National Highways Authority of India vs Venkatachalapathi

Mohan M. Shantana Goudar, J.—There is a delay of 238 days in filing the appeal. The affidavit filed in support of the application for condonation of delay is sworn to by Sri R.K. Gupta, Project Director, PIU, Bangalore National Highways Authority of India. The affidavit merely states that the delay is purely due to administrative reasons, except this one sentence regarding delay, no other reason is forthcoming in the affidavit explaining the delay. Such reason can be assigned in every matter by the State or State Government Authority.

Since the reason assigned is vague and since there is no specific reason for condoning the delay the appeal is liable to be dismissed on the ground of delay and laches. Accordingly the same stands dismissed. Even on merits, this Court does not find any ground to interfere in the impugned order. Though the District Court has dismissed the suit filed by the appellant herein u/s 34(2) of the Arbitration and Conciliation Act, 1996, on the ground of delay. This Court has heard the Advocates on record, on merits also in order to avoid further technicalities.

After hearing the learned Counsel, I find that the conclusion reached by the Court below is justified though the reasons assigned are not proper, I say so, for the following facts and reasons.

Respondent 1 is the owner of the land bearing Sy. No. 46/3B measuring 1904.52 sq. ft.; he is not the owner of the land bearing Sy. No. 46/5 measuring 5197.08 sq. ft. The land of the 1st respondent in Sy. No. 46/3B measuring 1904.52 sq. ft. was acquired along with various other lands including Sy. No. 46/5 measuring 5197.08 sq. ft. by National Highways Authority of India situated at Hongasandra Village. The Land Acquisition Officer passed the award granting Rs. 500/- per sq. ft. in favour of the landowners. All the landowners including respondent 1 herein approached the Arbitrator, under the provisions of National Highways Authority of India Act, 1988 praying for enhancement of compensation. The Arbitrator/Deputy Commissioner exercising jurisdiction u/s 3-G of the National Highways Act, 1956 enhanced the compensation to Rs. 1,200/- by the award dated 18-5-2009 in respect of all the properties including the property of respondent 1. Being aggrieved by the award made by the Arbitrator/Deputy Commissioner dated 18-5-2009, the appellant herein approached the City Civil Court, Bangalore City, u/s 34(2) of the Arbitration and Conciliation Act, 1996 in A.S. No. 1119 of 2009. In the memorandum (i.e., plaint), the appellant herein/plaintiff before the Court below pleaded that the said suit is filed in respect of the land bearing Sy. No. 46/5 measuring 5197.08 sq. ft. situated at Hongasandra Village. However, the 1st respondent herein was made party to the suit. The written statement came to be filed by the 1st respondent with an averment that the suit/plaint is misconceived and is not maintainable in law and the same is liable to be dismissed in limine. The other grounds are also taken. Ultimately the suit filed u/s 34(2) of the Act came to be dismissed by the order dated 7-1-2011 as barred by limitation.

Learned Counsel appearing for the appellant drawing the attention of the Court to various paragraphs of the impugned order has submitted that the Court below is not justified in dismissing the suit as barred by limitation inasmuch as the same was filed within 90 days from the date of the award made by the Deputy Commissioner.

Per contra, Sri Shekar Shetty, learned Counsel appearing for respondent 1 submits that the suit itself was not maintainable before the City Civil Court in A.S. No. 1119 of 2009 inasmuch as the 1st respondent is not the owner of the land in Sy. No. 46/5 measuring 5197.08 sq. ft. He draws the attention of the Court contending that Sy. No. 46/5 stands in the name of a different person viz., Devendra. Thus according to him the award made by the Arbitrator/Deputy Commissioner dated 18-5-2009 insofar as it relates to Sy. No. 46/3B measuring 1904.52 sq. ft. owned by the 1st respondent is not questioned at all, before the City Civil Court and therefore, this appeal is also not maintainable against the 1st respondent.

The learned Counsel appearing for the appellant submits that the National Highways Authority of India has independently filed a suit in A.S. No. 98 of 2009 before the City Civil Court against Devendra in respect of Sy. No. 46/5 measuring 5197.08 sq. ft. and therefore, according to her it is a sheer mistake committed by the Office of the National Highways Authority while presenting the plaint.

Looking to the plaint averments in A.S. No. 1119 of 2009 it is clear that, the subject-matter of the suit is Sy. No. 46/5 measuring 5197.08 sq. ft. It is no doubt true the 1st respondent was made party to the suit, since the 1st respondent was not required to appear in such suit, he could have kept quite without contesting the suit.

Be that as it may, the fact remains that the award made by the Deputy Commissioner in respect of Sy. No. 46/3B measuring 1904.52 sq. ft., has remained unquestioned. Since the said award has remained unquestioned till this date and as the same was not the subject-matter of the suit in A.S. No. 1119 of 2009 before the City Civil Court, this appeal is not maintainable as against the 1st respondent, since he is the owner of the land bearing Sy. No. 46/3B. Accordingly the appeal is liable to be dismissed on the said ground. However, the appellant has made an application for amendment of the appeal memo. Even assuming that the appellant is granted permission for altering the Sy. Nos. 46/5 to 46/3B, the same would not enure to the benefit of the appellant, because such amendment ought to have been carried before the City Civil Court in A.S. No. 1119 of 2009. Since the award of the Deputy Commissioner in respect of Sy. No. 46/3B measuring 1904.52 sq. ft. has remained unquestioned, the application for amendment of this appeal memo will be of no consequence. Thus appeal stands dismissed not only on the ground of delay and laches but also on merits.