Bombay High Court
National Highways Authority Of ... vs Ujwal Automotives Pvt Ltd And ... on 24 August, 2021
Bench: Mangesh S. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8273 OF 2021
Natiohal Highways Authority of India
Project Implementation Unit,
Nashik, Represented by its
Project Director 1st Floor
Kenstar Apartment B-Wing
Plot No.1 Pathardi Phata, Nashik .. PETITIONER
VERSUS
1] Ujwal Automotives Pvt.Ltd.
Through its Authorised Representative
R/o At Post Mohadi, Tq. and Dist.Dhule
2] The Additional Divisional Commissioner
and Arbitrator, Nashik ..RESPONDENTS
.....
Mr. D.S.Manorkar,Advocate for the petitioner
Mr. Amol S. Sawant, Advocate for respondent No. 1
Mr.K.B.Jadhavar,A.G.P. for respondent no.2.
.....
CORAM : MANGESH S. PATIL, J.
DATE : 24.08.2021
ORAL JUDGMENT :-
Heard. Rule. The Rule is made returnable forthwith. The learned
advocate Mr.Sawant waives service for the respondent no.1 and the learned
A.G.P. waives service for respondent no.2. With the consent of both the sides
the matter is heard finally at the stage of admission.
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2] The petitioner is the National Highway authority constituted under the
National Highways Act, 1956. It has challenged the arbitral award under
Section 34 of the Arbitration and Conciliation Act (hereinafter referred to as
the Arbitration Act) and the matter is pending before the Court at Dhule since
2013.
3] By filing application (Exh.19) the respondent no.1 relying upon the
provisions of the National Highways (Manner of Depositing the Amount by
the Central Government with the Competent authority for Acquisition of
Land) Rules 1998 and particularly Rule 2 (b) solicited a direction from the
Court directing the petitioner to deposit the amount of award. By the
impugned order the learned Judge allowed the application and directed the
petitioner to deposit the amount under the award in the Court within 8 days.
4] The learned advocate Mr.Manorkar for the petitioner would submit that
if there is no stay to the award, mere filing of the proceeding under Section 34
of the Arbitration Act would not operate as a stay and the respondent no.1 is
at liberty to get the award executed. Instead of doing that a shortcut is being
devised by referring to the Rules of 1998. He would submit that those Rules
have now been superseded by the Rules of 2019 and mere filing of a challenge
to the award is sufficient for the petitioner not to deposit the amount of the
award. Rules have come into force w.e.f. 18/1/2019. It is in view of such
changed scenario the petitioner is not under any statutory obligation to
deposit the amount of award.
5] The learned advocate Mr.Manorkar would also refer to a common order
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passed in Writ Petition No.3644/2021 and connected matters on 9/8/2021
clarifying that the claimants are entitled to enforce the award in similar set of
facts and circumstances. He would therefore submit that when the proceeding
under Section 34 of the Arbitration Act has been pending for years together,
when the petitioner has not solicited any order for grant of stay to the
operation of the award, there was no need for the learned Judge to be active
in directing the petitioner to deposit the amount.
6] The learned advocate Mr.Sawant would submit that though the
proceeding under Section 34 of the Arbitration Act has been filed way back in
the year 2013 at no point of time the petitioner has taken care to press for
stay to the execution. Faced with the situation, the respondent no.1 had no
other alternative but to seek enforcement of the Rules of 1998, which are in
tune with the statutory mandate of Sub Section 6 of Section 3H of the
National Highways Act,1956.
7] I have carefully considered the rival submissions. Admittedly, the
petitioner has challenged the award under Section 34 of the Arbitration Act in
the year 2013. Though it is stated that it has filed an application for stay to
the execution and operation of the award by resorting to Section 36 of the
Arbitration Act, till date, no order has been solicited on that application and it
is still pending.
8] At the backdrop of such state of affairs, the respondent no.1 seems to
have filed the application (Exh.19) seeking a compliance with the Rules of
1998 which have been framed pursuant to provision contained in Section
3H(6) of the National Highways Act, 1956, which requires deposit of the
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amount of award within 7 days of determination by the competent authority
or by arbitration, as the case may be, with the competent authority by demand
draft.
9] Reliance being placed by the learned advocate on the Rules of 2019
which supersede the Rules of 1998 is misplaced. The paraphrase of the Rules
of 2019 reads as under :
"G.S.R. 39(E) - In exercise of the powers conferred by
clause (aa) of sub-Section (2) of Section 9 of the National
Highways Act, 1956 (48 of 1956), and in supersession of the
National Highways (Manner of depositing the amount by the
Central Government with the competent authority for acquisition
of land) Rules, 1998, except as respects things done or omitted
to be done before such supersession, the Central Government
hereby makes the following rules, namely ........" (emphasis
supplied).
10] As can be seen the Rules of 2019 are applicable except as regards the
things done or omitted to be done before such supersession. In my considered
view, when the petitioner has omitted to comply with the predecessor Rules of
1998, by not depositing the amount of award within 7 days, these new Rules
of the year 2019 would not be applicable to the present dispute which would
still be governed by old Rules of 1998.
11] Though the learned Judge who has been called upon to decide a
proceeding under Section 34 of the Arbitration Act is apparently being
overactive in conceding to the request of the respondent no.1, the
aforementioned facts and circumstances, in my view, create a situation due to
which such over enthusiasm cannot be said to be wholly unwarranted.
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12] As has been pointed out in the impugned order, this Court in Appeal
from Order No.22/2020 which in turn has relied upon the directions given by
the Division Bench of this Court in several matters referred to therein, had
required the petitioner to comply with the provision of Section 3H(6) of the
National Highways Act, 1956 and the Rules framed thereunder, mentioned
hereinabove. Therefore in my considered view, the impugned order cannot be
said to be perverse, arbitrary or illegal.
13] The Writ Petition is dismissed. However, the proceeding under Section
34 of the Arbitration Act is expedited. The learned Judge shall make every
endeavour to decide the main proceeding at the earliest.
14] The Rule is discharged.
[MANGESH S. PATIL, J.]
umg/
