Himachal Pradesh High Court
____________________________________________________ vs National Highway Authority Of India … on 5 March, 2025
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Arbitration Case No. 711 of 2024
Decided on:05.03.2025
____________________________________________________
Ambara Devi ........... petitioner
Versus
National Highway Authority of India (NHAI)
and another
respondents
____________________________________________________
Coram:
Hon'ble Mr. Justice Bipin Chander Negi, Judge
Whether approved for reporting? 1
For the petitioner : Mr. Ashutosh Bhardwaj, Advocate
vice Mr. Varun Rana, Advocate.
For the respondents : Ms. Shreya Chauhan, Advocate,
for respondent No.1.
:
Mr. Raj Kumar Negi, Additional
Advocate General, for respondent
No.2/State
____________________________________________________
Bipin Chander Negi, Judge (oral)
The arbitral dispute arises out of the land acquisition
in District Bilaspur, 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
2. Arbitration case No. 711 of 2024 pertains to Award
No. 8/2016/17 dated 16.01.2017, with respect to which the
petitioner had preferred Reference Petition No. 1408 of 2017. In
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Whether the reporters of the local papers may be allowed to see the judgment?
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the aforesaid reference, the Arbitrator had issued notices for
04.01.2018. The right to file reply was closed. Vide order dated
07.12.2021, it was observed that the mandate of the Arbitrator
had expired. Hence, the aforesaid arbitral proceedings were kept
in abeyance, till the time period for completing the arbitral
proceedings, was extended under Section 29A.
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) or arbitral
award.–(1) The award in matters other than international
commercial arbitration be made by the arbitral tribunal
within a period of twelve months 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
3pending, 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 petitions carefully, this Court is pained to observe that the
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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 cases
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 petitions
demonstrates that the matters were 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:
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“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 petitioners have been acquired and
they are entitled to fair and just compensation, if in case, the
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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 petitioners who had been
fighting for their rightful claim for years together.
12. Consequently, in view of the above all these petitions
are allowed with the directions to the learned Arbitrator to
conclude arbitration proceedings on or before 05.09.2025.
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
5th March, 2025
tarun
