Indian Kanoon - Search engine for Indian Law

8.(iii). Whether the landowner is entitled to the compensation under section 23(1)(a) of the Land Acquisition Act?

9.Discussion on the question Nos.1 and 2:

9.1.The counsel appearing for the NHAI have made their primordial submission that the Learned Principal District and Sessions Judge, presiding the arbitration tribunal, has committed error in determining the market value, fair compensation by modifying the arbitration award passed by the arbitrator in utter violation of the section 34 of the Arbitration and Conciliation Act 1996. According to them, the power of the court under Section 34 to set aside the award does not include power to modify such an award. They mainly contented on the basis of the decision of the Hon'ble https://www.mhc.tn.gov.in/judis Supreme Court in the case Project Director, NHAI v. M.Hakeem and another reported in 2021 (9) SCC 1 and submitted that power of the modification is not available under section 34 of the Arbitration Act, 1996. In the above all cases, the learned District Judge, presiding over the Arbitration Tribunal under NHAI Act “without remitting the matter to the arbitrator” determined the compensation and passed the impugned order. Therefore according to the counsel, there is error in the impugned order. Therefore, on the basis of the technical plea, the counsel appearing for the NHAI, seek to set aside the award passed by the Learned Principal District Judge by invoking the powers under section 37 of the Arbitration and Conciliation Act.

9.2.1.In this case the tribunal has determined compensation much earlier to the decision of the Hakeem case dated 20.07.2021. During the course of the hearing, the learned counsel appearing for the NHAI has never raised the jurisdiction issue under section 34 of Arbitration and conciliation Act, before the Tribunal. Further, the NHAI has also not made a request under Section 34(4) of the Arbitration Act, 1996, before the Tribunal to seek the correctness of the arbitration award passed impugned. Before this court, they raise the issue of jurisdiction and pray to exercise the power under section 37 of the Act.

14.6.Even though detailed guiding factors were incorporated in the 3G-(7) of NHAI to determine market value and other Damages, the Arbitrator dismissed the application without any judicial approach on the basis of the document adduced to determine the market value on the side of the claimants. The Arbitrator simply copied the award of competent https://www.mhc.tn.gov.in/judis authority contrary to Section 3 G(7) of the Act. Section 3G(7) of the Act, clearly fixes the detailed obligation, on the part of the arbitrator to determine the amount by taking into consideration the market value of the land on the date of the publication of section 3(A) of the Act, and also providing damages sustained by the persons in acquiring the land and taking possession by the Land Acquisition Officer. If the landowner is compelled to change his residence or place of the business the reasonable expenses if incurred, the same should be properly compensated. This mandatory duty is cast upon both the competent authority as well as the arbitrator. If none of the above procedure is followed, then it is a case of apparent illegality on the part of the arbitrator. His decision suffers from perversity. His method of approach in determining the compensation is against known public policy. In such a situation, in numerous cases the Hon'ble Supreme Court has upheld the power exercised by the Arbitration Tribunal under Section 34 of the Arbitration Act. Therefore, the extra ordinary situation warranted the Arbitration Tribunal to determine the compensation under Section 34 of Arbitration and Conciliation Act, on the basis of material produced before it by following the precedents laid down by the Hon'ble Supreme Court:

15.1.The competent authority and the arbitrator have not properly considered the documents filed by the land loser to fix the correct market value of the land and determine the proper compensation as per the statutory requirement. The competent authority and arbitrator, not even applied their mind to grant solatium and other statutory benefits. In the said circumstances, the learned Tribunal Judge in order to provide timely relief and in the interest of justice has correctly exercised power under Section 34 of the Arbitration Act and hence, this Court finds every justification ion the part of the learned Principal Sessions Judge, as Judge of Arbitration Tribunal, in invoking power under Section 34 of the Arbitration Act, 1996 to re-determine the compensation without remanding the matter to the arbitrator and also correctly fixed the market value and awarded compensation and therefore, this Court also concurs with the finding of the https://www.mhc.tn.gov.in/judis learned trial judge in determining the market value of the acquired land Rs.234.25/- per sq.metre and there is no grounds to exercise the power under Section 37 of the Act in determining the market value of the acquired land Rs.234.25/- per sq.metre.