Bangalore District Court
National Highways Authority vs ) Smt.B.M.Nirmala on 19 October, 2016
IN THE COURT OF THE VI ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY (CCCH. 11)
Dated this the 19th day of October, 2016
PRESENT: Sri.K.M.Rajashekar, B.Sc., LL.B.,
VI Addl. City Civil & Sessions Judge,
Bengaluru City.
A.S.NO: 3/2013
PLAINTIFF : NATIONAL HIGHWAYS AUTHORITY
OF INDIA,
Sy.No.13, Nagasandra Village,
14th Km., From
Bangalore-Tumkur Road,
Bangalore-560 073.
Represented by Project Director.
/Vs/
DEFENDANTS : 1) Smt.B.M.Nirmala,
W/o.late Sri.H.V.Prabhakar Reddy
# 726, 17th Cross, 6th Phase,
J.P.Nagar, Bengaluru-560 078.
2) Sri.V.P.Kiran,
S/o.late Sri.H.V.Prabhakar Reddy,
# 726, 17th Cross, 6th Phase,
J.P.Nagar, Bengaluru-560 078.
3) Sri.V.P.Padmashri,
S/o.late Sri.H.V.Prabhakar Reddy,
# 726, 17th Cross, 6th Phase,
J.P.Nagar, Bengaluru-560 078.
2 AS.3/2013
4) The Deputy Commissioner &
Arbitrator
Bengaluru District, Bengaluru.
5) The Assistant Commissioner &
Competent Authority,
(Presently Spl.Land Acquisition Officer
And Competent Authority NH-4),
NH-4, 3rd Main, Palasandra Layout,
Gulpet Kolar.
--
JUDGMENT
This suit is filed by the Plaintiff under Section 34(2) of the Arbitration and Conciliation Act, 1996, to set aside the award dated 27th September, 2012 passed by 4th Defendant/Arbitrator in Case No.LAQ.ARB.NH-4(BET)128/ 2010-11.
2) The nutshell of Plaintiff's case is that, the Plaintiff Authority was constituted under the National Highway Authority of India Act, 1988, responsible for the development, maintenance and management of National Highways entrusted to it. The Central Government of India for the purpose of widening/6 laning, maintenance management and operation of National Highway No.4 on 3 AS.3/2013 the stretch of land from K.M.237 to K.M.320 i.e. Mulbagal-Kolar-Bangalore Section, issued Preliminary Notification dated 28th April, 2008 under Section 3-A of National Highways Act, 1956 declaring its intention to acquire the lands specified in the schedule annexed to the said notification and Final Notification dated 5th November 2008 under Section 3-D of the said Act, declaring that the lands specified in the schedule of the notification shall vest absolutely in Central Government free from all encumbrance. Amongst other lands acquired, agriculture lands in Sy.No.15 measuring 696 sq.mtrs., situated in K.R.Puram Village, Kasaba Hobli, Bengaluru East Taluk, Bengaluru Urban District was also acquired. The 5th Defendant after considering the relevant sales statistics from 08.11.2007 to 8.11.2008 and guidance value as on the date of preliminary notification obtained from the Sub-Registrar, fixed the market value of the agriculture lands acquired at Rs.4,447.78 per Sq.Mtr. The Defendants No.1 to 3, the 4 AS.3/2013 legal representatives of late Sri.H.V.Prabhakar Reddy, being not satisfied with the award passed by 5th Defendant called in question the said award before the 4th Defendant/Arbitrator seeking enhancement of compensation. But, the Arbitrator without proper appreciation of facts and without any basis treating the lands as converted lands, acting contrary to the provisions of the said Act and law, by his order dated 27th September, 2012 enhanced the compensation to Rs.65,636/- per Sq.Mtr., from Rs.4,447.78. Being aggrieved by the same, the Plaintiff has preferred this suit on the following among other grounds.
The impugned award passed by the 4th Defendant/Arbitrator is perverse, patently illegal,
capricious and goes against the very fundamentals of Arbitration and Conciliation Act, 1996, the learned arbitrator has grossly erred in fixing the market value of the lands acquired at Rs.65,636/- per Sq.mtrs., without there being any evidence on record to substantiate the 5 AS.3/2013 same and has grossly erred in treating the acquired lands as converted lands though Defendants No.1 to 3 did not produce the conversion order and reasoning of the Arbitrator that the land in question has already been converted for non agriculture/commercial purpose having paid the conversion charges on 12th October, 2007 is erroneous in the eye of law. Mere payment of conversion charges will not change the nature of land, unless and until there is a conversion order to that effect. The acquired lands as on date of preliminary notification were agriculture lands and the official memorandum for conversion of the land in Sy.No.15 was issued by Spl.Dy.Commissioner, Bengaluru District, on 21st October, 2008, which is subsequent to issuance of preliminary notification, therefore, holding of the Arbitrator that the lands were converted lands is an error apparent on the face of the record. The Arbitrator has merely stated that the acquired land fall within BBMP., and in the IT and BT corridor, surrounded by Super Specialty Hospitals, 4 star 6 AS.3/2013 hotels etc., is contrary to well established principles of law laid down by the Apex Court in determining the market value of the lands acquired. The Arbitrator has grossly erred in considering the sale deed produced by Defendants No.1 to 3 which pertains to Horamavu Village, which cannot be considered under law as comparable sale deed, since the same pertains to different village and nature of the said land is a residential site situated in BDA layout, wherein, the acquired land is agriculture land situated in K.R.Puram Village. The Arbitrator has erred in considering the compensation awarded by KIADB for construction of Metro Project, since the lands under the said acquisition pertains to developed areas near Indiranagar and Byapanahalli, which is more developed than the subject lands, he has grossly erred in considering the present potentiality of the land by conducting spot inspection contrary to Section 3-G(7)(a) of the Act. The Arbitrator has grossly erred in awarding payment under Section 3- 7 AS.3/2013 G(2) of NHAI Act, as neither it is the case of Defendants No.1 to 3 that their right as user or any right in the nature of an easement has been affected due to the acquisition nor any material was placed. The Arbitrator has failed to adhere to the mandatory provisions of Section 24, 28 and 31(3) of the Arbitration and Conciliation Act, while conducting the arbitration proceedings and has lost sight of the fact that the 5th Defendant has fixed the market value of the acquired land considering the guidance value and sales statistics for the relevant period which was in accordance with the provisions of the Act and the award passed is without proper application of mind, which has resulted in serious miscarriage of justice. Thus, viewed from any angle, the award passed by the Arbitrator is against all cannons of law; hence, the same is liable to be set aside and sought for the reliefs prayed.
3) On service of notice, Defendants No.1 and 2 entered appearance through their counsel. Defendant 8 AS.3/2013 No.2 filed written statement and the same is adopted by Defendant No.1. Defendant No.3 remained absent, hence, he has been placed exparte. Defendants-4 and 5 though have entered appearance through their counsel, have not filed any statement of objections, despite granting sufficient time.
4) The Defendant No.2 in his written statement has denied the plaint averments in general and para-wise. In brief, the contention of the Defendants is that, their father was the absolute owner in possession and enjoyment of the acquired land, having acquired the same in a family partition and he had represented before the Spl.Dy.Commissioner, Bengaluru District, seeking conversion of land from Agricultural to non-agricultural purposes, accordingly, he was asked to pay the conversion charges of Rs.6,01,128/- vide show-cause notice dated 06.10.2007 and he had paid the said charges and consequently conversion orders was issued in respect of the aforesaid land, hence, the said land is a 9 AS.3/2013 residential/commercial land prior to issue of notification by the authorities. Consequently, he has also paid developmental charges in respect of the aforesaid property to the CMC of K.R.Puram, Bengaluru and has also paid taxes and accordingly he has been recognized as the khathedar of the said property, the acquired property is commercial one and abutting to NH-4 and within the limits of BBMP. The Claimant has received the compensation on the protest as the compensation amount paid is very nominal compared to the actual market value of the lands prevailing in the said locality. According to the comprehensive development plan, the land in question and the surrounding areas are earmarked for Hitech Zone, commercial and industrial zones, as such, the land in question is potentially very valuable and it is highly impossible for purchasing any lands due to non-availability of the lands in the vicinity of the lands acquired by the authority. On these 10 AS.3/2013 contentions, Defendants have prayed for dismissal of suit.
5) Heard. Perused the records.
6) The points that arise for my consideration are :-
(1) Whether Plaintiff proves that the impugned award is patently illegal, perverse and opposed to public policy?
(2) Whether Plaintiff has made out any of the grounds under Section 34(2) of the Arbitration and Conciliation Act, 1996, so as to set aside the impugned award passed by Defendant No.4/Arbitrator?
(3) What Order?
7) My answer to the above points are :-
Point No.1 - In the Affirmative;
Point No.2 - In the Affirmative;
Point No.3 - As per final order,
for the following :
11 AS.3/2013
REASONS
8) Point No.1 and 2 : Since these points are
inter related to each other, they are taken up together to avoid repetition of facts and for convenience of the court.
Upon going through the materials available on record, it is seen that the present Arbitration suit is filed for setting aside the arbitration award dated 27th September, 2012 passed by 4th Defendant/Arbitrator on the ground that the impugned award is perverse, patently illegal, capricious and goes against the very fundamentals of Arbitration and Conciliation Act, 1996; the learned Arbitrator has grossly erred in fixing the market value of the lands acquired at Rs.65,636/- per Sq.mtr., without there being any evidence on record to substantiate the same and has grossly erred in treating the acquired lands as converted lands though Defendants No.1 to 3 did not produce the conversion order. The Arbitrator has merely stated that the acquired land fall 12 AS.3/2013 within BBMP., and in the IT and BT corridor, surrounded by Super Specialty Hospitals, 4 star hotels etc., is contrary to well established principles of law laid down by the Apex Court, etc.
9) Before taking the case on merits, it is useful to note that the Plaintiff herein who is the National Highway Authorities of India have acquired the properties for the purpose of expansion of National Highway pertaining to Mulbagal-Kolar-Bengaluru Section, NH.4. The Assistant Commissioner and Competent Authority issued notice under Section 3-e(1) and 3-H(2) of National Highway Act, 1956. For this purpose, Defendant No.4 and 5 herein have acquired the lands, evaluated the property as per the existing parameters and fixed the compensation accordingly. Aggrieved by the said order, the land looser preferred arbitration proceedings before the learned Arbitrator, who chooses to enhance the rate at Rs.65,636/- per sq.mtr., from Rs.4,447/- per sq.mtr. Aggrieved by the said award, the Plaintiff i.e. National 13 AS.3/2013 Highway Authority of India preferred this appeal. Series of cases were filed before this court and majority of the cases were disposed off by my learned predecessors leaving only 3 petitions including this petition. In almost all the suits, the grounds urged by the Plaintiff to set aside the arbitration award is one and the same and it is an undisputed fact that the lands in all other cases were abutting to each other, acquired for the same purpose and same quantum is awarded.
10) My learned predecessor chooses to make the following observations in a covered case A.S.No.5/2013, disposed on 29.10.2013, which was a suit filed under Section 34(2) of the Arbitration and Conciliation Act, 1996, to set aside the award dated 11.10.2012 passed by the Arbitrator in Case No.LAQ.ARB.NH-4.(BET)1/2011-12:
" REASONS Section 34(2) of the Arbitration and Conciliation Act, 1996, empowers the Civil Court to set aside the award of the Arbitrator in the following circumstances:
(i) If a party was under some incapacity; or 14 AS.3/2013
(ii) If the arbitration agreement is not valid under any law, which the parties are subjected to; or
(iii) If the party was not given proper notice of the appointment of the Arbitrator or arbitral proceedings; or
(iv) If the award is not within the terms of the arbitration agreement; or
(v) If the arbitral award is in conflict with the public policy of India etc. In the decision reported in AIR 2003 SC 2629 in the case of ONGC Ltd., vS. SAW pipes limited, his Lordship of the Hon'ble Apex Court has held that, the award could be set aside, if it is contrary to-
(a) fundamental policy of Indian law; or
(b) the interest of India; or
(c) Justice or morality; or
(d) In addition, if it is patently illegal.
It is also held that, "illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that the award is against the public policy. The award can also be set aside if it is so unfair and unreasonable that it shocks the conscience of the Court, then, such award is opposed to public policy and is required to be adjudged void."
In another decision reported in (2009) 10 SCC 259 relied by the plaintiffs counsel, their lordships of the Hon'ble Apex Court have held that;
"Arbitration and conciliation Act, 1996-Sec.31(3) reasons must be indicated in the award as that would reflect thought, 15 AS.3/2013 process leading to a particular conclusion. To satisfy the requirement of Sec.31(3), the reasons must be stated by the Arbitral Tribunal upon which, the award is based; want of reasons would make such award legally flowed."
Keeping in mind the above dictum laid down by the Hon'ble Apex Court, now proceed to see whether the impugned award suffers from any patent error and illegality as envisaged in the above dictum.
Perused the impugned award dated 11.10.2012. In the award, the Arbitrator has stated that, the competent authority had visited the spot, and it is clear from spot inspection report that, the competent authority has noted that, the acquired land is situated on NH-4 and within the limits of BBMP., and surrounding with developed areas i.e. IT and BT corridor. He has further stated that, after the matter was reserved for orders, he too had visited the spot and noticed the very same fact as to the location and the nature of the acquired property noticed by the competent authority and opined that, since, the acquired property is situated within the corporation limits, it has more potential value. The Arbitrator has further stated that, despite these facts, the competent authority has awarded compensation at Rs.13,992.68. per Sq.Mtr. but, as the acquired property is having high potentiality and situated in a developed area and within the limits of BBMP., he felt that compensation should be enhanced and accordingly, has enhanced compensation at Rs.65,636/- per sq.mtr.
No doubt, there is no dispute as to the location of the acquired property. But, it is pertinent to note that, the market value of the acquired property has to be determined as on the date of preliminary notification i.e., 8.11.2007 and not on the date of the passing 16 AS.3/2013 of the award. Perusal of the awards reveals that, the arbitrator has not collected any evidence of nearby properties for ascertaining the exact market value of the acquired property as on the date of notification. The Arbitrator has enhanced the compensation to Rs.65,636/- per Sq.Mtr. in place of Rs.13,993/- per Sq.Mtr. fixed by the LAO/3rd defendant, only on the basis of his spot inspection without collecting any evidence. So, it could be safely said that, fixing of market value by the 2nd defendant/Arbitrator for the acquired property is not based on any comparable market value and assessment of any evidence. On the contrary, the Arbitrator has enhanced the compensation only on the basis of his self assessment on spot inspection which is not proper. So, it could be said that, no proper reasons are assigned by the arbitrator for the enhancement of compensation to the extent of 5 times than the compensation fixed by the 2nd defendant/LAO. Further, the 2nd Defendant/ Arbitrator has not followed the provisions of Section 24 of the Arbitration and Conciliation Act, which reveals from the award. Hence, I have no hesitation to hold that, the impugned award is capricious, arbitrary and patently illegal.
Therefore, for the foregoing reasons and relying on the dictum laid down by the Hon'ble Apex Court in the decisions cited above, I am constrained to hold that the impugned award is illegal, unreasonable, unjust and not reasoned one and hence, liable to be set aside and the matter requires to be remanded back to the learned Arbitrator for fresh disposal in accordance with law, affording opportunity to both the parties to adduce evidence, both oral and documentary. In the result, I answer Point No.1 in the affirmative.
Point No.2 : For the foregoing reasons and answer to Point No.1, in my opinion, the suit 17 AS.3/2013 deserves to be decreed. In the result, I pass the following :
ORDER (1) The suit is allowed.
(2) The impugned award dated 11.10.2012 passed by 2nd Defendant/Arbitrator, in case No.LAQ.
ARB.NH-4.(BET)1/2011-12; is hereby set aside.
(3) The matter is remanded back to the Arbitral tribunal, with a direction to afford reasonable opportunity to both the sides, as provided in Section 24 of the 1996 Act, and then to hear both the sides and dispose of the matter in accordance with law.
(4) Both the parties to bear their own costs of this proceedings. "
11) In this particular case, the property acquired by the Plaintiff is agriculture land in Sy.No.15 situated in K.R.Puram Village, Kasaba Hobli, Bengaluru East Taluk, to an extent of 696 Sq.mtrs. The Assistant Commissioner i.e. Land Acquisition Officer has awarded Rs.4,447/- per sq.mtr., which was enhanced to Rs.65,636/- per sq.mtr. The Plaintiff herein pointed out the fact that even though the property was not converted as on the date of 18 AS.3/2013 preliminary notification, the learned Arbitrator held that the property is already converted for non agricultural purpose. The operative portion of the impugned award reads thus :
" Having considered the aforesaid facts and circumstances particularly that the land in question was already converted for non-agricultural purpose prior to the date of Preliminary Notification and its location as well as surroundings, etc., the Competent Authority and Land Acquisition Officer while passing the Award has failed to take into consideration the said facts as well as the actual status of the land in question as narrated above. He has awarded only Rs.4,447/- per sq.mtrs., which is very meager and unreasonable as well as unjustified. Hence, considering the very fact that the land in question was converted for non- agricultural purpose much before the Preliminary Notification as well as its location and its surroundings much less it is falling within the BBMP limits, the award is enhanced at the rate of Rs.6,100/- per sq.ft., or Rs.65,636/-(Rupees Sixty five thousand Six Hundred and thirty-six only) per sq.mtr.
The amount already paid to the Claimant shall be deducted and the balance amount shall be paid to the Claimant by the Competent Authority and Land Acquisition Officer.
Further, the Claimant is entitled for payment of use right under Section 3G(2) and also statutory benefits under Section 3H(5) of the National Highways Act, 1956. It is made clear that there will be no enhancement in respect of structures, malki, bore wells etc. 19 AS.3/2013 The Competent Authority shall take necessary steps to make the payment as per this Order to the Claimant.
Since the original Petitioner/Claimant- H.V.Prabhakar Reddy is deceased; the payment shall be paid to his LRs.-Petitioners/Claimants-1(a) to 1(c) herein as per rules. With the above modification, the matter is disposed of. Endorse the parties.
With the above modification, the matter is disposed of.
Endorse the parties. "
12) The learned counsel for the Plaintiff in this case vehemently argued that the learned Arbitrator has committed patent illegality while dealing with this Arbitration case. Even though 5th Defendant has evaluated the suit land based on the guidelines value for the year 2007, the 4th Defendant has enhanced it to 15 times, which is patently illegal. Even though the subject lands are agricultural lands, the learned Arbitrator erroneously concluded that subject land was already converted for non-agricultural purpose prior to the date of preliminary notification. Mere payment of conversion fee will not amount to automatic conversion of lands from 20 AS.3/2013 agricultural to non-agricultural purpose. The learned counsel relying upon the judgments rendered by the Hon'ble Supreme Court of India in ONGC Vs. Saw Pipes vehemently argued that if the Arbitral Tribunal has not followed the mandatory procedure prescribed under the Act, it would mean that it has acted beyond its jurisdiction and thereby the award would be patently illegal which is to be set aside. The learned counsel for the Plaintiff further argued that the learned Arbitrator has lost sight of National Highway Act and Land Acquisition Act, which was in force at the time of acquisition, erroneously applied the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013. The said Act came into force only in January 2014, the preliminary notification in respect of the subject matter in this case was issued on 24th April, 2008, hence, the said Act shall not be applied to the case on hand.
21 AS.3/2013
13) The learned counsel further pointed out that the spot inspection report alleged to have been done by the 5th Defendant on 13th April, 2009 states that it is Wednesday. But actually, 13th April, 2009 was a Monday, therefore, the report has to be read as 13th November, 2009 and the court has to take judicial notice of it. The learned counsel further argued that since this court has already rendered its decision on connected matter in various other judgments, the same parameter has to be applied in this case also as it is a covered matter .
14) The learned counsel for the Plaintiff vehemently argued that even though the Defendant claim that the subject matter of the subject land is having facility of METRO, but it is almost 6.5 Kms., away from the suit schedule property, hence, METRO Acquisition and payment of compensation for that purpose cannot be considered on par for acquisition of National Highway. 22 AS.3/2013
15) On the other hand, the learned counsel appearing for the Defendant vehemently argued that the decisions taken by the predecessor in office of this court in other related matters need not be taken into consideration as those decisions are not binding on this court. The learned counsel further argued that since the cases relied by the Plaintiff claim to be connected with the matter disposed of by the very same court by the predecessor in office is handled by party in person and not represented by any Advocate, hence, the same parameter cannot be applied to the case on hand. Apart from that, in those cases the facts and circumstances were entirely different; rather, herein the Defendant has already paid developmental charges for conversion of the land. Hence, as per the settled principles of law, even though land is not converted within the stipulated period, it deems to be converted for non-agricultural purpose.
16) The learned counsel for the Defendant vehemently argued that on 12.07.2007 the Defendant has moved an 23 AS.3/2013 application seeking conversion of the land, which is much prior to the date of notification, they have paid developmental charges on 12.10.2000. The lands were within the municipal limits having potentiality for non- agricultural residential use, it also falls within BBMP limits. Proceedings before the Deputy Commissioner reflects that the lands were being converted for non-agricultural residential use and if acquisition was not made, the lands would have eventually used for non-agricultural purpose. The learned Arbitrator had considered the potentiality of the land gathered from the adjoining vicinity, therefore, the award as regards determination of compensation and the principles for the same is very well analyzed and the compensation is arrived at the settled principles of law and does not require any interference by this court etc. The learned counsel for the Defendant vehemently argued that the land acquired by the METRO Authorities for the purpose of construction of Metro Rail Project has been paid the higher compensation, which was 24 AS.3/2013 considered by the learned Arbitrator. The principle of Right to Fair Compensation is squarely applicable to the case on hand and one cannot discriminate the land acquired for different purpose and pay inconsistent compensation contrary to each other. Whether the land is acquired for METRO or for National Highway has nothing to do for the land looser. Hence, the land looser is entitled for equal payment etc.
17) On perusal of the documentary evidence which is got placed before the learned Arbitrator, it indicates that subject property is Sy.No.15 situated in Bengaluru East Taluk, K.R.Puram Hobli, K.R.Puram Village, measuring 03 Acres 18 guntas, is an agricultural land is undisputed fact. It is an admitted fact that preliminary notification is issued on 28th April, 2008 and final notification is issued on 5th November, 2008. Hence, as rightly claimed by the learned counsel for the Plaintiff, the learned Arbitrator has misread the documentary evidence and held that the property is already converted before the notification, 25 AS.3/2013 which is a substantial error on facts. Apart from that, the observation referred above rendered by my learned predecessor in respect of the similar subject matter is squarely applicable to this case also. Since all these cases are covered under previously rendered judgment, I am of the opinion that absolutely there are no reasons to descent with the view taken by my learned predecessor in the above referred judgment.
18) Upon going through the materials available on record, it is seen that even though the Defendant contended that the payment made by METRO authorities for acquisition of land for Metro Rail Project is at higher side, hence, the compensation awarded by the learned Arbitrator considering all those facts is fair enough etc. But as rightly argued by the learned counsel appearing for the Plaintiff, admittedly, the Metro Rail Project is more than 6.5 Kms., away from the suit schedule property in this case. Hence, as rightly claimed by the Plaintiff's counsel, in a Metropolitan City like Bengaluru, 26 AS.3/2013 compensation paid to a particular land for other purpose which is more than 6 Kms., away cannot be treated as market value for the land, which is almost at the outskirts of the city limits. Added to that, admittedly, the lands in question were not yet converted. Even though the Defendants made some attempts to get their land converted which was under progress, that itself does not gain status of the converted land for the subject properties. Even though the learned counsel for the Defendant opposes for referring the previous decision of this court in respect of the adjoining lands on the ground of not binding principle, but, I am of the opinion that there were more than 50 cases adjudicated by my learned predecessors in office in respect of the very same dispute pertaining to the adjoining lands. No doubt, the decision of my learned predecessor is not having binding effect on this court , but, obviously courts has to maintain parity and consistency in deciding the cases of similar nature filed on similar set of facts. Since the decision taken by my 27 AS.3/2013 learned predecessor in respect of other cases were based on sound principle and not yet set aside by the Appellate Courts, I am of the opinion that in order to maintain parity and consistency in the judgment, it would be just and reasonable to adopt the same parameter in this case also. Except three cases out of umpteen number of cases, all other cases were disposed of by my learned predecessor, hence, it is not fair on my part to take a different view in respect of only three matter to override the decisions rendered in other large number of cases of similar nature. Under the facts and circumstances of the case, I am of the opinion that it would be just and reasonable to concur with the findings of my learned predecessor. and dispose of the matter accordingly and accordingly, I answer the Point No.1 and 2 in the affirmative.
19) Point No.3: In view of the foregoing reasons and answer to Point No.1 and 2, the present arbitration suit deserves to be allowed and matter requires to be remanded to the Arbitral Tribunal for fresh disposal in 28 AS.3/2013 accordance with law. In the result, I proceed to pass the following :
ORDER (1) The suit filed by the Plaintiff under Section 34 (2) of the Arbitration and Conciliation Act, 1996, is hereby allowed.
(2) The impugned award dated 27.09.2012 passed by 4th Defendant/Arbitrator, in case No.LAQ.ARB.NH-4.(BET)128/2010-11; is hereby set aside.
(3) The matter is remanded back to the Arbitral Tribunal with a direction to provide reasonable opportunity to both the sides as provided in Section 24 of the 1996 Act; and then to hear both the sides and dispose of the matter in accordance with law.
(4) Both the parties to bear their own costs of this proceeding.
(Dictated to the Judgment Writer directly on computer, typed matter corrected and then pronounced by me in open Court, dated this the 19th day of October,2016.) (K.M.RAJASHEKAR) VI Addl.City Civil & Sessions Judge Bengaluru City.
29 AS.3/2013