____________________________________________________ vs Nhai And Another
2024 Latest Caselaw 14494 HP

Himachal Pradesh High Court

____________________________________________________ vs Nhai And Another on 25 September, 2024

         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                                       Arbitration Case No. 680 of 2024
                                                 Decided on: 25.09.2024
    ____________________________________________________
    Kamlesh                                             ........... petitioner
                                   Versus
    NHAI and another




                                                                                .
                                                      ..........respondents





    ________________________________________________________
    Coram:
    Hon'ble Mr. Justice Bipin Chander Negi, Judge
    Whether approved for reporting? 1





    For the petitioner          :    Mr. G.R. Palsra, Advocate.
    For the respondents         :    Ms. Shreya Chauhan and Ms.
                                     Sneh     Bhimta,   Advocates,    for
                                     respondent No. 1.





                                           :
                                   Mr. Raj Kumar Negi, Additional
                                   Advocate General for respondent
                                   No.2.
    ____________________________________________________
    Bipin Chander Negi, Judge (oral)

The arbitral dispute arises out of the land acquisition

in District Mandi, H.P. for the purpose of building (widening/ four

laning etc.) maintenance, management and operation of National

Highway- 21. The land has been acquired under the provisions of

National Highways Act, 1956.

2. Arbitration case No. 680 of 2024 pertains to Award

No. 43/5 dated 03.05.2018 with respect to which the petitioner

had preferred Reference Petition No. 181 of 2019. In the

aforesaid reference, the Arbitrator had issued notices for

11.07.2019. The right to file reply was closed on 19.10.2021. Vide

order dated 11.01.2023, it was observed that the mandate of the

Arbitrator had expired. Hence, the aforesaid arbitral proceedings

Whether the reporters of the local papers may be allowed to see the judgment?

were kept in abeyance, till the time period for completing the

arbitral proceedings, was extended under Section 29-A.

3. From a perusal of the aforesaid, it is evident that the

Reference Petition against the award had been filed by the land

.

owners about 5 years back.

4. The relevant extract of the provisions involved in the

present lis, as amended by the Act No 33 of 2019 w.e.f

31.08.2019, are being reproduced here-in-below for a ready

reference:-

"29-A. Time limit for arbitral award.--(1) The award in matters other than international commercial arbitration be made by the arbitral tribunal within a period of twelve rmonths from the date of completion of pleadings under subsection (4) of Section 23:

(2) ............

(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

subsection (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: 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.

Section 23. Statements of claim and defence.

(4). The statement of claim and defence under this section shall be completed within a period of six months from the date the arbitrator or all the arbitrators, as the case may be, received notice, in writing, of their

.

appointment."

The sum and substance of the aforesaid provisions is that

from the date the arbitrator receives notice the statement of claim and

defence (pleadings) shall be completed within a period of six months

there from. Further the award shall be made by the arbitral tribunal

within a period of twelve months from the date of completion of

pleadings. However, the parties may, by consent, extend the period

specified for making award for a further period not exceeding six

months. If the award is not made within the period specified or the

extended period specified the mandate of the arbitrator shall terminate

unless the court has, either prior to or after the expiry of the period so

specified, extended the period. The extension may be on the

application of any of the parties .The same may be granted only for

sufficient cause and on such terms and conditions as may be imposed

by the court.

5. Having gone through the order sheets appended with the

petition carefully, this Court is pained to observe that the proceedings

have been conducted by learned Arbitrator by observing statutory

provisions as are contained in the Arbitration and Conciliation Act,

1996 more in their breach rather than in their observance.

6. This Court is of the considered view that when the law

requires a particular act to be done in a particular manner, then the

same is mandatorily required to be followed. In the case at hand, the

onus was upon the Arbitrator to perform the task entrusted to him

within the time schedule prescribed in the statute. The delay, if any,

has to be bonafide and explainable.

7. The record appended alongwith the present petition

.

demonstrates that the matter was adjourned by the learned Arbitrator

on numerous occasions. This Court fails to understand, as to how the

Arbitrator can with such a callous attitude take upon the task of

deciding the arbitration proceedings knowing fully well that if the

proceedings are not completed within the time schedule mentioned in

the Act, then unless the same is extended by a Court of Law, the

mandate of the Arbitrator shall stands terminated.

8. At this juncture, it would be appropriate to refer to the

judgment of the Apex Court delivered in Cognizance for Extension of

Limitation, In re, (2022) 3 SCC 117 : (2022) 1 SCC (Cri) 580 : (2022) 2

SCC (Civ) 46 : (2022) 1 SCC (L&S) 501, wherein the following direction

had been issued:

"5.4. It is further clarified that the period from 15-3-2020 till

28-2-2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A of the Commercial

Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings,

outer limits (within which the court or tribunal can condone delay) and termination of proceedings."

The benefit of exclusion of the aforesaid period

specified herein above also needs to be given to the petitioner

before this Hon'ble Court.

9. The Divisional Commissioner, Mandi was appointed

as an Arbitrator in the cases at hand vide order dated 22.03.2012

by the Central Government, in pursuance to sub Section 5 of the

National Highways Act, 1954 for the revenue District of Bilaspur,

Mandi and Kullu.

10. Be that as it may, the Court is restraining from

.

making any further observation in the case, save and except, that

hence forth, if the Court finds the Arbitrator to be remiss in his

duties then it shall not hesitate in invoking its powers as are

enshrined in Section 29 (A) (6) of the 1996 Act to terminate the

mandate of the Arbitrator de hors the fact that the Arbitrator

happens to be appointed, in terms of the aforesaid notification,

issued by the Central Government under the National Highways

Act, 1956.

11. The lands of the petitioner had been acquired and he

is entitled to fair and just compensation, if in case, the mandate of

the learned Arbitrator is allowed to be terminated on account of

him having failed to complete proceedings within time great

prejudice would be caused to the petitioner who had been fighting

for his rightful claim for years together.

12. Consequently, in view of the above, this petition is

allowed with the directions to the learned Arbitrator to conclude

arbitration proceedings on or before 25.03.2025. Learned

Arbitrator is impressed upon to make a time table, indicating

therein the time schedule, in terms whereof, the parties have to

move forward in the matter.

13. Petition stands disposed of, so also the pending

miscellaneous applications, if any.

(Bipin Chander Negi) Judge

.

     September 25, 2024





           tarun





                 r             to