Court No. - 59
Case :- FIRST APPEAL FROM ORDER No. - 1501 of 2019 Appellant :- Raj Narayan And 3 Others Respondent :- Additional General Manager And 2 Others Counsel for Appellant :- Dharmendra Pratap Singh Chauhan,Shesh Kumar Srivastava Counsel for Respondent :- Rajnish Kumar Rai,Arnab Banerji,Rajnish Kumar Rai
Hon'ble Saumitra Dayal Singh,J.
1. Rejoinder affidavit has been filed today. Taken on record.
2. Heard Sri Shesh Kumar Srivastava, learned counsel for the appellants and Sri Arnab Banerji, learned counsel for the respondent.
3. The present appeal has been filed by the claimants under Section 37 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') against the order passed by the learned District Judge, Ramabai Nagar (Kanpur Dehat) dated 12.2.2019 in Arbitration Case No. 607/74/2017. By that order, the learned District Judge had rejected the objections filed on paper no. 15-C, by the appellants/claimants, under Section 34 of the Act with reference to the award dated 31.5.2016 passed by Arbitrator/Commissioner, Kanpur Division, Kanpur, appointed under Section 20-F(6) of the Railways Act, 1989 (hereinafter referred to as the 'Railways Act'). That award itself has arisen on account of the appellants/claimants being dissatisfied to the award of the compensation paid to them by the Additional General Manager (Land Acquisition)/Competent Authority of the Railways dated 5.9.2011, referable to Section 20-F(2) of the Railways Act.
3. As noted above, upon land of the appellants/claimants being acquired by the Railways, the award came to be made by the Additional General Manager (Land Acquisition)/Competent Authority of the Railways dated 5.9.2011 awarding compensation Rs. 1,14,83,045/- under Section 20-F(2) of the Railways Act. While making that award, the value of land was assessed at Rs. 80.28 sq. mtrs.
4. Being aggrieved, the appellants/claimants sought arbitration for enhanced compensation. On such claim, arbitration proceedings were instituted under Section 20-F(6) of the Railways Act before the Arbitrator/Commissioner, Kanpur Division, Kanpur. In those proceedings for statutory arbitration vide award dated 31.5.2016, the said Arbitrator partly allowed the appellants' claims. However, the main claim of the appellants with respect to the valuation of land was not accepted. It is an undisputed case between the parties that the signed copy of the aforesaid award of the statutory arbitrator dated 31.5.2016 was never delivered on the appellants/claimants. After acquiring oral knowledge of the same, they obtained a certified copy of that award and instituted objections under Section 34 of the Act. That objection had been rejected as time barred.
5. In that regard, the learned District Judge had observed that the objections under Section 34 of the Act being referable to the rate fixed in the award dated 5.9.2011, the objections should have been filed within a period of three months therefrom or at the most, within one month, after expiry of that three months period. Insofar as no challenge was found to have been raised to the award dated 5.9.2011, the objections filed under Section 34 of the Act have been found to be belated.
6. Learned counsel for the appellant would submit, the award dated 5.9.2011 was not an arbitration award but an award for computation of the compensation by the railway authority itself, under Section 20-F(2) of the Railways Act. The arbitration proceedings arose thereafter, since the appellants were aggrieved by the compensation thus awarded. The arbitration proceedings concluded by the award dated 31.5.2016, and not earlier. Therefore, the first reasoning offered by the learned District Judge is erroneous.
7. Second, it has been submitted, it was mandatory for the Arbitrator i.e. Commissioner, Kanpur Division, Kanpur to deliver a signed copy of that award dated 31.5.2016 to the appellants by virtue of Section 31(5) read with Section 34(3) of the Act. The limitation to file the objections under Section 34 of the Act would commence only from the date of receipt of the signed copy of the arbitral award, by the appellants in the manner prescribed under the Act. In absence of any other mode of service of award being provided under the Act and Section 31(5) of the Act having not been complied with, the objections that had been filed by the appellants were wholly within time.
8. Reliance has been placed on a division bench decision of this Court in Om Prakash Mittal Vs. Vinod Kumar Mittal and Others, 2018 (7) ADJ 410, wherein relying on the decisions of the Supreme Court in the cases of State of Maharashtra and others vs. ARK Builders Private Limited, (2011) 4 SCC 616 and Benarsi Krishna Committee and others Vs. Karmyogi Shelters Private Limited, (2012) 9 SCC 496, it has been held that for the purposes of computation of limitation to file objections under Section 34 of the Act, the date of delivery of the signed copy of the award under Section 31(5) of the Act is the only start point of limitation.
9. Sri Banerji, on the other hand, would submit, the award dated 5.9.2011 is the original award and unless that had been challenged under Section 34 of the Act, no relief could ever have been granted to the appellants. Since the appellants had not challenged that award within limitation, they could not be permitted to indirectly challenge that award by setting up part challenge to the award dated 31.5.2016.
10. Having heard learned counsel for the parties and having perused the record, in view of the decisions of the Supreme Court and the Division Bench decision of this Court, noted above, the position in law does not admit of any doubt about the start point of limitation to file objections under Section 34 of the Act. It would commence from the date of delivery of a signed copy of the award by the arbitrator on the authority concerned and not on any earlier date. In absence of such compliance being made by the arbitrator, the objections that came to be filed within three months from the first date on which certified copy of that award became available to the appellants/claimants.
11. Insofar as the objection raised by learned counsel for the respondent is concerned, the same cannot be accepted in view of the statutory scheme of the Railways Act. Section 20-F of the Railways Act provides for determination of compensation to be paid to the landowners whose land may be acquired by the railways. By way of first measure, such computation is to be made under Section 20-F(2) by the 'competent authority' as defined under Section 2 (7-A) of the Act, being a person authorized by the Central Government to perform the functions of the competent authority. Clearly, the award made by that authority is not an arbitration award which may arise only if the claimants remain aggrieved by the award, made by the competent authority of the railways. In that event, by virtue of Section 20-F(6) of the Railways Act, an arbitrator may be appointed by the Central Government to adjudicate that dispute. It is that adjudication/arbitration to which the Act has been made applicable under Section 20-F(7) of the Railways Act.
12. Therefore, the arbitration proceedings arose only upon the appellants feeling aggrieved by the award dated 05.09.2011 made by the competent authority. That award of the arbitrator came into existence on 31.05.2016 and not on any earlier date.
13. Further, there being no dispute to the fact that the objections came to be filed within a period of three months from the date of preparation of certified copy of the award dated 31.05.2016 passed by the statutory arbitrator, the objections under Section 34 of the Act had clearly been filed within time.
14. In view of the above, the order of the learned District Judge dated 12.2.2019 is erroneous. It is set aside. The matter is remitted to the said court for passing a fresh order on the objections filed by the appellants on merits, treating the same to have been filed within time.
15. Accordingly, the appeal is allowed.
Order Date :- 22.8.2019 Prakhar