order dated 23.12.2013, the respondent authorities invoked the provision of Section 20F(6) of the Railways Act and filed an application/ reference before the arbitrator. It appears that the petitioners herein filed an application before the arbitrator praying, interalia, to dismiss the application on the ground of limitation and also prayed that the said application should be heard first without going into the merits, as preliminary point regarding the limitation of reference and requested the arbitrator to dismiss the reference. The arbitrator heard the said application and by the impugned order Page 7 of 53 HC-NIC Page 7 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT dated 15.9.2014, the arbitrator was pleased to dismiss the said application holding that Section 5 of the Limitation Act would not apply and therefore, he would entertain the reference filed by respondent No.3, though filed after a period of seven months treating it as within the time prescribed by condoning the delay and the said order is impugned in this petition. 2.5 It appears from the record that this Court (Coram: Paresh Upadhyay, J.) passed the following order on 10.12.2014 admitting the matter and refusing the interim relief.
"1. Heard Mr. Sanjanwala, learned senior advocate with Mr. Dilip L. Kanojiya, learned advocate for the petitioners, Ms. Archana U. Amin, learned advocate for the contesting respondent No.3 and Ms. Nalini S. Lodha, learned advocate for the respondent No.4.
2. The prayers made in the petition read as under.
(a) Your Lordship may be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction quashing and setting aside the order dated 15.09.2014 passed by the learned Page 8 of 53 HC-NIC Page 8 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT Arbitrator in Lavad Reference No. 251 of 2013 and 56/14/Valsad and Your Lordships may be pleased to grant the reliefs as prayed for by the petitioners in the application regarding dismissal of the appeal of the respondent No.3 on preliminary point of limitation and Your Lordships may be pleased to dismiss the appeal filed by the respondent No.3 on the said ground of limitation;
(b) During the pendency and final disposal of this application, Your Lordships may be pleased to direct the respondent No.1 to 3 to forthwith pay an amount of Rs.
1,32,98,523/ as ordered by respondent No.2 by order dated 07.03.2013 to the petitioners within a period of one week from the date of the order that may be passed by this Honble Court with further running interest @ 5% per month from the date of the order dated 07.03.2013 till its actual realization;
(c) Your Honour may be pleased to grant such other and further reliefs as the Hon'ble Court may deem fit in the facts and circumstances of the case.
3. Learned advocate for the petitioners has submitted that the Deputy Collectorcumthe Competent Authority for the Special Project for Dedicated Freight Corridor at Valsad had passed an order dated 07.03.2013, awarding compensation of Rs.1,32,98,523/. The said order is challenged by the contesting Page 9 of 53 HC-NIC Page 9 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT respondent authorities before the ArbitratorcumRevenue Inspection Commissioner and Exofficio Secretary to the Government of Gujarat, Revenue Department, at Gandhinagar. It is the case of the petitioners that, the said proceedings before the Arbitrator are barred by limitation and therefore, the same could not have been entertained. It is submitted that an application was given on behalf of the petitioners to the Arbitrator to dismiss the said proceedings being time barred. The said application is rejected by the Arbitrator vide order dated 15.09.2014. It is this order, which is challenged in this petition. Learned advocate for the petitioners has contended that the said rejection of the application is illegal and the said order needs to be interfered with. Reliance is also placed on the decision of Hon'ble the Supreme Court of India in the case of Union of India Vs. Popular Construction Com. reported in (2001) 8 SCC 470.
4. The matter requires consideration. Hence Rule.
5.1 It is ordered that during the pendency of this petition, the proceedings in question before the Arbitrator shall remain stayed. 5.2 The prayer that during the pendency of this petition, the compensation as awarded by the Competent Authority be paid to the petitioners, can not be granted. The said interim relief is refused." 2.6 The record indicates that by order dated Page 10 of 53 HC-NIC Page 10 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT 17.7.2015 passed by this Court (Coram: N.V. Anjaria, J.), the petitioners prayed for deletion of respondent No.4 and the said request was accepted by the Court and accordingly, respondent No.4 stands deleted.
3. Heard Mr. S.H. Sanjanwala, learned Senior Advocate with Mr. Dilip Kanojiya, learned advocate for the petitioners, Mr. Amit Barot, learned Assistant Government Pleader for respondent Nos. 1 and 2 and Ms. Archana U. Amin, learned advocate for respondent No.3.
4. It may be noted that the learned Senior Advocate for the petitioners as well as learned advocate for respondent No.3 have also submitted their written submissions.
5. The learned Senior Advocate for the petitioners has taken this Court through the factual matrix arising out of this petition and has contended that as per the provisions of Section 20F(6) read with subsection (7) thereof, the period of limitation prescribed under the Arbitration Page 11 of 53 HC-NIC Page 11 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT and Conciliation Act, 1996 (hereinafter referred to as "the Arbitration Act" for the sake of brevity) would apply. It was contended that as provided under Section 20F(7) of the Railways Act, the provisions of Section 34(3) of the Arbitration Act which provides for limitation would be bodily lifted into sub section (6) of Section 20F and the period of limitation would, thus, be only four months. It was contended that the said issue is squarely covered by the judgment of the Apex Court in the case of Union of India Vs. Popular Construction Company, reported in (2001) 8 SCC
470. It was contended that thus, by virtue of Section 34(1) of the Arbitration Act, recourse to Court against an arbitral award cannot be made beyond the prescribed period. The learned Senior Advocate for the petitioners relied upon the judgment of the Hon'ble Supreme Court in the case of Commissioner of Customs and Central Excise Vs. Hongo India Private Limited & Anr. reported in (2009) 5 SCC 791 as well as the Page 12 of 53 HC-NIC Page 12 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT decision of the Hon'ble Supreme Court in the case of Chhatisgarh State Electricity Board Vs. Central Electricity Regulatory Commissioner & Ors., reported in (2010) 5 SCC 23, wherein the judgment of Union of India Vs. Popular Construction Company (supra) is followed and applied.
5.1 It was contended that it is settled law that the Tribunal has no power to condone the delay beyond the prescribed period and the provisions of Section 5 of the Limitation Act would not apply. It was contended that inspite of such clear facts, the Secretary has exactly done contrary, by taking the view that it will apply the provisions of Section 5 of the Limitation Act and condone the delay of 7 months. It was contended that the delay has been condoned even though there was no application for condonation of delay. The learned Senior Advocate for the petitioners relying upon the stand taken by respondent No.3 in its affidavit contended that as such respondent No.3 has raised twin Page 13 of 53 HC-NIC Page 13 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT defence. It was further contended that the first defence raised by respondent No.3 is that since the Act is silent about the period of limitation, doctrine of reasonable time would apply. However, the learned Senior Advocate for the petitioners contended that by virtue of incorporating the provisions of Section 34(3) into the provisions of Section 20F(6) of the Railways Act, the period of limitation is prescribed and therefore, the doctrine of reasonable time would not apply. It was contended that the second defence raised by respondent No.3 that the provisions of Section 34 of the Arbitration Act are applicable to an application for setting aside the arbitral award and not to prefer an application to the arbitrator. Relying upon the decision of the Apex Court in the case of Mahindra and Mahindra Limited Vs. Union of India & Anr., reported in (1979) 2 SCC 529, it was contended that once the incorporation is made, the provisions incorporated become an integral part of the Page 14 of 53 HC-NIC Page 14 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT statute in which it is transposed and thereafter, there is no need to refer to the statute from which the incorporation is made. It was contended that any subsequent amendment thereafter made will have no effect. Relying upon the judgment of the Apex Court in the case of Mahindra and Mahindra Limited Vs. Union of India & Anr. (supra), learned Senior Advocate for the petitioners further contended that respondent No.3 cannot refer to Section 34(1) and take up the contentions since Section 34(1) is not to be referred to at all. The learned Senior Advocate for the petitioners, relying upon the judgment of the Apex Court in the case of C.N. Paramesivam & Anr. Vs. Sunrize Plaza through Partner & Ors. reported in (2013) 9 SCC 460, contended that legislation by incorporation is a device to which legislature often take resort to for the sake of convenience. Referring to the book of Justice G.P. Singh on principles of statutory interpretation, the learned Senior Advocate for Page 15 of 53 HC-NIC Page 15 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT the petitioners also contended that if a subsequent Act brings into itself by reference some of the clauses of a former Act, legal effect of that is to write those sections into the new Act just as it is actually part of the said Act. It was, therefore, contended that both the defences taken by respondent No.3 in its affidavit are not tenable in law. The learned Senior Advocate for the petitioner further referring to the objects and reasons of the Railways (Amendment) Act, 2008, contended that the legislature felt that the existing provisions under the Land Acquisition Act, 1894 were insufficient to adhere to the time limit for completion of projects undertaken by the Railway and therefore, in order to expedite the land proceedings, the disputes relating to compensation of amount for land acquisition were taken from the purview of Courts and an expeditious mechanism of arbitration process has been provided to resolve such disputes. The learned Senior Advocate for the petitioners has Page 16 of 53 HC-NIC Page 16 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT also further relied upon the judgment of the Apex Court in the case of SirajulHaq Khan & Ors. Vs. The Sunnin Central Board of Waqf U.P. & Ors., reported in AIR 1959 SC 198 as well as the judgment of the Apex Court in the case of P.K. Ramachandran Vs. State of Kerala & Anr., reported in (1997) 7 SCC 556, in support of the contentions raised by him.
5.2 On basis of the aforesaid contentions, the learned Senior Advocate for the petitioners contended that the impugned order dated 15.9.2014 deserves to be quashed and set aside as prayed for and the authorities may be directed to pay the amount of Rs.1,32,98,523/ as per the award to the petitioners within one month from the date of the order by allowing the application filed by the petitioners before the arbitrator.
6. Per contra, Ms. Archana U. Amin, learned advocate for respondent No.3 has contended that no time limit is prescribed for approaching the Page 17 of 53 HC-NIC Page 17 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT arbitrator under Section 20F(6) of the Railways Act and the provisions of Section 20F(6) itself is silent about the period of limitation. Relying upon the judgment of the Apex Court in the case of L.S. Synthetics Ltd. Vs. Fairgrowth Financial Services Ltd. & Anr., reported in AIR 2005 SC 1209, it was contended that the law of limitation would not apply to quasi judicial authority. However, the arbitrator condoned the delay in the interest of justice vide its impugned order dated 15.9.2014. It was contended that the provisions of subsection (3) of Section 34 of the Arbitration Act does not apply to arbitration application preferred under Section 20F(6) of the Railways Act as the said provision bars every statutory suit, appeal or application made after the prescribed period of limitation and admittedly, Section 20F(6) of the Railways Act does not provide any period of limitation for approaching the arbitrator for redetermination of the amount of compensation. It was contended that the Page 18 of 53 HC-NIC Page 18 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT provisions of Section 34(3) of the Arbitration Act would not apply to the present case as the said provision relates to the period of limitation for challenging the arbitral award before the District Court. It was contended that the provisions of Section 20F(6) has been misread by the petitioners and in fact the said provision provides the remedy for challenging the award passed by the competent authority as defined under subsection (7A) of Section 2 of the Railways Act before the arbitrator to be appointed by the Central Government. It was contended that all that the provisions of Section 20F(7) of the Railways Act provides is that the provisions of Arbitration Act shall apply to every arbitration under the Railways Act. It was contended that by lifting the said provision of the Arbitration Act, intention of the legislature is very clear that once the award is passed under Section 20F(6) of the Railways Act by the arbitrator appointed by the Central Government if either party is aggrieved Page 19 of 53 HC-NIC Page 19 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT by the same, then, in that case, the same will be required to be challenged before the appropriate forum as per the provisions of the Arbitration Act. It was further contended that the Railways Act came to be amended by the Railways (Amendment) Act, 2008 by making special provisions by way of Sections 20A to 20P for acquiring the land for Special Railway Project. It was contended that subsections (1) to (5) of Section 20F provides for procedure of the determination of the amount of compensation by the competent authority. Subsection (6) provides for specific remedy against the award passed by the competent authority with no period of limitation. It was further contended that when a special statute does not provide for any limitation, such a statute should be interpreted liberally and on broader construction and not a rigid or a narrow one. It was contended that the legislature itself did not think it necessary to prescribe any period of limitation under Section 20F(6) of Page 20 of 53 HC-NIC Page 20 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT the Railways Act and such intention of the legislature should be given its full effect. Further, relying upon the judgment of the Apex Court in the case of L.S. Synthetics Ltd. Vs. Fairgrowth Financial Services Ltd. & Anr. (supra), it was contended that the provisions of the Limitation Act are not applicable to proceedings before bodies other than the Court such as quasi judicial Tribunal or even executive authority and the Act primarily applies to the civil proceedings or some special criminal proceedings. Alternatively, it was contended on behalf of respondent No.3 that even if it is presumed that the Limitation Act applies to proceedings before quasi judicial authority like the sole arbitrator and Revenue Inspection Commissioner, Gandhinagar, then also, in the event that the Parent Act, being Railways Act is silent on the period of limitation, Article 137 of the Limitation Act will apply which provides a period of limitation of three years for making Page 21 of 53 HC-NIC Page 21 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT application from the period when the right to apply accrues. It was contended that the judgments cited by the learned Senior Advocate for the petitioners would not apply to the present case as what is pending before the arbitrator is a reference which is made by respondent No.3 against the award which was passed by the competent authority under the provisions of the Railways Act. It was, therefore, submitted that the petition is misconceived and the same deserves to be dismissed and the petitioners be directed to pursue the remedy already available and as provided under Section 20F(6) of the Railways Act.
7. The learned Assistant Government Pleader submitted that the issue involved in this petition is directly concerned between the petitioners and respondent No.3 and therefore, this Court may pass appropriate order on the basis of the record of this petition.
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8. No other or further submissions are made by the learned advocates appearing for the parties.
9. At the outset, it requires to be noted that in order to appreciate the contentions raised by both the sides, it would be appropriate to refer to the relevant provisions of the Railways Act as well as the Arbitration Act. By Amendment Act of 2008, the Railways Act came to be amended for the objects and reasons which are referred to earlier and Chapter IVA came to be inserted and the following provisions were made for a Special Railway Project.
"CHAPTER IVA LAND ACQUISITION FOR A SPECIAL RAILWAY PROJECT 20A. Power acquire land etc: (1) Where the Central Government is satisfied that for a public purpose any land is required for execution of a special railway project it, may, by notification declare its intention to acquire such land.
(2) Every notification under sub section (1), shall give a brief description of the land and of the special railway project for which the land is intended to be acquired.Page 23 of 53
HC-NIC Page 23 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT (3) The State Government or the Union territory, as the case may be shall for the purposes of this section, provide the details of the land records to the competent authority, whenever required.
(4) The competent authority shall cause the substance of the notification to be published in two local newspapers one of which shall be in a vernacular language.
20B. Power to enter for survey, etc:
On the issue of a notification under subsection (1) of section 20A, it shall be lawful for any person, authorised by the competent authority in this behalf, to
(a) make any inspection, survey, measurement, valuation or enquiry;
(b) take levels;
(c) dig or bore into subsoil;
(d) set out boundaries and intended lines of work;
(e) mark such levels, boundaries and lines placing marks and cutting trenches; or
(f) do such other acts or things as may be considered necessary by the competent authority.
20C. Evaluation of damages during survey, measurement etc: The damages caused while carrying out works on land such as survey,digging or boring subsoil, marking boundaries or cutting trenches or clearing away any standing crop, fence or forest or doing such other acts or things which may cause damages while acting under section 20B particularly relating to Page 24 of 53 HC-NIC Page 24 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT land which is excluded from acquisition proceeding, shall be evaluated and compensation shall be paid to the persons having interest in that land, within six months from the completion of the said works.
20D. Hearing of objections, etc: (1) Any person interested in the land may, within a period of thirty days from the date of publication of the notification under subsection (1) of section 20A object to the acquisition of land for the purpose mentioned in that subsection.
(2) Every objection under subsection, (1), shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner and may, after hearing all such objections and after making such further enquiry, if any as the competent authority thinks necessary, by order, either allow or disallow the objections. Explanation: For the purposes of this subsection, ''legal practitioner'' has the same meaning as in clause (i) of subsection (1) of section 2 of the Advocates Act, 1961. (25 of 1961). (3) Any order made by the competent authority under subsection (2) shall be final.
20E. Declaration of acquisition (1) Where no objection under subsection (1) of section 20D has been made to the competent authority within the period specified therein or where the Page 25 of 53 HC-NIC Page 25 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT competent authority has disallowed the objections under subsection (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification, that the land should be acquired for the purpose mentioned in subsection (1) of section 20A.
(2) On the publication of the declaration under subsection (1), the land shall vest absolutely in the Central Government free from all encumbrances.
(3) Where in respect of any land, a notification has been published under subsection (1) of section 20A for its acquisition, but no declaration under subsection (1) of this section has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect:
Provided that in computing the said period of one year, the period during which any action or proceedings to be taken in pursuance of the notification issued under subsection (1) of section 20A is stayed by an order of a court shall be excluded.
(4) A declaration made by the Central Government under subsection (1) shall not be called in question in any court or by any other authority.
20F. Determination of amount payable as compensation: (1) Where any land is Page 26 of 53 HC-NIC Page 26 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT acquired under this, Act, there shall be paid an amount which shall be determined by an order of the competent authority.
(2) The competent authority shall make an award under this section within a period of one year from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse; Provided that the competent authority may, after the expiry of the period of limitation, if he is satisfied that the delay has been caused due to unavoidable circumstances, and for the reasons to be recorded in writing, he may make the award within an extended period of six months:
Provided further that where an award is made within the extended period, the entitled person shall, in the interest of justice, be paid an additional compensation for the delay in making of the award, every month for the period so extended, at the rate of not less than five percent. of the value of the award, for each month of such delay.
(3) Where the right of user or any right in the nature of an easement on , any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition, an amount calculated at ten per cent, of the amount determined under sub section (1), for that land.Page 27 of 53
HC-NIC Page 27 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT (4) Before proceeding to determine the amount under subsection (1) or sub section (3) as the case may be, the competent authority shall give a public notice published in two local newspapers, one of which shall be in a vernacular language inviting claims from all persons interested in the land to be acquired.
(5) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in subsection (2) of section 20D before the competent authority, at a time and place and to state the nature of their respective interest in such land.
(6) If the amount determined by the competent authority under subsection (1) or as the case may be, subsection (3) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government in such manner as may be prescribed. (7) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.
(8) The competent authority or the arbitrati or while determining the amount of compensation under sub section (1) or subsection (6), as the case may be, shall take into consideration Page 28 of 53 HC-NIC Page 28 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT
(a) the market value of the land on the date of publication of the notification under section 20A;
(b) the damage, if any sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;
(c) the damage, if any sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;
(d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.
(9) In addition to the marketvalue of the land as above provided, the competent authority or the arbitrator, as the case may be,shall in every case award a sum of sixty per centum on such marketvalue, in consideration of the compulsory nature of the acquisition.
20G. Criterion for determination of marketvalue of land: (1) The competent authority shall adopt the following criteria in assessing and determining the marketvalue of the land
(i) the minimum land value, if any, specified in the Indian Stamp Act, 1899, (2 of 1899) for the registration of sale deeds in the area, where the land is situated; or
(ii) the average of the sale price for similar type of land situated in the Page 29 of 53 HC-NIC Page 29 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT village or vicinity, ascertained from not less than fifty percent. of the sale deeds registered during the preceding three years, where higher price has been paid, whichever is higher.
(2) Where the provisions of sub section (1) are not applicable for the reason that:
(i) the land is situated in such area where the transactions in land are restricted by or under any other law for the time being in force in that area; or
(ii) the registered sale deeds for similar land as mentioned in clause
(i) of subsection (1) are not available for the preceding three years; or
(iii) the minimum land value has not been specified under the Indian Stamp Act, 1899 (2 of 1899) by the appropriate authority the concerned State Government shall specify the floor price per unit area of the said land based on the average higher prices paid for similar type of land situated in the adjoining areas or vicinity, ascertained from not less than fifty per cent of the sale deeds registered during the preceding three years where higher price has been paid, and the competent authority may calculate the value of the land accordingly.
(3) The competent authority shall, before assessing and determining the marketvalue of the land being acquired under this Act
(a) ascertain the intended land use category of such land; and
(b) take into account the value of the Page 30 of 53 HC-NIC Page 30 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT land of the intended category in the adjoining areas or vicinity, for the purpose of determination of the marketvalue of the land being acquired.
(4) In determining the marketvalue of the building and other immovable proporty or assets attached to the land or building which are to be acquired, the competent authority may use the services of a competent engineer or any other specialist in the relevant field, as may be considered necessary by the competent authority.
(5) The competent authority may, for the purpose of determning the value of trees and plants, use the services of experienced persons in the field of agriculture, forestry, horticulture, sericulture, or any other field as may be considered necessary by him.
(6) For the purpose of assessing the value of the standing crops damaged during the process of land acquisition proceedings, the competent authority may utilise the services of experienced persons in the field of agriculture as he considers necessary.
20H. Deposit and payment of amount:
(1) The amount determined under section 20F shall be deposited by the Central Government, in such manner as may be prescribed by that Government, with the competent authority before taking possession of the land.
(2) As soon as may be after the amount has been deposited under subsection (1), the competent authority shall on Page 31 of 53 HC-NIC Page 31 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT behalf of the Central Government pay the amount to the person or persons entitled thereto.
(3) Where several persons claim to be interested in the amount deposited under subsection (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them.
(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated (5) Where the amount determined under section 20F by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine percent annum on such excess amount from the date of taking possession under section 20I till the date of actual deposit thereof.
(6) Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub section (5) shall be deposited by the Central Government, in such manner as may be prescribed by that Government, with the competent authority and the provisions of subsections (2) to (4) shall apply to such deposit.Page 32 of 53
HC-NIC Page 32 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT 20I Power to take Possession : (1) Where any land has vested in the Central Government under subsection (2) of section 20E, and the amount determined by the competent authority under section 20F with respect to such land has been deposited under sub section (1) of section 20H with the competent authority by the Central Government, the competent authority may, by notice in writing, direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof the competent authority or any person duly authorised by it in this behalf within a period of sixty days of the service of the notice.
(2) If any person refuses or fails to comply with any direction made under subsection (1), the competent authority shall apply
(a) in case of any land situated in any area falling within the metropolitan area, to the Commissioner of Police;
(b) in case of any land situated in any area other than the area referred to in clause (a), to the Collector of a district, and such Commissioner or Collector, as the case may be shall enforce the surrender of the land, to the competent authority or to the person duly authorised by it.
20J. Right to enter into land where land has vested in Central Government: Where the land has vested in the Central Government under Page 33 of 53 HC-NIC Page 33 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT section 20E, it shall be lawful for any person authorised by the Central Government in this behalf, to enter and do other act necessary upon the land for carrying out the building, maintenance, management or operation of the special railway project or part thereof for any other work connected therewith.
20K. Competent authority to have certain powers of civil court: The competent authority shall have, for the purposes of this Act, all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 & 1908) in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) reception of evidence on affidavits;
(d) requisitioning any public record from any court or office;
(e) issuing commission for examination of witnesses.
20L. Utilisation of land for the purpose it is acquired: (1) The land acquired under this Act shall not be transferred to any other purpose except for a public purpose, and after obtaining the prior approval of the Central Government.
(2) When any land or part thereof acquired under this Act remains unutilised for a period of five years from the date of taking over the possession, the same shall return to the Central Government by reversion.
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20M. Sharing with landowners the difference in price of a land when transferred for a higher consideration: Whenever any land acquired under this Act is transferred to any person for a consideration, eighty per cent of the difference in the acquisition cost and the consideration received which in no case shall be less than the acquisition cost, shall be shared amongst the persons from whom the lands were acquired or their heirs, in proportion to the value at which the lands were acquired and for the purpose, a separate fund may be maintained which shall be administered by the competent authority in such manner as may be prescribed by the Central Government.
20N. Land Acquisition Act 1 of 1894 not to apply: Nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under this Act.
20O. Application of the National Rehabilitation and Resettlement Policy, 2007 to persons affected due to land acquisition: The provisions of the National Rehabilitation and Resettlement Policy, 2007 for project affected families, notified by the Government of India in the Ministry of Rural Development vide number F. 26011/4/2007 LRD dated the 31st October,2007, shall apply in respect of acquisition of land by the Central Government under this Act.
20P. Power to make rules in respect of matters in this Chapter: Page 35 of 53 HC-NIC Page 35 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT (1) The Central Government may, by notification, make rules to carry out the purposes of this Chapter.
(2) In particular, and without prejudice to the generality of the foregoing power such rules may provide for all or any of the following matters, namely
(a) the manner of appointment of arbitrator under subsection (6) of section 20F;
(b) the manner in which the amount shall be deposited with the competent authority under subsections (1) and (6) of section 20H;
(c) the manner of maintenance and administration of separate fund for the purposes of section 20M;"
10. Subsection (7A) of Section 2 of the Railways Act provides as under: "(7A) "competent authority" means any person authorised by the Central Government, by notification, to perform the functions of the competent authority for such area as may be specified in the notification;"
11. Reference may also be made to the provisions of Section 34 of the Arbitration Act, which provides for recourse against the arbitral award.
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"34.Application for setting aside arbitral award. (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with subsection (2) and subsection (3).
(2) An arbitral award may be set aside by the Court only if
(a) the party making the application furnishes proof that
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii)the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matter beyond the scope of the submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or Page 37 of 53 HC-NIC Page 37 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Past; or
(b) the Court finds that
(i) the subjectmatter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
Explanation. Without prejudice to the generality of subclause (ii), it is hereby declared , for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced of affected by fraud or corruption or was in violation of section 75 or section 81.
(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 Page 38 of 53 HC-NIC Page 38 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT making the application within the said period of three months if may entertain the application within a further period of thirty days, but not thereafter.
(4) On receipt of an application under subsection (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award."
12. Subsection (29A) of Section 2 of the Railways Act provides as under: "(29A) "person interested"
includes
(i) all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act;
(ii) tribals and other traditional forest dwellers, who have lost any traditional rights recognized under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007).
(iii) a person interest in an easement affecting the land; and Page 39 of 53 HC-NIC Page 39 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT
(iv) persons having tenancy rights under the relevant State laws;"
13. Subsection (37A) of Section 2 of the Railways Act provides as under: "(37A) "special railway project"
means a project, notified as such by the Central Government from time to time, for providing national infrastructure for a public purpose in a specified timeframe, covering one or more States or the Union territories;"
14. As per the statement of objects and reasons of the Railways (Amendment) Act, 2008 by incorporating Sections as mentioned hereinabove in the Railways Act, the legislature has in fact provided for the whole procedure for acquisition of land for a Special Railway Project. Sections 20A to 20E provide for procedure for acquisition of the lands for the Special Railway Project and in opinion of this Court, the said provisions are directly comparable with the provisions of Sections 3 to 9 of the Land Acquisition Act, 1894. Section 20F of the Railways Act provides for Page 40 of 53 HC-NIC Page 40 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT determination of amount payable as compensation. It, interalia, provides that the land which is acquired under this Act, the railway shall have to pay an amount as determined by an order of the competent authority. Subsection(1) & (2) of Section 20F provides that the competent authority shall make an award under this Section within a period of one year from the date of the publication of the declaration. It further provides that if no award is made within that period, the entire proceedings for the acquisition of the land shall stand lapsed. This provision is comparable with the provisions of Sections 11 and 11A of the Land Acquisition Act, 1894. The said Section further by proviso provides that the said period of one year is extendable for a further period of six months due to reason of unavoidable circumstances for which the competent authority has to record the reasons in writing. However, it further provides that such extended period Page 41 of 53 HC-NIC Page 41 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT would attract interest for every month for not less than 5% of the value of the award. Sub section (6) of Section 20(F) provides that if either party is dissatisfied with the amount so determined by the competent authority under subsection (1) of Section 20(F) i.e. the award as contemplated under subsection (2) of Section 20F, then, either parties can file an application for determination of the amount before an arbitrator to be appointed by the Central Government in such manner as may be prescribed. Subsection (7) of Section 20F provides that subject to provisions of the Railways Act, the provisions of the Arbitration Act shall apply to every arbitration under this Act. The facts set out in the petition reveals that respondent No.2 herein i.e. the Deputy Collector was the competent authority under Section 20F of the Railways Act and that respondent No.2, in exercise of powers conferred under Section 20F of the Railways Act, passed supplementary award on 7.3.2013 Page 42 of 53 HC-NIC Page 42 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT determining the total amount of Rs.1,32,98,523/ as the compensation. The said award dated 7.3.2013 also recites that the petitioners have been paid compensation for the land to the tune of Rs.16,87,050/. It is further stated that the supplementary award is passed as the estimates of the construction was not produced at the time when the first award was passed. Thus, the aforesaid supplementary award dated 7.3.2013 is an award as provided under Section 20F(1) read with Section 20F(2).
15. In juxtaposition of this, as provided under subsection (7) of Section 20F, the provisions of the Arbitration Act would apply to the arbitration proceedings as provided under sub section (6) of Section 20F. Chapter VII of the Arbitration Act which even if it is construed that it is bodily lifted in the Railways Act provides for recourse against the arbitral award as defined under Section 2(C) of the Arbitration Act. Considering the aforesaid provisions and more particularly, provision of Page 43 of 53 HC-NIC Page 43 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT Section 20F of the Railways Act, the award dated 7.3.2013 is not an award under the Arbitration Act by any arbitrator, but it is an award as provided under Section 20F(1) and (2) of the Railways Act, which means that it is the amount determined by the competent authority as compensation for the land and the superstructure which is acquired for a Special Railway Project. Subsection (6) provides that if such award which is based under subsection (1) (as applicable in the present case) is not acceptable to either parties as determined by the competent authority, then, on an application of either parties, the amount shall be determined by the arbitrator and therefore, the supplementary award is not an award passed by the arbitrator under Section 20F(6) of the Railways Act. Even if the contention raised by the learned Senior Advocate for the petitioners is accepted that the intention of the legislature by amending Railways Act, 2008 is to provide for expeditious remedy of Page 44 of 53 HC-NIC Page 44 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT acquisition of the lands in question and as stated in the statement of objects and reasons even to lessen the burden of the Courts by providing a special machinery, the supplementary award dated 7.3.2013 by no stretch of imagination can be termed as arbitral award under the Arbitration Act. Sub section (3) of Section 34 of the Arbitration Act read with subsection (1) of Section 34 of the Arbitration Act provides for an application for setting aside arbitral award, wherein under subsection (3), limitation of 3 months is provided for with a further provision that in case if the applicant was prevented by sufficient cause for making an application for setting aside the arbitral award within the statutory prescribed period of 3 months, such application can be entertained by the Court within a further period of 30 days, but not thereafter. Thus, the provision of Section 34(3), as contended by the learned Senior Advocate for the petitioners, would apply to an Page 45 of 53 HC-NIC Page 45 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT arbitral award and not an award as contemplated under Section 20(F)(1) of the Railways Act. Having come to the aforesaid conclusion therefore, the ratio laid down by the Apex Court in the case of Union of India Vs. Popular Construction Company (supra), Commissioner of Customs and Central Excise Vs. Hongo India Private Limited & Anr. (supra) and Chhatisgarh State Electricity Board Vs. Central Electricity Regulatory Commissioner & Ors. (supra), with respect, would not be applicable to the present case. It is evident from the application filed by the petitioners before the arbitrator for dismissing reference on the ground of limitation that similar contentions have been raised. On perusal of the impugned order dated 15.9.2014, it appears that the authority has, while rejecting the application filed by the petitioners herein, has given other reasons. However, the fact remains that what is referred to before the arbitrator is not an arbitral award as envisaged under subsection (6) of Page 46 of 53 HC-NIC Page 46 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT Section 20F, but what is referred to is an award passed by way of determination of the compensation as provided under subsection 20F(1) and (2). Even further comparing the provisions of subsection (6) of Section 20F, the same is comparable with Section 18 of the Land Acquisition Act, 1894 which, interalia, provides for a reference by an interested person to a Court by way of a reference. However, as per the provisions of subsection (6) of Section 20F, the application can be made by either parties in the event when either of the party is aggrieved by the amount determined by the competent authority under subsection (1) i.e. as compensation and such compensation is not acceptable to either of the parties. Hence, the judgments relied upon by the learned Senior Advocate for the petitioners as regards interpretation of the statutes would, in opinion of this Court, not take the case of the petitioners any further. There is a difference between the arbitral award as observed Page 47 of 53 HC-NIC Page 47 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT hereinabove and an award as contemplated under Sections 20F(1) and (2) and the same cannot be equated with an award under Section 20F(1) and (2).
16. The Apex Court in the case of Union of India Vs. Popular Construction Company (supra) has observed thus: "12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to subsection (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result.
16. Furthermore, section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award "in accordance with" sub Section 2 and sub Section 3. Sub Section 2 relates to grounds for setting aside an award Page 48 of 53 HC-NIC Page 48 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, sub section (3) would not be an application "in accordance with" that sub section. Consequently by virtue of Section 34 (1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that:
"where the time for making an application to set aside the arbitral award under Section 34 has expired.......the award shall be enforced and the Code of Civil Procedure, 1908 in the same manner as if it were a decree of a court".
This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to "proceed to pronounce judgment according to the award and upon (he judgment so pronounced a decree shall follow". Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the Court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the Court's powers by the exclusion of the operation of Section 5 of the Limitation Act."
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It deserves to be noted that in the case on hand, subsection (6) of Section 20F does not provide for any period of limitation and therefore, the railway authorities, being aggrieved by the compensation awarded by supplementary award dated 7.3.2013, has approached the arbitrator and therefore, in facts and circumstances of this case, the ratio laid down by the Apex Court in the case of Union of India Vs. Popular Construction Company (supra) will not be applicable. Even in other two judgments in the cases of Commissioner of Customs and Central Excise Vs. Hongo India Private Limited & Anr. (supra) and Chhatisgarh State Electricity Board Vs. Central Electricity Regulatory Commissioner & Ors. (supra), similar provisions are considered by the Apex Court and in facts of this case, the same will not be applicable, as observed hereinabove. Considering the fact that the supplementary award is dated 7.3.2013 and the respondent - railway authorities have filed an application Page 50 of 53 HC-NIC Page 50 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT as provided under subsection (6) of Section 20F on 14.10.2013 and while considering the fact that no period of limitation is prescribed for, even if the principle of reasonable time is brought in, as decided by the Apex Court in the case of State of Gujarat Vs. Patel Raghav Natha, reported in AIR 1969 SC 1297, then also, it cannot be said that the application filed by the respondent authorities under Section 20F(6) is beyond the reasonable time. By Section 20F(7) of the Railways Act, it is provided that subject to provisions of the Railways Act, the provisions of Arbitration Act shall apply to every arbitration under this Act. However, it cannot be read that only Section 34(3) of the Arbitration Act would apply and even if it is examined considering that the provisions of the Arbitration Act are incorporated in the Railways Act, the provision of Section 34(3) of the Arbitration Act cannot be read in isolation.
17. It requires to be noted that considering the Page 51 of 53 HC-NIC Page 51 of 53 Created On Wed Oct 21 02:23:50 IST 2015 C/SCA/14776/2014 JUDGMENT provisions of Section 20F of the Railways Act and considering the provisions of Section 34 of the Arbitration Act, there is difference between an award passed under Section 20F(1) and an arbitral award. Subsection (7) of Section 20F of Railways Act would not apply to determination of compensation amount by way of an award as provided under Section 20F(1) of the Railways Act and therefore, the contention raised by the learned Senior Advocate for the petitioners that as the provisions of the Arbitration Act are bodily lifted by virtue of subsection (7) of Section 20F, the same also would apply to the arbitration application filed under Section 20F(6) deserves to be negatived. It would apply when the arbitrator passes an arbitral award under Section 20F(6) of the Railways Act.
18. Resultantly, the impugned order is legal and proper. In facts of this case, no interference is called for in exercise of jurisdiction under Article 226 of the Constitution of India.
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Taking into consideration the fact that the issue is pending since long and also keeping in mind the object of amending the Act, respondent No.5 - arbitrator, before whom the proceedings are pending, is requested to expedite the arbitration proceedings and after hearing all the parties, may decide the arbitration proceedings on merits, preferably within a period of six months from the date of receipt of this judgment and order.
19. For the foregoing reasons, the petition fails and is hereby dismissed. Rule discharged. Interim relief stands vacated. Parties to bear their cost.
(R.M.CHHAYA, J.) mrp Page 53 of 53 HC-NIC Page 53 of 53 Created On Wed Oct 21 02:23:50 IST 2015