Karnataka High Court
The National Highways Authority Of ... vs Shankarappa S/O. Kashappa Bijawad, on 22 November, 2017
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
M.F.A. No.23159 /2011 (AA)
C/w.
M.F.A. Nos.23288, 23289, 23290, 23291, 23292,
23293 and 23294 OF 2011
IN MFA NO.23159/2011:
BETWEEN:
THE NATIONAL HIGHWAYS AUTHORITY
OF INDIA, PROJECT IMPLEMENTATION UNIT,
2ND CROSS, SATTUR COLONY, VIDYAGIRI,
DHARWAD, REPRESENTED BY
SRI. DH RAMANJULA RAO MANAGER(TECH)
AND COMPETENT AUTHORITY FOR
LAND ACQUISITION, NHAI, DHARWAD.
... APPELLANT
(BY SMT.P.R.BENTUR, ADV.)
AND:
1. SRI.SHANKARAPPA S/O KASHAPPA
BIJAWAD, AGE: 53 YEARS,
OCCUPATION: AGRICULTURIST,
R/O VEERAPUR ONI, NEAR RUDRA DEVAR
TEMPLE, HUBLI, DISTRICT: DHARWAD.
2. SRI.DURGAPPA S/O KASHAPPA
BIJAWAD, AGE: 49 YEARS,
OCCUPATION: AGRICULTURIST,
R/O VEERAPUR ONI, NEAR RUDRA
DEVAR TEMPLE, HUBLI,
DISTRICT: DHARWAD.
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
:2:
3. SRI.PARASHURAM S/O KASHAPPA
BIJAWAD, AGE: 34 YEARS,
OCCUPATION: AGRICULTURIST,
R/O VEERAPUR ONI, NEAR RUDRA
DEVAR TEMPLE, HUBLI,
DISTRICT: DHARWAD.
4. SMT.LALITA W/O SHANKAR BIJAWAD,
AGE: 48 YEARS, OCC: AGRICULTURIST,
R/O VEERAPUR ONI, NEAR RUDRA DEVAR
TEMPLE, HUBLI, DISTRICT: DHARWAD.
5. THE ARBITRATOR FOR NATIONAL
HIGHWAY AUTHORITY OF INDIA
AND DEPUTY COMMISSIONER,
DHARWAD, DISTRICT: DHARWAD.
... RESPONDENTS
(SRI.S.M.KALWAD, ADV. FOR R1-R4,
R5 SERVED)
THIS MFA IS FILED U/S.37(1) OF THE ARBITRATION AND
CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND AWARD
DATED 01.04.2011, PASSED IN ARBITRATION SUIT NO.18/2009
ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE AT DHARWAD,
DECREEING THE ARBITRATION SUIT FILED U/SEC.34(2) OF THE
ARBITRATION AND CONCILIATION ACT, 1996.
---
IN MFA NO.23288/2011:
BETWEEN:
THE NATIONAL HIGHWAYS AUTHORITY
OF INDIA, PROJECT IMPLEMENTATION UNIT,
2ND CROSS, SATTUR COLONY, VIDYAGIRI,
DHARWAD, REPRESENTED BY
SRI CH RAMANJULA RAO, MANAGER (TECH)
AND COMPETENT AUTHORITY
FOR LAND ACQUISITION, NHAI, DHARWAD.
... APPELLANT
(BY SMT.P.R.BENTUR, ADV.)
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
:3:
AND:
1. SRI. GURUSIDDAGOUDA HONNAPPAGOUDA
HONNAPPAGOUDAR, AGE: 35 YEARS,
OCCUPATION AGRICULTURIST,
R/O KOTAGONDHUNASI VILLAGE,
POST: ADARGUNCHI, TQ: HUBLI,
DIST: DHARWAD.
2. SRI. MALLANGOUDA HONNAPPAGOUDA
HONNAPPAGOUDAR, AGE: 30 YEARS,
OCCUPATION AGRICULTURIST,
R/O KOTAGONDHUNASI VILLAGE,
POST: ADARGUNCHI, TQ: HUBLI,
DIST: DHARWAD.
3. THE ARBITRATOR FOR NATIONAL
HIGHWAY AUTHORITY OF INDIA
AND DEPUTY COMMISSIONER,
DHARWAD, DISTRICT: DHARWAD.
... RESPONDENTS
(SRI.SURESH P HUDEDGADDI, ADV. FOR R1 & R2,
R3 SERVED)
THIS MFA IS FILED U/S 37(1) OF ARBITRATION AND
CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND
DECREE DATED 23.04.2011 PASSED IN A.S.NO.16/2009 ON THE
FILE OF THE PRINCIPAL DISTRICT JUDGE AT DHARWAD, PARTLY
DECREEING THE SUIT FILED U/SEC.34 OF THE ARBITRATION
AND CONCILIATION ACT, 1996.
---
IN MFA NO.23289/2011:
BETWEEN:
THE MANAGER (TECH) AND OFFICE OF
COMPETENT AUTHORITY FOR LAND
ACQUISITION, NATIONAL HIGHWAYS
AUTHORITY OF INDIA, 2ND CROSS,
SATTUR COLONY, VIDYAGIRI, DHARWAD,
REPRESENTED BY MANAGER(TECH),
SRI.RAMANJULA RAO OF DHARWAD.
... APPELLANT
(BY SMT.P.R.BENTUR, ADV.)
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
:4:
AND:
1. SRI. BASAVARAJ S/O NAGAPPA
ANJUTAGI, AGE: 48 YEARS,
OCC: BUSINESS, R/O VARUR VILLAGE,
TQ: HUBLI, DISTRICT: DHARWAD.
2. SRI. SHANTAPPA S/O NAGAPPA
ANJUTAGI, AGE: 43 YEARS,
OCC: BUSINESS, R/O VARUR VILLAGE,
TQ: HUBLI, DISTRICT: DHARWAD.
3. SRI. ASHOK S/O KALYANAPPA
MARIHAL, AGE: 46 YEARS,
OCC: BUSINESS, R/O VARUR VILLAGE,
TQ: HUBLI, DISTRICT: DHARWAD.
4. THE DEPUTY COMMISSIONER
AND ARBITRATOR, DHARWAD DISTRICT,
THE ARBITRATOR, NATIONAL HIGHWAYS
AUTHORITY OF INDIA.
... RESPONDENTS
(SRI.S.M.KALWAD, ADV. FOR R1-R3,
R4 SERVED)
THIS MFA IS FILED U/S 37(1) OF ARBITRATION AND
CONCILIATION ACT, 1996 AGAINST THE JUDGMENT AND DECREE
DATED 31.03.2011 PASSED IN A.S.NO.1/2009 ON THE FILE OF
THE PRINCIPAL DISTRICT JUDGE AT DHARWAD, DECREEING THE
SUIT FILED U/SEC. 34 OF THE ARBITRATION AND CONCILIATION
ACT.
---
IN MFA NO.23290/2011:
BETWEEN:
THE NATIONAL HIGHWAYS AUTHORITY
OF INDIA, PROJECT IMPLEMENTATION UNIT,
2ND CROSS, SATTUR COLONY, VIDYAGIRI,
DHARWAD, REPRESENTED BY MANAGER (TECH),
SRI.RAMANJULA RAO OF DHARWAD.
... APPELLANT
(BY SMT.P.R.BENTUR, ADV.)
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
:5:
AND:
1. SMT.DEVAKKA W/O DYAMANNA
BADIGER, AGE: 48 YEARS,
OCC: BUSINESS, R/O VARUR VILLAGE,
TQ: HUBLI, DISTRICT: DHARWAD.
2. THE DEPUTY COMMISSIONER
AND ARBITRATOR FOR NATIONAL HIGHWAY
AUTHORITY OF INDIA AND DEPUTY
COMMISSIONER, DHARWAD DISTRICT.
... RESPONDENTS
(SRI.S.M.KALWAD, ADV. FOR R1,
SRI.R.RAVINDRA NAIK, HCGP, FOR R2)
THIS MFA IS FILED U/SEC.37(1) OF THE ARBITRATION AND
CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND
DECREE DATED 31.03.2011 PASSED IN A.S.NO.02/2009 ON THE
FILE OF THE PRINCIPAL DISTRICT JUDGE AT DHARWAD,
DECREEING THE SUIT FILED U/SEC.34 OF THE ARBITRATION
AND CONCILIATION ACT.
---
IN MFA NO.23291/2011:
BETWEEN:
THE NATIONAL HIGHWAYS AUTHORITY
OF INDIA, PROJECT IMPLEMENTATION UNIT,
2ND CROSS, SATTUR COLONY, VIDYAGIRI,
DHARWAD, REPRESENTED BY
SRI CH RAMANJULA RAO, MANAGER(TECH)
AND COMPETENT AUTHORITY FOR LAND
ACQUISITION, NHAI, DHARWAD.
... APPELLANT
(BY SMT.P.R.BENTUR, ADV.)
AND:
1. SRI. DEEPAK MADUKAR AMTE,
AGE: 44 YEARS, OCC: AGRICULTURIST,
R/O KOTAGONDHUNASI VILLAGE,
POST: ADARGUNCHI, TQ: HUBLI,
DISTRICT: DHARWAD.
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
:6:
2. SRI. VINAYAK MADUKAR AMTE,
AGE: 38 YEARS, OCC: AGRICULTURIST,
R/O KOTAGONDHUNASI VILLAGE,
POST: ADARGUNCHI, TQ: HUBLI,
DISTRICT: DHARWAD.
3. THE ARBITRATOR FOR NATIONAL
HIGHWAY AUTHORITY OF INDIA
AND DEPUTY COMMISSIONER,
DHARWAD, DISTRICT: DHARWAD.
... RESPONDENTS
(SRI.S.M.KALWAD, ADV. FOR R1 & R2,
R3 SERVED)
THIS MFA IS FILED U/S 37 (1) OF THE ARBITRATION AND
CONCILIATION ACT, 1996, FILED AGAINST THE JUDGMENT AND
DECREE DATED 31.03.2011 PASSED IN A.S.NO.3/2009 ON THE
FILE OF THE PRINCIPAL DISTRICT JUDGE AT DHARWAD,
DECREEING THE SUIT FILED U/SEC.34 OF THE ARBITRATION
AND CONCILIATION ACT.
---
IN MFA NO.23292/2011:
BETWEEN:
THE NATIONAL HIGHWAYS AUTHORITY
OF INDIA, PROJECT IMPLEMENTATION UNIT,
2ND CROSS, SATTUR COLONY, VIDYAGIRI,
DHARWAD, REPRESENTED BY
MANAGER (TECH), SRI.RAMANJULA RAO
OF DHARWAD.
... APPELLANT
(BY SMT.P.R.BENTUR, ADV.)
AND:
1. SRI. LAXMAN S/O DEVENDRAPPA
KAMDOLLI, AGE: 71 YEARS,
OCC: BUSINESS, R/O VARUR VILLAGE,
TQ: HUBLI, DISTRICT: DHARWAD.
2. THE ARBITRATOR FOR NATIONAL
HIGHWAY AUTHORITY OF INDIA
AND THE DEPUTY COMMISSIONER
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
:7:
AND ARBITRATOR, DHARWAD DISTRICT.
... RESPONDENTS
(SRI.S.M.KALWAD, ADV. FOR R1,
R2 SERVED)
THIS MFA IS FILED U/S.37(1) OF THE ARBITRATION AND
CONCILIATION ACT, 1996, FILED AGAINST THE JUDGMENT AND
DECREE DATED 31.03.2011 PASSED IN A.S.NO.5/2009 ON THE
FILE OF THE PRINCIPAL DISTRICT JUDGE AT DHARWAD,
DECREEING THE SUIT FILED U/SEC. 34 OF THE ARBITRATION
AND CONCILIATION ACT.
---
IN MFA NO.23293/2011:
BETWEEN:
THE NATIONAL HIGHWAYS AUTHORITY
OF INDIA, PROJECT IMPLEMENTATION UNIT,
2ND CROSS, SATTUR COLONY, VIDYAGIRI,
DHARWAD, REPRESENTED BY
MANAGER(TECH), SRI.RAMANJULA RAO
OF DHARWAD.
... APPELLANT
(BY SMT.P.R.BENTUR, ADV.)
AND:
1. SRI.RAMAPPA S/O BASAVANTAPPA
BASTI, AGE: 50 YEARS,
OCC: BUSINESS, R/O VARUR VILLAGE,
TQ: HUBLI, DISTRICT: DHARWAD.
2. THE ARBITRATOR FOR NATIONAL
HIGHWAY AUTHORITY OF INDIA
AND DEPUTY COMMISSIONER,
DHARWAD, DIST: DHARWAD.
... RESPONDENTS
(SRI.S.M.KALWAD, ADV, FOR R1,
R2 SERVED)
THIS MFA IS FILED U/S.37(1) OF THE ARBITRATION AND
CONCILIATION ACT, 1996, FILED AGAINST THE JUDGMENT AND
DECREE DATED 31.03.2011 PASSED IN A.S.NO.02/2010 ON THE
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
:8:
FILE OF THE PRINCIPAL DISTRICT JUDGE AT DHARWAD,
DECREEING THE SUIT FILED U/SEC.34 OF THE ARBITRATION
AND CONCILIATION ACT.
---
IN MFA NO.23294/2011:
BETWEEN:
THE NATIONAL HIGHWAYS AUTHORITY
OF INDIA, PROJECT IMPLEMENTATION UNIT,
2ND CROSS, SATTUR COLONY, VIDYAGIRI,
DHARWAD, REPRESENTED BY
MANAGER (TECH), SRI.RAMANJULA RAO
OF DHARWAD.
... APPELLANT
(BY SMT.P.R.BENTUR, ADV.)
AND:
1. SRI.GABAPPA S/O RAYAPPA
GABANNAVAR, AGE: 60 YEARS,
OCC: BUSINESS, R/O VARUR VILLAGE,
TQ: HUBLI, DISTRICT: DHARWAD.
2. SRI.BASAVANTAPPA S/O RAYAPPA
GABANNAVAR, AGE: 70 YEARS,
OCC: BUSINESS, R/O VARUR VILLAGE,
TQ: HUBLI, DISTRICT: DHARWAD.
3. SRI.GANGAPPA S/O RAYAPPA
GABANNAVAR, AGE: 58 YEARS,
OCC: BUSINESS, R/O VARUR VILLAGE,
TQ: HUBLI, DISTRICT: DHARWAD.
4. SRI.RAMAPPA S/O RAYAPPA
GABANNAVAR, SINCE DECEASED BY LRS.
4(A) SMT.SHRIKANTAVVA W/O RAMAPPA
GABANNAVAR, AGE: 40 YEARS,
OCC: HOUSEHOLD WORK,
R/O VARUR VILLAGE, TQ: HUBLI,
DISTRICT: DHARWAD.
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
:9:
4(B) SMT.LATA W/O MANJUNATH
JINNAMMANAVAR, AGE: 24 YEARS,
OCC: HOUSEHOLD WORK,
R/O VARUR VILLAGE, TQ: HUBLI,
DISTRICT: DHARWAD.
4(C) SMT.LAKSHMI D/O RAMAPPA
GABANNAVAR, AGE: 22 YEARS,
OCC: HOUSEHOLD WORK,
R/O VARUR VILLAGE, TQ: HUBLI,
DISTRICT: DHARWAD.
4(D) SRI.PRAKASH S/O RAMAPPA
GABANNAVAR, AGE: 19 YEARS,
OCC: HOUSEHOLD WORK,
R/O VARUR VILLAGE, TQ: HUBLI,
DISTRICT: DHARWAD.
5. THE ARBITRATOR FOR NATIONAL
HIGHWAYS AUTHORITY OF INDIA
AND DEPUTY COMMISSIONER,
DHARWAD, DISTRICT: DHARWAD.
... RESPONDENTS
(SRI.S.M.KALWAD, ADV. FOR R1-R3, R4(A-D),
R5 SERVED)
THIS MFA IS FILED U/S 37(1) OF ARBITRATION AND
CONCILIATION ACT, 196, FILED AGAINST THE JUDGMENT AND
DECREE DATED 31.03.2011 PASSED IN A.S.NO.5/2010 ON THE
FILE OF THE PRINCIPAL DISTRICT JUDGE AT DHARWAD,
DECREEING THE SUIT FILED U/SEC.34 OF THE ARBITRATION
AND CONCILIATION ACT.
---
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT
These appeals have been filed under Section 37(1) of
the Arbitration and Conciliation Act, 1996 (henceforth
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
: 10 :
referred to as the 'Arbitration Act', for brevity) challenging
the judgments and decrees passed by the Principal
District Judge at Dharwad (henceforth referred to as the
'Court below' for brevity) as shown in the table herebelow:
Date of judgment
Arbitration and decree
Sl.No. MFA No. challenged in this
Suit No.
appeal
1 23159/2011 18/2009 01.04.2011
2 23288/2011 16/2009 23.04.2011
3 23289/2011 1/2009 31.03.2011
4 23290/2011 2/2009 31.03.2011
5 23291/2011 3/2009 31.03.2011
6 23292/2011 5/2009 31.03.2011
7 23293/2011 2/2010 31.03.2011
8 23294/2011 5/2010 31.03.2011
In all these appeals the appellant-Authority has
prayed for setting aside the judgments and decrees that
are shown in the table above and passed by the Court
below.
2. In all these appeals the appellant-Authority has
taken a contention that the Court below ought to have
seen that, the grounds made out by the respondents-
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
: 11 :
claimants were not stipulated under Section 34 (2) of the
Arbitration Act and the Court below should have held
that, they can never constitute as a provision enabling the
land owners seeking for enhancement of the compensation
as determined by the Arbitrator. With this it has prayed
for allowing the appeals by setting aside the impugned
judgments.
3. In response to the notice the respondent-
Arbitrator in MFA No.23290/2011 is being represented by
his counsel and in other cases, the respondent-Arbitrator
though served remained unrepresented and other
respondents are being represented by their counsels.
Lower court records were called for and the same are
placed before this Court.
4. Though these matters were listed for in the
admission list, however, with the consent from both sides,
these matters were heard on the main.
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
: 12 :
5. All these appeals have arisen out of the
judgments and decrees passed by the Court below as
stated above. The summary of the cases in common in all
these matters is that, the lands said to be belonging to
respondents-claimants, of various measurements, are said
to have been acquired for the purpose of four/six laning of
National Highway No.4 under National Highway
Development Project (NHDP) from Harihar to Belgaum
Bypass (i.e. Km.282-515), the Central Government
exercising its powers under Section 3-A (1) of the National
Highway Act, 1956, (henceforth referred to as the 'NH Act',
for brevity) issued preliminary notification vide notification
dated 13.03.2001 and final notification under Section 3-D
of the said Act vide notification dated 03.01.2002 thereby
declaring that the lands acquired vest with the Central
Government free from all encumbrances. Land value was
also fixed at a particular rate. The respondents-claimants
not being satisfied by the award passed by the competent
authority, approached the respondent, who is the
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
: 13 :
Arbitrator under Section 3-G (5) of the NH Act seeking
enhancement of compensation. The respondent-Arbitrator
by his awards dismissed the appeals. The respondents-
claimants being aggrieved by the said awards passed by
the respondent-Arbitrator, approached the Court below
under Section 34 (2) of the Arbitration Act. The Court
below by its judgments shown in the table above decreed
the suits and enhanced the compensation. It is the said
judgments and decrees the appellant-Authority has
challenged in these appeals.
6. Learned counsel for the appellant-Authority in
her argument submitted that the Court below has
exercised its jurisdiction as an Appellate Court and
enhanced the compensation, which was not permissible
under Section 34 (2) of the Arbitration Act. As such, the
impugned judgments and decrees deserve to be set aside.
In her support, she relied upon a judgment of this Court
in the case of H.M.Shankaramurthy Vs. National
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
: 14 :
Highways Authority of India, Project reported in 2010-
LAWS(KAR)-6-24, a judgment of a Division Bench of this
Court in the case of The National Highways Authority
of India, Project Implementation Unit, Vidyagiri,
Dharwad Vs. Smt.Mahadevi and Others, reported in
2017(4) Kar. L.J. 674 (DB) and a judgment of Hon'ble
Supreme Court of India in the case of Kinnari Mullick
and Another Vs. Ghanshyam Das Damani reported in
AIR 2017 SC 2785.
7. On the other hand, the learned counsel for
respondents-claimants in his argument vehemently
submitted that, since the claimants were not satisfied with
the quantum of compensation awarded by the Arbitrator,
they had preferred the appeals before the Court below, as
such, the Court below has rightly enhanced the
compensation. In his support, he relied upon a judgment
of a Division Bench of this Court in the case of
Paramashivam and Others Vs. National Highways
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
: 15 :
Authority of India in MFA No.7297/2009 dated
01.06.2011 and another judgment of a Division Bench of
this Court in Arkaniyamma, Since deceased by her
LR., N. Veluswamy, S/O. Late K.Nalliyanagounder Vs.
National Highways Authority of India and Others
dated 06.01.2012 reported in LAWS(KAR)-2012-1-257
and submitted that the enhancement awarded by the
Court below is appropriate and does not warrant any
interference at the hands of this Court.
8. Admittedly, all these appeals before the Court
below were filed under Section 34 (2) of the Arbitration
Act. The Court below in all the arbitration suits from the
judgment of which these appeals have arisen, has
enhanced the market value awarded by the Arbitrator.
9. Section 34 (2) of the Arbitration Act reads as
below:
"34. Application for setting aside arbitral
award.--
(1) xxxxxxxxxxxxx
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
: 16 :
(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
(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
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
: 17 :
(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
(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) xxxxxxxxxxxxxxxxx
(4) xxxxxxxxxxxxxxxxx"
A bare reading of the said Section goes to show that in
an arbitration suit filed under Section 34 (2) of the
Arbitration Act, what the Arbitration Court can do is only
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
: 18 :
setting aside of the award and nothing more, provided the
party approaching the Court through arbitration suit
(arbitration application) fulfills any one of the above
mentioned five grounds as contemplated under Section
34(2)(a)(i) to (v) and if the Court finds that the subject
matter of the dispute is not capable of settlement by
arbitration under the law for the time being in force, or the
arbitral award is in conflict with the public policy of India
as contemplated under Section 34(2)(b)(i) and (ii).
Nowhere in the said Section 34 of the Arbitration Act, it is
provided for the Arbitration Court dealing with the
application under Section 34 for modifying the arbitral
award, particularly, in the manner of enhancement of the
award passed by the Arbitrator.
10. In Mahadevi's (supra) case, a Division Bench
of this Court while dealing with the scope of Sections 34
and 37 of the Arbitration Act observed that, an award
passed by the Arbitrator has been given finality under the
M.F.A.No.23159/2011 C/w.
M.F.A. Nos.23288, 23289, 23290, 23291,
23292, 23293 and 23294 OF 2011
: 19 :
provisions of the Arbitration Act, at par of an executable
decree passed by competent Court; therefore application
under Section 34 cannot partake character of a civil suit;
Court is not entitled to substitute its own judgment or
valuation in cases for awarding compensation. With this
observation, a Division Bench of this Court opined that
the Court below therein had erred in allowing the
applications under Section 34 of the Arbitration Act,
which has resulted in the setting aside of judgment of the
Court below which had set aside the award and enhanced
the compensation amount awarded by the Arbitrator.
This Court in H.M.Shankaramurthy's case (supra),
while dealing with Section 3G(5) of the NH Act and Section
34 of the Arbitration Act was pleased to observe that a
provision for setting aside an award contending that the
award is not sustainable in law on any one of the grounds
as indicated under Section 34(2)(a) can never be construed
as a provision enabling the land owner seeking for
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enhancement of the compensation amount as determined
by the Arbitrator. These judgments makes it clear that in
the matter of arbitration suit presented to it under Section
34(2) of the Arbitration Act, the Court dealing with the
said application cannot modify the award passed by the
Arbitrator by enhancing the compensation awarded by
him.
11. Learned counsel for the respondents-claimants
in his argument has relied upon an unreported judgment
of this Court delivered in the case of Paramashivam
(supra), wherein this Court had not found any error or
illegality in the impugned order of the trial Court and had
set aside the award passed by the Arbitrator and
remanded the matter for consideration as envisaged under
Section 3G (7)(a) to (d) of the NH Act.
In the case of Arkaniyamma (supra), which was
also relied upon by the learned counsel for the
respondents-claimants a Division Bench of this Court
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following the judgment of Paramashivam's (supra) case
after setting aside the arbitral award and the judgment of
the Principal District Judge, Chitradurga passed in the
arbitration case under Section 34 of the Arbitration Act
against the said arbitral award, was not only pleased to
set aside both the award and the judgment of the District
Court, but also had remitted the matter back to the
Arbitrator to decide the matter on merits in compliance of
Section 3G (7)(a) to (d) of the NH Act.
In Ghanshyam Das's (supra) case, the Hon'ble
Supreme Court while analysing the scope of Section 34 (4)
of the Arbitration Act in its judgment at paragraph 13 was
pleased to observe that no power has been invested by the
Parliament in the Court to remand the matter to the
Arbitral Tribunal except to adjourn the proceedings for the
limited purpose mentioned in sub-Section 4 of Section 34
of the Arbitration Act. Further observing that the said
power under Section 34 (4) of the Arbitration Act is a
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limited power of deferring the proceedings by the Court
and adjourn the proceedings for a period of time
determined by it, only 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 it held that, once the main proceeding
under Section 34 of the Arbitration Act is disposed by the
Court it becomes functus officio. Thus, by disposal of the
main matter by the Court below, there was no opportunity
to the Arbitral Tribunal to resume the arbitral proceeding
or to take such other action as in the opinion of Arbitral
Tribunal will eliminate the grounds for setting aside the
arbitral award.
In the same case the Hon'ble Supreme Court has
also observed that a Division Bench of this High Court in
the case of Bhaskar Industrial Development Limited Vs.
South Western Railway (MFA No.103528/2015) had
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expounded that the power of the Court under Section 34
of the Act is not to remand the matter to the Arbitral
Tribunal after setting aside the arbitral award.
12. In the light of the above judgment of
Ghanshyam Das's (supra) case, this Court cannot even
consider for remanding the matter back to the Arbitrator
for its fresh disposal. As such, the submission of the
learned counsel for the respondents-claimants to remand
the matter to the Arbitral Tribunal in case if this Court
allows the appeals also cannot be considered.
From the above analysis it is clear that the Court
below, though had found the arbitral award fit to be set
aside under Section 34 (2) of the Arbitration Act, has by
itself enhanced the market value of the acquired lands as
though it is sitting as a Court of appeal in an appellate
jurisdiction on civil side, which is not contemplated under
Section 34 (2) of the Arbitration Act. As such, all these
appeals deserve to be allowed.
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13. Accordingly, I proceed to pass the following:
ORDER
The Miscellaneous First Appeal Nos.23159/2011, 23288/2011, 23289/2011, 23290/2011, 23291/2011, 23292/2011, 23293/2011 and 23294/2011 are hereby allowed.
The judgments and decrees passed by the Principal District Judge at Dharwad as shown in the table herebelow are set aside:
Arbitration Date of judgment Suit No. and decree 23159/2011 18/2009 23288/2011 16/2009 23289/2011 1/2009 23290/2011 2/2009 23291/2011 3/2009 23292/2011 5/2009 23293/2011 2/2010 23294/2011 5/2010 Sd/-
JUDGE Sh