JUDGMENT : Kalyan Rai Surana, J. Heard Mr. C. Baruah, learned Standing Counsel for the National Highway Authority of India, the appellant herein. Also heard Mr. J. Roy, learned counsel for the respondent No.1, Mr. C.K.S. Baruah learned Government Advocate for the respondents No.2, 5 and 6 as well as Mrs. V.L. Singh, learned counsel for the respondents No. 3 and 4. 2. This appeal under section 37 of the Arbitration and Conciliation Act is directed against the judgment and order dated 21.01.2012 passed by the learned District Judge, Morigaon in Misc. (Arbitration) Case No.7/2010, thereby declining to interfere with the arbitral award dated 13.11.2009 passed by the learned Arbitrator in Case No.174/2009. 3. The brief facts of this case is that for the purpose of development of 4 lane National Highway from Silchar to Srirampur as a part of linking East West Corridor, a portion of the land of the respondent was acquired by invoking the Right of way under the National Highways Act, 1956. 4. Pursuant to a notification under section 3 of National Highways Act, 1956 on 13.04.2005, no objection was received from any of the land owners affected by the said notification. Accordingly, by a notification issued under section 3D of the National Highways Act, 1956 which was published on 11.11.2005, the land of the respondent herein was acquired. As per the notification dated 13.04.2005, published in the Gazette of India on 19.04.2005, the Additional Deputy Commissioner, Morigaon district was appointed as the competent authority for hearing the objections. 5. The said competent authority determined the compensation under section 3G of the National Highways Act, 1956 and a compensation of Rs. 15,44,676/- was awarded by the competent authority in favour of the respondent No.1. 6. As against the unused portion of the land and building/left out portion which was left unassessed, the respondent No.1 preferred an appeal before the Commissioner, North Assam Division, Tezpur. The said Appellate Authority registered the said appeal as Case No.174/09. 7. The said Appellate Authority by an order/arbitral award dated 13.11.2009, by evoking the provisions of section 3G(5) of the National Highway Act, 1956 awarded to the respondent No.1 a sum of Rs. 29,29,554/- as additional compensation for acquisition of remaining portion of 3 storied building and Assam type house for the purpose of construction of 4 lane National Highway, directing that such payment shall be released within one month's time. 29,29,554/- as additional compensation for acquisition of remaining portion of 3 storied building and Assam type house for the purpose of construction of 4 lane National Highway, directing that such payment shall be released within one month's time. Aggrieved by the said order award, an application under section 34 of the Arbitration and Conciliation Act was filed before the Court of learned District Judge, Morigaon and the said application was registered and numbered as Misc. (Arb) Case No.7/2010. 8. The learned District Judge, Morigaon by judgment and order dated 21.01.2012, inter-alia, held that as per the opinion of the engineer, a practically unused and unacquired part had become useless and it was not possible for the owner to construct the same with the same money due to cost acceleration and therefore, it was held that the learned Arbitrator had committed no illegality and had committed no wrong. So accordingly, the said application was dismissed and the order dated 13.11.2009 passed by the learned Arbitrator was confirmed. 9. The learned counsel for the appellant has assailed the said order as well as the award passed by the learned Arbitrator, inter-alia, by submitting that at the commencement of the proceeding, as the authorities were pre-occupied at the relevant time for the land acquisition proceeding which was actively going on with the logistic support of the District Administration, Police Administration and other Government Agencies like the Forest Department, ASEB, PHE Department, etc., the authorities of National Highway Authority of India would be extremely busy and therefore, praying for postponement of the date of hearing scheduled on 9th, 10th, 11th and 16th November, 2009, an application dated 04.11.2009 was submitted for deferring the hearing. 10. It is submitted that it was further projected before the learned Arbitrator that the date of report and submission was received late and there was very short time on the hand to dispose of 54 numbers of cases and therefore prayed for rescheduling of the hearing after 24.05.2009. However, the learned Arbitrator heard the matter behind the back of the appellant and disposed of the Arbitration proceeding by order dated 30.11.2009. However, the learned Arbitrator heard the matter behind the back of the appellant and disposed of the Arbitration proceeding by order dated 30.11.2009. It is further submitted that in this case no assessment was made for the left out portion of property by the competent authority and therefore, as there was no original order of assessment of the value of the unused/ left out portion, it was required for the respondent No.1 to move the competent authority and that without such assessment by the competent authority i.e. Additional Deputy Commissioner, Morigaon, an application before the Arbitrator under section 5 of section 3G was not maintainable. 11. It is also submitted that the process of determining the arbitral proceeding was done hastily and in a malafide manner, for which the learned Arbitrator has been made as respondent by name as respondent No.6 and as per the grounds taken in the memo it is projected that the claimed case has been disposed of by the learned Arbitrator hastily by violating the provisions of law as well as in violation of the principles of natural which has resulted in heavy loss to the public exchequer. 12. It is further submitted by pressing each and every ground of appeal that the learned Arbitrator had passed the award without giving any justification and that too after the land owner i.e. the respondent No.1 had accepted the compensation without any protest or objection, for which the respondent No.1 was prohibited from approaching the learned Arbitrator for additional compensation. 13. It is further submitted by the learned counsel for the appellant that he is not pressing the issue of the claim petition being barred by principles of res-judicata. 14. It is submitted that as the Arbitrator had heard the matter behind the back of the appellant and the appellant was not offered equal treatment at the time of hearing for which the arbitral award as well as the impugned order passed by the learned District Judge, stands vitiated for not following the provisions of section 18 of the Arbitration and Conciliation Act, 1996. 15. 15. Per contra, the learned counsel for the respondent No.1 submits that the entire approach by the appellant was on a wrong premises because this was a case where the respondent No.1 was not seeking to invoke the provision of Arbitration for the acquired land and building already assessed by the competent authority, but it is submitted that the appellant was under a mis-conceived notion because the arbitration proceeding was filed because instead of acquiring the entire land part of property, upto the middle portion of 3-storied RCC building consisting of only about 50% of the building and the land beneath was acquired and after the same is demolished, the remaining 50% of the land and building standing thereon would be of no use to the respondent No.1 and it will not have the appropriate strength and cannot be used directly for commercial purposes. 16. It is submitted that in the process of assessing compensation, it was required by the competent authority to take into consideration the provision of sub section 7 of section 3G of the National Highways Act, 1956. 17. The learned counsel for the respondent No.1 further submits that the notification to acquire the land was published in the Gazette of India on 11.11.2005. It is submitted that as acquisition was made in year 2005, the assessment of unassessed part or unacquired part of the building was required to be done on the basis of Assam PWD, Schedule of Rates (SOR applicable as on 11.11.2005 for short). But in this case SOR for the year 2001-02 was applied and therefore, the learned Arbitrator had correctly relied on the estimate prepared by the Assistant Engineer, Jagiroad Development Authority as well as report submitted by the Executive Engineer (B), Morigaon vide his letter No. Mg (Bldg)/II/179/2005/453 dated 12.11.2009, thereby confirming that the once half portion of the RCC building was acquired and demolished, the residuary portion would automatically get smashed and will be of no use either for dwelling or for commercial purpose. Hence, the learned Arbitrator as well as the learned District Judge had not committed any wrong for applying the SOR for 2004-05 and just and fair compensation was awarded by awarding an additional amount of Rs. 29,29,554/-. 18. Hence, the learned Arbitrator as well as the learned District Judge had not committed any wrong for applying the SOR for 2004-05 and just and fair compensation was awarded by awarding an additional amount of Rs. 29,29,554/-. 18. It is further submitted that in one of the grounds in the application for setting aside the arbitral award, it was projected as if the impugned order was passed behind the back of the appellant, however, without questioning the correctness of the award or the process of the determination and/or quantum of the said award. Referring to the impugned judgment and order dated 21.01.2012 passed by the learned District Judge, Morigaon it is submitted that the said learned Court had revisited the computation of the compensation and had arrived at a independent finding that the learned Arbitrator had committed no illegality and, as such, it is submitted that there are no grounds for maintaining the present appeal. 19. While appreciating the arguments advanced by the learned counsel for both sides, it appears that as per the provisions of sub-section 7 of Section 3G of the National Highways Act, 1956 it provides that the competent authority while determining the amount under sub-section (1) of Section 3G of the said Act shall take into consideration the market value of the land, the damage sustained by the persons interested at the time of taking possession of the land by risk of severing of such land from the other land, damage if any affecting the other immovable property and the consequences of the person interested, if he is compelled to change his business as provided under sub-section (7) quoted below. 20. Therefore, if the competent authority did not take note of the provisions contained in sub-section (7) of section 3G of the said Act, this Court is of the considered view that the respondent No.1 had a right to prefer an application under sub-section (5) of section 3G of the said Act to get compensation determined by an Arbitrator. 20. Therefore, if the competent authority did not take note of the provisions contained in sub-section (7) of section 3G of the said Act, this Court is of the considered view that the respondent No.1 had a right to prefer an application under sub-section (5) of section 3G of the said Act to get compensation determined by an Arbitrator. Therefore, as nothing has been placed before this Court to take cognizance of any provisions of law requiring the affected persons i.e. respondent No.1 herein to once again apply before the competent authority for determining the compensation by considering the various sub-clauses contained under sub-section (7) of section 3G of the said Act because of a very clear mandate of the said sub-section (7) that the competent authority determining the amount under sub-section (1) "shall take into sub- the various sub clauses contained therein". The provisions of sub-section 7 of section 3G of the National Highways Act is quoted below:- "(7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration- (a) the market value of the land on the date of publication of the notification under section 3A; (b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land; (c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings; (d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change." 21. Nothing has been brought on record to show that the word "shall" used in the provision of sub section (7) of section 3G of 1956 Act must not be read as mandatory. Therefore, once the competent authority is found to have failed in his duty to take into account the requirement of sub section (7) of section 3G of the National Highway Act, 1956 then there is no bar for the respondent No.1 to file an application for the arbitrator under sub-section (5) of the section 3G of the said 1956 Act. 22. 22. In so far, as the submission about the non-application of the doctrine of audi alterem partem raised by the learned counsel for the appellant is concerned, this Court finds on a perusal of the record, that by an order dated 13.11.2009 passed by the Arbitrator in Case No.174/09, the prayer for adjournment made by letter No. NHAI/NGN/Arbitrator/01/06/4932 dated 04.11.2009 is concerned, the same was rejected by order under No. CAM/ RR.115/2008/36 dated 05.11.2009 which is revealed in para 2 of the said order dated 13.11.2009. 23. On a perusal of the LCR, in respect of MC (Arb) Case No.7/2010, it is not a ground for setting aside the said order dated 13.11.2009, that the order passed on 05.11.2009 was not communicated to the appellant. Therefore, that issue was not required to be gone into by the learned District Judge, Morigaon. 24. Therefore, point of determination which arises in this appeal are:- (i) whether the order dated 13.12.2009 passed in Case No.174/2009 can be invalidated on the ground of non-compliance of the principles of audi alterem partem unless it is demonstrated that the appellant challenging the said order has suffered any prejudice? (ii) whether there is any infirmity in the order dated 13.11.2009, by the Arbitrator in Case No.174/2009 and order dated 21.01.2012 passed by the learned District Judge, Morigaon suffers from any error? 25. In the present case in hand, the order was passed by the learned Arbitrator on 13.11.2009. Against the said order the application under section 34 of the Arbitration and Conciliation Act, 1996 was preferred which is Misc. (Arb) Case No.7/2010. There is not a single whisper in Misc. (Arb) Case No.7/2010 that the rejection of the petition for adjournment by order dated 05.11.2009 was not communicated to and/or not within the knowledge of the concerned officials of the appellant. The appellant did not take any plea before the learned Arbitral Tribunal that it was exceeding its scope of authority by refusing adjournment and in the application under section 34 of the Arbitration and Conciliation Act filed before the District Judge, Morigaon, the legality and validity of the order dated 05.11.2009 passed by the learned Arbitral Tribunal was neither raised nor pressed. 26. As per the provisions under section 37 of the 1996 Act, the grounds on which appeal lies are mandated under sub-section (1) and (2) thereof. 26. As per the provisions under section 37 of the 1996 Act, the grounds on which appeal lies are mandated under sub-section (1) and (2) thereof. Therefore, the order refusing adjournment per-se is not an appealable order but under section 37 (1) (d), refusal of adjournment can be made a ground to challenge the refusal of setting aside an arbitral award under section 34. Moreover, on a perusal of the case record of Misc. (Arb) Case No.7/2010, it appears that the record of proceeding before the Arbitrator in Arbitration case No.174/09 was called for from the learned Commissioner, North Assam Division by order dated 17.07.2010. Subsequent orders dated 07.08.2010 and 18.09.2010 were passed for calling of the said record. After that, neither the learned District Judge, Morigaon passed any further orders for requisitioning the arbitrator's record nor the parties renewed their prayer to call for the arbitrator's record and the matter was heard on 21.01.2012 without the record of Arbitration Case No.174/09. 27. In so far as it relates to procedural irregularity, of non-receipt of record was not brought to the notice of the learned District Judge. Therefore, the appellant took a risk of arguing the Misc. (Arb) Case No.7/2010 in the absence of the record of the Arbitrator. In the absence of the arbitration record, the learned District Judge, Morigaon could not have determined whether there was any procedural irregularity in hearing of the arbitration case. Therefore, this Court is of the considered view that although it had been projected before the learned District Judge, Morigaon as well as before this Court that the hearing on 13.11.2009 had taken place behind the back of the appellant without giving them any opportunity of being heard, but the order dated 13.11.2009 shows that the prayer for adjournment was refused by order dated 05.11.2009 and the learned Trial Court proceeded to hear the matter ex-parte, but the order dated 05.11.2009 had never been challenged and the said order had attained finality. 28. Confronted with a question that whether in the present case the arbitral proceeding, which was heard ex-parte against the appellant can be set aside by the Appellate Court, Mr. 28. Confronted with a question that whether in the present case the arbitral proceeding, which was heard ex-parte against the appellant can be set aside by the Appellate Court, Mr. A. Sharma learned Senior Counsel who is appearing in the connected appeal has submitted that in the application under section 34 of the Arbitration and Conciliation Act, filed before the learned District Judge, Morigaon, misconduct, if any, of the Arbitrator was not taken as a ground of attack of order dated 13.11.2009. 29. In reply, the learned counsel for the appellant submits that although the word 'mis-conduct' has not been used, but from the various grounds of appeal, it can be inferred that the learned Arbitrator had mis-conducted himself. 30. This argument, in the opinion of this Court, cannot be accepted because the learned District Judge is not expected to infer what is meant by a particular ground unless it is specifically pleaded or brought to the notice of the Court. Therefore, although it appears that the order dated 13.11.2009 was passed by the learned Arbitrator without hearing the appellant, but it is not a case where a reasonable opportunity of being heard was not granted to the appellant herein. The opportunity of hearing was indeed granted, but the prayer for adjournment was refused and in so far of the said order dated 05.11.2009, refusing the adjournment is concerned, there is no specific challenge to the said order. Therefore, the question No.(i) formulated above in this regard is answered by holding that no prejudice is shown to be caused to the appellant for violation of the principles of audi alterem partem because of the fact that the appellant was given an opportunity of hearing, but the appellant prayed for an adjournment, which was refused and the matter was heard but the appellant has not made any challenge to the order dated 05.11.2009, passed by the learned Arbitrator, refusing adjournment. 31. Having observed from the order dated 13.11.2009 passed by the learned Arbitrator that the assessment was made of the loss in respect of the remaining part of the building, which was of no use to the respondent No.1, the learned Arbitrator had relied on the estimate prepared by the Assistant Engineer, Jagiroad Development Authority. 31. Having observed from the order dated 13.11.2009 passed by the learned Arbitrator that the assessment was made of the loss in respect of the remaining part of the building, which was of no use to the respondent No.1, the learned Arbitrator had relied on the estimate prepared by the Assistant Engineer, Jagiroad Development Authority. The said estimate as well as the report submitted by the Executive Assistant Engineer (B), Morigaon by letter dated 12.11.2009 has not been assailed because the appellant is proceeding as if the assessment of the acquired portion of RCC building was done by a Private Engineer which appears to be a mis-conceived ground because it is not borne by the record. The order dated 13.11.2009 reflects that the assessment of un-acquired/remaining portion of land and RCC building was done by engineers of Jagiroad Development Authority and that the Executive Engineer (B), Morigaon, as well as the Circle Officer, Mayang Revenue Circle were present at the time of hearing. 32. In the application under section 34 of the 1996 Act, the incorrectness of the said estimate and the report of the Executive Assistant Engineer (B), Morigaon could not be successfully demonstrated. Nevertheless, the learned District Judge, Morigaon has reappreciated the calculation and has found no infirmity in the Arbitral award in the order dated 13.11.2009 under the circumstances, there is no material before this Court to take any contrary view. The second point of determination is answered accordingly. 33. Therefore, in view of the discussions above and in the considered opinion of this Court, the appeal fails. The impugned order dated 21.01.2012 passed by the learned District Judge, Morigaon in MC (Arb) Case No.7/2010 as well as the order dated 13.11.2009 passed by the learned Arbitrator in Case No.174/2009 are both upheld. 34. The parties are left to bear their own cost of this appeal. 35. Let the LCR be returned back.