Punjab-Haryana High Court
Balwant Singh Guraya vs Haryana Urban Development Authority ... on 10 December, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
Civil Revision No.5918 of 2003
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.5918 of 2003 (O&M)
Reserved on 10.10.2013
Date of decision: 10.12.2013
Balwant Singh Guraya
....Petitioner
Versus
Haryana Urban Development Authority and others
....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
Argued by: -
Mr. Sanjeev Sharma, Advocate, for the petitioner.
Mr. P.S. Sullar, Advocate, for the respondents.
*****
PARAMJEET SINGH, J.
Instant revision petition has been filed for quashing the order dated 13.03.2003 passed by learned Additional District Judge, Panchkula, whereby the application for condonation of delay filed along with objection petition by the petitioner against the arbitration award dated 27.07.2000 passed by the Chief Engineer, HUDA, has been dismissed and consequently the objections have also been dismissed.
Brief facts of the case are that petitioner, through his duly constituted power of attorney Sh. Raj Kumar Sharma, resident of H. No.3451, Sector 46-C, Chandigarh, being NRI and allottee of industrial Singh Ravinder 2013.12.21 09:49 I attest to the accuracy and integrity of this document Chandigarh -2- Civil Revision No.5918 of 2003 plot No.36 in the Industrial Estate, Bahadurgarh, made an application on 15.01.1999 to Chief Administrator, HUDA, stating as under: -
"1. That Shri Balwant Singh Guraya, being an NRI was allotted an Industrial plot No.36, measuring 840 Sq. M. in Industrial Estate Bhadurgarh at the rate of Rs.400 per Sq. m. In this connection, initially a provisional allotment letter dated 24.4.1996 and then regular allotment letter dated 15.5.1996 were issued by HUDA.
2. That thereafter HUDA issued another letter on 18.2.1997 therewith enhancing the price of the said plot from Rs.400/- per sq. mtr. to Rs.1000/- per sq. mtr. and that too without assigning any reason.
3. That aggrieved from the increase in the price of the said plot, I filed a CWP No.4064/1997 in Punjab & Haryana High Court and the same was disposed of vide order dated 11.9.1997, the operating paragraph of which is reproduced below: -
"During the course of hearing, Sh. H.S. Hooda conceded that the details of various factors which have contributed to the revision of cost, have not been disclosed in the written statement. He, however, submitted that the respondents are prepared to furnish all the details to the petitioner and if the petitioner feels aggrieved by the enhancement of the cost, then he can avail the remedy by way of arbitration in terms of clause-22 of the allotment letter."
In view of the above, the writ petition was disposed off with the following directions: -
"(i) Within one month from today, the Haryana Urban Development Authority and its officers shall supply the Singh Ravinder 2013.12.21 09:49 I attest to the accuracy and integrity of this document Chandigarh -3- Civil Revision No.5918 of 2003 detailed calculation sheet showing the various factors responsible for the enhancement of the cost of the plot allotted to the petitioner.
(ii) Within one month thereafter, the petitioner shall be free to apply for arbitration in terms of clause 22 of the allotment letter. He shall be free to challenge the contents of the calculation sheet as well as the ultimate price fixed by the respondents.
(iii) The proceedings of arbitration shall be finalised within a period of six months.
(iv) The amount deposited by the petitioner in compliance of the order dated 20.3.1997 shall be retained by HUDA in a separate account and the same shall be subject to the award to be made by the Arbitrator."
4. That having not received the detailed calculation sheet showing the various factors responsible for the increase in the price of the plot from HUDA as per the aforesaid directions of the High Court, I filed COCP No.1284/1997, and the same was disposed of on the date when HUDA supplied some documents, it was found that these were only the minutes of various meeting and none of these was containing/showing the detailed calculation or justification for the increase in the price of the said plot, thus, were not conforming to what the Hon'ble High Court directed in order dated 11.9.1997 and under the circumstances a review petition No.206/98 was also filed.
5. That HUDA has so far not supplied me any detailed calculation sheet showing the various factors for increase in the price of the said plot, following the directions dated 11.9.1997 of Hon'ble High Court, thus, debarring me from further course of action required to Singh Ravinder 2013.12.21 09:49 I attest to the accuracy and integrity of this document Chandigarh -4- Civil Revision No.5918 of 2003 be taken in furtherance to the directions.
6. That the price of the said plot has been increased without any reason is clear and confirmed from the very statement of the counsel for HUDA in the court and from the fact that I have not been supplied with any detailed calculation sheet despite the directions to this effect by the Hon'ble High Court. Hence, the dispute arising out of the detailed calculation sheet showing various factors for the increase in the price of the said plot, needs reference for arbitration as per the order of Hon'ble Court.
In view of the foregoing, it is, therefore, respectfully prayed that: -
(i) the whole matter be referred for arbitration and for which an Arbitration be appointed; and
(ii) a detailed calculation sheet showing the various factors for increase in the price of the said plot be supplied to me so as to enable me to contest the case before the Arbitrator accordingly."
In pursuance of the application, Chief Adminitrator, HUDA, appointed Chief Engineer, HUDA, as Arbitrator vide his order No.875 dated 16.2.1999 and the relevant documents, including the order of this Court, were supplied. Detailed reply was filed by the Chief Administrator, HUDA, but it did not contain the detailed calculation sheet for the increase in price from ` 400/- to ` 1,000/- per sq. mtr. Vide order dated 27.08.1999, HUDA was asked to file detailed calculations. It was alleged in the reply that 64 plots were reserved for NRIs in Bahadurgarh, which included plot No.36 under category of 1000 Singh Ravinder 2013.12.21 09:49 I attest to the accuracy and integrity of this document Chandigarh -5- Civil Revision No.5918 of 2003 sq. mtr plots.
Minutes of the meeting regarding increase in price of plots with regard to Bahadurgarh read as under: -
"The rate of industrial plot in Urban Estate Bhadurgarh was Rs.400 per sq. mtr. which was valid upto 31.3.1996. Keeping in view the good demand in this area it was recommended to increase the rate to Rs.1000/- per sq. mtr."
The Arbitrator passed the following award: -
"In view of the above facts, it is established that HUDA did not have any detailed calculation for increase in prices from Rs.400/- to Rs.1000/- except the market rates/trends. This plot was also not shown in the list of vacant plots for which the revision of rates were proposed by the Committee. Under the above circumstances, HUDA should have decided the rate first & then issued the Provisional Letter of allotment. Instead of HUDA had issued the Provisional letter of allotment and then got the rates revised and simultaneously a clause in the allotment letter was added saying that it is a tentative cost.
The revised rates were conveyed by the CA HUDA vide Memo No. A-NRI-97/2278 dated 28.1.1997 that the price of industrial plot is increased from Rs.400/- per sq. mtr. to Rs.1000/- per sq. mtr. after getting the same approved from the competent authority.
Based on the above facts, some increase in the price is definitely justified and chargeable, but to what extent, is to be decided? Since the committee was proposed to the authority for increase in the price did it only on the basis of market trends and no calculations have been made it indicates that the increase is arbitrary. It is also justified that the allottee Singh Ravinder 2013.12.21 09:49 I attest to the accuracy and integrity of this document Chandigarh -6- Civil Revision No.5918 of 2003 last pay the reasonable market price for the plot and the same has been decided by the competent authority as such in the opinion of the undersigned the rate of Rs.1000/- per sq. mtr. is justified and payable, and no relief is granted. In witness, I K.K. Bhugra do hereby affix my signatures on this day 27th July, 2000 and order that copy thereof be supplied to both the parties."
The award was challenged by filing objection petition under Section 34 and other provisions of the Arbitration Act, which has been dismissed vide impugned order dated 13.03.2003 on the ground of delay.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner vehemently contended that award was passed on 27.07.2000 and thereafter instead of filing objection petition under Section 34 of the Arbitration Act, civil writ petition was filed which was dismissed as withdrawn with liberty to seek remedy under Section 34 of the Arbitration Act on 23.11.2000. Certified copy of the order was applied on 07.12.2000 and the same was obtained on 10.01.2001. Objection petition was filed on 09.02.2001 i.e. within one month from the receipt of certified copy of the order. It was contended by the learned counsel that objection petition has been dismissed on hypertechnical and non-tenable grounds and the petitioner has been deprived of the only remedy available to him under the Arbitration Act. The delay is not extraordinary rather unintentional. Learned counsel submitted that petitioner had been pursuing his remedy Singh Ravinder 2013.12.21 09:49 I attest to the accuracy and integrity of this document Chandigarh -7- Civil Revision No.5918 of 2003 as per advice of the counsel in the wrong forum. Learned counsel for the petitioner contended that the provisions of the Limitation Act specifically Section 14 apply to proceedings under Section 34 of the Arbitration and Conciliation Act and relied upon the judgments of Hon'ble Supreme Court in M/s Consolidated Engg. Enterprises vs. Principal Secy. Irrigation Deptt. and others, 2008(2) R.C.R.(Civil) 897, Assam Urban Water Supply & Sew. Board vs. M/s Subash Projects & Marketing Ltd., 2012(2) R.C.R.(Civil) 490 and Coal India Limited & another vs. Ujjal Transport Agency & others, 2012(3) R.C.R.(Civil) 80 to contend that time taken diligently pursuing the remedy in wrong Court will be excluded and even otherwise the period of limitation of three months can be extended by 30 days. It was further argued that in spite of direction to supply calculation, no calculation has been submitted and award has been passed, which is per se illegal and not sustainable in law.
The contentions raised by learned counsel for the petitioner have been vehemently opposed by learned counsel for the respondents by contending that provisions of the Limitation Act do not apply and the Arbitrator has passed award correctly. At the most, objections can be filed within four months from the date of award.
I have considered the rival contentions of the learned counsel for the parties.
Admittedly, the award was passed on 27.07.2000. It is settled that objections under Section 34 of the Arbitration and Conciliation Act are to be filed within three months from the date of knowledge of award Singh Ravinder 2013.12.21 09:49 I attest to the accuracy and integrity of this document Chandigarh -8- Civil Revision No.5918 of 2003 but no date is forthcoming as to when the copy of award was supplied to the petitioner. Nevertheless, instead of filing objection under Section 34 of the Arbitration Act, petitioner filed civil writ petition, which was dismissed as withdrawn on 23.11.2000 and copy of the order was received on 10.01.2001. Petitioner filed objection petition on 09.02.2001. Although it is settled law that Section 5 of the Limitation Act is not applicable to proceedings under Section 34 of the Act in view of specific provision i.e. Section 34(3) of the Arbitration Act providing for condonation of delay but in view of above-cited authorities it is equally settled that provisions of Section 14 of the Limitation Act will be applicable for excluding the time of the proceedings bona fidely taken in a Court which had no jurisdiction. In M/s Consolidated Engg. Enterprises (supra) three Judges' Bench of the Hon'ble Supreme Court observed as under: -
"...........As the intention of the legislature in enacting sub- section (3) of Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another period of 30 days but not thereafter, this Court is of the opinion that the provisions of Section 5 of the Limitation Act would not be applicable because the applicability of Section 5 of the Limitation Act stands excluded because of the provisions of Section 29(2) of the Limitation Act.
11. However, merely because it is held that Section 5 of the Limitation Act is not applicable to an application filed under Section 34 of the Act for setting aside an award, one need not Singh Ravinder 2013.12.21 09:49 I attest to the accuracy and integrity of this document Chandigarh -9- Civil Revision No.5918 of 2003 conclude that provisions of Section 14 of the Limitation Act would also not be applicable to an application submitted under Section 34 of the Act of 1996."
x x x x x x x "13. At this stage it would be relevant to ascertain whether there is any express provision in the Act of 1996, which excludes the applicability of Section 14 of the Limitation Act. On review of the provisions of the Act of 1996 this Court finds that there is no provision in the said Act which excludes the applicability of the provisions of Section 14 of the Limitation Act to an application submitted under Section 34 of the said Act. On the contrary, this Court finds that Section 43 makes the provisions of the Limitation Act, 1963 applicable to arbitration proceedings. The proceedings under Section 34 are for the purpose of challenging the award whereas the proceeding referred to under Section 43 are the original proceedings which can be equated with a suit in a court. Hence, Section 43 incorporating the Limitation Act will apply to the proceedings in the arbitration as it applies to the proceedings of a suit in the court. Sub-section (4) of Section 43, inter alia, provides that where the court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the court shall be excluded in computing the time prescribed by the Limitation Act, 1963, for the commencement of the proceedings with respect to the dispute so submitted. If the period between the commencement of the arbitration proceedings till the award is set aside by the court, has to be excluded in computing the period of limitation provided for any proceedings with respect to the dispute, there is no good reason as to why it should not be held that the provisions of Section 14 of the Limitation Act would be applicable to an Singh Ravinder 2013.12.21 09:49 I attest to the accuracy and integrity of this document Chandigarh -10- Civil Revision No.5918 of 2003 application submitted under Section 34 of the Act of 1996 more particularly where no provision is to be found in the Act of 1996, which excludes the applicability of Section 14 of the Limitation Act, to an application made under Section 34 of the Act."
Although in the instant case the application was filed under Section 5 of the Limitation Act for condonation of delay but rights of the petitioner could not be defeated merely because application was filed under Section 5 of the Limitation Act and not under Section 14 of the Act. Filing an application under wrong provision does not vitiate the application. Reference in this regard may be made to decision of this Court in M/s Saini Construction Company vs. UOI, 2011(1) PLR 357 and decision of Hon'ble Supreme Court in Coal India Limited (supra).
Thus, considering the application under Section 14 excluding the time taken in prosecuting writ petition the objection application is well within time as certified copy of order passed in writ petition was obtained on 10.01.2001 and objections under Section 34 were preferred on 09.02.2001 i.e. within a month.
Keeping in view the above, and the fact that objection petition has been dismissed merely on technical grounds, revision petition is allowed. Impugned order dated 13.03.2003 passed by learned Additional District Judge, Panchkula, is set aside and the case is remanded to the Additional District Judge, Panchkula to consider objection application on merits and thereafter pass an appropriate order in accordance with law. Parties through their counsel are directed to Singh Ravinder 2013.12.21 09:49 I attest to the accuracy and integrity of this document Chandigarh -11- Civil Revision No.5918 of 2003 appear before the Additional District Judge, Pacnhkula, on 20.01.2014.
(Paramjeet Singh) Judge December 10, 2013 R.S. Singh Ravinder 2013.12.21 09:49 I attest to the accuracy and integrity of this document Chandigarh