Ram Bahadur Singh And Another vs Commisioner/ Arbitrator Kanpur ...
2018 Latest Caselaw 306 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 29
 

 
Case :- WRIT - C No. - 13095 of 2018
 

 
Petitioner :- Ram Bahadur Singh And Another
 
Respondent :- Commisioner / Arbitrator Kanpur Region And 04 Others
 
Counsel for Petitioner :- Adarsh Kumar
 
Counsel for Respondent :- C.S.C.,Pranjal Mehrotra
 

 
Hon'ble Govind Mathur,J.

Hon'ble Jayant Banerji,J.

(Per Hon'ble Jayant Banerji, J)

By means of this writ petition, the petitioners seek to challenge the order dated 12.12.2017, passed by the Arbitrator/Commissioner, Kanpur Region, Kanpur under Section 33 of the Arbitration and Conciliation Act, 19961.

Heard learned counsel for the petitioners, learned Standing Counsel for respondent nos. 1,2 and 5 and Sri Pranjal Mehrotra for respondent nos. 2 and 3.

It is contended on behalf of the petitioners that proceedings for acquisition on behalf of the Dedicated Freight Corridor Corporation of India2 was undertaken, in pursuance of which, certain plots of land of the petitioners were acquired and an award by the Arbitrator was passed on 27.3.2015. Thereafter, an application dated 10.9.2015 under Section 33 of the Act of 1996 was filed on behalf of the Corporation, in which it was stated that in pursuance of the order of the Tribunal dated 23.9.2014, the Sub-Divisional Magistrate, Sadar was directed to conduct the spot inspection and to submit a report before the Arbitrator, but since an erroneous report was submitted by the Sub Divisional Magistrate, it was not filed by the Corporation. However, the tenure holders filed the aforesaid report of Sub Divisional Magistrate along with their application dated 15.10.2014. In the reply filed by the Corporation, the Arbitrator was informed regarding erroneous report of the Sub Divisional Magistrate. It was stated that the award dated 27.3.2015 was passed without taking into account the objection of the Corporation and that the land in respect of plot No. 799, after re-demarcation was found to be in excess by only 1494 square meters and not 5061.2 square meters as stated in the award dated 27.3.2015. Stating that this was an computation error, the Corporation prayed for correction of the award dated 27.3.2015. This application of the Corporation was also accompanied by an application under Section 5 of the Limitation Act supported with an affidavit. Along with the application under Section 33 of the Act of 1996, the Corporation also filed the revised spot inspection report dated 9.4.2015.

In response to the aforesaid application, the petitioners filed their objection on 22.3.2017 stating that the application under Section 33 of Act of 1996 was barred by limitation and that an application under Section 34 of Act of 1996 has been filed before the Court of District Judge and as such, the Arbitrator has no jurisdiction to decide the application filed by the Corporation. However, by means of an amended award dated 12.12.2017, the Arbitrator proceeded to allow the application under Section 33 of Act of 1996 filed by the Corporation.

A counter affidavit has been filed today on behalf of respondent nos. 3 and 4 (The Corporation). In the counter affidavit, it has been stated that a false averment has been made in the writ petition in paragraph 6 that no reference under Section 34 of Act of 1996 has been filed by any of the parties before the District Judge. It is stated that a case numbered as Civil Application (Arbitration) Case No. 100/70/2015 has been filed by the petitioners which is still pending before the Court of District Judge, Kanpur Nagar. On account of a calculation mistake in the spot inspection report done on 29.9.2014, possession of 17761.2 square meters had been shown on Plot No. 799 as against the acquired area of 12700 square meters which is 5061.2 square meters more than the acquired area. Thereafter, a spot inspection was again done on 9.4.2015, in which it appeared that the affected area of plot No. 799 is 14194 square meters which is only 1494 square meters more than the acquired area. It has been stated that with regard to said extra area of 1494 square meters, the same had also been acquired and under an award dated 31.3.2016, the petitioners have already received compensation with regard to that extra area. In support of the amended award dated 12.12.2017 passed by the Arbitrator deciding the application under Section 33 of Act of 1996, it is contended by the learned counsel for the Corporation that under Section 20F(6) of the Railways Act, 1989, if the amount determined by the Competent Authority under sub-section (1) or as the case may be, sub-section (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.

It is stated that by the amended award dated 12.12.2017, the Arbitrator has only amended the affected area of the award dated 27.3.2015 and has not touched the compensation determined in the award dated 27.3.2015 and in the circumstances, it is apparent that the amendment done in the affected area will not damage any of the parties and as such, the writ petition deserves to be dismissed.

Section 33 of Act of 1996 is as follows:

Section 33 - Correction and interpretation of award; additional award. (1) Within thirty days from the receipt of the arbitral award, unless another period of time has been agreed upon by the parties

(a) a party, with notice to the other party, may request the arbitral tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature occurring in the award;

(b) if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.

(2) If the arbitral tribunal considers the request made under sub-section (1) to be justified, it shall make the correction or give the interpretation within thirty days from the receipt of the request and the interpretation shall form part of the arbitral award.

(3) The arbitral tribunal may correct any error of the type referred to in clause (a) of sub-section (1), on its own initiative, within thirty days from the date of the arbitral award.

(4) Unless otherwise agreed by the parties, a party with notice to the other party, may request, within thirty days from the receipt of the arbitral award, the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award.

(5) If the arbitral tribunal considers the request made under sub-section (4) to be justified, it shall make the additional arbitral award within sixty days from the receipt of such request.

(6) The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, give an interpretation or make an additional arbitral award under sub-section (2) or sub-section (5).

(7) Section 31 shall apply to a correction or interpretation of the arbitral award or to an additional arbitral award made under this section."

Thus, it is apparent that within thirty days from the receipt of the arbitral award, unless another period of time has been agreed upon by the parties, a party, with notice to the other party, may request the arbitral tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature occurring in the award. The arbitral tribunal under sub-section (6) of Section 33 may extend, if necessary, the period of time within which it shall make a correction.

It has been stated in the writ petition that the application under Section 33 of the Act of 1996 was filed before the Arbitrator on 10.9.2015 along with an affidavit/application under Section 5 of the Limitation Act. It is stated that no consent of the petitioners has been obtained and hence the benefit of Section 5 of the Limitation Act could not have been granted by the Arbitrator. Hence, the amending order dated 12.12.2017 is liable to be quashed.

From perusal of the record, it appears that the Arbitrator in his order dated 12.12.2017 though has observed the objection of the petitioners with regard to delay in filing the application under Section 33 of the Act of 1996 but has not considered the same and he has not adverted to the specific objection raised by the petitioners regarding filing of the application before the Court under Section 34 of the Act of 1996.

Once it was brought to the notice of the Arbitrator regarding filing of application under Section 34 of Act of 1996 by the petitioners by means of their application dated 22.3.2017, it was beyond the jurisdiction of Arbitrator to proceed to correct the award under Section 33 of Act of 1996. Post filing of the application under Section 34 by the petitioners before the District Judge, the Arbitrator became functus officio.

It would also be important to notice that at the time of passing of the award on 27.3.2015, no revised report pertaining to demarcation of plot No. 799 was available on record. The Arbitrator had proceeded to pass the award on the basis of the report of the Sub-Divisional Magistrate on record. Therefore, the application under Section 33 of the Act of 1996 could not be said to be one for correction of a "computation error". However, the report can very well be placed by the Corporation before the District Judge before whom the application under Section 34 of Act of 1996 is pending. The Court, if feels it fit, exercising power under sub-section (4) of Section 34 of Act of 1996, may 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.

In view of the aforesaid facts, the amending order of the Arbitrator dated 12.12.2017 passed in the application under Section 33 of Act of 1996 is set aside.

With the aforesaid observations, the writ petition stands allowed.

Order Date :- 02.05.2018

sfa/

(Jayant Banerji, J) (Govind Mathur, J)