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2014 DIGILAW 278 (CAL)

Tosiur Rahaman v. Union of India

2014-03-25

SANJIB BANERJEE

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JUDGMENT : Sanjib Banerjee, J. The writ petition appears to be in derogation of the procedure specified under Section 3-G of the National Highways Act, 1956. 2. The petitioners are dissatisfied with the amount determined by the competent authority as compensation payable to the petitioners upon their land being acquired for the purpose of a national highway Section 3G(5) mandates that if the amount determined by the competent authority is not acceptable to either of the parties, the amount shall on an application by either of the parties, be determined by the arbitrate to be appointed by the Central Government. Section 3G(6) of the Ac expressly makes the provisions of the Arbitration and Conciliation Act 1996 applicable to every arbitration under the said Act of 1956. 3. The present petition is misconceived since it does not appear that any request for the appointment of an arbitrator has been made by the petitioners in accordance with Section 3G(5) of the said Act of 1956 The petitioners rely on a copy of a document appearing as Annexure P/2 to the petition which has been received by the Office of the District Magistrate, Murshidabad. According to the petitioners, since the Additional District Magistrate (Land Acquisition) is also the competent authority to adjudicate upon the amount of compensation payable, would suffice to send a request to such person for an arbitrator to be appointed. 4. Section 3G(5) of the said Act of 1956 provides for the arbitrate to be appointed by the Central Government. Since the petitioners grievance is that the arbitrator has not been appointed despite request it is first necessary to ascertain whether a proper request has bee made for such request to be taken cognizance of. Next, it must be ascertained whether this is the remedy for the petitioners upon the Central Government not appointing an arbitrator in terms of Section 31 (5) of the said Act of 1956. 5. Both questions have to be answered against the petitioners, it does not appear that the petitioners have applied to the Central Government for the appointment of an arbitrator. Assuming that the petitioners have applied to the Central Government and the Central Government has not appointed an arbitrator, it will then be open to the petitioners to take recourse to Section 11 of the 1996 Act by virtue of Section 3G(6) of the said Act of 1956. 6. Assuming that the petitioners have applied to the Central Government and the Central Government has not appointed an arbitrator, it will then be open to the petitioners to take recourse to Section 11 of the 1996 Act by virtue of Section 3G(6) of the said Act of 1956. 6. The petitioners have referred to an unreported judgment of the Chief Justice of the Allahabad High Court rendered on May 10, 2013 in APPL.U/S 11(4) No.-17 of 2013 (Sardar Amardeep Singh v. Union of India) for the proposition that Section 11 of the 1996 Act cannot be invoked in the case of an arbitration under the said Act of 1956. 7. It does not appear from the Allahabad order that the correct position of law is reflected therein since Section 3G(6) of the 1956 Act makes the 1996 Act applicable to every arbitration under the 1956 Act. 8. The 1956 Act provides for statutory arbitration and also provides the manner in which the appointment of the arbitrator or the arbitral tribunal is to be secured. The 1956 Act does not provide for the manner in which the composition of the arbitral tribunal would be secured if the Central Government did not pay heed to a request by a party aggrieved by the compensation awarded by the competent authority for the adjudication to be made by an arbitrator. If the 1956 Act expressly provided for such situation, notwithstanding Section 3G(6) of the 1996 Act and, indeed, by virtue thereof, the special procedure under the 1956 Act would have been applicable. However, since the 1956 Act does not expressly provide for a default mechanism upon the Central Government failing to appoint an arbitrator despite due request under Section 3G(5) of the 1956 Act, it is the procedure under Section 11 of the 1996 Act which would apply. The order of the Allahabad High Court relied upon by the petitioners is, respectfully, disagreed from. 9. W.P. No. 37248 (W) of 2013 is dismissed on the grounds indicated above. 10. There will be no order as to costs. Writ petition is dismissed.