Kerala High Court
Nalini vs Project Director on 14 November, 2018
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY,THE 14TH DAY OF NOVEMBER 2018 / 18TH KARTHIKA, 1940
Arb.A.No. 46 of 2016
AGAINST THE ORDER DATED 18-12-2015 IN OP.NO.102/2012 of
ADDL.DISTRICT JUDGE, NORTH PARAVUR
APPELLANT/PETITIONER:
NALINI
AGED 53 YEARS, W/O. SHIKHI VAHANAN NAIR, SACHIDANANDA
VILASAM, FRIENDS LANE, THOTTAKKATTUKARA, ALUVA.
BY ADV. SRI.BABU KARUKAPADATH
RESPONDENTS/RESPONDENTS:
1 PROJECT DIRECTOR
NHAI, THUSHARABINDU NO.337, CHANDRANAGAR EXTENSION,
NARIKKODE, PALAKKAD. 678001
2 SPECIAL DEPUTY COLLECTOR SLAO & COMPETENT AUTHORITY
NHDP
THRISSUR.680020
BY ADVS.
SRI.M.P.PRAKASH
SRI.THOMAS ANTONY
SR.GOVERNMENT PLEADER SRI.A.K.SUKUMARAN
THIS ARBITRATION APPEALS HAVING BEEN FINALLY HEARD ON 09.11.2018,
ALONG WITH ARB.A.50/2016, THE COURT ON 14.11.2018 DELIVERED THE
FOLLOWING:
Arb.Appeal No.46/2016
& 50/2016
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY,THE 14TH DAY OF NOVEMBER 2018 / 18TH KARTHIKA, 1940
Arb.A.No. 50 of 2016
AGAINST THE ORDER DATED 18-12-2015 IN OP 103/2012 of ADDL.DISTRICT
JUDGE, NORTH PARAVUR
APPELLAN/PETITIONER:
K.S.SHIKHI VAHANAN NAIR
S/O SACHIDANANDAN NAIR, AGED 58 YEARS, SACHIDANANDA
VILASAM,FRIEDNS LANE,THOTTAKKATUKARA , ALUVA.
BY ADV. SRI.BABU KARUKAPADATH
RESPONDENTS/RESPONDENTS:
1 PROJECT DIRECTOR
NHAI, THUSHARABINDU NO.337,CHANDRANAGAR
EXTENSTION,NARIKKODE, PALAKKAD.678001.
2 SPECIAL DEPUTY COLLECTOR SLAO COMPETENT AUTHORITY
NHDP
THRISSUR.680020.
BY ADVS.
SRI.M.P.PRAKASH
SR.GOVERNMENT PLEADER SRI.A.K.SUKUMARAN
SRI.THOMAS ANTONY
THIS ARBITRATION APPEAL HAVING BEEN FINALLY HEARD ON 09.11.2018,
ALONG WITH ARB.A.46/2016, THE COURT ON 14.11.2018 DELIVERED THE
FOLLOWING:
Arb.Appeal No.46/2016
& 50/2016
3
V.CHITAMBARESH
&
R.NARAYANA PISHARADI, JJ.
**************************
Arb.Appeal Nos.46 of 2016
&
50 of 2016
----------------------------------------------
Dated this the 14th day of November, 2018
JUDGMENT
R.Narayana Pisharadi, J Land owned by the appellants was acquired under the National Highways Act, 1956 (hereinafter referred to as 'the Highways Act') for the purpose of widening of National Highway 47. The competent authority fixed the amount of compensation payable to the appellants at Rs.5,88,100/- per Are. The appellants recoursed to arbitration proceedings as provided under the Highways Act. The Arbitrator enhanced the amount of compensation payable to the appellants by 30%. The appellants then made application before the District Arb.Appeal No.46/2016 & 50/2016 4 Court under Section 34(1) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Arbitration Act'). As per the impugned orders, the District Court dismissed the aforesaid applications. The owners of the land have come up in appeal.
2. We have heard learned counsel for the appellants. We have also heard the learned Government Pleader and also the learned counsel for the first respondent.
3. The appellant in Arb.Appeal No.46/2016 is the wife of the appellant in Arb.Appeal No.50/2016. Their land was acquired under the Highways Act for the purpose of widening of NH47. The notification for acquisition was published on 04.01.2005. 81 sq.metres of land belonging to the wife and 38 sq.metres of land belonging to the husband was acquired.
4. The prayer made by the appellants in the application filed under Section 34(1) of the Arbitration Act was to remand the arbitration proceedings to the Arb.Appeal No.46/2016 & 50/2016 5 Arbitrator. Their plea was that they produced documents regarding similarly situated properties before the Arbitrator, but such documents were not taken into consideration by him. They prayed for an order remanding the case to the Arbitrator for enabling him to consider the documents produced by them before him.
5. The National Highways Act, 1956 is enacted specifically for the purpose of acquisition of land for National Highways and for declaration of certain highways as National Highways. Section 3A of the Highways Act gives power to the Central Government to acquire land for public purpose by complying with the procedure prescribed therein. Determination of the amount of compensation payable for the land acquired is dealt with under Section 3G the Highways Act. Section 3G(1) provides that where any land is acquired, an amount which shall be determined by an order of the competent authority, shall be paid. Section 3G(5) Arb.Appeal No.46/2016 & 50/2016 6 states that if the amount determined by the competent authority under sub-section (1) 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. Section 3G(6) provides that subject to the provisions of that Act, the provisions of the Arbitration Act shall apply to every arbitration under the Highways Act. Sub-section (7) of the Highways Act provides for the matters that shall be taken into account by the competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5).
6. Section 2(4) of the Arbitration Act provides that the provisions contained in Part I of that Act, except sub-section (1) of Section 40, Section 41 and Section 43, shall apply to every arbitration under any other enactment, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement. On a conjoint reading of Arb.Appeal No.46/2016 & 50/2016 7 sub-sections (5) and (6) of Section 3G of the Highways Act and Section 2 (4) of the Arbitration Act, it is clear that the provisions of Part 1 the Arbitration Act will apply to every arbitration under the Highways Act. Of course, this is subject to any specific provision made in the Highways Act regarding arbitration.
7. In Kinnari Mullick v. Ghanshyam Das Damini : AIR 2017 SC 2785, the Apex Court considered the question whether the court exercising the power under Section 34 of the Arbitration Act can relegate parties to the Arbitral Tribunal. It was held that Parliament has not conferred any power of remand upon the court to remit the matter to the Arbitral Tribunal. The court cannot remit an award. It can only defer proceedings for a period of time, that too, upon a written request by one of the parties, under Section 34(4) of the Arbitration Act, in order to give the Arbitral Tribunal an opportunity to eliminate the grounds for setting aside the award.
Arb.Appeal No.46/2016& 50/2016 8
8. Section 34(4) of the Arbitration Act provides that 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. Of course, the appellants could have filed applications before the District Court under Section 34(4) of the Arbitration Act to defer the proceedings to enable the Arbitrator to consider the documents allegedly produced by them before him. No such step was taken by the appellants. The impugned orders passed by the District Court reveal that the appellants had made a prayer in the application filed by them under Section 34(1) of the Arbitration Act for adjournment of the proceedings. The lower court rejected the aforesaid prayer on finding Arb.Appeal No.46/2016 & 50/2016 9 that the appellants had actually not produced any documents before the Arbitrator.
9. The fact that the appellants did not produce any documents before the Arbitrator is not disputed before us by the learned counsel for the appellants. The submission made by the learned counsel is that the Arbitrator did not give sufficient opportunity to the appellants to adduce evidence. The plea in this regard is not at all convincing.
9. In our view, the lower court has rightly rejected the prayer for adjournment of the proceedings before it. In the first place, the appellants had not actually produced any documents before the Arbitrator. They had also not adduced any oral evidence before him. Therefore, there was no question of the Arbitrator considering any evidence adduced by them. In the second place, the appellants had not made any separate application under Section 34(4) of the Arbitration Act praying for adjournment of the Arb.Appeal No.46/2016 & 50/2016 10 proceedings before the District Court. In Kinnari Mullick (supra), it has been held that the limited discretion available to the court under Section 34(4) of the Arbitration Act can be exercised only upon a written application made in that behalf by a party to the arbitration proceedings and that the court cannot exercise this limited power of deferring the proceedings before it suo motu.
10. It is to be noted that, even before this Court, the appellants did not produce any documents as additional evidence for acceptance. Even before this Court, they did not make any application under Section 34(4) of the Arbitration Act. Such a course would have been permissible in the light of the observations made by the Apex Court in paragraph 15 of the decision in Kinnari Mullick(supra).
11. The Arbitrator enhanced the amount of compensation by 30% on the basis of the report made by an expert committee who inspected the land which Arb.Appeal No.46/2016 & 50/2016 11 was acquired. Section 26(1) of the Arbitration Act provides for adopting such a procedure. In the absence of any oral or documentary evidence adduced by the appellants before him, the Arbitrator was justified in relying upon the report of the expert committee for enhancement of compensation.
12. When the award of an Arbitrator appointed under the Highways Act is challenged in an application filed under Section 34(1) of the Arbitration Act, the power of the Court to interfere with such award is very limited. The Court cannot consider the application filed under Section 34(1) of the Arbitration Act as a reference made under Section 18 of the Land Acquisition Act and direct payment of compensation at an enhanced rate. The award of the Arbitrator can be set aside only on the grounds mentioned under Section 34(2)(a) and (b) of the Arbitration Act and not otherwise. (See Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd : (2003) 5 SCC 705, McDermott Arb.Appeal No.46/2016 & 50/2016 12 International Inc v. Burn Standard Company Ltd :
(2006) 11 SCC 181).
In the aforesaid circumstances, we see no sufficient ground to interfere with the impugned orders passed by the learned District Judge. The appeals are dismissed. No costs.
(sd/-) V.CHITAMBARESH, JUDGE (sd/-) R.NARAYANA PISHARADI, JUDGE jsr True Copy PS to Judge