Bangalore District Court
National Highways Authority Of India vs ) Sri.P.Motilal on 30 May, 2020
IN THE COURT OF THE VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
CCCH. 11
Dated this the 30th day of May, 2020
PRESENT: SRI.RAMA NAIK, B.Com., LL.B.,
VI Addl. City Civil & Sessions Judge,
Bengaluru City.
A.S.NO: 12/2018
PLAINTIFF NATIONAL HIGHWAYS AUTHORITY OF INDIA
Survey No.13,
Nagasandra Village,
14th Km From Bengaluru - Tumkur Road,
Bengaluru -560 073.
Represented by its Project Director
NHAI, PIU Bengaluru.
[By Pleader Smt.Shilpa Shah]
/VS/
DEFENDANTS 1) Sri.P.Motilal
Aged Major,
S/o.Sri.Pukraj,
R/at No.349, Near Old Madras Road,
K.R.Puram Extension,
Bengaluru -560 036.
[By Pleader Sri.AA]
2) The Arbitrator & Special Deputy
Commissioner-1
Bengaluru Urban District,
Kandaya Bhavana, K.G.Road,
Bengaluru -560 009.
[By Smt.Shantha B. Mullur,
1st Addl. Dist.Govt.Pleader]
AS.12/2018
2
3) The Assistant Commissioner &
Competent Authority
National Highways Authority of India,
Mulabagilu-Kolar-Bengaluru Section, NH-4,
3rd Main Road, Palasandra Layout,
Gulpet, Kolar - 563 102.
[Exparte]
JUDGMENT
This suit is filed by Plaintiff under section 34(2) of the Arbitration and Conciliation Act, 1996 for setting aside the award dated 14.09.2017 passed by 2nd Defendant in Case No.ARB/NH- 4(BET)/258/2010-11.
2) Plaintiff's case, in brief, is that, Plaintiff is constituted under "The National Highways Authority of Indian Act, 1988" and is responsible for the development, maintenance and management of National Highways entrusted to it.
3) It is stated that, Central Government for the purpose of widening of Mulabagilu-Kolar-Bangalore AS.12/2018 3 Section from Kms.237 to Kms.318 issued Preliminary Notification for acquisition of land situate at K.R. Puram Village, Kasaba Hobli, Bangalore East Taluk amongst other lands and published on 26.02.2010. Final Notification was issued and published on 23.07.2010.
4) It is stated that, non-agricultural land in Sy.No.45/5 to an extent of 68 square meters of K.R. Puram Village belonging to 1st Defendant was acquired. 3rd Defendant determined market value for non-agricultural land at the rate of Rs.13,992.68 per square meter and passed award on 29.09.2010 in favour of 1st Defendant for Rs.9,51,502/- for the land acquired.
5) It is stated that said award was being challenged by 1st Defendant before 2nd Defendant, who, without application of mind and proper appreciation of facts, enhanced compensation by three times.
AS.12/2018 4
6) Being aggrieved by the award passed by 2 nd Defendant, Plaintiff has challenged the impugned award on following grounds :
(1) Award passed by 2nd Defendant is perverse, patently illegal and goes against the very fundamentals of Arbitration and Conciliation Act, 1996.
(2) 2nd Defendant has grossly erred in not following the provisions in Section 3G(7)(a) of the National Highways Act, 1956. Award passed without following the provisions of substantive law and same would amount to violation of provisions of Section 28 of the Arbitration and Conciliation Act, 1996.
(3) 2nd Defendant has failed to assign any reasons for fixing the compensation amount at three times and has completely failed to follow the mandatory procedures prescribed under Section 31(3) of the Arbitration and Conciliation Act, 1996.
(4) 2nd Defendant has relied upon a Circular of State Government, which was not produced by any of the parties to proceedings. Plaintiff AS.12/2018 5 was not given an opportunity to rebut the same.
For all these grounds, Plaintiff prays for setting aside the award.
7) 1st Defendant marked his appearance through his Counsel. 2nd Defendant has been represented by 1st Asst.Dist.Govt.Pleader. 3rd Defendant has been placed ex-parte.
8) 1st Defendant, in his written statement, has denied the averments made in plaint. Inter alia, he has stated that, the land acquired comes within the limit of BBM and same is commercial one facing towards National Highway. Yardstick for determination of market value is not the guideline value fixed by the Government. What has been awarded by 2nd Defendant is below the actual market value. Award passed by 2 nd Defendant is grossly inadequate. It is contended that Plaintiff has AS.12/2018 6 urged the grounds without any merits. Hence, prays for dismissal of the suit.
9) 2nd Defendant, in its written statement, in addition to denial of plaint averments, has stated that, no statutory notice has been issued to 2 nd Defendant by Plaintiff under Section 80(2) of CPC, hence, prays for dismissal of the suit.
10) Heard learned Counsels for respective parties and perused the written arguments filed by learned Counsels for Plaintiff and Defendant No.1.
11) Point that arises for my consideration is that :
"Whether Plaintiff has made out any of the grounds as set out in Section 34 of the Arbitration and Conciliation Act, 1996 to set aside the award passed by 2 nd Defendant?"
12) My answer to above point is in the negative for the following :
AS.12/2018 7 REASONS
13) This suit came to be filed by Plaintiff under Section 34(2) of the Arbitration and Conciliation Act, 1996, for setting aside the award dated 14.09.2017 passed by 2nd Defendant in Case No.ARB/NH-
4(BET)/258/2010-11, whereby, 2nd Defendant was pleased to enhance the compensation amount in favour of 1st Defendant by three times of the value determined by 3rd Defendant.
14) Plaintiff contends that, amongst other lands acquired, the non-agricultural land in Sy.No.45/5 to an extent of 68 square meters situate at K.R. Puram Village, Kasaba Hobli, Bangalore East Taluk belonging to 1st Defendant was also acquired. 3rd Defendant, by award dated 29.09.2010, determined market value of non-agricultural land at Rs.13,992.68 per square meter. Guidance value of non-agricultural land was Rs.13,992.68 per square meter. 3rd Defendant relied upon the guidance AS.12/2018 8 value, after considering the actual topography of acquired land. 3rd Defendant awarded compensation in accordance with Section 3G(7)(a) of the National Highways Act, 1956 [for brevity 'the NH Act'].
15) Plaintiff further contends that, a sum of Rs.9,51,502/- was disbursed to Defendant No.1 as compensation for land. Being aggrieved by this, 1 st Defendant approached 2nd Defendant for enhancement of compensation. 2nd Defendant, without application of mind and proper appreciation of facts, enhanced the compensation from Rs.13,992.68 per square meter to Rs.41,978.04 per square meter and thereby, determined the compensation by three times of the market value determined by 3rd Defendant without assigning any reasons.
16) It is contended that, Section 3G(7)(a) of the NH Act stipulates that, while determining the AS.12/2018 9 amount of compensation, the market value of the land as on the date of Preliminary Notification has to be taken into consideration. Said substantive law has not been considered by 2nd Defendant, while passing the award and thereby, award has been passed in violation of Section 28 of the Arbitration and Conciliation Act, 1996 [for brevity 'Arbitration Act, 1996'].
17) It is further contended that, 2nd Defendant has not assigned any reasons for fixing the compensation amount at three times and he has failed to take note of the fact that 3rd Defendant had determined the market value considering the guidance value and sale statistics for the relevant period and thereby, failed to follow the mandatory procedure prescribed under Section 31(3) of the Arbitration Act, 1996.
AS.12/2018 10
18) 1st Defendant contends that, the land acquired comes within the limit of BBMP. Same is commercial land facing towards National Highway. Yardstick for determining the market value is not the guideline value fixed by the Government. What has been awarded by 2nd Defendant is below the actual market value. Award passed by 2nd Defendant is grossly inadequate. It is contended that Plaintiff has urged the grounds without any merits.
19) Question that arises in the mind of the Court is that, whether award passed by 2 nd Defendant is not supported by any reasons as contended by Plaintiff and same is passed in contravention of substantive law as envisaged in the NH Act?
20) No doubt, Section 28(1)(a) of the Arbitration Act, 1996 mandates that the Arbitral Tribunal shall decide the dispute submitted to arbitration in AS.12/2018 11 accordance with the substantive law for the time being in force in India. Similarly, Section 31(3) specifies that the arbitral award shall state the reasons upon which it is based. Failed to follow the substantive law where it ought to be followed and to assign reasons would violate the provisions of the Arbitration Act, 1996. Said principles of law have been reiterated in ONGC Ltd vs Saw Pipes Ltd, [AIR 2003 SC 2629] and Associate Builders vs Delhi Development Authority, [(2015) 3 Supreme Court Cases 49].
21) In ONGC Ltd vs Saw Pipes Ltd, the Hon'ble Supreme Court was pleased to hold that :
"12. Under sub-section 1(a) of section 28 there is a mandate to the arbitral Tribunal to decide the dispute in accordance with the substantive law for the time being in force in India. Admittedly, the substantive law would include the Indian Contract Act, the Transfer of Property Act and other such laws in force."
It is further held that :
"Under Section 31(3) the award has to be reasoned. The question is whether the award could be set aside if the Arbitral Tribunal has AS.12/2018 12 not followed mandatory procedure prescribed under Sections 24, 28 or 31(3) which affects the rights of the parties. If it is held that such award could not be interfered, it would be contrary to basic concept of justice. If the Arbiral 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 could be set aside under Section 34."
22) In Associate Builders, the Hon'ble Supreme Court was pleased to elucidate the same principles of law. It is held that, "contravention of substantive law of India, contravention of A & C Act, 1996 and contravention of the terms of the contract would amount to patent illegality, which is the fourth head of Public Policy of India."
23) So also, in Som Datt Builders Ltd. Vs State of Kerala, [AWC (Supp) 1390 SC], which is relied upon by Plaintiff, the Hon'ble Supreme Court was pleased to hold that :
"25. The requirement of reasons in support of the award under Section 31(3) of the Arbitration and Conciliation Act, 1996 is not an empty formality. It guarantees fair and legitimate consideration of the controversy by the Arbitral Tribunal. It is true that Arbitral Tribunal is not AS.12/2018 13 expected to write judgment like a Court nor it is expected to give elaborate and detailed reasons in support of its finding/s but mere noticing the submissions of the parties or reference to documents is no substitute for reasons which the arbitral Tribunal is obliged to give. Howsoever, brief these may be, reasons must be indicated in the award as that would reflect thought process leading to a particular conclusion. To satisfy the requirement of Section 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 flawed".
24) It is, therefore, clear that, deciding the dispute in accordance with substantive law and stating the reasons for the award are indispensable for Arbiral Tribunal and mandatory under the provisions of the Arbitration Act, 1996, nay validity of the award is always being questionable.
25) At the same time, fundamental principle that has been expounded by the Hon'ble Supreme Court in Associate Builders case has to be taken note of while setting aside the award on the ground of Public Policy of India. Hon'ble Supreme Court was pleased to hold that :
"33. It must be clearly understood that when a court is applying the "public policy"
AS.12/2018 14 test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. A possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Thus an award on little evidence or on evidence which does not measure up in quality to a trained mind would not be held to be invalid on this score. Once it is found that the arbitrators approach is not arbitrary or capricious, then he is the last word on facts."
26) Keeping in mind the principles laid down in the Judgments supra and the limited scope of interference with the arbitral award, contentions raised by Plaintiff have to be assailed.
27) Plaintiff's contention is that, 2nd Defendant ought to have considered the market value of the land on the date of publication of the Preliminary Notification as provided in Section 3G(7)(a) of the NH Act, however, 2nd Defendant enhanced the compensation by three times without stating any reasons.
AS.12/2018 15
28) 1st Defendant contends that land acquired by SLAO is within the limit of BBMP and it is a commercial land facing towards National Highway. Compensation passed by 2nd Defendant is below the market value.
29) Learned Counsel for Plaintiff is pleased to submit that award discloses no reasons as to how 2nd Defendant arrived to the conclusion for enhancement of compensation by three times. It is argued that "why three times", "why not two times or four times". Further argued that award does not reflect the thought process of 2nd Defendant leading to such conclusion.
30) To assail the contentions of the parties, it is necessary to mention the findings of 3rd Defendant in the award in arriving the valuation of different types of lands i.e. dry, wet and house site. Relevant AS.12/2018 16 portions of the award passed by 3rd Defendant read as follows :
"ಭಭ ಸಸಸಧಧನವಸಗರರವ ಜಮಧನರಗಳ ಬಗಗಗ ರಸಷಷಷಧಯ ಹಗದಸದರಗಳ ಕಸಯದ 1956 ರ ಕಲಲ 3-ಜ ರಲತಗ ಭಭ ಸಸಸಧಧನ ಪರಹಸರವನರನ ಸಲಬಲದಪಟಷ ಅಧಕಕತ ಹಕರಕಗಳ ಭಭ ಮಸಲಧಕರಗಗ ಪರಹಸರ ಪಸವತ ಮಸಡರವ ಸಲರವಸಗ ಪರಹಸರ ನಗಧಗಗಭಳಸ ಬಗಧಕಸಗದಗ . ಇದಕಗಕ ಅಧಸರ ಮಸಪನವಸಗ ಉಪ ನಗಭಲದಣಸಧಕಸರಗಳಲದ ಸಲಭಲದಪಟಷ ಗಸಗಮಗಳ ಮಸಗರ ಸಭಚ ಬಗಲಗಯ ಮಸಹತಯನರನ ಪಡಗಯಲರ ಉಪ ನಗಭಲದಣಸಧಕಸರಗಳರ, ಬಗಲಗಳಭರರ ಪಪವರ (ಕಗ.ಆರರ.ಪಪರಲ) ತಸಲಭಲಕರ ರವರಗಗ ಈ ಕಛಗಧರಯ ಪತಗದ ಕಗಮಸಲಕ ಎಲಏಕಭಕ.ಎನಏಚರ 4.ಸಆರರ.125/2009-10 ದನಸಲಕ 7-5- 2010 ರಲಲ ಬಗಲಗಳಭರರ ಪಪವರ (ಕಗ.ಆರರ.ಪಪರಲ) ತಸಲಭಲಕನ 1 ಗಸಗಮಗಳಲಲ ದನಸಲಕ 26-02-2010 ರಲದರ ಖರಷಕಧ , ತರ , ಬಸಗಸಯರಯ ಜಮಧನರಗಳರ ಮತರಯ ನವಗಧಶನಗಳ ಮಸಗರಸಭಚ ಬಗಲಗಯ ಮಸಹತಯನರನ ಕಳರಹಸಲರ ಸಭಚಸಲಸಯತರ. ಸದರಯವರರ ತಮಮ ಪತಗ ನಲಬರರ ಮಸ.ಮಮ.ಕಗ.ಆರರ.ಪಪಠ 670/08-09 ದನಸಲಕ 22- 05-10 ರಲತಗ ಮಸಹತಯನರನ ಒದಗಸರರತಸಯರಗ. ಸದರ ಅಲಕ ಅಲಶಗಳ ಅನರಸಸರ ದರಗಳನರನ ಚ.ಮಧ 1 ಕಗಕ ಧರವನರನ ಪರವತರಸರರತಗಯ. ಸದರ ಆಲಶಗಳರ ಕಗಳಕಲಡಲತಗ ಇರರತಯದಗ."
ಕಗ. ಗಸಗಮ ತರಹಗ ಮಸಗರ ಸಭಚ ಧರ
ಸಲ
1 ಕಗ.ಆರರ.ಪಪರ ನವಗಧಶನ 13992.68
ಮಧಲಕಲಡ ಆಲಕ ಆಲಶಗಳನರನ ರಸಷಷಷಧಯ ಹಗದಸದರ ಕಸಯದ 1956 ರ ಕಲಲ 3 ಜ (7)(ಎ) ಅನರಸಸರ ಕಲಲ 3 ಎ ಅಧಸಭಚನಗ ಹಗಭರಡಸದ ದನಸಲಕಕಗಕ ಮಸಗರಸಭಚ ಬಗಲಗ ಅನರಸಸರ ಲಗಕಕ ಮಸಡಲಸಗದಗ . ಕಗ.ಆರರ.ಪಪರ ಗಸಗಮದ ಭಭ ಸಸಸಧಧನವಸಗರರವ ಜಮಧನರಗಳನರನ ನಸನರ ದನಸಲಕ 22-09- 2010 ರಲದರ ಸಸಳ ತನಖಗ ಮಸಡರರತಗಯಧನಗ. ಈ ಜಮಧನರಗಳನರನ ಪರಶಧಲಸದಸಗ ಕಗಳಕಲಡ ಅಲಶಗಳನರನ ಗಣನಗಗಗ ತಗಗಗದರಕಗಭಳಳಬಗಧಕಸಗರತಯದಗ .
1. ಭಭ ಸಸಸಧಧನವಸಗರರವ ಜಮಧನರಗಳರ ರಸಷಷಷಧಯ ಹಗದಸದರ ಪಕಕದಲಲರರವಪದರಲದ ಮತರಯ ಸರತಯಲಭ ಕಗಕಗಸರಧಕರಣ ಆಗರರವಪದರಲದ ಗಸಗಮದ ಇತರಗ ಜಮಧನರಗಳಗಲತ 5 ಪಟರಷ ಬಗಲಗಯರಳಳದಸಗರರತಯದಗ.
2. ಉಪನಗಭಲದಣಸಧಕಸರಗಳರ, ನಧಡರರವ 2008 ರ ಮಸಗರಸಭಚ ಬಗಲಗಗಲತ ಈಗನ ಮಸರರಕಟಗಷ ಬಗಲಗ ಬಹಳಷರಷ ಹಗಚರಚವರಯಸಗರರತಯದಗ .
3. ಕಲಲ 3 ಎ ರಡ ಅಧಸಭಚನಗ 26-02-2010 ರಲಲ ಹಗಭರಡಸದದರಭ ಸಹ ಅಲತಮವಸಗ ಅವಸಡರರ ಆದನಲತರ ಪರಹಸರ ನಧಡಬಗಧಕಸಗರರವಪದರಲದ ಮತರಯ 3 ಎ ಅಧಸಭಚನಗ ದನಸಲಕದಲದ AS.12/2018 17 ಐತಧರರನ ದನಸಲಕದವರಗಗಗ ಸಸಮಸಜಕ ನಸಕಯ ದಕಷಮಯಲದ ಹಗಚರಚವರ ಮಸರರಕಟಗಷ ಬಗಲಗ ನಧಡಬಗಧಕಸಗರತಯದಗ."
................
"ರಸಷಷಷಧಯ ಹಗದಸದರಗಳ ಕಸಯದ 1956 ಸಹ ಕಗಧಲದಗ ಸಕಸರರದ ಕಸಯದ ಯಸಗರರತಗಯ. ಆದದರಲದ ಅಲಕ ಅಲಶಗಳಗಲತ ಸಸಳಧಯ ವಸಸಸವ ಅಲಶಗಳನರನ ಪರಗಣಗನಗಗಗ ತಗಗಗದರಕಗಭಳರಳವಪದರ ಸಸಮಸಜಕ ನಸಕಯ ದಕಷಷಯಲದ ಸಭಕಯವಗಲದರ ಕಲಡರ ಬರರತಯದಗ. ಮಧಲಕಲಡ ಎಲಸಲ ಅಲಶಗಳನರನ ಪರಶಧಲಸ ಈ ಪಗಕರಣದಲಲ ಜಮಧನರಗಳ ಮಮಲಕವನರನ ಕಗಳಕಲಡಲತಗ ನಣಯರಸದಗ.
ಎನರ.ಎ.ಕಗ / ನವಗಧಶನ ಜಮಧನರ ಚದರ ಮಧಟರರ ಒಲದಕಗಕ 13992.68 ರಭಗಳರ."
31) From the above findings of 3rd Defendant, it is crystal clear that, 3rd Defendant awarded guidance value of the year 2008 furnished by Sub- Registrar. In the award, 3rd Defendant specifically come to the conclusion that since the acquired lands are abutting to National Highway and industrialization of surrounding lands, the value of acquired lands is five times more than other lands. Further finding of 3rd Defendant is that, present market value is more than the guidance value of the year 2008. It has been observed that, even though notification was published in the year 2010, compensation is to be disbursed only after passing the award and therefore, in the interest of social AS.12/2018 18 justice additional market value has to be awarded. Thus being the findings of 3rd Defendant, he awarded guidance value at the rate of Rs.13,992.68 fixed for the year 2008 for the house site. Even he held that value of the land is five times more than other lands.
32) In the award passed by 2nd Defendant, he formulated specific point for consideration as to whether guidance value and market value can be considered as one and the same? 2nd Defendant has specifically come to the conclusion that guidance value is only a guideline to Sub-Registrar and there is no occasion to consider it as market price. It has been emphatically held that, guidance value is not the basis for present value of the land and value of the land is to be determined. Relevant portions of the award passed by 2nd Defendant read thus :
"1. ವಸದಯರ ಸಣಣ ರಗಕತನಸಗದರದ, ಸಣಣ ಉದಕಮದಲದ ಜಧವನ ನಡಗಸರತಯರರವಪದರ ಸಸಭಧತಸಗರರತಯದಗ. ಅಜರದಸರರಗಗ ಸಗಧರದ ಖರಷಕ/ ತರ/ ಬಸಗಸಯರಯ/ ಎನರ.ಎ.ಕಗ ಜಮಧನರಗಳರ ಭಭಸಸಸಧಧನವಸಗರರತಯದಗ. ಸದರ ಜಮಧನರಗಳರ ರಸಷಷಷಧಯ ಹಗದಸದರ ನಲ-4 ಕಗಕ ಅಭಮರಖವಸಗದರದ , AS.12/2018 19 ಕಗಕಗಸರಕಗ ಮತರಯ ವಸಣಜಕ ಉದಗದಧಶಕಗಕ ಉಪಯಧಗಸರವ ಸಲಭವ ಹಗಚಸಚಗ ಕಲಡರಬರರತಯದಗ. ಸದರ ಗಸಗಮವಪ ಬಕಹತರ ಬಗಲಗಳಭರರ ಮಹಸನಗರ ಪಸಲಕಗ ವಸಕರಯಗಗ ಒಳಪಟಷರರವಪದರಲದ ಎಲಸಲ ರಧತಯ ಅಭವಕದದ ಹಗಭಲದರವ ಅವಕಸಶವರರತಯದಗ.
ಪಗಥಮ ಅಧಸಭಚನಗ ರಸಷಷಷಧಯ ಹಗದಸದರ ಕಸಯದ 1956 ರ ಪಗಕರಣ 3 ಎ ಅಡಯಲಲ ದನಸಲಕ 26-02-2010 ರಲಲ 3 ಡ ಅಡಯಲಲ ದನಸಲಕ 23-07-2010 ರಲದರ ಹಸಗಭ ಪರಹಸರ ಪಡಗಯರವಲತಗ ದನಸಲಕ 28-10-2010 ರಲದರ ನಗಭಧಟಧಸರ ಹಗಭರಡಸಲಸಗದಗ. ಪಗಥಮ ಅಧಸಭಚನಗಗಗ ಹಸಗಭ ನಗಭಧಟಸಗಗ ಮಧಗಕ 1 ½ (ಒಲದರವರಗ ವಷರ) ಕಸಲ ವಕಯವಸಗರರತಗಯ. ಅಜರದಸರರಗಗ ಅಲದಗಧ ಪರಹಸರ ನಧಡದದಲಲ ಅವರರ ಸದರ ಮಬಲಗಗ ಬಗಧರಗ ಜಮಧನರಕಗಭಳಳಲರ ಅವಕಸಶ ವಲಚತರಸಗರರವಪದರ ಸಸಷಷವಸಗರರತಯದಗ.
3. ಮಸಗರ ಸಭಚ ಬಗಲಗಯರ ಕಗಧವಲ ಉಪನಗಭಧಲದಣಸಧಕಸರಗಳಗಗ ಮಸಗರದಶರನವಸಗರರತಯದಗಯಧ ಹಗಭರತರ ಇದನರನ ಮಸರರಕಟಗಷ ಧಸರಣಗ ಎಲದರ ನಗದಪಡಸಲರ ಅವಕಸಶವರರವಪದಲಲ. ಈ ಬಗಗಗ ಸಸಷಲಪರ ಆಕರಷ ನಲಲ ಸಸಷಷ ಆದಗಧಶವರರತಯದಗ.
4. ಅಜರದಸರರರ ಹಸಜರರಪಡಸರರವ ಉಪನಗಭಧಲದಣ ಅಧಕಸರಗಳಲದ ಪಡಗದ ಮಸಗರಸಭಚ ಬಗಲಗ 2009-2010 ಸಸಲಗಗ ದನಸಲಕ 01-03- 2008 ರಲದ ಮಸತಗ ಅನಸಯಸರತಗಯ. ಚಚಸರಸಸದ ಜಮಧನನ ಭಭಸಸಸಧಧನ ಪಗಥಮ ಅಧಸಭಚನಗಯ ದನಸಲಕ 14-12-2006 ರಲದಗಧ ಆಗರರತಯದಗ. ಅಧನಯಮದಲತಗ ಸದರ ದನಸಲಕ ಅಲದರಗ ದನಸಲಕ 14-12-2006 ರಲದರ ಚಸಲಯಯಲಲದರದ, ಮಸರರಕಟಗಷ ಧಸರಣಗಯನರನ ಗಣನಗಗಗ ತಗಗಗದರಕಗಭಳಳಬಗಧಕಸಗರರತಗಯ. ಆದದರಲದ 2009- 2010 ನಗಧ ಸಸಲಗಗ ನಗದಪಡಸರತಕಕ ಮಬಲಗರ ಎಕರಗ ಒಲದಕಗಕ 5 ಕಗಭಧಟ 66 ಲಕಕ ರಭಪಸಯಯಲತಗ ನಗದಪಡಸಲರ ಅವಕಸಶವರರವಪದಲಲ. ಆದರಗ, ವಷರದಲದ ವಷರಕಗಕ ಜಮಧನನ ಬಗಲಗ ಹಗಚಸಚಗರತಯರರವ ಅಲಶ ಈ ಮಸಹತಯಲದ ಸಸಷಷ ವಸಗರತಯದಗ.
6. ರಸಷಷಷಷಧಯ ಹಗದಸದರ-4 ರ ರಸಗಯ ಅಗಲಧಕರಣ ಉದಗದಧಶಕಸಕಗ ಭಭಸಸಸಧಧನಪಡಸಕಗಭಲಡರರವ ಬಗಲಗಳಭರರ ಪಪವರ ತಸಲಭಲಕನ ಕಗ.ಆರರ.ಪಪರಲ ಹಗಭಧಬಳಯ ಕಗ.ಆರರ.ಪಪರಲ ಗಸಗಮದ ಜಮಧನರಗಳರ ಈ ಹಗದಸದರಯಲಲ ಅಕಕಪಕಕದಲಲದರದ ಹಗಚಚನ ಬಗಲಗ ಬಸಳರತಯದಗ ಮತರಯ ಬಗಲಗಳಭರರ ನಗರದ ಹಕದಯ ಭಸಗದಲಲದರದ ಈ ಜಮಧನರಗಳರ ಪಗಸರಯತ ಎನರ.ಎ.ಕಗ ಜಮಧನರಗಳಸಗದದರರ ಸಹ ವಸಣಜಕ/ ಕಗಕಗಸರಕಗ/ ನವಗಧಶನಗಳಗಸಗ ಅಭವಕದದಪಡಸಲರ ಅವಕಸಶವರರವಪದರಲದ ಹಗಚರಚ ಬಗಲಗ ಬಸಳರವ ಜಮಭನರಗಳಗಲದರ ಕಲಡರ ಬರರತಯದಗ.
7. ಭಭಸಸಸಧಧನವಸಗರರವ ಜಮಧನರಗಳಲಲ ಕಗಲವಪ ಜಮಧನರಗಳರ ಪಪಣರ ಭಭಸಸಸಧಧನವಸಗರರವಪದರ ಕಗಲವಪ ಜಮಧನರಗಳಲಲ ಭಸಗಶ AS.12/2018 20 ಭಭಸಸಸಧಧನವಸಗದರದ, ಉಳದ ಜಮಧನರ ಕಭಡ ಅನರಪಯರರಕಯವಸರರರತಯದಗ.
9. ವಶಗಧಷ ಭಭಸಸಸಧಧನಸಧಕಸರಗಳರ ಹಸಗಭ ಸಕಕಮ ಪಸಗಧಕಸರಗಳರ ಅಜರದಸರರಗಗ ಆ ವಗಧಳಗ ನಗದಪಡಸದ ಬಗಲಗಯನರನ ಗಣನಗಗಗ ತಗಗಗದರಕಗಭಲಡರ ಭಭಮಮಲಕ ನಧರರಸರರತಸಯರಗ. ಆದರಗ ಭಭಸಸಸಧಧನಗಗಭಳಸರರವ ಜಮಧನರಗಳಗಲಲವಪ ರಸಷಷಷಧಯ ಹಗದಸದರಗಗ ಲಗತಸಯಗದರದ, ಹಗಚರಚ ಬಗಲಗ ಬಸಳರವ ಜಮಧನರಗಳಸಗರರತಯದಗ ಎಲಬ ಅಲಶವನರನ ಪರಗಣಸಬಗಧಕಸಗರರತಯದಗ. ಆದದರಲದ, ಮಸಗರಸಭಚ ಅಲಕ ಅಲಶಗಳ ಮಮಲಕ ನಧಸರರಗಗಭಳಸಲಸಗರರವಪದಲಲ. ತಕಕಣ ಜವರಧನನ ಮಮಲಕದ ಆಧಸರವಸಗರರವಪದಲಲ. ಭಭಮಮಲಕ ನಧರರಸಬಗಧಕಸಗರರತಯದಗ ಎಲದರ ಅಭಪಸಗಯ ಪಡರತಗಯಧನಗ. "
33) Hon'ble Madras High Court in The Special Tahsildar (L.A.) Neighbourhood Scheme, Tiruchengode vs. T.A. Thaiyan Padayachi (died) and others [A.S.No.639 and 640/1997, dated 05-12-2008], was pleased to hold that :
20. It is trite that guideline register is maintained by the Revenue Department only for the purpose of stamp duty and the said rate has nothing to do with the market rate.
The Government is primarily concerned about the collection of revenue and it is only for the purpose of preventing under-valuation of documents that the Government periodically reviews the guideline rate and no reliance could be placed on such guideline rate for the purpose of fixing the market value of the property. Similarly, the Collector also cannot make an award on the basis of guideline rate and in the case award is only on the basis of guideline rate, the value shown in such award cannot be termed as market value".
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34) Ratio laid down in the Judgment supra supports the view taken by 2nd Defendant that guidance value is only a guideline to Sub-Registrar and there is no occasion to consider it as market price.
35) Meaningful reading of the award passed by 2nd Defendant makes it clear that, he has not accepted the guidance value which was adopted by 3rd Defendant in awarding compensation. In fact, 2nd Defendant has differentiated the guidance value and market value and come to the conclusion that market value is always on the higher side. Award makes it clear that, 2nd Defendant, having regard to the commercial use of the acquired land and its being adjacent to national highway, has awarded compensation than the one passed by 3rd Defendant. It is to be noted that, 3 rd Defendant awarded guidance value fixed for the house site. Even though, there has been a finding that value of AS.12/2018 22 acquired lands is five times more than other lands, 3rd Defendant has not awarded such compensation. From the findings of 3rd Defendant, it is abundantly clear that, he could have awarded five times of guidance value, which he mentioned in the award. However, he restricted the compensation to guidance value for house site. On the other hand, 2nd Defendant actually stated the difference between guidance value and market value. Even though, there is no finding as to actual market value, he has not accepted the guidance value awarded by 3rd Defendant and on the assessment of facts and materials, awarded compensation by enhancing the compensation awarded by 3rd Defendant by three times. If the findings of 3 rd Defendant in the award had taken into consideration, 2nd Defendant could have enhanced the compensation by five times. However, it is enhanced by three times in the discretion of 2nd Defendant. Thus being the background of the case, AS.12/2018 23 the argument canvassed by Plaintiff that "why not two times or four times" is not at all relevant to consider. If compensation is enhanced by more than five times, then, the question raised by Plaintiff would be more relevant to consider.
36) Plaintiff contends that 2nd Defendant relied upon Government Circular which neither 1st Defendant relied upon nor Plaintiff before the 2nd Defendant. Award makes it clear that 2nd Defendant has mentioned the Government Circular, which Plaintiff objected, but, it is crystal clear that, award is not based on that Circular. Under such circumstances, mere relying on certain Government Circular by 2nd Defendant in the award, which neither 1st Defendant relied upon nor Plaintiff before the 2nd Defendant as contended by Plaintiff does not come in the way of setting aside the award, particularly, award has been passed without basing upon that Circular. 2nd Defendant has specifically AS.12/2018 24 held in the award that compensation can only be determined under the NH Act. It is held that :
"12. ಆದಸಗಭಕ ಭಭಸಸಸಧಧನ ಕಸಯದ 1894 ರ ಕಲಲ 23(ಎ)ಯಲಲ ಭಭಸಸಸಧಧನ ಜಮಧನರಗಳಗಗ 4(1)ರ ಅಧಸಭಚನಗಗಗಭಳಸದ ಹಲದನ ಮಭರರ ವಷರಗಳ ಮಸರಸಟದ ಅಲಕ ಅಲಶಗಳಲತಗ ಭಭಮಮಲಕ ನಗದಗಗಭಳಸರರವಪದನರನ ಜಗಭತಗಗಗ ಶಗಧ.30 ರಷರಷ ಸಗಭಲಗಧಸಯಲ ಮತರಯ ಶಗಧ.12 ರಷರಷ ಅಧಕ ಮಸರರಕಟಗಷ ಮಮಲಕದಲಲ 4(1) ರ ಅಧಸಭಚನಗಗಗ ದನಸಲಕದಲದ ಅಜರದಸರರಗಗ ಪರಹಸರ ಪಸವತಸರವ ದನಸಲಕದವರಗಗಗ ಅವಕಸಶವರರತಯದಗ. ಆದರಗ ಮಸರಸಟ ಅಲಕ ಅಲಶಗಳ ಆಧಸರಸದ ಮಧಲಗ ಭಭಮಮಲಕದ ಶಗಧ.42 ರಷರಷ ಹಗಚಚಳ ಮಸಡಬಹರದಸಗರರತಯದಗ ಹಸಗಭ ವಲರಲ ಬಸಕಲಕರ (ಕನಸರಟಕ ಸಗಷಧಟರ ಹಗಕವಗಧಸರ ಅಲಡರ ಇಲಷರಷಷಮಲಟರಟ ಪಸಗಜಗಕರಷ) (ಕಗಧಶಧಪರ) ಯಧಜನಗಯಡ ಅನಸಯ ಕಸಮಸಗಸರಗಳನರನ ಭಭಸಸಸಧಧನ ಪಗಕಗಯಯಲತಗ ಪರಹಸರ ನಗದಪಡಸಲರ ಅವಕಸಶವರರವಪದಲಲ. ಹಗದಸದರ ಕಸಯದಯಲಲ ಮಧಲಕಲಡ ಪರಹಸರಗಳನರನ ನಗದಪಡಸಲರ ಅವಕಸಶವರರವಪದಲಲವಗಲಬ ಅಲಶವನರನ ಪರಗಣಸಬಹರದಸಗದಗ."
37) Section 3J of the NH Act states that, Land Acquisition Act is not applicable to an acquisition made under the NH Act. Therefore, 2nd Defendant has rightly determined the compensation under the NH Act, having regard to the materials placed before him. Conclusion arrived at by him is supported by reasons. Award indicates the reasons and reflects the thought process of 2 nd Defendant to come to the conclusion for enhancing the compensation. No illegality or perversity can be attributable to award.
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38) 2nd Defendant's only contention is that, no notice under Section 80(2) of CPC has been issued before filing this suit by Plaintiff against 3rd Defendant. There is no pith and substance in the contention of 2nd Defendant. Being aggrieved by the award passed by 2nd Defendant, Plaintiff has filed this suit and thereby, invoked the statutory provision under Section 34 of the Arbitration Act, 1996 for setting aside the award. Since it is a consequent proceeding arising out of impugned award passed by 2nd Defendant and both Plaintiff and Defendant No.2 are Government bodies, the question of issuing the statutory notice under Section 80 of CPC is alien to the procedure. In that view of the matter, there is no reason to interfere with the reasoned award; accordingly, I answer the above point in the negative and proceed to pass the following :
AS.12/2018 26 ORDER (1) Suit filed by Plaintiff under section 34(2) of the Arbitration and Conciliation Act, 1996, for setting aside the award dated 14.09.2017 passed by 2nd Defendant in Case No.ARB/NH-4(BET)/258/2010-11, is hereby dismissed.
(2) No order as to costs.
[Dictated to the Judgment Writer directly on computer, typed matter corrected and then pronounced by me in open court on this the 30th day of May, 2020.] (RAMA NAIK) VI Addl.City Civil & Sessions Judge, Bengaluru City.
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