Allahabad High Court
Mohmood Ahmad Siddiqui vs Union Of India And 2 Others on 14 August, 2020
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 3 Case :- MATTERS UNDER ARTICLE 227 No. - 1407 of 2020 Petitioner :- Mahmood Ahmad Siddiqui Respondent :- Union Of India and 2 others Counsel for Petitioner :- Mohd. Abrar Khan Counsel for Respondent :- Rajnish Kumar Rai,Pranjal Mehrotra Hon'ble Ajay Bhanot,J.
1. Heard Sri Mohd. Waseem Khan, learned counsel holding brief of Sri Mohd. Abrar Khan, learned counsel for the petitioner, Sri Rajnish Kumar Rai, learned counsel for the respondent No.1 and Sri Anjani Kumar Misra, learned counsel holding brief of Sri Pranjal Mehrotra, learned counsel for the respondent No.2.
2. This petition has been filed with the following prayer:
"To direct the District Judge, Fatehpur (respondent No.3) to decide the application under Section 34(2) of the Arbitration and Conciliation Act, 1996 registered as Misc. Case No.15/70 of 2014 (Mohmood Ahmad Siddiqui and another Vs. Chief Project Manager and others), expeditiously within a specified time as this Court may fix."
3. Proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 were taken out by the petitioner in the year 2014 and registered as Misc. Case No.15/70 of 2014 (Mahmood Ahmad Siddiqui and another Vs. Chief Project Manager and others) before the learned court below/learned District Judge, Fatehpur.
4. The matter was placed before the learned Presiding Officer for the first time on 30.10.2014. The respondents were duly served notices of the proceedings. The respondents were appearing before the learned trial court. The matter has been pending for almost six years in the trial court. Various reasons for this delay are discernible from a perusal of the order-sheet. There was unjustifiable delay in service of the notice upon the respondents. The matter was adjourned on several occasions for no good reasons. The learned Presiding Officer could not hold the court on a number of dates due to various reasons like being on leave or training. The order-sheet is not extracted in detail since the matter is being pending for almost six years, and timelines prescribed by the statute of deciding the application within a period one year has long been breached. A perusal of the order-sheet discloses that the no effective hearing has taken place over the past six years. The matter thus remains pending. This necessitated the institution of the petition under Article 227 of the Constitution of India.
5. The constitutional courts are cognizant of the problem of delays in our judicial system. They have consistently attempted to purge the legal system of this menace. Various judgments have identified some of the causes of delays, & appropriate judicial directions have been issued to address the problem.
6. The following question was posed for determination before the Hon'ble Supreme Court in M/s Shiv Cotex Versus Tirgum Auto Plast P. Ltd. and others, reported at 2011 (89) ALR 232 :
"14.....Is the court obliged to give adjournment after adjournment merely because the stakes are high in the dispute? Should the court be silent spectator and leave control of the case to a party to the case who has decided not to take the case forward?"
7. Thereafter, the Hon'ble Supreme Court while emphasizing the imperative of expeditious disposal of suits to preserve the faith in the judicial system held thus:
"15...It is sad, but true, that the litigants seek - and the courts grant - adjournments at the drop of the hat. In the cases where the judges are little pro-active and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. The case in hand is a case of such misplaced sympathy. It is high time that courts become sensitive to delays in justice delivery system and realize that adjournments do dent the efficacy of judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The courts, particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit."
16....No litigant has a right to abuse the procedure provided in CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system."
17....."A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit -- whether the plaintiff or the defendant -- must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril."
8. Interminable delays caused by unnecessary adjournments sought for and granted to parties in a routine manner, and the collective responsibility of all the stake holders in the judicial system arose for determination before the Hon'ble Supreme Court in Noor Mohammed Vs. Jethanand and another, reported at (2013) 5 SCC 202.
9. Dispensing justice is the fundamental raison d'etre of the judicial system. Timely delivery of justice is indispensable to retaining the faith of the common man in the justice dispensation system.
10. Reiterating the importance of timely delivery of justice, and after setting its face against indifference of the judicial system to the plight of the litigants, the Hon'ble Supreme Court in Noor Mohammed (supra) defined the problem and issued directions for its resolution :
"27. The anguish expressed in the past and the role ascribed to the Judges, lawyers and the litigants is a matter of perpetual concern and the same has to be reflected upon every moment. An attitude of indifference can neither be appreciated nor tolerated. Therefore, the serviceability of the institution gains significance. That is the command of the Majesty of Law and none should make any maladroit effort to create a concavity in the same. Procrastination, whether at the individual or institutional level, is a systemic disorder. Its corrosive effect and impact is like a disorderly state of the physical frame of a man suffering from an incurable and fast progressive malignancy. Delay either by the functionaries of the court or the members of the Bar significantly exhibits indolence and one can aphoristically say, borrowing a line from Southwell "Creeping snails have the weakest force". Slightly more than five decades back, talking about the responsibility of the lawyers, Nizer Louis[16] had put thus: -
"I consider it a lawyer's task to bring calm and confidence to the distressed client. Almost everyone who comes to a law office is emotionally affected by a problem. It is only a matter of degree and of the client's inner resources to withstand the pressure."
A few lines from illustrious Frankfurter is fruitful to recapitulate:
"I think a person who throughout his life is nothing but a practicing lawyer fulfils a very great and essential function in the life of society. Think of the responsibilities on the one hand and the satisfaction on the other, to be a lawyer in the true sense."
28. In a democratic set up, intrinsic and embedded faith in the adjudicatory system is of seminal and pivotal concern. Delay gradually declines the citizenry faith in the system. It is the faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effect-potentiality to bring in a state of cataclysm where justice may become a casuality. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice dispensation system cannot be allowed to remotely conceive of a casual approach.
33. In the case at hand, as we perceive, the learned counsel sought adjournment after adjournment in a nonchalant manner and the same were granted in a routine fashion. It is the duty of the counsel as the officer of the court to assist the court in a properly prepared manner and not to seek unnecessary adjournments. Getting an adjournment is neither an art nor science. It has never been appreciated by the courts. All who are involved in the justice dispensation system, which includes the Judges, the lawyers, the judicial officers who work in courts, the law officers of the State, the Registry and the litigants, have to show dedicated diligence so that a controversy is put to rest. Shifting the blame is not the cure. Acceptance of responsibility and dealing with it like a captain in the frontier is the necessity of the time. It is worthy to state that diligence brings satisfaction. There has to be strong resolve in the mind to carry out the responsibility with devotion. A time has come when all concerned are required to abandon idleness and arouse oneself and see to it that the syndrome of delay does not erode the concept of dispensation of expeditious justice which is the constitutional command. Sagacious acceptance of the deviation and necessitous steps taken for the redressal of the same would be a bright lamp which would gradually become a laser beam. This is the expectation of the collective, and the said expectation has to become a reality. Expectations are not to remain at the stage of hope. They have to be metamorphosed to actuality. Long back, Francis Bacon, in his aphoristic style, had said, "Hope is good breakfast, but it is bad supper". We say no more on this score."
11. In Gayathri Vs. M.Girish, reported at (2016) 14 SCC 142, the Hon'ble Supreme Court exhorted the trial courts to address themselves to the malady of long delays in our judicial system:
"9. In the case at hand, as we have stated hereinbefore, the examination-in-chief continued for long and the matter was adjourned seven times. The Defendant sought adjournment after adjournment for cross-examination on some pretext or the other which are really not entertainable in law. But the trial Court eventually granted permission subject to payment of costs. Regardless of the allowance extended, the Defendant stood embedded on his adamantine platform and prayed for adjournment as if it was his right to seek adjournment on any ground whatsoever and on any circumstance. The non-concern of the Defendant-Petitioner shown towards the proceedings of the Court is absolutely manifest. The disregard shown to the Plaintiff's age is also visible from the marathon of interlocutory applications filed. A counsel appearing for a litigant has to have institutional responsibility. The Code of Civil Procedure so command. Applications are not to be filed on the grounds which we have referred to hereinabove and that too in such a brazen and obtrusive manner. It is wholly reprehensible. The law does not countenance it and, if we permit ourselves to say so, the professional ethics decries such practice. It is because such acts are against the majesty of law.
12. In the case at hand, it can indubitably be stated that the Defendant-Petitioner has acted in a manner to cause colossal insult to justice and to the concept of speedy disposal of civil litigation. We are constrained to say the virus of seeking adjournment has to be controlled. The saying of Gita "Awake! Arise! Oh Partha" is apt here to be stated for guidance of trial courts."
12. The foremost goal set out in the Preamble of the Constitution, is to secure to all citizens: Justice, social, economic and political.
Justice to be meaningful has to be delivered in a relevant time frame. Delay invariably defeats justice. Indefinite delays are the bane of our judicial system. Interminable legal proceedings reflect the apathy of an impersonal system to the plight of helpless litigants. So long as timely justice is denied, so long the constitutional promise of justice will not be redeemed, and the constitutional mandate of the judicial system will not be implemented.
13. The constitutional courts are seized with, and the legislatures have taken cognizance of the malaise of delays in the judicial process. Delays in the judicial process have earned the displeasure of constitutional courts, and have evoked the concern of the legislatures. Law will not countenance delays in the judicial process. This is evident from the imperative directions issued by the constitutional courts to purge the judicial system of delays. This will also be apparent from the timelines set by the legislature to cure the mischief of delays in the judicial process. The judicial system will have to evolve an ethos to be alert to, and endeavour to respect timelines created by the legislature.
14. The impact of globalisation was acutely felt in the field of law. India's unwavering commitment to its international obligations contained in the UNCITRAL Model on International Commercial Arbitration, was manifested in the promulgation of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'The Act of 1996'). India's international obligations to UNCITRAL, are implemented by the most fundamental instruments of national sovereignty, namely, the legislatures and the courts. The Arbitration and Conciliation Act, 1996 has to be interpreted and implemented by the courts in a manner which is in accord with the intendment of the Indian Parliament, and consistent with the international obligations of India to the UNCITRAL Model.
15. The UNCITRAL Model and the Arbitration and Conciliation Act, 1996, reflect an evolving trend in international jurisprudence. Together both instruments reflect a global consensus of judicial values, and a unification of the system of international jurisprudence in the field of arbitration. The courts in India implement the Arbitration and Conciliation Act, 1996, as instruments of national sovereignty, and also members of the international comity of courts.
16. Meeting the international obligations of India to the UNCITRAL Model was the avowed legislative intent of the Arbitration and Conciliation Act, 1996. Expeditious disposal of proceedings under the Arbitration and Conciliation Act, 1996 is the congruent objective of the twin instruments of international law and the domestic law.
17. Section 34(5) and (6) of the Act, 1996 are relevant to the instant controversy and the provisions are extracted hereunder:
"34. Application for setting aside arbitral award.--(1)-(4) * * * (5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.
(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party."
18. Delay in disposal of the proceedings under the Act of 1996, topped the concerns and lay at the heart of 246th Law Commission Report, when it introduced the said provisions. The relevant extracts of the 246th Law Commissioner Report are set out hereunder:
"3. The Arbitration and Conciliation Act, 1996 (hereinafter "the Act") is based on the UNCITRAL Model Law on International Commercial Arbitration, 1985 and the UNCITRAL Conciliation Rules, 1980. The Act has now been in force for almost two decades, and in this period of time, although arbitration has fast emerged as a frequently chosen alternative to litigation, it has come to be afflicted with various problems including those of high costs and delays, making it no better than either the earlier regime which it was intended to replace; or to litigation, to which it intends to provide an alternative. Delays are inherent in the arbitration process, and costs of arbitration can be tremendous. Even though courts play a pivotal role in giving finality to certain issues which arise before, after and even during an arbitration, there exists a serious threat of arbitration related litigation getting caught up in the huge list of pending cases before the courts. After the award, a challenge under section 34 makes the award inexecutable and such petitions remain pending for several years. The object of quick alternative disputes resolution frequently stands frustrated.
4. There is, therefore, an urgent need to revise certain provisions of the Act to deal with these problems that frequently arise in the arbitral process. The purpose of this Chapter is to lay down the foundation for the changes suggested in the report of the Commission. The suggested amendments address a variety of issues that plague the present regime of arbitration in India and, therefore, before setting out the amendments, it would be useful to identify the problems that the suggested amendments are intended to remedy and the context in which the said problems arise and hence the context in which their solutions must be seen.
* * *
25. Similarly, the Commission has found that challenges to arbitration awards under sections 34 and 48are similarly kept pending for many years. In this context, the Commission proposes the addition of sections 34(5) and 48(4) which would require that an application under those sections shall be disposed of expeditiously and in any event within a period of one year from the date of service of notice. In the case of applications under section 48 of the Act, the Commission has further provided a time limit under section 48(3), which mirrors the time limits set out in section 34(3), and is aimed at ensuring that parties take their remedies under this section seriously and approach a judicial forum expeditiously, and not by way of an afterthought ............"
19. The aforesaid provisions fell for consideration before the Hon'ble Supreme Court in State of Bihar and others Vs. Bihar Rajya Bhumi Vikas Bank Samiti, reported at (2018) 9 SCC 472. The Hon'ble Supreme Court held Section 34(5) and (6) of the Act, 1996 to be directory in nature on the foot of the following reasons:
"22. However, according to Shri Tripathi, an application filed under Section 34 is a condition precedent, and if no prior notice is issued to the other party, without being accompanied by an affidavit by the applicant endorsing compliance with the said requirement, such application, being a non-starter, would have to be dismissed at the end of the 120 days' period mentioned in Section 34(3). Apart from what has been stated by us hereinabove, even otherwise, on a plain reading of Section 34, this does not follow. Section 34(1) reads as under:
"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 sub-section (2) and sub-section (3)." What is conspicuous by its absence is any reference to sub-section (5).
The only requirement in Section 34(1) is that an application for setting aside an award be in accordance with sub-sections (2) and (3). This, again, is an important pointer to the fact that even legislatively, sub- section (5) is not a condition precedent, but a procedural provision which seeks to reduce the delay in deciding applications under Section 34. One other interesting thing needs to the noted - the same Amendment Act brought in a new Section 29A. This provision states as follows:
"29A. Time limit for arbitral award.-- (1) The award shall be made within a period of twelve months from the date the arbitral tribunal enters upon the reference. Explanation.-- For the purpose of this sub-section, an arbitral tribunal shall be deemed to have entered upon the reference on the date on which the arbitrator or all the arbitrators, as the case may be, have received notice, in writing, of their appointment.
(2) If the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree.
(3) The parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months.
(4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period: Provided that while extending the period under this sub- section, if the court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent for each month of such delay."
23. It will be seen from this provision that, unlike Section 34(5) and (6), if an Award is made beyond the stipulated or extended period contained in the Section, the consequence of the mandate of the Arbitrator being terminated is expressly provided. This provision is in stark contrast to Section 34(5)and (6) where, as has been stated hereinabove, if the period for deciding the application under Section 34 has elapsed, no consequence is provided. This is one more indicator that the same Amendment Act, when it provided time periods in different situations, did so intending different consequences.
24. Shri Tripathi then argued that Section 34(5) is independent of Section 34(6) and is a mandatory requirement of law by itself. There are two answers to this. The first is that sub-section (6) refers to the date on which the notice referred to in sub-section (5) is served upon the other party. This is for the reason that an anterior date to that of filing the application is to be the starting point of the period of one year referred to in Section 34(6). The express language of Section 34(6), therefore, militates against this submission of Shri Tripathi. Secondly, even if sub- section (5) be construed to be a provision independent of sub-section (6), the same consequence in law is the result - namely, that there is no consequence provided if such prior notice is not issued. This submission must therefore fail.
25. We come now to some of the High Court judgments. The High Courts of Patna,2 Kerala,3 Himachal Pradesh,4 Delhi,5 and Gauhati6 have all taken the view that Section 34(5) is mandatory in nature. What is strongly relied upon is the object sought to be achieved by the provision together with the mandatory nature of the language used in Section 34(5). Equally, analogies with Section 80, CPC have been drawn to reach the same result. On the other hand, in Global Aviation Services Private Limited v. Airport Authorities of India,7 the Bombay High Court, in answering question 4 posed by it, held, following some of our judgments, that the provision is directory, largely because no consequence has been provided for breach of the time limit specified. When faced with the argument that the object of the provision would be rendered otiose if it were to be construed as directory, the learned Single Judge of the Bombay High Court held as under: (SCC OnLine Bom para 133) "133. Insofar as the submission of the learned counsel for the respondent that if section 34(5) is considered as directory, the entire purpose of the amendments would be rendered otiose is concerned, in my view, there is no merit in this submission made by the learned counsel for the respondent. Since there is no consequence provided in the said provision in case of non-compliance thereof, the said provision cannot be considered as mandatory. The purpose of avoiding any delay in proceeding with the matter expeditiously is already served by insertion of appropriate rule in Bombay High Court (Original Side) Rules. The Court can always direct the petitioner to issue notice along with papers and proceedings upon other party before the matter is heard by the Court for admission as well as for final hearing. The vested rights of a party to challenge an award under section 34 cannot be taken away for non-compliance of issuance of prior notice before filing of the arbitration petition."
The aforesaid judgment has been followed by recent judgments of the High Courts of Bombay8 and Calcutta.
26. We are of the opinion that the view propounded by the High Courts of Bombay and Calcutta represents the correct state of the law. However, we may add that it shall be the endeavour of every Court in which a Section 34 application is filed, to stick to the time limit of one year from the date of service of notice to the opposite party by the applicant, or by the Court, as the case may be. In case the Court issues notice after the period mentioned in Section 34(3) has elapsed, every Court shall endeavour to dispose of the Section 34 application within a period of one year from the date of filing of the said application, similar to what has been provided in Section 14 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. This will give effect to the object sought to be achieved by adding Section 13(6) by the 2015 Amendment Act.
27. We may also add that in cases covered by Section 10 read with Section 14 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, the Commercial Appellate Division shall endeavour to dispose of appeals filed before it within six months, as stipulated. Appeals which are not so covered will also be disposed of as expeditiously as possible, preferably within one year from the date on which the appeal is filed. As the present appeal has succeeded on Section 34(5) being held to be directory, we have not found it necessary to decide Shri Rai's alternative plea of maintainability of the Letters Patent Appeal before the Division Bench."
20. I had the occasion to consider the nature of the legislative mandate to the courts, where directory provisions in a statute require the courts to render a final decision in a specified time frame in Tribhuwan Prasad Vs. Uttar Pradesh Sarkar and others, reported at 2018 (9) ADJ 466. In Tribhuwan Prasad (supra) the time frame provided in the statute for deciding the appeal was two months.
21. In Tribhuwan Prasad (supra) it was found that the provision containing a timeframe to decide the appeal was directory, and then the consequences of the said holding were construed on the foot of good authority. The directory nature of the provision may not require strict adherence but insists on substantial compliance. Most pertinently it does not permit indefinite enlargement of the time fixed by the statute:
"21. Statutes fixing time-lines to accomplish an action, as discussed above, were held to be directory in nature. The legislative intent was sought to be defeated by a highly delayed compliance on the pretext of the provision being directory in nature. The action of the authorities was invalidated and such interpretation was negatived by the Hon'ble Supreme Court. Inordinate delay does not satisfy the requirement of substantial compliance of a directory provision. The Hon'ble Supreme Court in the case of State of Haryana Vs. P.C. Wadhwa, IPS, Inspector General of Police and another, reported at (1987) 2 SCC 602, while laying down the law, dispelled all such doubts. The relevant parts of the judgement are being extracted for ease of reference:
"14. The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performance, conduct or character, as the case may. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case, it was communicated to the respondent after twenty seven months. It is true that the provisions of Rules 6, 6A and 7 are directory and not mandatory, but that does not mean that the directory provisions need not be complied with even substantially. Such provisions may not be complied with strictly, and substantial compliance will be sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 6, 6A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty seven months, simply because these Rules are directory, without serving any purpose consistent with the spirit and objectives of these Rules. We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent."
22. Thereafter, the duties of the court and the manner of implementation of the law were laid down :
"23. In case the appeal is decided within two months, the letter and spirit of the statute is implemented. However, mere failure to decide the appeal within two months does not violate the statutory mandate. In the latter case, the statutory obligation will be defined by the quality of the efforts made to decide the appeal with promptitude and dispatch. The obligation will be met if the appeal is decided within a reasonable time, after the expiry of two months from its institution.
24. Statutes of limitation are statutes of repose. Statutes with time lines for decision making are statutes of endeavour. Statutory duty is discharged not only when the act is done but also when effort is made. However, the leeway to the authority is not unlimited and the time to accomplish the act is not indefinite. The statutory duty of the appellate authority, in the event the appeal is not decided within two months is to be seen.
25. The appellate authority shall have discharged its statutory duties initially, if it makes efforts commensurate to decide the appeal expeditiously, and finally when it enters a judgement, in a reasonable time after the expiry of two months. In such circumstances, the appellate authority can implement the law, by making honest endeavours and serious efforts to decide the appeal with dispatch and expedition. This is the statutory duty of the appellate authority. While the statutory duty of the appellate authority is to make earnest efforts to decide expeditiously, the proof of its performance is in the order-sheet of the court. The order-sheet of the appellate court is the most reliable evidence of the sincerity or earnestness of the efforts made by the appellate authority. The order-sheet of the appellate court is true testimony to the accomplishment of the statutory duty or the failure of the authority to perform its statutory duty. In the latter case the authority is liable to be mandamused."
23. A composite reading of Section 34 (5) and (6) of the Arbitration and Conciliation Act, 1996, the law laid by the Hon'ble Supreme Court in State of Bihar and others (supra) and this Court in Tribhuwan Prasad (supra) yields these results. Section 34(5) and (6) of the Arbitration and Conciliation Act, 1996 being directory in nature, prevent the courts from being rushed into decisions by breaching fundamental norms of fairness and justice. The timeline set by the statute, cannot stampede the courts into passing orders which cause miscarriage of justice. However, the courts cannot extend the statutory time frame indefinitely or unreasonably. Neither can the courts be purblind to the timeframe provided in the statute on the pretext that provision is directory. Substantial compliance of the said provisions is sufficient to satisfy the legislative mandate. What substantial compliance entails in regard to these provisions needs to be understood clearly to enable the courts to implement the law faithfully. The duties of the court while deciding an application under Section 34 of the Arbitration and Conciliation Act, 1996 are distilled hereinunder.
24. The courts always have to be alert to the statutory time period of one year to decide the application, and make sincere efforts to adhere to the stipulated time line. In case the application is not decided within the statutory time limit of one year, the court should make all out endeavours to decide it within a reasonable time frame thereafter. At all times, the mandate of law requires the court to proceed with full diligence, and make earnest endeavours to decide the application under Section 34 of the Arbitration and Conciliation Act, 1996, within the time prescribed by the statute or in proximity to it. An unreasonable delay in deciding the matter represents a failure to implement the law. If serious efforts to decide matter within the statutory time frame is the requirement of the law, the order-sheet of the court is the most reliable evidence of the implementation of the law.
25. From the facts of the case prised out at the very inception, and the law discussed in the preceding paragraphs these facts are established. The proceedings under Section 34 of the Arbitration and Conciliation Act, 1996, registered as Misc. Case No.15/70 of 2014 (Mahmood Ahmad Siddiqui and another Vs. Chief Project Manager and others), could not be concluded within the prescribed statutory time limit, or in a time frame proximate to it. No end to the proceedings is in sight. And if the order-sheet of the court below is a guide, the proceedings could well linger indefinitely. The delay in deciding the case is unreasonable and unacceptable. Long identified and familiar reasons have caused the delay in this case. Absence of the presiding officer, repeated adjournments of counsels, leisurely pace of the trial which is oblivious to the statutory time limit, have prevented the proceedings from being concluded by a final judgment.
26. The compliance of directions of the Hon'ble Supreme Court and adherence to the law laid down by this Court in various authorities discussed earlier is not in evidence. The legislative mandate of Section 34 (5) and (6) of the Arbitration and Conciliation Act, 1996 has not been implemented. The stakeholders have shown apathy towards the litigant, and indifference to the noble charter of the legal profession. Honest endeavours and earnest efforts to conclude the proceedings with diligence and dispatch are not disclosed from the order-sheet. The order-sheet of the case is equally a reflection and an indictment of the judicial process. The court has ample powers to ensure that the process of law is not stalled by the dilatory tactics of any party. The courts are not helpless and cannot be seen to be helpless.
27. The rule of law cannot be flouted or permitted to fail. It is the obligation of this Court to ensure that the rule of law is upheld under all circumstances.
28. In light of these facts and the authorities at hand, I am of the opinion that this is a fit case to exercise the supervisory jurisdiction under Article 227 of the Constitution of India by issuing strict directions to decide the matter finally within a stipulated period of time.
29. The supervening event of the COVID 19 pandemic, and its impact on the judicial process has to be noticed before issuing final directions. It is true that COVID 19 pandemic has disrupted the regular functioning of the courts. Admittedly, certain latitude has to be given to the courts and the counsels in view of the prevalence of the COVID 19 pandemic.
30. But it is equally true that compliance of law laid down by the Hon'ble Supreme Court and this Court cannot be neglected on the pretext of the pandemic. The law cannot be held in suspended animation for the same reason.
31. If the rule of constitutional order is to exist at all times, the rule of law has to prevail under all circumstances. Laws cannot stand still and courts cannot fall silent, even in the face of mortal peril to humanity. Laws will evolve and the courts will adapt, but their existence is constant and their reckoning is inevitable.
32. The courts in the State have adapted their functioning to the new realities of the day. Detailed guidelines have been issued by the High Court on the administrative side, regarding functioning of the courts in the district judgeships of the State of Uttar Pradesh during the COVID 19 pandemic. The proceedings of this case shall be conducted in adherence to the said guidelines, and this case shall be treated as "most urgent" at all times.
33. With consent of learned counsel for the parties, the following measures shall facilitate the learned court below/learned District Judge, Fatehpur, to dispose of the said proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 in the time stipulated in the succeeding paragraphs:
(I) The learned court below/learned District Judge, Fatehpur, is directed to decide the Misc. Case No.15/70 of 2014 (Mahmood Ahmad Siddiqui and another Vs. Chief Project Manager and others), within a period of six months from the date of receipt of a certified copy of this order.
(II) The learned court below/learned District Judge, Fatehpur, shall not grant any unnecessary adjournment to the parties.
(III) In case any adjournment is granted in the paramount interest of justice, the learned court below/learned District Judge, Fatehpur, shall record the reasons for adjournment and impose costs not below Rs.10,000/- for each adjournment upon the party seeking such adjournment.
(IV) In case the counsels abstain from work on account of strike calls, the learned court below/learned District Judge, Fatehpur, shall proceed in the absence of such counsels and pass appropriate orders. The parties shall be permitted to appear in person if they so desire.
(V) In case the counsel for any party does not appear before the learned court below/learned District Judge, Fatehpur, on any date on account of strike of advocates, the learned court below/learned District Judge, Fatehpur, shall not permit such counsel (of either party) to appear in this case on all future dates.
(VI). In this case, if the functioning of the court is brought to a stand still because of strike call, the learned court below/learned District Judge, Fatehpur, shall take out appropriate proceedings in law against the erring counsels for flouting the directions of the Hon'ble Supreme Court in the cases of Ex-Capt. Harish Uppal Vs Union of India and another reported at (2003) 2 SCC 45 and Krishnakant Tamrakar Vs State of Madhya Pradesh reported at AIR 2018 SC 3635.
(VII) The learned court below/learned District Judge, Fatehpur shall fix at least two dates every week in the matter. If required, the learned court below/learned District Judge, Fatehpur shall proceed with the matter on a day to day basis, and even in the absence of counsels, to ensure that the above stipulated time period of six months for concluding the proceedings is strictly adhered to.
(VIII) If the learned Presiding Officer is not available for any reason, the matter may be transferred to another court, which is available, if required in the interest of justice and permissible by law.
34. This order shall be held in abeyance in case the court is shut down due to any emergency created by COVID-19 pandemic. However, the order shall become operative immediately after the reopening of the court. The time-line in this order shall be adjusted accordingly by the learned Presiding Officer.
35. The petition is finally disposed of.
Order Date :- 14.08.2020 Ashish Tripathi