STATE OF UTTARAKHAND Vs. JAI PRAKASH ASSOCIATES LTD

JUDGEMENT

(1.) Both these appeals have been preferred under Section 39 of the Arbitration Act, 1940. A.O. No. 511/2011 has been filed with a delay of 631 days whereas A.O. No. 291/2011 has been filed with a delay of 690 days. Delay condonation applications have been filed under Section 5 of Indian Limitation Act, accompanied by affidavits seeking condonation of delay in filing the appeals. Since reasons for delay in both the applications are common both the delay condonation applications are being decided by this common order.

(2.) It is stated in the affidavits of delay condonation applications that against the judgment and order dated 31.07.2009, legal opinion was obtained from the District Govt. Counsel (Civil) on 24.08.2009. Thereafter, the matter was sent to the office of Chief Engineer, Yamuna Valley Projects, Dehradun for seeking further instructions who referred the matter to the Chief Engineer/Head of the Department, Irrigation, Dehradun for further action. The Chief Engineer/Head of the Department wrote to Addl. Secretary, Irrigation for seeking permission to file an appeal and the Secretary, Irrigation vide letter dated 05.02.2010 directed the Chief Engineer/Head of the Department to file an appeal before High Court, Uttarakhand. Thereafter, official of Superintending Engineer, Lakhwar Byasi Construction Circle contacted the office of Chief Standing Counsel for filing an appeal, where it was informed that appeal could be filed only after permission from the Law Department is granted. On the basis of advice of Chief Standing Counsel for the State, the Superintending Engineer requested the Chief Engineer, Yamuna Valley Projects to obtain required permission from the Law Department. It is further asserted that since the project was transferred to Uttarakhand Jal Vidyut Nigam Ltd., some delay was also caused communicating them. Thereafter, the State Govt. vide order dated 08.09.2010 directed the Chief Engineer/Head of the Department to file an appeal before the District Judge, Dehradun. The matter was again referred to D.G.C. (Civil), Dehradun, who on 15.09.2010 opined that appeal is to be filed before the High Court and not before the District Judge. The State Govt. insisted to prefer appeal before the District Judge. Since, the D.G.C. (Civil), Dehradun expressed his inability to file appeal before the District Judge, Dehradun, a letter was written by the Executive Engineer to the Superintending Engineer on 15.10.2010 seeking permission to file appeal before the High Court. Thereafter, the Chief Engineer/Head of Department, Irrigation vide letter dated 18.11.2010 directed the Chief Engineer, Yamuna Valley Projects to file appeal before the District Judge, Dehradun. Thereafter, the Chief Engineer/Head of Department was informed about the opinion of D.G.C. (Civil) regarding the forum, before whom an appeal was to be filed, who vide letter dated 04.12.2010 asked the Chief Engineer, Yamuna Valley Projects to obtain written opinion from D.G.C. (Civil), Dehradun. On 06.05.2011, the Superintending Engineer, Lakhwar Byasi Construction Circle requested to Executive Engineer to supply written opinion of the D.G.C. (Civil) and the D.G.C. (Civil) gave his opinion on 10.05.2011, which was sent to the Chief Engineer. On the basis of the opinion of D.G.C. (Civil) the Chief Engineer/Head of the Department vide letter dated 24.05.2011 requested the Addl. Secretary, Irrigation for seeking permission from the State Govt. to file appeal before this High Court. Thereafter, vide order dated 30.06.2011, the Law Department granted permission to file appeal before the High Court. Permission dated 30.06.2011 was received by the office of Head of the Department, Irrigation on 02.07.2011 and after receiving said permission the Pairokar of the Department contacted the office of Chief Standing Counsel at Nainital and the case file was allotted to State Law Officer on 04.07.2011 for preparing appeal, who also required some more information and documents. Thereafter, all the documents were collected and supplied to the State Law Officer, who prepared the appeal. Appeal was filed on 22.07.2011.

(3.) Shri T.A. Khan, Deputy Advocate General, for the applicant submitted that the delay in filing the appeals has been caused because of movement of papers through proper channel as also queries sought at different level, hence no willful delay has been caused and whatever delay has been caused is unintended and is not deliberate. Relying upon paragraph-10 of the judgment of Hon'ble the Apex Court, reported in , : 1996 AIR(SC) 1623 learned Dy. Advocate General for the applicant/State contended that the Court should decide the matters on its merits. He also relied on the judgment of Hon'ble the Apex Court, reported in (, : (2005) 3 SCC 752 : 2005 AIR(SC) 2191 , wherein the Hon'ble Court has held that