Himachal Pradesh High Court
Nand Lal Alias Nand Lal Vardhan vs Land Acquisition Collector And Others on 18 April, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Arb. Case No. 44 of 2023
Decided on April 18, 2023
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Nand Lal alias Nand Lal Vardhan ...Petitioner
Versus
Land Acquisition Collector and others ...Respondents
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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For the petitioner Mr. Maan Singh, Advocate.
For the respondents Mr. K.D. Shreedhar, Senior Advocate
with Ms. Sneh Bhimta, Advocate
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Sandeep Sharma, J. (Oral)
By way of instant petition filed under S. 29-A(5) of the Arbitration and Conciliation Act, 1996 (hereinafter, 'Act'), prayer has been made on behalf of petitioner for extension of time, enabling the learned Arbitrator to conclude the arbitration proceedings and pass arbitral award.
2. Precisely, the facts of the case, as emerge from the record, are that vide Award No. 109, dated 18.1.2017, land of the petitioner comprised in Khasra No. 3914/2764/1 measuring 0-01-62 Hectares situate in Village Kashauri, Tehsil Bhunter, District Kullu, Himachal Pradesh came to be acquired for the construction of NH-21. Since the petitioner was not satisfied with the amount of compensation assessed by the Competent Authority-cum-Land Acquisition (CALA), he filed petition under S.3G(5) of National Highways Act, 1956 seeking 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 18/04/2023 20:41:27 :::CIS 2enhancement of compensation awarded vide aforesaid award before learned Arbitrator-cum-Divisional Commissioner, Mandi.
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3. Though pleadings in the case were completed on 7.8.2018, and matter was fixed for evidence thereafter, but the fact remains that till date, arbitral award has not been passed. Since, after amendment of the Section 29-A of the Act, it is mandatory for the arbitral tribunal to pass award within a period of 12 months from the date of completion of proceedings under sub-section 4 of Section 23 of the Act and arbitral tribunal has not been able to pass the award within the time stipulated herein above, petitioner being party to the arbitration proceedings has approached this court in the instant proceedings, praying therein for extension of time enabling the arbitral tribunal to pass an award.
4. Respondents Nos. 1 and 2 have filed reply to the petition in the court itself, wherein prayer made in the present petition has been opposed on the ground that no plausible ground has been raised for extension of time. Apart from above, it has been further averred in the reply that as per Section 29-A(3) of the Act, learned Arbitrator can extend time to a period not exceeding six months, meaning thereby, in any eventuality, award is to be passed within eighteen months from the date of completion of proceedings.
5. Mr. K.D. Shreedhar, Senior Advocate duly assisted by Ms. Shreya Chauhan, Advocate appearing for the respondents submits that since in the case at hand, pleadings were completed on 7.8.2018 before learned Arbitrator, he ought to have passed an award before August, ::: Downloaded on - 18/04/2023 20:41:27 :::CIS 3 2019 and now on account of delay, arbitral proceedings deserve to be closed.
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6. I have heard learned counsel for the parties and gone through the record.
7. At this stage, it would be relevant to take note of S.29 of the Act, which is reproduced as under:
"29-A. Time-limit for arbitral award.--
(1) The award in matters other than international commercial arbitration shall be made by the arbitral tribunal within a period of twelve months from the date of completion of pleadings under sub-section (4) of Section 23:
Provided that the award in the matter of international commercial arbitration may be made as expeditiously as possible and endeavour may be made to dispose of the matter within a period of twelve months from the date of completion of pleadings under sub-section (4) of Section 23.] (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 percent for each month of such delay:
[Provided further that where an application under sub-section (5) is pending, the mandate of the arbitrator shall continue till the disposal of the said application:
Provided also that the arbitrator shall be given an opportunity of being heard before the fees is reduced.] (5) The extension of period referred to in sub-section (4) may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the court.
(6) While extending the period referred to in sub-section (4), it shall be open to the court to substitute one or all of the arbitrators and if one or all of the arbitrators are substituted, the arbitral proceedings shall continue from the stage already reached and on the basis of the ::: Downloaded on - 18/04/2023 20:41:27 :::CIS 4 evidence and material already on record, and the arbitrator(s) appointed under this section shall be deemed to have received the said evidence and material.
(7) In the event of arbitrator(s) being appointed under this section, the .
arbitral tribunal thus reconstituted shall be deemed to be in continuation of the previously appointed arbitral tribunal.
(8) It shall be open to the court to impose actual or exemplary costs upon any of the parties under this section.
(9) An application filed under sub-section (5) shall be disposed of by the court as expeditiously as possible and endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party.
8. Having heard learned counsel for the appearing parties and perused material available on record, especially, sub-section (1) of S.29- A of the Act, reproduced above, this court finds that arbitral award is required to be passed within 12 months from the date of completion of proceedings. Sub-section (3) of S.29-A of the Act further provides that the parties with consent can extend the period for further period not exceeding six months, meaning thereby that the Arbitrator after having completed pleadings, can pass award within a period of 18 months. Sub-
section (4) of S.29-A provides that that if award is not made within period specified in sub-section (1) or extended period as per sub-section (3) of S.29-A, mandate of arbitrator shall terminate, unless court extends the period.
9. Since, in the case at hand, even extended time has expired, one of the parties to the arbitration proceedings i.e. petitioner has approached this court under S.29(A)(5) to extend the time, so that the arbitration proceedings are taken to its logical end. Sub-section (5) of S.29-A of the Act provides for remedy of filling application to the court ::: Downloaded on - 18/04/2023 20:41:27 :::CIS 5 for extension of time and in case, court is satisfied that sufficient cause has been shown for delay, it can extend the time.
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10. Though, in the case at hand, pleadings were completed on 7.8.2018, but since thereafter, there were restrictions on the movement of general public due to Covid-19 pandemic, learned Arbitrator could not proceed further with the matter. Restrictions imposed in the wake of Covid-19 pandemic remained in force for almost two years and during this period, no substantive work could be undertaken by the Arbitrator.
Apart from this, this court finds that cases of similar nature and of same village were tagged with reference petition No. 19 of 2018 titled Hem Raj v. LAA Pandoh, as a consequence of which, number of cases were required to be decided by the arbitrator.
11. Hon'ble Apex Court taking suo motu cognizance of lock down imposed nation-wide passed an order date 23.3.2020 in Suo Motu W.P. (Civil) No. 03/2020, thereby extending period of limitation provided under general and special laws.
12. For the reasons stated in the petition as well as discussion made herein above, coupled with specific provisions contained under S.29- A(4) and (5), there appears to be no impediment in accepting the prayer made in the petition.
13. Otherwise also, in case, mandate of learned Arbitrator is allowed to be terminated on account of his having failed to complete proceedings within time, great prejudice would be caused to the petitioner/proforma ::: Downloaded on - 18/04/2023 20:41:27 :::CIS 6 respondents, who had been fighting for his rightful claim for years together.
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14. Consequently, in view of above, present petition is allowed and further six months' time is granted to learned Arbitrator below to conclude the arbitration proceedings in Arb. Case No. 24 of 2018.
Learned counsel for the parties undertake to render proper assistance to the learned Arbitrator, enabling him to do the needful well within stipulated time. Learned counsel for the parties undertake to cause presence of their respective parties before learned Arbitrator on 17.5.2023, enabling him to proceed with the matter. Copy of instant order shall be placed before learned Arbitrator by petitioner.
Petition stands disposed of in the afore terms, alongwith all pending applications, if any.
A downloaded copy of this order shall suffice for the arbitrator below to do the needful in terms thereof.
(Sandeep Sharma) Judge April 18, 2023 (vikrant) ::: Downloaded on - 18/04/2023 20:41:27 :::CIS