Balakrishnan vs The District Collector
2024 Latest Caselaw 8680 Ker

Citation : 2024 Latest Caselaw 8680 Ker
Judgement Date : 27 March, 2024

Kerala High Court

Balakrishnan vs The District Collector on 27 March, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
                         WP(C) NO. 3778 OF 2013
PETITIONER:

             BALAKRISHNAN
             AGED 41 YEARS
             S/O.UNNI,VELAKAPADI HOUSE, PANTHALUR DESOM,
             PO NELLAI,THRISSUR,PIN 680 305.
             BY ADVS.
             SRI.G.SREEKUMAR (CHELUR)
             SMT.PREETHY KARUNAKARAN

RESPONDENTS:

     1       THE DISTRICT COLLECTOR
             ARBITRATOR, COLLECTORATE,
             AYYANTHOLE,THRISSUR-680001
     2       THE DEPUTY COLLECTOR
             SPECIAL LAND ACQUISITION OFFICER,
             C.A.L.A,N H D P,THRISSUR-680001
     3       THE PROJECT DIRECTOR
             NATIONAL HIGHWAY AUTHORITY OF INDIA,
             PALAKKAD-678001
             BY ADVS.
             K.A.SALIL NARAYANAN
             SRI.THOMAS ANTONY
             SRI.B.S.SYAMANTAK, GP


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   27.03.2024,   THE    COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C).No.3778/2013

                                  2




                   P.V.KUNHIKRISHNAN, J.
                    --------------------------------
                    W.P.(C).No.3778 of 2013
             ----------------------------------------------
           Dated this the 27th day of March, 2024


                            JUDGMENT

This writ petition is filed with following prayers:

i. Call for the records leading to Ext.P4 and may be pleased to issue a writ of certiorari quashing the same in the interest of justice.

ii. to pass any such or further orders as the petitioner may seek and this Hon'ble Court deem fit to grant.

(SIC)

2. The petitioner challenges Ext.P4 order passed by

the District Collector and Arbitrator (National Highway) by

which an application for arbitration under Section 3G(5) of the

National Highways Act is dismissed, stating that it is time

barred. The contention of the petitioner is that there is no

time limit prescribed in the National Highways Act for

approaching the Arbitrator. But a Division Bench of this Court

in Leela K. v. District Collector and Arbitrator, Thrissur

and Another [2015 (2) KHC 813] considered this point in

detail and observed that Article 137 of the Limitation Act is

applicable. The relevant portion of the judgment is extracted

hereunder:

"20. Though Arbitration under the NH Act is statutory, in so far as the 1996 Act is made applicable to such Arbitration, the Limitation Act equally applies and if under normal circumstances, a request to refer the dispute to Arbitration is filed beyond time, that is after a period of three years from the date on which the right to sue accrued, the Arbitration has to be held to be beyond the period of limitation. The Apex Court has held that even in a petition filed under Section 11 of the 1996 Act, it shall be open for the Chief Justice or the designated Judge to verify whether the claim is hopelessly barred by limitation. Under such circumstances, it cannot be contended by the appellant that Limitation Act has no application at all.

21. Another contention urged by the appellant is that the request for arbitration is an application filed under Article 137 of the Limitation Act, in which event the delay in filing request for arbitration can be condoned. First of all, no such application for condoning delay was filed nor such a request has been made before the Arbitrator. Secondly, there is no procedure to condone the delay in filing a suit, as Section 5 of the Limitation

Act has no application for filing a suit. Learned counsel for the petitioner relied upon various judgments to contend that Section 5 of the Limitation Act applies to application filed before a Court under Arbitration Act, 1940. Of course, an application filed before a Court in a pending proceeding comes under Article 137 of the Limitation Act. The judgments relied upon by the learned counsel for appellant only substantiates the said view. That is not the situation here. This application for referring the dispute is not filed before Court and therefore Article 137 has no application. The position of law in this regard is made clear in the judgment of the Supreme Court in Kerala State Electricity Board v. T.P. Kunhaliumma, (1976) 4 SCC 634 , wherein it is held as under:

"21. The changed definition of the words "applicant" and "application" contained in Sections 2 (a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other articles in Part I of the third division. This Court in Nityananda Joshi case has rightly thrown doubt on the two-Judge Bench decision of this Court in Athani Municipal Council case where this Court construed Article 137 to be referable to applications under the Civil Procedure Code. Article 137 includes

petitions within the word "applications".

These petitions and applications can be under any special Act as in the present case.

22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two-judge bench of this Court in Athani Municipal Council case and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act."

22. Therefore, we agree with the view expressed by the learned Single Judge that the request for Arbitration being made after three years from the date when the Competent Authority has fixed the compensation, is barred by limitation."

3. In the light of the above, I think the contention of

the petitioner is unsustainable.

This writ petition is dismissed.

sd/-

                                              P.V.KUNHIKRISHNAN
JV                                                   JUDGE






                     APPENDIX OF WP(C) 3778/2013

PETITIONER EXHIBITS
EXHIBIT P1        A TRUE COPY OF THE AWARD PASSED BY THE
                  THIRD RESPONDENT DATED NIL.
EXHIBIT P2        A TRUE COPY OF THE CHEQUE ISSUED IN
                  THE NAME OF THE PETITIONER DATED
                  15/3/08
EXHIBIT P3        A TRUE COPY OF THE RECEIPT ISSUED
                  DATED NIL.
EXHIBIT P4        A TRUE COPY OF THE COMMUNICATION
                  RECEIVED   BY  THE   PETITIONER  DATED
                  7/9/2012