RAJEEV SHARDA Vs. EXECUTIVE ENGINEER, HP PWD, THEOG

JUDGEMENT

(1.) THIS order will dispose of O.M.Ps. (Main) 26 and 27 of 1998 as common questions of law and fact arise in both. Briefly the facts are that two works of construction of High Altitude Training Centre at Shillaroo (sub -head : (i) construction of Sports Service Centre, including Medical Central, and (ii) construction of four numbers Staff Quarter) were awarded to Shri Rajeev Sharda Contractor by the Executive Engineer, HP PWD, Theog, vide separate letters dated 23.11.1989 and 15.9.1989 respectively. The first work was for a sum of Rs. 8,87,362 vide agreement No. 36 of 1989 -90 between the parties and the second work was for a sum of Rs. 8,60,266 vide agreement No. 29 of 1989 -90 between them. Subsequently, in respect of both these works some disputes arose regarding payments to be made to the Contractor. This resulted in the Contractor seeking arbitration as per the terms of both the contract agreements aforementioned. The proceedings ultimately culminated in two awards being made by the Arbitrator -cum -Superintending Engineer Arbitration, HP PWD, Solan, both dated 22nd of November, 1997.

(2.) BEING dissatisfied with the said awards, the HP PWD has filed objections under Section 34(3) of the Arbitration and Conciliation Act, 1996, (hereinafter to be called "the Act") in respect of both the Awards. Along with the objections, separate applications under Section 5 of the Limitation Act for condoning the delay in filing the same have also been moved by the Department aforementioned, both the applications, being supported by separate affidavits of Shri Rajinder Paul Malhotra, Superintending Engineer 2nd Circle, HP PWD, Shimla -3. These two applications are the subject -matter for consideration herein. Arguments have been addressed at length by the learned counsel for both the parties, namely, Shri J. S. Bhogal, learned counsel for the claimant -Contractor, and Shri Sanjay Karol, the learned Advocate General, on behalf of the Department. It has been submitted by Shri J. S. Bhogal that Section 34(3) of the Act has an overriding effect on the general law of limitation as incorporated in the Limitation Act, 1963. On the other hand it has been submitted by the learned Advocate General that the said Limitation Act, 1963, has been specifically made applicable insofar as the arbitration proceedings are concerned and Section 34(3) of the Act concerns only the exercise of suo motu powers by the Court. In order to appreciate the respective contentions of the learned counsel for the parties it would be appropriate to advert to Section 34 of the Act. Section 34 relates to application for setting aside arbitral award and sub -section (3) thereof is as follows :

(3.) IT is manifest that in the abovementioned case, while interpreting somewhat similar provisions of the U.P. Sales Tax Act, 1948, the Apex Court came to the conclusion that the Revising Authority therein had no discretion to extend the period of one year prescribed as limitation for filing an application for revision beyond a further period of six months, even on sufficient cause shown. In para 17 of the report in the abovementioned case the Apex Court held as follows : "(17) Thus, the principle that emerges is that if the legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only upto a specified time -limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time -limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceedings on the analogy of Section 14(2) of the Limitation Act." In the case reported as Mohd. Ashfaq vs. State Transport Appellate Tribunal, U.P. and others (AIR 1976 SC 2161), also relied on by the learned counsel the proviso to sub -section (2) of Section 58 of the Motor Vehicles Act, 1939, was under consideration by the Apex Court. It requires that an application for renewal of permit should be made not less than 120 days before the date of expiry of the permit. Sub -section (3) thereof vests a discretion in the Regional Transport Authority to entertain an application for renewal of a permit even if it is beyond time, but in that case the delay should not be of more than 15 days. It has been held therein that thus where the application for renewal of permit was admittedly late by more than 15 days, the delay was not condonable and the R.T.A. was right in rejecting the application as time barred. This ruling also supports the contention of the learned counsel in the present case.