Bangalore District Court
National Highways Authority Of India vs Sri.K.V.Radhakrishna on 7 February, 2020
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A.S.No.56/2018
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY: (CCH.18)
Dated this the 7th day of February, 2020.
Present
SRI.DINESH HEGDE, B.A.,LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
A.S.NO.56/2018
PLAINTIFF: 1. National Highways Authority of India
Sy.No.13,
Nagasandra Village,
14th Km from
Bangalore - Tumkur Road,
Bangalore-560 073.
Represented by its Project Director
NHAI, PIU Bangalore
(By Smt.Shilpa Shah, Advocate)
-VS-
DEFENDANTS: 1.Sri.K.V.Radhakrishna,
s/o D.Venkataramaiah,
aged major,
No.354, Gandhudinilaya,
5th Main Road,
K.R.Puram,
Bengaluru-560 036.
2. The Arbitrator & Special Deputy
Commissioner-I,
Bangalore Urban District,
Kandaya Bhavana,K.G.Road,
Bangalore-560 009.
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3. The Asst.Commissioner &
Competent Authority,
National Highways Authority of India,
Mulabagilu - Kolar - Bangalore Section,
NH-4, 3rd Main Road, Palasandra Layout,
Gulpet, Kolar - 563 101.
Now shifted to Special Land
Acquisition Officer and Competent
Authority,
Neerubhavi, Kempanna Layout,
Hebal, Bangalore-560 024.
(D.1 - Sri.B.R.Ramesh, Advocate)
(D.2 & D.3 - Exparte)
JUDGMENT
The plaintiff has filed this suit under Section 34(2) of the Arbitration & Conciliation Act, 1996 (hereinafter referred as the Act) to call for the entire records in Case No.ARB/NH-4(BET)/226/2010-11 on the file of the 2 nd defendant and to set-aside the Arbitral Award passed by the 2nd defendant in Case No.ARB/NH- 4(BET)/226/2010-11 dated 18/11/2017 and for such other reliefs.
2. The case of the plaintiff is that, the plaintiff i.e., National Highways Authority of India was constituted by 3 A.S.No.56/2018 an act of Parliament "The National Highways Authority of India Act, 1988". The Central Government for the purpose of widening and upgradation (four/six laning) of Mulabagilu - Kolar - Bangalore Section from Kms.237 to 318 herein after referred as the project, issued preliminary notification bearing No.S.O.1032(E) dtd:
28/4/2008 under Section 3-A(1) of the National Highways Act, 1988 in respect of acquisition of lands situated at K.R.Puram Village, K.R.Puram Hobli, Bangalore East Taluk amongst other lands which was published in the official gazette on 28th April 2008. Thereafter, the substance of the preliminary notification was published in two local newspapers under Section 3-A(3) of the NH Act. After following the procedure prescribed under the NH Act, the Final Notification bearing No.S.O.2597(E) under Section 3-D(1) &(2) of the NH Act was published in the official gazette on 5th November 2008 followed by public notice under Section 3-G(3) published in two local newspapers by inviting claims from all the persons interested in the 4 A.S.No.56/2018 land to be acquired. The enquiry under Section 3-G(4) was conducted on 29/1/2009. Hence, the procedure as mandated under the NH Act was duly complied before passing of the award.
3. Under the said notification amongst other lands acquired, the non-agricultural lands in Sy.No.30/3 to an extent of 45 Sq.Mts. Situated at K.R.Puram Village, K.R.Puram Hobli, Bangalore East Taluk, belonging to the 1st defendant herein after referred to as the subject lands) were acquired. In accordance with Section 3(a) of the NH Act, the 3rd defendant was appointed as the competent authority by the Central Government to perform task related to acquisition of land for the project including hearing of objection, deciding on objection, determination of compensation and releasing of such compensation.
4. The 3rd defendant vide his award dtd:20/4/2009 bearing No.LAQ/NH-4/S.R.1/2007-08 determined the 5 A.S.No.56/2018 market value of the dry lands at Rs.13,992.68/- per sq.meter. In order to determine the market value, the 3rd defendant has obtained both the sales statistics for the period 8/11/2007 to 8/11/2008 as well as the Guidance Value for the relevant period for lands situated at K.R.Puram Village from the office of the Sub-Registrar, K.R.Puram Taluk. The 3rd defendant observed that the non- agricultural lands were registered at a rate of Rs.6204.58/- per sq.meter. The guidance value of non-
agricultural lands was Rs.13,992.68/- per sq.meter. Therefore, the competent authority relied upon the guidance value of Rs.13,992.68/- per sq.meter after considering the actual physical characteristics of the acquired lands. Therefore, the compensation awarded is in accordance with Section 3-G(7)(a) of the NH Act which stipulates that while determining the amount of compensation, the guidance value of the lands as on the date of preliminary notification has to be taken in to consideration. The compensation for trees and 6 A.S.No.56/2018 structures in respect of the subject lands was paid in accordance with the valuation report of the approved Government Valuators.
5. The 1st defendant during the award enquiry before the 3rd defendant had not claimed a sum nor did the defendant did not produce any documents during the enquiry to prove that the market value of subject lands was higher at the time of publication of preliminary notification. An amount of Rs.6,29,670/- for the land was disbursed as compensation towards the lands to the 1st defendant vide cheque No.406491 on 12/3/2010 after deducting TDS of Rs.64,856/-.
6. Being aggrieved by the award passed by the 3 rd defendant, the 1st defendant approached the 2nd defendant under Section 3-G(5) of the NH Act seeking enhancement of compensation who is appointed as an Arbitrator by the Central Government. The defendant instituted arbitration proceedings in Case No.ARB/NH- 7
A.S.No.56/2018 4(BET)/226/2010-11 seeking enhancement of compensation at the rate of Rs.10,000/- per sq.ft.
7. The plaintiff entered appearance and filed its statement of objections with documents as well as written submissions with several judgments in support of its defence. The 2nd defendant however, without application of mind and proper appreciation of facts, enhanced the compensation from Rs.13,992.68/- per sq.meter to Rs.41,978.04/- per sq.meter, thereby determining the compensation for the subject lands by three times of the market value determined by the 3rd defendant without assigning any reasons. The 2nd defendant has also awarded interest at the rate of 9% p.a. from the date of taking possession of the lands till actual payment and user charges under Section 3-G(2) of the NH Act at the rate of 10% p.a.
8. Being aggrieved by the award passed, the plaintiff has preferred the arbitration suit on the following 8 A.S.No.56/2018 grounds:-
1. The impugned order passed by the 2nd defendant is perverse, patently illegal, capricious and goes against the very fundamentals of Arbitration & Conciliation Act, 1996.
2. The 2nd defendant has grossly erred in not following the provisions of NH Act i.e., Section 3-G(7)(a), the substantive law, while passing the impugned award which is contrary to provisions of Section 28 of Arbitration & Conciliation Act and accordingly, the award passed is patently illegal and the same requires to be set aside.
3. The 2nd defendant had completely failed to follow the mandatory procedure prescribed under Section 31(3) of the Arbitration & Conciliation Act, thereby rendering the impugned order patently illegal as held by the Apex court in "ONGC Ltd., v/s Saw Pipes Ltd.," reported in AIR 2003 SC 2629, Section 31(3) of the Arbitration & Conciliation Act states as follows:-
"(3) The arbitral award shall state the reasons upon which it is based, unless:-9
A.S.No.56/2018
(a) the parties have agreed that no reasons are to be given, or;
(b) the award is an arbitral award on agreed terms under Section 30."
The 2nd defendant has not assigned any reasons for fixing the compensation amount at three times of the amount already paid by the 3 rd defendant especially when the parties had neither agreed that no reasons were to be given nor the impugned order is an award or agreed terms under Section 30 of the Arbitration & Conciliation Act.
4. The 2nd defendant has completely lost sight of the fact that the 3rd defendant had determined the market value of the subject lands considering the guidance value and sale statistics for the relevant period which was in accordance with the provisions of the NH Act, especially when the 1st defendant had failed to produce any document to substantiate the market value as on the date of preliminary notification.
5. The 2nd defendant has observed that in view of the partial acquisition of various lands, the remaining portion of the lands which have become useless without any documents on record placed by the 1 st 10 A.S.No.56/2018 defendant to that effect. The 2nd defendant has not even verified or mentioned what was the total extent of land belonging to the 1st defendant and what is the actual extent of lands acquired which has resulted in the alleged severance of land in order to come to a such a conclusion.
6. The 2nd defendant has held that there is a provision for giving 10% more compensation on the basis of the judgment of the Hon'ble Apex Court in 2009 AIR/SCW/1515 which is totally misconstrued.
7. There is absolutely no discussion of the contentions raised by the plaintiff in its statement of objections as well as written submissions regarding the non- production of any documents by the 1 st defendant to establish the market value as on the date of preliminary notification and the 2nd defendant erroneously without any basis, on assumptions determined the market value of the subject lands as three times.
8. The 2nd defendant has relied upon a Circular of the State Government in R.D.13 LAQ/2006 dtd:24/2/2006 which was not produced by any of the parties to the proceedings. Hence, the 2 nd 11 A.S.No.56/2018 defendant has relied upon the document out of the records and has held that as per the circular, the Civil Courts are enhancing the compensation by two to three times. The plaintiff was never given an opportunity to rebut the same since it was not a part of the record and seen from any angle, the 2nd defendant should have brought the same to our notice before relying upon the same which establishes denial of an opportunity to rebut an important document which was not relied upon any of the parties to the proceedings.
9. The impugned award is completely bald and lacks any reasoning and there is absolutely no discussion about any of the documents and judgments relied upon by the plaintiff. This itself establishes the fact that the 2nd defendant has not at all considered the merits of the case and has simply gone by the formula of three times.
10. As already stated supra, there are no reasons forthcoming from the impugned order as to how the 2nd defendant arrives at specific conclusion to enhance the compensation by fixing it three times which is clearly against the law.
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11. The 2nd defendant has passed the impugned order without proper application of mind which has resulted in serious mis-carriage of justice.
12. The 2nd defendant has not assigned any reasons for enhancement of compensation and the reasons assigned are fictitious and preposterous. The order passed by the 2nd defendant is not a speaking order and the same is liable to be set-aside. Hence, prays to decree the suit.
9. After service of suit summons, defendant No.2 & 3 remained absent. Hence, they were placed exparte.
10. Defendant No.1 appeared through his counsel and filed his written statement by contending that suit filed by the plaintiff is not maintainable since none of the requirement of Section 34(2)(a)(i) to (v) and (b)(i) and
(ii) of the Arbitration & Conciliation Act, 1996 does not exist in the instant case. Quantum of compensation awarded by arbitral tribunal cannot be challenged before the court and hence, this court has no jurisdiction to 13 A.S.No.56/2018 entertain or set-aside the arbitral award. Preliminary notification was published under Section 3-A(3) of National Highways Act, 1988 for lesser extent of land owned by the 1st respondent. However, by using brute state power, the plaintiff illegally trespassed in to larger exteent of land and started forming of widened road. When defendant protested against such high handed act, the plaintiff was forced to issue a fresh preliminary notification seeking to acquire the remaining portion of the 1st respondent's land. The final notification under Section 3-G(3) of the NH Act, 1988 was also defective. The 3rd defendant was the competent authority for hearing objections and to determine the compensation and releasing of compensation sum. This defendant has filed objections before the 3rd defendant. But, the 3rd defendant who was under the influence of the plaintiff, overlooked the objections and passed an award on 20/4/2009 arbitrarily determining the market value of urban land owned by the 1st defendant based on 14 A.S.No.56/2018 guidance value instead of market value. The 1 st defendant received the award sum under protest reserving his liberty to challenge the quantum of compensation awarded.
11. Being aggrieved by the award passed by the 3 rd defendant, the 1st defendant filed appeal bearing No.ARB.NH-4(BET) 226/2010-11 before the 2 nd defendant seeking enhanced compensation from the appellate authority. He has denied the contention of the plaintiff that the 1st defendant was never present during the award enquiry. By ignoring the fundamental requirement, the 3rd defendant passed award on 20/4/2009 in collusion with the plaintiff. Therefore, the said award does not bind the 1st defendant. The 2nd defendant passed amended award after taking in to account that the land acquired is an urban land coming within the limits of BBMP. The amended award passed by the 2nd defendant, impugned in this suit, has become final under Section35 of the said Act. The law does not 15 A.S.No.56/2018 provide for challenging the final order by filing a suit. The 3rd defendant did not award any compensation to the 1st defendant in respect of the building. What was acquired was not only the land but also the building. Unfortunately, the 2nd defendant did not consider awarding of compensation to the building owned by the 1st defendant erroneously on the ground that government approved license valuer had submitted his report on the basis of which there is no ground for enhancing compensation. As per para 29 and prayer(b) of the application the order date has been wrongly mentioned as 12/11/2017 and 11/11/2017 instead of 18/11/2017. The application filed by the plaintiff is clearly barred by time. The court fee paid byt eh plaintiff is highly insufficient. Hence, prays to dismiss the suit/application of plaintiff with exemplary costs.
12. Based on the above rival contentions, the following points arise for determination:-
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A.S.No.56/2018
1) Whether the Arbitral Award dated 18/11/2017 passed by the Arbitrator and Special Deputy Commissioner, Bangalore Urban District, Bengaluru is to be set aside under Section 34(2) of The Arbitration and Conciliation Act 1996?
2) What Award?
13. Both the parties have not adduced any evidence.
14. Heard the arguments and perused the records.
15. My answer to the above points are as follows:
Point No.1 :- In the Negative Point No.2 : - As per the final order for the following:
REASONS
16. Point No.1 :- The plaintiff being National Highway Authority of India has filed the above application under Section 34(2) of the Arbitration & Conciliation Act 1996 (herein after referred as the "Act"), on various grounds to set-aside the award dated 18/11/2017 passed by the learned Arbitrator and Special Deputy Commissioner, Bengaluru Urban District.
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17. Admittedly, the learned Arbitrator passed an Award on 18/11/2017. But, in the prayer column, the date of award is wrongly mentioned as 11/11/2017. The plaintiff preferred this petition under Section 34(2) of The Arbitration and Conciliation Act 1996 on 26/2/2018. Under Section 34 (2) of The Arbitration and Conciliation Act 1996, an application for setting aside has to be made within 3 months from the date on which the party making the application had received the Arbitral Award.
18. It is not in dispute that the plaintiff has acquired the disputed land for the purpose of widening of Mulabagilu-Kolar-Bangalore Road vide preliminary notification bearing SO 1032(E) dated 28/4/2008 and subsequently through final notification No.SO 2597(E) dated 5/11/2008. It is also not in dispute the acquisition of land were carried out under the provisions of National Highways Act 1988. It is also not in dispute that defendant No.3 after hearing both the parties has 18 A.S.No.56/2018 determined the compensation in LAQ/NH/4/SR/2 /2007- 08 dated 20/4/2009 and fixed the compensation at Rs.13,992.68/- per sq.meter for non-agricultural/dry lands.
19. It is also not in dispute that the defendant No.1 being not satisfied by the award, approached the second defendant as provided under Section 3G(5) of the National Highways Act 1988. It is also admitted fact, the defendant No.1 being not satisfied with the award passed by the defendant No.3, approached the 2nd defendant for enhancement of the compensation awarded by the 3rd defendant on the ground that subject lands are near to Bangalore City and have both commercial and industrial value. Upon receipt of notice, plaintiff appeared before the learned Arbitrator and filed objections for enhancement of compensation on the ground that the compensation were fixed is just and proper and no requirement to enhance compensation.
20. That the defendant No.2 being learned Arbitrator 19 A.S.No.56/2018 has passed the impugned order dated 18/11/2017 holding that the acquired land is situated in Bangalore East Taluk and adjacent to the national highway and it is a valuable property and also situated at heart of the city. She also opined that the acquired land is commercial, industrial, sites and there are every chances for further development of the land. The learned Arbitrator also held that the competent authority has not considered the potentiality of the acquired land and also not considered the real market value by considering all these facts, the learned Arbitrator fixed the compensation three times higher than the compensation fixed by the competent authority. The learned Arbitrator has also passed an order for interest at the rate of 9% under Section 3H(5) from the date of taking the possession. The learned Arbitrator has also passed user charges at the rate of 10% under Section 3G(2) of the National Highways Authority Act, 1988.
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21. This order of the learned Arbitrator is challenged by the plaintiff in the present suit with various grounds averred in the plaint/petition. The learned Advocate appearing for the plaintiff has relied upon a decision reported in AIR 2003 SC 2629 between"ONGC Ltd., v/s Sawpipes Ltd.," wherein it was held that the arbitral award states the reasons upon which it is based. The plaintiff also relied upon the decision of the Hon'ble Apex Court in "Somdatt Builders Ltd., v/s State of Kerala" 2010 (2) AWC (Supplementary) 1390 SC wherein it was held that the requirement of reasons in support of the award is not a empty formality. It guarantees fair and legitimate consideration of the controversy by the arbitral tribunal.
22. Though this case was posted for judgment, the learned advocate appearing for the plaintiff advanced the case with due notice to other side and canvassed her further arguments by relying upon the following 21 A.S.No.56/2018 decisions reported in:-
1. ILR 1997 KAR 3419 in "Karnataka Judicial Employees House Building Co-
operative Society v/s The State &
Others".
2. AIR 2003 SC 2629 in "Oil & Natural Gas Corporation Ltd., v/s Saw Pipes Ltd.,".
3. (2009) 14 SCR 611 in "Som Dutt Builders v/s State of Kerala (2009)." (Same decision referred in Para No.29)
4. 2019 SCC On line SC 1102 in "NHAI v/s Sayedabad Tea Company Ltd., and others".
5. 2019 SCC On line SC 1656 in "Dyna Technologies Pvt.Ltd., v/s Crompton Greaves Ltd.,"
23. In the decision referred above, ILR 1997 KAR 3419, the land acquired is not abutting the National Highway, but it is a separate agricultural property. The decision referred above reported in AIR 2003 SC 2629 deals with the award could be set-aside if it went against 22 A.S.No.56/2018 the Public Policy of India. It was held that "the word Public Policy of India used in Section 34 in context is required to be given a wider meaning if the award on the face of it patently in violation of the statutory provisions cannot be said to be in public interest. Such award is likely to adversely affect in the administration of justice."
24. In the instant case, the learned Arbitrator in the award has given proper reasoning for come to the conclusion as to how she arrived to enhance the compensation. Therefore, the award cannot be termed as against the Public Policy of India.
25. In the decision referred above (2009) 14 SCR 611, it was held that the requirement of reasons in support of the award is not an empty formality. It guarantees fair and legitimate consideration of the controversy by the Arbitral Tribunal. The Tribunal is not expected to write judgment like a court not it is expected to give elaborate and detailed reasons in support of its findings. But, mere noticing the 23 A.S.No.56/2018 submissions of the parties or reference to document is no substitute for reasons which the Tribunal is obliged to give. Reasons must be indicated in the award as that would reflect though process leading to a particular conclusion.
26. In the instant case also, the learned Arbitrator in the award has given proper reasoning for come to the conclusion as to how she arrived to enhance the compensation. Therefore, the award cannot be termed as against the Public Policy of India.
27. In 2019 SCC On line SC 1102 referred above, it was held that the National Highways Act, 1988 is a comprehensive code and a special legislation enacted by the Parliament for acquisition for determination of compensation and its disbursement where there are several claimants over the amount deposited towards compensation determined by the competent authorities. If the amount so determined by the competent authorities is not acceptable to either of the parties, the 24 A.S.No.56/2018 amount shall, on an application by by either of the parties, be determined by the Arbitrator to be appointed by the Central Government. It is the duty of the Arbitrator to take in to consideration the relevant points envisaged under the Act where the amount determined by the Arbitrator is in excess of the amount determined by the competent authorities, the Arbitrator, may at his discretion award interest at 9% p.a. on the excess amount.
28. In the present case also, the Arbitrator has awarded the interest at the rate of 9% p.a. on the excess amount. Hence, the award passed by the Arbitrator is sustainable under Sub-Section 5 of Section 3H of the National Highways Act.
29. According to the learned advocate appearing for the plaintiff, the National Highway Authority of India Act 1988 is the self contained Act and the decisions passed by the courts out of the dispute arising of the Land acquisition Act is not applicable to the facts of the case. 25
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30. On the other hand, the learned advocate appearing for the defendant No.1 has relied upon the decision reported in:-
1. 2018(13) SCC 491 in "Manimegalai v/s Special Tahsildar (Land Acquisition Officer), Adi Dravidar Welfare".
2. 2018 AIR SC 2248 in "Mohammad Yusuf and others v/s State of Haryana and others".
31. No doubt, both the above 2 decisions are arising out of disputes arising out of the land acquisition under the Land Acquisition Act, 1984. However, the principle laid down in the above decisions are on determination of just compensation to the land loosers due to acquisition of their land. Therefore, the ratio laid down in the above 2 decisions are also applicable to the present case and it cannot be construed that the same is not applicable merely because, the instant case is arising out of land acquisition under the National Highway Authorities Act.
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32. Under Section 34 of the Arbitration and Conciliation Act 1996, an application against the Arbitral Award for setting a side may be made only by an application for setting aside such award in accordance with Sub Section 2 and Sub Section 3.
"Application for setting aside Arbitral Award - (1) Recourse to a Court against an Arbitral Award may be made only by an application for setting aside such award in accordance with sub-Section (2) and sub- section (3).
(2) An Arbitral Award may be set aside by the Court only if-
(a) the party making the application furnishes proof that -
i) a party was under some incapacity, or
ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or 27 A.S.No.56/2018
iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or failing such agreement, was not in accordance with this Part; or 28 A.S.No.56/2018
(b) the Court finds that -
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
Explanation- Without prejudice to the generality of sub-clause (ii) it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application 29 A.S.No.56/2018 within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
(4) On receipt of an application under sub-
section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award".
33. Therefore, it is for the plaintiff to make out lawful grounds to set aside the Arbitral Award passed by the Arbitrator.
34. Under Section 3G(1) of the National Highways Act 1988 the compensation may be determined-
"(1) Where the right of user or any right in the nature of an easement on, any 30 A.S.No.56/2018 land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent of the amount determined under sub-section (1), for that land.
(2) Before proceeding to determine the amount under sub-section (1) or sub-
section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired.
(3) Such notice shall state that particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3-C, before the competent authority, at a time and place and to state the nature of their respective interest in such land.
(4) Of the amount determined by the 31 A.S.No.56/2018 competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government.
(5) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.
(6) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration -
(a) The market value of the land on the date of publication of the notification under section 3-A;
(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;
(c) the damage, if any sustained by the person interested at the time of taking possession of the land, by reason of the 32 A.S.No.56/2018 acquisition injuriously affecting his other immovable property in any manner, or his earnings;
(d) if, in consequences of the
acquisition of the land, the person
interested is compelled to change his
residence or place of business, the
reasonable expenses, if any, incidental to such change".
35. The learned advocate appearing for the plaintiff has vehemently contended that three times enhancement award passed by the arbitrator is without any basis and without considering the market value. She has further contended that all the category of lands are not one and same, but the arbitrator has passed the same award and it is against the public policy.
36. On perusal of the Award passed by the Special Land Acquisition Officer/defendant No.3, it is clear that she has not taken into consideration of the market value as on the date of application of the notification, the 33 A.S.No.56/2018 damages caused to the defendant No.1 and how the acquisition injuriously affected his earnings is not forthcoming that due to the acquisition of the land the person interested to compel to change his residence or place of business, the reasonable expenses etc.
37. Admittedly, the acquired land is situated within the limits of BBMP. No alternative land was provided to the land looser. By considering the above facts, the learned Arbitrator has enhanced compensation amount 3 times higher than the compensation awarded by the defendant No.3.
38. Under Section 3H(5) of the National Highways Act 1988 where the amount determined under Section 3G by the Arbitrator is in excess of the amount determined by the competent authority, the learned Arbitrator may award interest at 9% p.a. on such excess amount from date of taking possession under Section 3D till the date of actual deposit thereof. Therefore, it is clear that the 34 A.S.No.56/2018 learned Arbitrator apart from enhancing the compensation amount has also awarded interest @ 9% in accordance with law.
39. In every land acquisition the impact of land acquisition on the owner of the land and he will be the looser. When the state is unable to provide alternative land to the land looser, the duty caste upon the state to provide proper compensation. Admittedly, the defendant No.1 was not provided with alternative land. It is not in dispute the acquired land is within the limits of BBMP. The market value of the land means the value of the land determined.
40. Under Section 27 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 the collector having determined the market value of the land to be acquired shall calculate the total amount of compensation to be paid to the land owner whose land has been acquired by including all assets attached to the land. Hence, it 35 A.S.No.56/2018 cannot be held that National Highway Authority is burdened with higher compensation than the market value.
41. Therefore, the plaintiff has failed to make out the grounds that the impugned Award is erroneous. The plaintiff has also failed to make out the grounds that award is in contravention of Section 3G(7) of the land National Highways Act 1988. The impugned order fall within the provisions Section 3G(7) of the National Highways Act 1988. Therefore, the impugned order cannot be termed as a conflict with Public Policy of India under Section 34 (2), b (ii) of The Arbitration and Conciliation Act 1996.
42. For the above reasons, the plaintiff has not made out any grounds to set-aside the Arbitration award dated 18/11/2017 passed by the learned Arbitrator. Hence, I answer above point in the Negative. 36
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43. Point No.2 :- For the above reasons, I pass the following:
ORDER The suit filed by the plaintiff under Section 34(2) of the Arbitration & Conciliation Act, 1996 is dismissed.
The Arbitration Award dated 18/11/2017 passed by the Arbitrator is hereby confirmed.
There is no order as to costs.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected by me in computer and then pronounced by me in the open Court on this the 7th day of February, 2020.) (Dinesh Hegde) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
GVU/-37
A.S.No.56/2018 Judgment pronounced in open court vide separate detailed judgment with the following operative portion:-
ORDER The suit filed by the plaintiff under Section 34(2) of the Arbitration & Conciliation Act, 1996 is dismissed.
The Arbitration Award dated 18/11/2017 passed by the Arbitrator is hereby confirmed.
There is no order as to costs.
(Dinesh Hegde) XIX ADDL.CITY CIVIL JUDGE, B'LORE CITY.