Jammu & Kashmir High Court - Srinagar Bench

Chief Engineer (Civil) vs M/S. Shah And Company Engineers ... on 25 March, 2021

 Suppl. 1
 After Notice
 Sr. No. 205


        HIGH COURT OF JAMMU AND KASHMIR
                AT SRINAGAR
                   .....

                     OWP No. 1252/2018
                     IA No. 01/2018


Chief Engineer (Civil), Uri II H.E. Project

                                                     Petitioner(s)

                           Through: Mr. Irshad Ahmad, Advocate

                     V/s

M/S. Shah and Company Engineers and Ors.
                                                     Respondent(s)

                           Through: Mr. M.A. Chashoo, Adv.
Coram:
                Hon'ble Mr. Justice Dhiraj Singh Thakur, Judge

                                  ORDER

(Open Court)

01. This is a petition under Section 104 of the Constitution of Jammu and Kashmir, as it existed then, for setting aside the Order dated 2nd April, 2018, passed by the learned District Judge, Baramulla. By virtue of the order impugned, the applications for condonation of delay and application for restoration of the proceedings initiated under Section 34 of the J&K Arbitration and Conciliation Act, 1996, ('Act of 1996'), have been dismissed.

02. Briefly stated, the facts are that an Award dated 28th December, 2011, came to be passed in favour of the claimant/respondent. The NHPC filed an application on 26.03.2012 under Section 34 of the Act of 1996 in the court of learned Principal District Judge, Baramulla, for setting aside the award, which was within time. The said application, however, came to be dismissed for nonappearance of the petitioner herein. An application for restoration came to be filed by the petitioner herein on 17.10.2014

OWP No. 1252/2018

after a lapse of approximately 300 days. The said application was also accompanied with an application for condonation of delay.

03. After having considered the matter, the learned Principal District Judge, Baramulla, dismissed the application vide Judgment and Order impugned dated 2nd April, 2018. The Court held that the applicant had failed to show sufficient cause for restoration of the petition under Section 34 of the Act of 1996. Hence the present petition.

04. The application for restoration filed by the applicant/petitioner as also the accompanying application for condonation of delay is not on record. However, learned counsel for the parties produced copies of the same before the Court during the course of arguments. For facility of reference, the averments made in the applications are reproduced here under:-

Application for restoration.

i. That the above titled appeal has been dismissed on 17.10.2014.

ii. That the Advocate of appellant was busy outside the State as such could not attend the case on the said date.

iii. That the clients could not be informed as they too were outside the State. The Junior Advocate was with the applicant as per his statement stated that he had been provided the dates.

iv. That the absence is not willful or intentional in pursuing the case.

v. That the non-applicant has not caused his presence as yet.

vi. That the ends of justice will meet only when the parties will be provided opportunity to contest the case.

Therefore, in view of the above facts and circumstances, it is prayed that since the applicant

OWP No. 1252/2018

is interested in contesting the case and since no effective hearing has taken place, it is, as such requested that the restoration application may please be accepted to its original position. Application for condonation of delay. i. That the above titled appeal has been dismissed on 17.10.2014.

ii. That the Advocate of appellant was busy outside the State as such could not attend the case on the said date. The clients could not be informed as they too were outside the State. The Junior Advocate was with the applicant as per his statement that he had been provided the dates.

iii. That the absence is not willful or intentional to miss the case.

iv. That the non-applicant has not caused his presence as yet.

Therefore, in view of the above facts and circumstances, it is prayed that since the applicant is contesting the case(sic).

05. With a view to see whether the petitioner and his counsel had been following the case on the previous dates of hearings before the petition under Section 34 of the Act of 1996 was finally dismissed, counsel for the parties have referred to the following dates and the orders recorded by the court. For facility of reference, the same are reproduced here under: -

26th March, 2012 Petition under Section 34 is filed. 2nd November, 2012 None present.

23rd November, 2012.

None present.

OWP No. 1252/2018

24th December, 2012.

None present.

30th March, 2013.

None present.

7th May, 2013.

None present.

3rd July, 2013.

Counsel for the petitioner is present and is directed to give particulars of the defendant(s)/respondent(s). 17th August, 2013.

None present on account of Hartal.

28th September, 2013.

None present.

28th November, 2013.

None present.

10th December, 2013.

None present.

17th December, 2013.

None present.

8th April, 2014.

None present.

13th March, 2014.

Counsel for the petitioner is present and is directed to ensure presence of Law Officer of NHPC. 16th April, 2014.

Counsel of the petitioner present.

31st May, 2014.

None present.

8th July, 2014.

None present.

9th August, 2014.

None present.

OWP No. 1252/2018

17th October, 2014.

Petition under Section 34 is dismissed in default.

06. Reference to the aforementioned dates would make it clear that right from the date when the petition under Section 34 of the Act of 1996 had been filed by the petitioner, his conduct was one of total negligence in pursuing the case not only on behalf of the counsel for the petitioner, but the officers of NHPC as well. The petitioner had failed to provide particulars of the respondents, on which, service could be effected in the petition under Section 34, therefore, not only had the petitioner remained absent on most of the dates referred to hereinabove, but had also failed to comply with the order passed by the court with regard to furnishing of particulars. In those circumstances, the court was justified in dismissing the petition under Section 34 of the Act of 1996.

07. The explanation rendered in the application for restoration and the application for condonation of delay, contents whereof have also been reproduced in the preceding paragraph, would also reflect that the same were totally cryptic and no court would be justified at all to allow such an application based upon the averments made therein. Reliance can be placed on 'Post Master General and Ors Vs. Living Media India Limited and Anr' reported in 2012 (3) SCC 563, wherein in paragraph 29, it was held as under: -

"29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of

OWP No. 1252/2018

delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

08. Counsel for the petitioner tried to question the order impugned on the ground that there was merit in challenge thrown to the award by the NHPC and that in case the restoration application was allowed and the petition under Section 34 restored, the award would certainly be set aside. In my opinion, in these proceedings, the Court cannot be dragged into the main merits of the case and the only issue that falls for consideration is whether there is any perversity in the order impugned passed by the court below.

09. Having considered the matter in its entirety, in my opinion, there is absolutely no illegality or perversity in the order impugned, which would call for any interference by this Court in exercise of powers under Section 104 of the Constitution of Jammu and Kashmir, as it existed then.