Orient Paper Mills, Brajrajnagar vs State of M.P.

Dhirendra Mishra, J.

Being aggrieved by the order dated 4.1.1996 passed by Additional District Judge, Khairagarh to the Court of District Judge, Rajnandgaon in Civil Suit No. 11 -A/1987 the applicant has preferred this Civil Revision u/s 115 of the Code of Civil Procedure. By the impugned order the application filed by the non-applicant u/s 8 of the Indian Arbitration Act, 1940 (hereinafter referred to as Act for brevity) the parties were directed to appoint the arbitrator in accordance with law and get their dispute adjudicated.

Facts giving rise to the instant revision petition are that an agreement dated 19.10.1944 was entered into between the applicant and Khairagarh Durbar for felling, cutting and removing bamboos in Khairagarh State for a total period of twenty four years commencing from 1.9.1944. As per clause 8 of the said agreement royalty was fixed at 12 annas per 100 bamboos subject to revision by mutual consent in 8th and 16th year i.e. on 1.9.1952 and 1.9.1960. Clause 24 of the agreement which is an arbitration clause, reads as under.

If at any time hereafter either during the continuance or after the determination of this agreement, any doubt, difference or dispute shall arise between the parties hereto touching or concerning their respective rights or privileges hereunder or otherwise arising out of these presents, then the same shall be referred to the Arbitration of a person acceptable to both parties to be appointed and paid for by the parties equally or to the Arbitration of two independent persons, one to be appointed by each party to the reference and in the event of difference of opinion between such arbitrators to an Umpire to be nominated by them by writing under their hands before proceeding with the reference and every such reference shall be deemed to be a reference to an Arbitration within the meaning of the Indian Arbitration Act, 1899 or any re-enactment or statutory modification thereof for the time being in force and shall be regulated and conducted accordingly.

Petition u/s 8 of the Act was filed by the State/non-applicant averring therein that as per the lease agreement the royalty was raised in the year 1952 from 12 annas to 1.37 paisa per hundred bamboos and accordingly supplementary agreement was drawn in the year 1963. In the year 1960 question of determination of rate of royalty again arose between the parties and the State proposed the rate of royalty at Rs. 4.50 paisa per hundred bamboos which was not acceptable to the applicant/defendant and no agreement could be arrived at and thus the dispute regarding royalty of Rs. 4.50 paisa per hundred bamboos from 1960 onwards still survived. Thereupon a notice was given to the applicant/defendant by the State for appointment of arbitrator. On their behalf State appointed the then Chief Conservator of Forest Shri K.N. Mishra as arbitrator and Orient Paper Mills appointed Shri J.S. Dave as its arbitrator. However, because of inability of Shri J.S. Dave, the arbitration could not proceed and on 6.10.1965 Shri K.N. Mishra, arbitrator appointed on behalf of the State adjourned the case sine-die. However, parties continued to negotiate revised rates even after the adjournment of the arbitration proceedings and there were meetings and correspondences between the parties regarding rates of royalty. The respondent urged that retired Chief Justice of India maybe appointed Umpire for fixing the revised rates of royalty. It was further averred that the parties reached an agreement for revision of rate of royalty and the amount under revised rate of royalty was paid by the applicant/ defendant. The amount under the old rate was accepted subject to further payments under revised rate of royalty. However, as the parties did not arrive at any mutually agreed revised rate of royalty, the matter was referred for arbitration and the dispute regarding revision of rate of royalty for the entire period 1952-60 was open before arbitrators.

Petition u/s 5 of the Act was filed before the trial court which was rejected on 4.4.1977 with an observation that the respondent/ plaintiff may file an application u/s 8 of the Act, whereupon a notice dated 11.1.1978 was given to the applicant/defendant to nominate their arbitrator on behalf of the Orient Paper Mills in place of Shri J.S. Dave.

In reply the applicant/deferdant contended that the dispute regarding revision of rate of royalty in 8th and 16th year as per the agreement is not a matter which could be referred to for the arbitration under clause 24 of the agreement as the revision of rate of royalty was to be arrived at by mutual consent and no revision was permissible in absence of mutual consent and therefore, no dispute as envisaged in clause 24 of the agreement was worth reference, and as such the petition was not tenable. A proposal was submitted by the State of enhancing the royalty at the rate of Rs. 4.50 per hundred bamboos. By communication dated 18.1.1963 respondents objected on the ground that no unilateral decision regarding revision of royalty could be made by the State and they expressed their desire to hold meetings to arrive at the mutual settlement about the rate of royalty and accordingly negotiations and exchange of correspondences took place. When the talks for fixing the revised rate of royalty with mutual consent failed, the parties invoking the arbitration clause 8 of the agreement appointed Shri K.N. Mishra, Chief Conservator of Forest as arbitrator on behalf of the State and Shri J.S. Dave was appointed as arbitrator on behalf of the Orient Paper Mills. However, it was submitted that the submission to the arbitration by the respondent made at the initial stage in the year 1963 cannot estop the respondent in law in contending that the question of revision of rate of royalty to be arrived at by mutual consent could not form a dispute referable to the arbitration under clause 24 of the agreement. It was further submitted that on 9.7.1964 the State moved an application in the Court for extension of time for holding arbitration and the Court by order dated 16.4.1965 extended the time for making award up to 16.10.1965. In the meanwhile, since clause 24 provided for appointment of an Umpire, arbitrators made an offer to seek the concurrence of the Umpire on appointment as none of the persons suggested by them could be persuaded to agree to the appointment as Umpire. On 6.10.1965 arbitrators adjourned the proceedings sine die and no efforts were made by the parties for getting extension of time to make award after 16.10.1965. After a gap of 10 years the State made an application u/s 5 of the Act on 1.4.1975 for revoking the authority of the appointed arbitrators and for setting aside all earlier arbitration proceedings and for grant of permission to the State to start arbitration proceedings afresh. However, the application was rejected by District Judge Rajnandgaon vide order dated 4.4.1977 passed in MJC No. 6/1975 by recording a finding that the arbitration clause of the agreement between the parties survived notwithstanding the termination of lease by efflux of time and that recourse may be had under the provisions of the Arbitration Act for filling up of a vacancy resulting from the death of one of the arbitrators Shri J.S. Dave. It was further contended that finding of the District Judge that an application u/s 8 of the Act shall not operate as res judicata against the respondent and cannot bind it. The respondents preferred a civil revision No. 850/1977 challenging the validity and correctness of the above observations of the District Judge which was however dismissed with a finding that the respondents had no right of revision against the adverse observations of the District Judge in its order. It was averred that the arbitrators could not appoint the Umpire as their time elapsed and the applicant did not make an application within time for extension of time in order to enable the arbitrators to make appointment of an Umpire and in the aforesaid circumstances it was not open to the applicant to invoke section 8 of the act for the appointment of arbitrator. During the pendency of the application u/s 8 of the Act, arbitrator Shri J.S. Dave died. Further by that time the authority of the appointed arbitrators had come to an end and they had become functus officio after expiry of the period to arbitrate under Rule 3 of Schedule 1 of the Arbitration Act. Notice dated 11.1.1978 calling upon the non applicant was duly replied by the applicant and all the ground as raised in the written statement, were raised by the applicant while opposing the above application. However notice dated 11.1.1978 asking the respondents to nominate arbitrator was wholly misconceived in law. Application u/s 8 of the Act was hopelessly barred by time under Article 137 of the Limitation Act as the authority of the appointed arbitrators had come to an end on 16.10.1965. Arbitrators Shri J.S. Dave died on 25.10.1975 and the application was filed on 30.4.1979 after expiry of three years from the date of death of the arbitrator and in the aforesaid circumstances the applicant has no legal right to claim substitution on the death of such arbitrator who had lost his authority to make an award when he was alive.

On the basis of the pleadings of the respective parties learned District Judge framed the issued. Documents were filed by the respective parties.

The non-applicant/ plaintiff examined Shri R.S. Awasthy, Conservator of Forest whereas defendant/applicant examined Shri K.N. Tenany, Vice President of the Mill, Dr. Rajendra Kumar Bansal, Personal Officer and Shri R.N. Bajpai, Sr. Executive of the Company.

Learned District Judge allowed the application by recording a finding inter alia;(i) that there is a dispute between the parties in terms of clause 24 of the agreement which is referable to the arbitrator for adjudication; (ii) it was incorrect to say that revision of royalty could be undertaken only by mutual consent as per clause 8 of the agreement;(iii) dispute between the parties is a subject matter as per clause 24 for referring the dispute for arbitration, the question whether revised rate of Rs. 4/- per hundred bamboos with effect from 1960 or from 1965, is a disputed question;(iv) application u/s 8 of the Act is not time barred and the same cannot be dismissed on that ground and the defendant is not estopped from raising a dispute because he agreed for arbitration in the year 1963; (v) in the light of judgment in Misc. Civil Suit No. 6/1974 the applicant is not estopped from challenging the maintainability of the application, (vi) the doctrine of res judicata is not applicable in the instant case and (vii) the defendant has failed to prove that plaintiff abandoned the earlier arbitration proceedings by not participating in it.

Learned counsel for the applicant has challenged the impugned order firstly on the ground that there was no dispute between the parties within the meaning of clause 24 of the agreement which was referable to arbitration for adjudication. Revision of rate of royalty was to be done as per clause 8 or the agreement in 8th and 16th year i.e. in the year 1952 and 1960 with the mutual consent of the parties. Thus in the absence of consent, revision of rate of royalty was not permissible. From the pleadings of the parties it is evident that parties could not arrive at consent for revision of rate of royalty and in the absence of mutual consent royalty could not be revised. So far as initiation of arbitration proceedings and participation of the applicant in the same is concerned, the applicant is not estopped from raising this objection on account of participation in the arbitration proceedings. Reliance is placed on the decision of the Apex Court in the matter of Dilip Construction Company Vs. Hindustan Steel Ltd., .

The dispute within the meaning of clause 24 of the agreement arose between the parties as the rate of royalty was revisable in 8th and 16th year of the lease agreement. Proposal of the State for revision of rate of royalty was not acceptable to the applicant herein which is evident from the documents available on record. First revision of rate of royalty took place with the consent of the parties sometime in the year 1953 with effect from 1.9.52 and rate was revised at Rs. 1.06 annas per hundred bamboos. However, the parties could not reach consensus for the second revision of royalty in terms of clause 8 of the agreement and therefore the dispute was referable to the arbitrator.

It is true that the applicant was not estopped from raising an objection regarding existence of the dispute worth reference to arbitrator within the meaning of clause 24 of the agreement simply because he appointed arbitrator and submitted to the jurisdiction of the arbitrator. Conjoint reading of clauses 8 and 24 of the agreement goes to show that royalty fixed under the agreement was subject to revision (by mutual consent) following 8th and 16th year of this contract and any doubt, difference or dispute arising between the parties touching or concerning their respective rights or privileges arising out of the agreement were required to be referred to the arbitration. Thus in case parties do not reach mutual consent regarding revision of rate of royalty as contemplated in 8th and 16th year of the contract, definitely the dispute arises within the meaning of clause 24 of the agreement. Even otherwise, in the earlier matter i.e. MJC No.6/1975 this objection was raised by the applicant and learned District Judge while deciding the issue No.6 has held that the arbitration clause is wide enough to include all disputes including the revision of rate is covered by arbitration clause and if other conditions are fulfilled the court can direct the parties to resort to arbitration clause.

The second ground taken by the applicant is that the instant application u/s 8 of the Act was hopelessly barred by law of limitation and the same was not maintainable for the reasons:

(i) First prerequisite of section 8 is pendency of proceedings before the arbitrator and during that pendency one of the contingencies provided in sub sections a, b, and c, of section 8 occurs. However, in the instant case on the date of making an application no proceedings were pending before the arbitrator and they had become functus officio due to expiry of scheduled period. (ii) The court below relying on the over-ruled judgment of the Supreme Court in the matter of Mohd. Usman Military Contractor, Jhansi Vs. Union of India (UOI), Ministry of Defence, has erroneously held that no limitation is prescribed for application under sections 8 and 20 of the Act.

It is submitted that said judgment was over-ruled by the Supreme Court in the matter of The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, wherein it has been held that article 137 of the Limitation Act will apply to any petition or application filed under any Act to the Civil Court and it is not confined to application contemplated under the Civil Procedure Code.

Right to apply u/s 8 arose to the State in the year 1960-61 onwards under clause 12 of the agreement. It further arose on 16.10.1965 when extended period of arbitration expired and arbitrator became functus officio. It again arose on 16.3.1969 when the proceedings were filed by the arbitrators under intimation to the parties and on 25.10.75 when the arbitrators died/retired. However a notice u/s 8(1) of the Act was issued on 7.1.1978 and application u/s 8 was filed on 13.4.1979 beyond three years and as such the same was barred by limitation. Reliance is placed on the decision of the Supreme Court in the matter of Balwant Singh and others Vs. Gurbachan Singh and others, in the matter of State of Orissa and another etc. Vs. Sri Damodar Das, , in the matter of Secretary to Government of Orissa, Irrigation Dept. and Others Vs. Raghunath Mohapatra, , in the matter of Major (Retd.) Inder Singh Rekhi Vs. Delhi Development Authority, and in the matter of Town Municipal, Council, Athani Vs. The Presiding Officer, Labour Courts, Hubli and Others etc.,

On the other hand learned counsel for the respondent/State has admitted that in the instant case article 137 of the Limitation Act is applicable and the citation relied upon by the trial Court in support of its opinion to the contrary stands over-ruled in the matter of Town Municipal council (supra). However, it is argued that as per column 3 of article 137 of the Limitation Act the period begins to run from the date cause of action arose and cause of action for making an application u/s 8 arises only after the other party fails to supply the vacancy within 15 days of the service of notice to that effect and notice to supply vacancy was given by the State on 11.11.1978 and since the non-applicant/plaintiff did not supply the vacancy within 15 days, the limitation started running from 26.1.1978. Hence limitation was available up to 25.1.1981. The instant application was filed on 30.11.1979 and as such the application was well within time. It is further argued that in the instant case one arbitrator was to be appointed by each party and it is not a case where arbitrators were to be appointed with the consent of the parties. Appropriate provision applicable to the facts of the case was section 9 of the Act. Since Shri J.S. Dave arbitrator appointed by the applicant/defendant died on 25.10.1975, the applicant was required to supply the vacancy by appointing the substitute, and therefore, a notice was given u/s 8 of the Act on failure of the respondent to supply the vacancy. When vacancy was not supplied even after notice, the application was filed well within limitation prescribed therefor.

I have heard learned counsel for the parties.

The undisputed facts may be summarized as under:

Agreement was entered into between the parties on 19.10.1944. It contained clause 8 providing for royalty of the bamboos subject to revision by mutual consent after 8 and 16 years of the contract. The said agreement also contained clause 24 which is an arbitration clause, wherein it is prescribed that in the event of dispute the matter was to be referred to the arbitrators appointed by both the parties and the arbitrators were required to appoint Umpire nominated by them in writing. Royalty was revised after expiry of 8 years with effect from 1.9.1952. However, no revision of royalty could be arrived at with the consent of the parties on expiry of 16th year with effect from 1.9.1960 and ultimately the matter was agreed to be referred to the arbitrators in terms of clause 24 of the agreement and accordingly the arbitrators were appointed by the parties on 15.7.1963 and the arbitration proceedings commenced. Learned District Judge vide order dated 16.4.1965 passed in CS 43-A/64 extended the time for making award by 16.10.1965. However on 16.10.1965 Shri K.M. Mishra, arbitrator appointed on behalf of the State adjourned the proceedings sine die. However meeting was held on 16 and 17.7.64 wherein it was agreed by the representatives of the mill to enhance the royalty to Rs. 4/- per hundred bamboos. However, the State sought concurrence of the applicant/defendant that the same was with effect from 1.9.1960 and the stand of the applicant was that revision was with effect from 26.11.1965. Thereafter, meetings were again held between the parties and the applicant/defendant suggested to refer the matter for arbitration under the lease deed and instead of appointment of two arbitrators the dispute be referred to the last retired Chief Justice of the Supreme Court as the sole arbitrator. The period of the contract expired on 31.8.1968. The State filed an application u/s 5 of the Limitation Act in the Court of District Judge which was registered as MJC No. 6/1975 for revoking the proceedings conducted so far, extension of time to file award and also for filling of the vacancies arose after their death/retirement which was dismissed vide order dated 4.4.1977 as discussed in the foregoing paragraphs. The revision petition preferred by the present applicant against the above order was also dismissed by the High Court on 16.3.1979 with cost. On 11.1.1978 a notice was served upon the applicant calling upon him to appoint the arbitrator in place of the deceased arbitrator J.S. Dave which was replied on 28.1.1978 repudiating that arbitrator can be appointed an arbitration proceedings can be held.

Claim of the applicant that the arbitrators filed the proceedings on 16.3.1969 is disputed.

So far as the filing of arbitration proceedings on 16.3.1969 by the arbitrators under intimation to the parties is concerned, the above fact is a disputed fact thought there is no finding given by learned Additional District Judge in this regard. From the evidence available on record and particularly from the affidavit of the Vice President examined by the defendant during the proceedings before the Court below, the oral and documentary evidence available on record and the fact that in the earlier proceedings in MJC No. 6/ 1975, the applicant/defendant did not mention this fact in the written statement, this Court is of the opinion that on the basis of material available on record it cannot be held at this stage that the arbitrators had filed the arbitration proceedings in the year 1969 as claimed.

The arguments have been advanced on behalf of the applicant placing reliance on the judgment of Apex Court in the matter of Balwant Singh Vs. Gurbachan Singh (supra) wherein it is held that starting point of limitation commences from the date when right to apply accrues and the question that when such right accrues depends upon facts and circumstances of each case. Similarly in the matters of State of Orissa and another Vs. Damodar Das (supra) the Apex Court has held that limitation for the purpose of arbitration commences from the date on which cause of arbitration accrues, cause of arbitration arises, like cause of action in civil suit, as soon as dispute or difference arises on unequivocal denial of claim of one party by the other party as a result of which claimant acquires right to refer the dispute to arbitration notwithstanding provision in the arbitration clause that no cause of action shall accrue until award is made and claim of arbitration must be raised as soon as cause for arbitration arises as it is arising in the civil action. Likewise, in the matter of Secretary Government of Orissa (supra) the Court has held that the question whether an application u/s 8 or section 20 of the Act is barred by law of limitation is to be decided by the Court to which the application is made and not by the arbitrator and the Courts dealing with the applications u/s 8 or section 20 of the Act must not lose sight of this important distinction. In the matter of Major (Retd.) Inder Singh Rekhi (supra) the Supreme Court has held that application for reference under the Arbitration Act, period of limitation has to be computed from the date claim is asserted and the payment is denied.

It is true that reasoning given by the trial Court to negate the contention of the application that instant application was barred by law of limitation is based on over-ruled judgment of the Supreme Court as discussed above. Article 137 of the Limitation Act under which three years'' limitation is prescribed for any other application for which no period of limitation is provided elsewhere is applicable. However provisions of Article 137 is to be read with section 28 of the Arbitration Act in which discretion is vested in the Court to enlarge time for making award.

In the instant case the parties referred their dispute to the arbitrators for adjudication and appointed arbitrator on 15.10.1963. The arbitrators were required to appoint Umpire but they could not appoint umpire within the extended time for making award i.e. 16.10.1065 and State''s arbitrator Shri K.N. Mishra adjourned the proceedings sine die on 6.10.1965. However the proceedings u/s 5 of the Arbitration Act was initiated by the State in the year 1975 and the same was dismissed by the learned District Judge vide order dated 4.4.1976 with an observation that the applicant has not been able to make out the grounds for revocation of authority of the arbitrator mentioned in section 5 of the Act and the vacancies caused due to subsequent exigencies cannot be supplied on an application u/s 5 of the Act and it was open to the applicant to file appropriate proceedings u/s 8 of the Act after complying With its requirement for filling up the vacancies of arbitrator caused by their death or retirement. Civil revision preferred by the applicant/ defendant was dismissed by the High Court with an observation that the applicant can have no grievance with the order dated 4.4.1977 passed by the District Judge and the said order would not occasion failure of justice or cause any injury to the petitioner.

It transpires from the record that parties were mutually negotiating and a meeting was held on 30.5.1973 and 6.6.1973 on the basis of which demands were raised by the State for royalty at the revised rate on 21.7.1973. Demand was further reiterated on 20.10.1973. Thereafter the Orient Paper Mill disputed the demand and expressed its willingness for arbitration. In reply it was further reiterated in their communication dated 19.7.1971.

In the light of aforesaid undisputed facts the second ground taken by the applicant that application u/s 8 f the Act was barred by limitation has to be considered. From the perusal of the facts mentioned above it is clear that even after extended period for making award up to 16.10.1965 the arbitrators could not complete the arbitration proceedings and they could not appoint umpire within the extended time. However there is no order of the court superseding the arbitration agreement. On the contrary from the conduct of the parties it is clear that they were willing to resolve their dispute through arbitration proceedings and for this purpose proceedings u/s 5 of the Act were filed by the respondent/State which was dismissed by the learned District Judge with an observation that vacancies caused due to subsequent exigency cannot be supplied on an application u/s 5 of the Act. The applicant''s revision petition was also dismissed by the High Court.

Clause three of the first schedule of the Act provides that the arbitrators shall make their award within four months after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the court may allow.

Section 28 of the Act reads:

(i) The court may, if it thinks fit, whether the time for making the award has expired or not and whether the award has been made or not, enlarge from time to time, the time for making the award. (ii) Any provision in an arbitration agreement whereby the arbitrator or umpire may, except with the consent of all the parties to the agreement, enlarge the time for making the award, shall be void and of no effect.

In the instant matter the application u/s 8(1) (b) of the Act filed by the State has been allowed by the impugned order as the applicant did not supply the vacancies despite notice dated 11.1.1978 calling upon to nominate their arbitrator in place of deceased arbitrator Shri J.S. Dave. Policy of law seems to be that arbitration proceedings should not be unduly prolonged and therefore the arbitrator is expected to give award within the time prescribed or such extended time as the court concerned may in its discretion extends and power to extend time for giving award lies with the Court.

Supreme Court in the matter of Nagar Palika, Mirzapur Vs. The Mirzapur Elect. Supply Co. Ltd., while dealing with sections 28 and 30 of the Arbitration Act, has held that where the award is passed after expiry of time without extension thereof, the major factor to be considered in such circumstances is conduct of the parties and taking into consideration the conduct of the parties in that case the Supreme Court held that the time be taken as extended.

In the matter of Utkal Commercial Corporation Vs. Central Coal Fields Ltd., where contract agreement had expired on 28.2.1975 and notice was served by the appellant asking the respondent to concur in the appointment of an arbitrator on 12.9.1976 and an application u/s 8 of the Act was filed before the High Court on 22.12.1977 and before the subordinate court on 9.8.1978, the finding of the High Court that the application u/s 8 of the Act was barred by law of limitation, was held to be erroneous and it was held that it cannot be assumed that the causes of action arose on the date of expiry of contract.

In the matter of Shyamlal Vs. Hukumchand reported in 1963 MPLJ (60) it has been held that agreement referred to arbitration is irrevocable, arbitrator''s failure to make award within time does not automatically cancel agreement and once there is a valid reference to arbitration, the parties cannot resile from it merely because the arbitrators have allowed their time to expire without making any award or that have neglected or refused to act. Failure of the arbitrator to make an award within four months does not automatically result in cancellation of the arbitration agreement.

Similarly in the matter of Jugalkishore Asati Vs. State of Madhya Pradesh, it has been held that the Court has power to appoint the arbitrator u/s 8 (1) (b) where arbitrator chosen by the parties refuses to arbitrate. In the instant case it is not in dispute that the application u/s 8 (1) (b) of the Act was filed when the applicant failed to appoint arbitrator even after notice and the same was allowed by the impugned order. The grievance of the applicant is that the arbitrators had become functus afficio as they did not pass any award within the extended period and in the meanwhile contract period was also over in the year 1968. Vacancy due to death of J.S. Dave had occured on 25.10.1975 whereas notice for supply of vacancies was given by the State only on 11.01.1978 i.e. three years after arising of the vacancies and as such application u/s 8 of the Act was beyond the period of limitation prescribed under Article 137 of the Limitation Act. However, taking into consideration the provision of section 28 of the Act which gives wide discretion to the court to enlarge time for making the award from time to time and the court below after considering the facts and circumstances of the case has allowed the application by the impugned order and thereby impliedly extended the time for making the award. Discretion u/s 28 (1) of the Act should be exercised judiciously. In the instant case from the material available on record it is evident that the parties were mutually negotiating the dispute even after the same was referred to the arbitrator and in said negotiation the applicant had expressed his willingness to get the matter adjudicated through arbitration. Even prior to filing of application u/s 8 of the Act, the State filed an application u/s 5 of the Act and thus this Court is of the considered opinion that the court below has not committed any illegality or infirmity in passing the impugned order allowing the application u/s 8 of the Act.

In the result the revision being without force is liable to be dismissed and the same is dismissed.