EFA(OS)/4/2013 of PRAKASH ATLANTA JV Vs NATIONAL HIGHWAYS AUTHORITY OF INDIA

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ EFA(OS) 4/2013

PRAKASH ATLANTA JV

..... Appellant

Through: Mr.Rajiv Nayar, Sr.Adv. with Mr.Amar Dave and Mr. Chirag M. Shroff, Advocates.

versus

NATIONAL HIGHWAYS AUTHORITY OF INDIA ..... Respondent Through:

CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MS. JUSTICE INDERMEET KAUR ORDER % 12.02.2013

CM No.2524/2013

Allowed subject to just exceptions.

EFA(OS) No.4/2013 CM No.2523/2013 (Stay)

CM No.2525/2013 (For Condonation of Delay of30 days in refiling the appeal)

The appellant is aggrieved by one aspect of the impugned order dated 09.11.2012 in terms whereof while dealing with the application for execution of an award, the amount of cess imposed by the State Government has been permitted to be deducted.

It is not necessary to go into the history of the dispute, but suffice to say that the contract awarded to appellant ran into dispute with the respondent resulting in its termination and the remaining work being awarded to new contractor. Amounts were found payable under the award, the objections EFA (OS) No.4/2013 Page 1 of4

qua which have been dismissed as also the appeal. In execution proceedings, one of the issues which arose was qua payment deducted by the respondent of one per cent of the total value of the work done by the appellant, the same being payable as cess to the State Government. This cess has been imposed under the Building and other Construction Workers Welfare Cess Act, 1996 read with the Rules framed thereunder. This circular was issued on 10.02.2010 requiring the respondent to collect the cess in respect of the projects that were underway or were carried on after 04.02.2009. Since the present project was completed in 2012 and part of the project was carried on by the appellant, proportionately the cess was sought to be recovered from the appellant qua the work done by the appellant.

Learned senior counsel for the appellant has drawn our attention to the English translation of the notification dated 17.02.2 0 10 imposing cess. His contention is that the cut off date is 04.02.2009 i.e. if the appellant would have done any work after this date, the cess be imposed on him. Since the work was done by the appellant prior to this date, learned counsel submits that the appellant cannot be made to bear the burden of this cess.

To appreciate the contention, we would have to see the essential ingredients of the notification.

reading of the notification shows that the following aspects would have to be taken into account.

i) The cut off date for imposition of the cess is 04.02.2009.

ii) The cess applies at one per cent of the 'Project Price'.

iii) The cess applies to whatever projects are being carried on or after 04.02.2009.

Page 2 of4

EFA (OS) No.4/2013

If the aforesaid parameters are applied to the facts of the present case,

the project in question was carried on beyond the cut off date, albeit by different contractor as the contract of the appellant was terminated prior to the cut off date. However, the cess is not imposed based on the entity who has to bear it but on the 'project price' including qua the projects underway. Thus, if the appellant had continued to execute the project and the contract had not been terminated, undisputedly the cess would have to be borne by the petitioner qua the complete contract price. Similarly, if another contractor has carried on the remaining part of the project, that contractor will have to bear the burden only to the extent it executed part of the project. The appellant is being burdened only with the cess relatable to the quantum of the work done by it. At cost of repetition, we state that the cess is on the 'project price' as whole for on-going projects.

The aforesaid being the position, we find no ground to interfere with

the impugned order of the learned single Judge.

We may also note that we have examined the merits of the controversy even though there is delay of 30 days in refiling the appeal. The only reason stated is that of oversight of the lawyer. In matters of arbitration where the statute itself provides for the period of limitation with the object of having quicker disposal, the delay in refiling whether of the objections under Section 34 of the Arbitration and Conciliation Act, 1996 or the appeal, cannot be treated in casual manner. This issue is no more res integra in view of the judgment of the Division Bench of this Court in The Executive Engineer (Irrigation and Flood Control) v. Shree Ram Construction Co.; 2010 (120)

EFA (OS) No.4/2013

DRJ 615, which dealt with the issue of delay in refiling in matter pertaining to objections to the award. The views taken by the Division Bench of this Court were affirmed by the Supreme Court and the Special Leave Petition filed against the said judgment being SLP No.34349/2010 titled Power Grid Corporation of India Ltd. Vs. BWL Limited and other connected matters was dismissed vide the order dated 14.01.2011. The Review Petition No.1165-1166/2011 filed thereafter was also dismissed by the Supreme Court vide order dated 28.04.2011 after condoning the delay and having found no merit therein. Analogous principles will apply even in case of an appeal.

Thus, for both the aforesaid reasons, we are not inclined to interfere with the impugned order.

Dismissed.

SANJAY KISHAN KAUL, J

INDERMEET KAUR, J

FEBRUARY 12, 2013/dm

EFA (OS) No.4/2013