Jaidevi Verma v. National Highway Authority of India
2022-09-13
SUSHRUT ARVIND DHARMADHIKARI
body2022
DigiLaw.ai
JUDGMENT 1. These two appeals have been filed under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter shall be referred to as 'The Arbitration Act'), whereby cross appeals have been filed by both the parties challenging the order dated 27.09.2021 passed in MJC No.49/2017 by the II Additional District Judge, District Betul (M.P.) on an application filed under Section 34 of the Arbitration Act. Arbitration Appeal No.82/2021 has been filed by the appellant -Smt. Jai Devi Verma being dissatisfied with the order of remand, whereas on the other hand the National Highways Authority of India (hereinafter shall be referred as to 'NHAI') has filed Arbitration Appeal No.92/2021 being aggrieved by the order of the Court below allowing the application filed by Smt. Jai Devi Verma observing that the learned Arbitral Tribunal has exceeded its jurisdiction as defined under Section 3-G(5) of the National Highways Act, 1956 (hereinafter shall be referred to as 'the Highways Act') and also has remitted the matter back to the revenue authority (Sub Divisional Magistrate). Instead of deciding the issue of compensation, as defined under Section 3-G(5) of the Highways Act, the Commissioner-cum- Arbitrator has decided the irrelevant issues, which have rightly been set aside by the Court below while deciding the application under Section 34 of the Arbitration Act. Both the appeals are being heard analogously. The facts necessary for proper adjudication of these appeals are taken from Arbitration Appeal No.82/2021. 2. By the impugned order passed under Section 34 of the Arbitration Act, the matter stands remitted back in the following terms: 3. Brief facts of the case are that the appellant- Smt. Jai Devi Verma is the owner of land bearing Khasra Nos.356/1 and 356/2 situated at District Betul, which has been acquired by the NHAI vide notifications No.3-A dated 06.07.2010 and 3-D dated 12.05.2011 for the purpose of construction of four lane National Highway between Betul and Nagpur. At the request of the appellant, the Competent Authority for Land Acquisition (hereinafter shall be referred to as 'CALA') wrote a letter dated 05.01.2012 to NHAI requesting it to change the alignment of the road and to save the Automobile Tyre Manufacturing Factory owned by the appellant from its closure.
At the request of the appellant, the Competent Authority for Land Acquisition (hereinafter shall be referred to as 'CALA') wrote a letter dated 05.01.2012 to NHAI requesting it to change the alignment of the road and to save the Automobile Tyre Manufacturing Factory owned by the appellant from its closure. In reply, the Project Director of NHAI issued a letter dated 18.01.2012 to CALA stating that as per the requirement of law, the road alignment cannot be changed and requested the CALA to pass the award including the compensation for relocation of the factory (machines and buildings etc.). The aforesaid letter is on record. Subsequently, the appellant submitted the valuation report of M/s. D.K. Jain & Co. to the Competent Authority for Land Acquisition (CALA) on 05.03.2012 in respect of the plant and machinery permanently installed on the acquired land. As per the aforesaid valuation report, the value of factory comes to Rs.64.24 Crores. The NHAI never disputed this valuation report since 05.03.2012 till date, meaning thereby the valuation is admitted by the NHAI. 4. Subsequently, the award was passed by the competent authority (CALA), Betul on 02.07.2012, in which an amount of Rs.39.51 lakhs was awarded in respect of the plant and machinery in place of Rs.64.24 Crores. In addition, the CALA awarded Rs.18.01 Crores for relocation of the tyre factory. The relevant portion of the award is being reproduced below: 5. Being dissatisfied with the award, both the parties applied for referring the matter to the arbitration in the year 2012. The stand of NHAI is that they have acquired only the boundary wall of the factory and no part of the factory falls within the acquired area. To ascertain the aforesaid fact, the Arbitrator-cum-Commissioner formed a Committee consisting of the various Government Officers i.e. General Manager, District Industries Centre, Sub Divisional Magistrate, Tahsildar, Officers of P.W.D. and M.P. Electricity Board as also the Manger of NHAI to determine whether the factory falls within the acquired area and also to find out whether the factory can run on the existing location after the acquisition. The Committee submitted its report on 21.01.2013 and 23.01.2013 indicating therein that 45% of the factory is situated on the acquired land and 85% of the factory falls within the building and control line of NHAI.
The Committee submitted its report on 21.01.2013 and 23.01.2013 indicating therein that 45% of the factory is situated on the acquired land and 85% of the factory falls within the building and control line of NHAI. In view of the aforesaid, on 22.01.2013 the NHAI issued a letter to CALA and the Arbitrator-cum-Commissioner showing their willingness to pay the compensation including the relocation expenses of the factory in addition to the value of land. Again, in order to find out the reasonable cost of factory relocation, the NHAI appointed technically qualified three expert agencies of its choice and out of these three agencies, two agencies namely; M.T. Consultancy Pune and M.P. Con Ltd. Bhopal submitted the report. The report of M.P. Con Ltd. stated that the cost would be Rs.75.75 Crores, whereas the report of M.T. Consultancy Ltd. states that the cost of relocation would be Rs.82.17 Crores. The aforesaid amount for shifting the factory was acceptable to NHAI according to its own letter dated 06.03.2013, which is available on record. 6. Since, the award was not being passed by the competent authority, the appellant/petitioner had approached this Court in W.P. No.15902/2013, in which this Court has observed as under: 'I have considered the submissions made by learned counsel for the parties. From perusal of the order passed by the Commissioner, it is evident that the Commissioner instead of adjudicating the dispute between the parties, has remitted the matter to the Sub- Divisional Officer. Thus, while passing the order of remand, the Commissioner has abdicated his statutory function under Section 3-G(5) of the Act, 1956. For the aforementioned reasons, the impugned order dated 11.7.2013 cannot be sustained in the eye of law. The same is hereby quashed. The Commissioner is directed to adjudicate the dispute and to assess the compensation on merits, in accordance with law, by a reasoned order, expeditiously, preferably within a period of four weeks from the date of receipt of certified copy of the order passed today. With the aforesaid directions, the writ petition stands disposed of.' 7. Thereafter, the appellant approached the Additional District Judge requesting him for mediation. The mediation was ordered but the NHAI during hearing stated that the NHAI is not interested to settle the issue by mediation, therefore, the mediation failed. However, the competent authority had awarded an amount of Rs.18,01,96,600/- towards the head of shifting the plant and machinery.
Thereafter, the appellant approached the Additional District Judge requesting him for mediation. The mediation was ordered but the NHAI during hearing stated that the NHAI is not interested to settle the issue by mediation, therefore, the mediation failed. However, the competent authority had awarded an amount of Rs.18,01,96,600/- towards the head of shifting the plant and machinery. In spite of the aforesaid award dated 11.07.2013, no agreement was executed by the NHAI with the appellant. The appellant had also challenged the constitution of the Committee in W.P. No.8554/2016 and this Court was pleased to stay the further proceedings of the Committee on 08.07.2016. While deciding the aforesaid petition, this Court specifically directed the Arbitrator-cum- Commissioner to adjudicate the issue of compensation in terms of Section 3-G(5)of the Highways Act and also directed to fix the compensation in accordance with the provisions. The Commissioner instead of complying the order of the High Court, rejected the application under Section 3-G(5) of the Highways Act and further exceeded its jurisdiction by ordering to lodge an FIR against the appellant. The aforesaid order was challenged by the appellant in M.Cr.C. No.10900/2017 under Section 482 of the Cr.P.C. This Court while allowing the application quashed the direction with regard to lodging of the FIR against the appellant and observed that the Commissioner/Arbitrator has exceeded its jurisdiction as specified/defined in Section 3-G(5) of the Highways Act and also observed that the aforesaid action amounts to misconduct on the part of the Arbitrator. The appellant being aggrieved by the award dated 23.02.2017, filed an application under Section 34 of the Arbitration Act raising various issues. 8. Learned counsel for the appellant submitted that certain facts, which are relevant and germane to decide the controversy in respect of compensation, need to be raised first. He submitted that on 06.07.2010, the notification under Section 3-A of the Highways Act was published by the Central Government with the intention to acquire the land for widening of National Highway No.69. In the said notification, Khasra numbers belonging to the appellant i.e. Khasra Nos.356/1 and 356/2 were intended to be acquired. After publication of 3-A notification on 12.05.2011, the 3-D notification was published by the Central Government and the land notified in Section 3-A notification stood vested in the Central Government, meaning thereby the possession of encumbrance free land was taken over by the NHAI in terms of 3-D notification. 9.
After publication of 3-A notification on 12.05.2011, the 3-D notification was published by the Central Government and the land notified in Section 3-A notification stood vested in the Central Government, meaning thereby the possession of encumbrance free land was taken over by the NHAI in terms of 3-D notification. 9. Learned counsel for the appellant argued that on 27.05.2011, the appellant intimated the SDM and informed him that a tyre factory in the name of Michigan Rubber Factory and Airplane Hangar is situated on the land acquired. On 19.09.2011, a very specific letter was also written to the Project Director, NHAI, Pandurna, stating that the land acquired has been incorrectly shown as agricultural land, whereas the diversion had already taken place in the year 1988, therefore, the same cannot be treated to be an agricultural land. 10. It is further submitted that to ascertain the compensation, a committee was constituted for evaluation of the property, wherein seven members committee was constituted and panchnama was prepared. On 13.12.2011, direction was issued by the SDM to all the members of the committee to attend the meeting, which was convened on 15.12.2011 for evaluation of the property for making an award. On 15.12.2011, the committee members visited the site of the appellant and came to the conclusion that the factory is to be relocated and cannot function on the very same land after construction of the Highway. A proposal was made to the NHAI to shift the road towards south to avoid relocation of the factory. On 18.01.2012, in response to the letter dated 05.01.2012, the Project Director, NHAI had categorically replied to the SDM stating that after the 3-D notification, no change is permissible and also requested to determine the compensation. 11. Thereafter, on 16.03.2012, the Sub Divisional Magistrate requested the District Industries Centre to submit the valuation report of the property. The SDM directed all the committee members to attend the meeting on 28.03.2012 to finalize the award in respect of the property acquired in terms of the 3-A notification and 3-D notification. It is further pointed out that no objection was received from the NHAI in relation to finalization of the compensation.
The SDM directed all the committee members to attend the meeting on 28.03.2012 to finalize the award in respect of the property acquired in terms of the 3-A notification and 3-D notification. It is further pointed out that no objection was received from the NHAI in relation to finalization of the compensation. It is further argued that another letter dated 27.03.2012 was issued to the NHAI asking them to relocate the factory on its own and hand over the same to the appellant but no such action was taken by the NHAI. According to the circular dated 12.01.1977 issued by the Ministry of Road Transport and Highways (Road Wing) defines the control line at a distance of 75 meters from the Central line of the Highway. The learned counsel strenuously argued that in terms of this circular, at least 75 meters of land is required to be left open for the purpose of construction of the Highway. Letter dated 20.04.2012 was forwarded by the appellant estimating the cost of shifting the factory to Rs.79 crores. Thereafter, after the aforesaid correspondence, the award was passed by the competent authority and the amount was determined on 02.07.2012 in case No.16-A/82/2011-2012. Instead of passing the award for an amount of Rs.59,20,68,191/-, the competent authority awarded an amount of Rs.1,08,08,671/- in the head of plant and machinery and shifting of transformers and incorrectly observed that the portion of the factory, where the plant and machinery situated is not affected by the acquisition, therefore, compensation is required to be paid only for shifting of two transformers. Moreover, the compensation in respect of land, the authority ought to have awarded an amount of Rs.40,15,36,600/- but only Rs.18,01,96,600/- has been awarded, therefore, the award is incorrect and the same is liable to be set aside. Being dissatisfied with the determination of award, application under Section 12 of the Arbitration Act was filed by the appellant before the Commissioner-cum-Arbitrator, Narmadapuram Division, Hoshangabad and simultaneously the respondent - NHAI also filed an application 3-G(5) of the Highways Act and both the applications were clubbed together by the Arbitrator and decided analogously. The learned counsel for the appellant further argued that the compensation determined was in accordance with the rate prescribed by the Revenue Department since the factory is being run on a non-agricultural land i.e. Khasra No.356/2, whereas the agricultural land is situated at Khasra No.354.
The learned counsel for the appellant further argued that the compensation determined was in accordance with the rate prescribed by the Revenue Department since the factory is being run on a non-agricultural land i.e. Khasra No.356/2, whereas the agricultural land is situated at Khasra No.354. The Project Director, NHAI vide its letters dated 18.01.2012 and 22.01.2013 has principally admitted that the land once acquired cannot be returned back or de-notified and the only option available is to pay the compensation by passing an award. Admittedly, the factory was situated on the major portion of the land acquired. This aspect was never disputed by the NHAI. 12. Learned counsel for the appellant further argued that letter dated 16.04.2013 was written by the Deputy General Manager (Technical) NHAI to the General Manager (Technical) to appoint a consultant or give an appropriate guidance for evaluation of shifting cost of the factory, which goes to show that the respondent NHAI was very well aware about relocation of the factory, therefore, the respondent cannot run away from its liability to pay compensation after acquisition. It is also pointed out that after acquisition, the NHAI did not enter into any agreement in spite of numerous opportunities granted for the purpose. The action of the respondent clearly goes to show the high handedness and conspiracy against the appellant despite directions of the Court and though, the compensation was determined but the same has not been deposited in the account of competent authority. Admittedly, this Court in W.P. No.15902/2013 had set aside the order dated 11.07.2013 passed by the Arbitrator- cum-Commissioner and had directed him to decide the issue of compensation in terms of Section 3-G(5) of the Highways Act. 13. In pursuance to the directions issued by this Court, again hearing commenced before the Arbitrator-cum-Commissioner and thereafter, a committee was constituted on 26.11.2015, which concluded its proceedings and submitted the report before the Commissioner on 12.06.2016. The constitution of the Committee was challenged by the appellant in W.P. No.8554/2016. This Court had stayed the further proceedings of the Committee vide order dated 08.07.2016.
The constitution of the Committee was challenged by the appellant in W.P. No.8554/2016. This Court had stayed the further proceedings of the Committee vide order dated 08.07.2016. Another writ petition being W.P. No.14273/2016 was filed challenging the constitution of Committee and to adjudicate the issue of compensation, this Court had set aside the order and directed the Arbitrator-cum-Commissioner to decide the issue of compensation in terms of Section 3-G(5) of the Highways Act and directed to fix the compensation in accordance with the Act. Instead of doing so, the Arbitrator-cum-Commissioner exceeded its jurisdiction and directed the authorities to lodge FIR against the appellant. The said order was challenged in M.Cr.C. No.10900/2017 filed under Section 482 of Cr.P.C. Vide order dated 24.01.2018, this Court has quashed the portion, whereby it was directed to lodge the FIR against the appellant. The relevant portion of the order is reproduced below: '21. Keeping in view that, the primary duty of the Arbitrator is to determine the compensation and to pass an award. The dispute with regard to the allegations levelled by the Arbitrator is of civil nature, the same cannot be given a shape of criminal nature. The impugned direction of lodging a FIR in order dated 23/02/2017 (Ann.P/27), therefore, do not hold good in the eyes of law, so far as, it relates to the direction of lodging FIR. 22. A full Bench of Punjab & Haryana High Court in the case of Vinod Kumar Sethi Vs. State of Punjab reported as AIR 1982 (P & H) 372 FB, has observed that even, if the FIR or its subsequent investigation purports to raise a suspicion of a cognizable offence, the High Court still quash, if it is convinced that the investigation is malafide. Following the same as it is deems fit to interfere in the said order directing the police to lodge FIR seem to be malafide. The petition is allowed and FIR at Crime No.40/17 dated 01/03/2017, registered at Police Station Betul Bazar, District Betul and the consequential proceedings are quashed'. 14. Being aggrieved, the appellant had challenged the award dated 23.02.2017 before the District Judge under Section 34 of the Arbitration Act. Before the learned trial Court various issues were raised and in support, relevant documents, pleadings, written argument, synopsis and power point of argument etc. was filed.
14. Being aggrieved, the appellant had challenged the award dated 23.02.2017 before the District Judge under Section 34 of the Arbitration Act. Before the learned trial Court various issues were raised and in support, relevant documents, pleadings, written argument, synopsis and power point of argument etc. was filed. Vide order dated 27.09.2021, learned Court below decided the application under Section 34 of the Arbitration Act exceeding its jurisdiction and remanded back the matter to the competent authority for fresh determination relying on the judgment of the Apex Court in the case of Project Director, National Highways Authority of India Vs. M. Hakeem and Another as reported in 2021 (9) SCC 1 . He further argued that in the case of M.Hakeem (supra), the Apex Court had approved the modification made by the Court below in the proceedings under Section 34 of the Arbitration Act, which was affirmed by the Division Bench of Madras High Court. The Apex Court had observed that when it is case of acquisition and compensation and the parties are suffering from 2010 onwards, therefore, any modification under Section 34 of the Arbitration Act is not permissible and findings were not disturbed. Identical situation is in the present case. Admittedly, the notification was issued in the year 2010 and the amount of Rs.21 crores was determined by the competent authority in the year 2012 but till date the appellant is running from pillar to post and has not got a single penny in lieu of the land acquired. Learned counsel also strenuously argued that the Right to Fair Compensation & Transparency in Land Acquisition Act, 2013, which has been made applicable in the case of National Highways w.e.f. 01.01.2015 would be applicable in the present case. Reliance has also been placed on the circular dated 28.12.2017 issued by the Central Government, Ministry of Road Transport and Highways. The appellant has drawn attention of this Court to clause 4.6 (iii) (D), which clearly specifies that in the cases, where award has been passed but compensation has not been deposited in the account of CALA, the Right to Fair Compensation & Transparency in Land Acquisition Act, 2013 would apply. In the present case as well not a single penny has been deposited, therefore, the appellant would be entitled for interest w.e.f. 01.01.2015 till the date of actual payment. 15.
In the present case as well not a single penny has been deposited, therefore, the appellant would be entitled for interest w.e.f. 01.01.2015 till the date of actual payment. 15. In support of his claim the learned counsel for the appellant has placed reliance on the judgment of the Apex court in the case of Project Director, National Highways Authority of India Vs. M. Hakeem and Another as reported in 2021 (9) SCC 1 , in which it is held as under: '50. There is no doubt that, as argued by Col. Balasubramanian, the arbitral award in these cases is given by a government servant appointed by the Central Government, the result being the rubber stamping of compensation awarded on a completely perverse basis. Given the fact that, in these petitions at least, the constitutional validity of the NH Amendment Act, 1997 has not been challenged, we must proceed on the basis that grave injustice would be done if we were to interfere on facts, set aside the awards and remand the matter to the very government servant who took into account depressed land values which were relevant for purposes of stamp duty only. It may be mentioned at this juncture that a limited challenge was made to Section 3J of the National Highways Act when it excluded the provisions of the Land Acquisition Act in the context of solatium and interest not being granted under the National Highways Act. Thus, in Union of India v. Tarsem Singh, (2019) 9 SCC 304 , this Court dealt with a batch of appeals in which the question was set out thus: - '1. ... A batch of appeals before us by the Union of India question the view of the Punjab and Haryana High Court which is that the non-grant of solatium and interest to lands acquired under the National Highways Act, which is available if lands are acquired under the Land Acquisition Act, , is bad in law, and consequently that Section 3-J of the National Highways Act, 1956 be struck down as being violative of Article 14 of the Constitution of India to this extent.' 51. This question was then answered stating: '52. There is no doubt that the learned Solicitor General, in the aforesaid two orders, has conceded the issue raised in these cases.
This question was then answered stating: '52. There is no doubt that the learned Solicitor General, in the aforesaid two orders, has conceded the issue raised in these cases. This assumes importance in view of the plea of Shri Divan that the impugned judgments should be set aside on the ground that when the arbitral awards did not provide for solatium or interest, no Section 34 petition having been filed by the landowners on this score, the Division Bench judgments that are impugned before us ought not to have allowed solatium and/or interest. Ordinarily, we would have acceded to this plea, but given the fact that the Government itself is of the view that solatium and interest should be granted even in cases that arise between 1997 and 2015, in the interest of justice we decline to interfere with such orders, given our discretionary jurisdiction under Article 136 of the Constitution of India. We therefore declare that the provisions of the Land Acquisition Act relating to solatium and interest contained in Sections 23 (1-A) and (2) and interest payable in terms of Section 28 proviso will apply to acquisitions made under the National Highways Act. Consequently, the provision of Section 3-J is, to this extent, violative of Article 14 of the Constitution of India and, therefore, declared to be unconstitutional. Accordingly, appeal arising out of SLP (C) No. 9599 of 2019 is dismissed.' 52. As has been stated by us, the object of the NH Amendment Act, 1997 is to expedite the process of acquisition. This has been achieved by cutting down the period for hearing of objections from 30 days under Section 5A of the Land Acquisition Act to 21 days under Section 3C of the National Highways Act. Further, unlike the Land Acquisition Act, the moment a notification under Section 3D (2) of the National Highways Act (equivalent to Section 6 Land Acquisition Act) is made, the land vests absolutely in the Central Government free from all encumbrances. Thereafter, where land has vested in the Central Government and the amount determined by the competent authority under Section 3G as compensation has been deposited by the Central Government in accordance with Section 3H(1), the competent authority may then direct that possession be taken within 60 days of service of notice by it. 60.
Thereafter, where land has vested in the Central Government and the amount determined by the competent authority under Section 3G as compensation has been deposited by the Central Government in accordance with Section 3H(1), the competent authority may then direct that possession be taken within 60 days of service of notice by it. 60. Given the fact that in several similar cases, the NHAI has allowed similarly situated persons to receive compensation at a much higher rate than awarded, and given the law laid down in Nagpur Improvement Trust (supra), we decline to exercise our jurisdiction under Article 136 in favour of the appellants on the facts of these cases. Also, given the fact that most of the awards in these cases were made 7-10 years ago, it would not, at this distance in time, be fair to send back these cases for a de novo start before the very arbitrator or some other arbitrator not consensually appointed, but appointed by the Central Government. The appeals are, therefore, dismissed on facts with no order as to costs' 16. Learned counsel for the appellant has further placed reliance on the judgment of the Apex court in the case of Delhi Airport Metro Express Pvt. Ltd. Vs. DMRC, as reported in 2022(1) SCC 131 , in which it is held as under : 29. Patent illegality should be illegality which goes to the root of the matter. In other words, every error of law committed by the Arbitral Tribunal would not fall within the expression 'patent illegality'. Likewise, erroneous application of law cannot be categorised as patent illegality. In addition, contravention of law not linked to public policy or public interest is beyond the scope of the expression 'patent illegality'. What is prohibited is for Courts to reappreciate evidence to conclude that the award suffers from patent illegality appearing on the face of the award, as Courts do not sit in appeal against the arbitral award. The permissible grounds for interference with a domestic award under Section 34(2-A) on the ground of patent illegality is when the arbitrator takes a view which is not even a possible one, or interprets a clause in the contract in such a manner which no fair-minded or reasonable person would, or if the arbitrator commits an error of jurisdiction by wandering outside the contract and dealing with matters not allotted to them.
An arbitral award stating no reasons for its findings would make itself susceptible to challenge on this account. The conclusions of the arbitrator which are based on no evidence or have been arrived at by ignoring vital evidence are perverse and can be set aside on the ground of patent illegality. Also, consideration of documents which are not supplied to the other party is a facet of perversity falling within the expression 'patent illegality'. 30. Section 34(2)(b) refers to the other grounds on which a court can set aside an arbitral award. If a dispute which is not capable of settlement by arbitration is the subject-matter of the award or if the award is in conflict with public policy of India, the award is liable to be set aside. Explanation (1), amended by the 2015 Amendment Act, clarified the expression 'public policy of India' and its connotations for the purposes of reviewing arbitral awards. It has been made clear that an award would be in conflict with public policy of India only when it is induced or affected by fraud or corruption or is in violation of Section 75 or Section 81 of the 1996 Act, if it is in contravention with the fundamental policy of Indian law or if it is in conflict with the most basic notions of morality or justice. 17. He further placed reliance on the judgment of the Apex Court in the case of Associate Builders Vs. DDA as reported in 2015 (3) SCC 49 , in which it is held as under :- '17. It will be seen that none of the grounds contained in sub- section (2)(a) of Section 34 deal with the merits of the decision rendered by an arbitral award. It is only when we come to the award being in conflict with the public policy of India that the merits of an arbitral award are to be looked into under certain specified circumstances. 19. When it came to construing the expression 'the public policy of India' contained in Section 34(2)(b)(ii) of the Arbitration Act, 1996, this Court in ONGC Ltd. v. Saw Pipes Ltd. [ (2003) 5 SCC 705 : AIR 2003 SC 2629 ] held: (SCC pp. 727-28 & 744-45, paras 31 & 74) 31. Therefore, in our view, the phrase 'public policy of India' used in Section 34 in context is required to be given a wider meaning.
727-28 & 744-45, paras 31 & 74) 31. Therefore, in our view, the phrase 'public policy of India' used in Section 34 in context is required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest. What is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time. However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term 'public policy' in Renusagar case [Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644] it is required to be held that the award could be set aside if it is patently illegal. The result would be-award could be set aside if it is contrary to: (a) fundamental policy of Indian law; or (b) the interest of India; or (c) justice or morality, or (d) in addition, if it is patently illegal. Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy. Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. Such award is opposed to public policy and is required to be adjudged void. 74.
Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. Such award is opposed to public policy and is required to be adjudged void. 74. In the result, it is held that: (A)(1) The court can set aside the arbitral award under Section 34(2) of the Act if 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. (2) The court may set aside the award: (i)(a) if the composition of the Arbitral Tribunal was not in accordance with the agreement of the parties, (b) failing such agreement, the composition of the Arbitral Tribunal was not in accordance with Part I of the Act, (ii) if the arbitral procedure was not in accordance with: (a) the agreement of the parties, or (b) failing such agreement, the arbitral procedure was not in accordance with Part I of the Act. However, exception for setting aside the award on the ground of composition of Arbitral Tribunal or illegality of arbitral procedure is that the agreement should not be in conflict with the provisions of Part I of the Act from which parties cannot derogate. (c) If the award passed by the Arbitral Tribunal is in contravention of the provisions of the Act or any other substantive law governing the parties or is against the terms of the contract. (3) The award could be set aside if it is against the public policy of India, that is to say, if it is contrary to: (a) fundamental policy of Indian law; or (b) the interest of India; or (c) justice or morality; or (d) if it is patently illegal. (4) It could be challenged: (a) as provided under Section 13(5); and (b) Section 16(6) of the Act.
(4) It could be challenged: (a) as provided under Section 13(5); and (b) Section 16(6) of the Act. (B)(1) The impugned award requires to be set aside mainly on the grounds: (i) there is specific stipulation in the agreement that the time and date of delivery of the goods was of the essence of the contract; (ii) in case of failure to deliver the goods within the period fixed for such delivery in the schedule, ONGC was entitled to recover from the contractor liquidated damages as agreed; (iii) it was also explicitly understood that the agreed liquidated damages were genuine pre-estimate of damages; (iv) on the request of the respondent to extend the time-limit for supply of goods, ONGC informed specifically that time was extended but stipulated liquidated damages as agreed would be recovered; (v) liquidated damages for delay in supply of goods were to be recovered by paying authorities from the bills for payment of cost of material supplied by the contractor; (vi) there is nothing on record to suggest that stipulation for recovering liquidated damages was by way of penalty or that the said sum was in any way unreasonable; (vii) in certain contracts, it is impossible to assess the damages or prove the same. Such situation is taken care of by Sections 73 and 74 of the Contract Act and in the present case by specific terms of the contract.' 28. In a recent judgment, ONGC Ltd. v. Western Geco International Ltd. [ (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12] , this Court added three other distinct and fundamental juristic principles which must be understood as a part and parcel of the fundamental policy of Indian law. The Court held: (SCC pp. 278-80, paras 35 & 38-40) '35. What then would constitute the 'fundamental policy of Indian law' is the question. The decision in ONGC [ (2003) 5 SCC 705 : AIR 2003 SC 2629 ] does not elaborate that aspect. Even so, the expression must, in our opinion, include all such fundamental principles as providing a basis for administration of justice and enforcement of law in this country. Without meaning to exhaustively enumerate the purport of the expression 'fundamental policy of Indian law', we may refer to three distinct and fundamental juristic principles that must necessarily be understood as a part and parcel of the fundamental policy of Indian law.
Without meaning to exhaustively enumerate the purport of the expression 'fundamental policy of Indian law', we may refer to three distinct and fundamental juristic principles that must necessarily be understood as a part and parcel of the fundamental policy of Indian law. The first and foremost is the principle that in every determination whether by a court or other authority that affects the rights of a citizen or leads to any civil consequences, the court or authority concerned is bound to adopt what is in legal parlance called a 'judicial approach' in the matter. The duty to adopt a judicial approach arises from the very nature of the power exercised by the court or the authority does not have to be separately or additionally enjoined upon the fora concerned. What must be remembered is that the importance of a judicial approach in judicial and quasi-judicial determination lies in the fact that so long as the court, tribunal or the authority exercising powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or whimsical manner. Judicial approach ensures that the authority acts bona fide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a court, tribunal or authority vulnerable to challenge. *** 38. Equally important and indeed fundamental to the policy of Indian law is the principle that a court and so also a quasi-judicial authority must, while determining the rights and obligations of parties before it, do so in accordance with the principles of natural justice. Besides the celebrated audi alteram partem rule one of the facets of the principles of natural justice is that the court/authority deciding the matter must apply its mind to the attendant facts and circumstances while taking a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the court or authority is taking.
Non-application of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the court or authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian law. 39. No less important is the principle now recognised as a salutary juristic fundamental in administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a court of law. Perversity or irrationality of decisions is tested on the touchstone of Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] principle of reasonableness. Decisions that fall short of the standards of reasonableness are open to challenge in a court of law often in writ jurisdiction of the superior courts but no less in statutory processes wherever the same are available. 40. It is neither necessary nor proper for us to attempt an exhaustive enumeration of what would constitute the fundamental policy of Indian law nor is it possible to place the expression in the straitjacket of a definition. What is important in the context of the case at hand is that if on facts proved before them the arbitrators fail to draw an inference which ought to have been drawn or if they have drawn an inference which is on the face of it, untenable resulting in miscarriage of justice, the adjudication even when made by an Arbitral Tribunal that enjoys considerable latitude and play at the joints in making awards will be open to challenge and may be cast away or modified depending upon whether the offending part is or is not severable from the rest.' 29. It is clear that the juristic principle of a 'judicial approach' demands that a decision be fair, reasonable and objective. On the obverse side, anything arbitrary and whimsical would obviously not be a determination which would either be fair, reasonable or objective' 18. Learned counsel also placed reliance in the case of Ssangyong Engineering and Constructions Vs.
It is clear that the juristic principle of a 'judicial approach' demands that a decision be fair, reasonable and objective. On the obverse side, anything arbitrary and whimsical would obviously not be a determination which would either be fair, reasonable or objective' 18. Learned counsel also placed reliance in the case of Ssangyong Engineering and Constructions Vs. NHAI as reported in 2019 (15) SCC 131 , in which it is held as under : '37. Insofar as domestic awards made in India are concerned, an additional ground is now available under sub-section (2- A), added by the Amendment Act, 2015, to Section 34. Here, there must be patent illegality appearing on the face of the award, which refers to such illegality as goes to the root of the matter but which does not amount to mere erroneous application of the law. In short, what is not subsumed within 'the fundamental policy of Indian law', namely, the contravention of a statute not linked to public policy or public interest, cannot be brought in by the backdoor when it comes to setting aside an award on the ground of patent illegality. 69. We therefore hold, following the aforesaid authorities, that in the guise of misinterpretation of the contract, and consequent 'errors of jurisdiction', it is not possible to state that the arbitral award would be beyond the scope of submission to arbitration if otherwise the aforesaid misinterpretation (which would include going beyond the terms of the contract), could be said to have been fairly comprehended as 'disputes' within the arbitration agreement, or which were referred to the decision of the arbitrators as understood by the authorities above. If an arbitrator is alleged to have wandered outside the contract and dealt with matters not allotted to him, this would be a jurisdictional error which could be corrected on the ground of 'patent illegality', which, as we have seen, would not apply to international commercial arbitrations that are decided under Part II of the 1996 Act. To bring in by the backdoor grounds relatable to Section 28(3) of the 1996 Act to be matters beyond the scope of submission to arbitration under Section 34(2)(a)(iv) would not be permissible as this ground must be construed narrowly and so construed, must refer only to matters which are beyond the arbitration agreement or beyond the reference to the Arbitral Tribunal. 77.
77. The judgments of the Single Judge [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2016 SCC OnLine Del 4536] and of the Division Bench [Ssangyong Engg. and Construction Co. Ltd. v. NHAI, 2017 SCC OnLine Del 7864 : (2017) 240 DLT 711 ] of the Delhi High Court are set aside. Consequently, the majority award is also set aside. Under the scheme of Section 34 of the 1996 Act, the disputes that were decided by the majority award would have to be referred afresh to another arbitration. This would cause considerable delay and be contrary to one of the important objectives of the 1996 Act, namely, speedy resolution of disputes by the arbitral process under the Act. Therefore, in order to do complete justice between the parties, invoking our power under Article 142 of the Constitution of India, and given the fact that there is a minority award which awards the appellant its claim based upon the formula mentioned in the agreement between the parties, we uphold the minority award, and state that it is this award, together with interest, that will now be executed between the parties. The minority award, in paras 11 and 12, states as follows: '11. I therefore award the claim of the claimant in full. 12. Costs - no amount is awarded to the parties. Each party shall bear its own cost.'' 19. On the other hand, learned counsel for the respondent- NHAI supporting the impugned order submitted that appeal filed by the appellant-Smt. Jai Devi Verma is not tenable since this Court is having no jurisdiction to interfere in the finding recorded by the learned trial Court while exercising the power under Section 34 of the Arbitration Act. Shri Mohan Sausarkar, learned counsel further submitted that the award of the Arbitrator is reasoned and proper and therefore, the same cannot be interfered in the proceedings under Section 37 of the Arbitration Act where the scope of judicial review is very limited. He further contended that land situated at Khasra No.356/1 and 356/2 is basically an agricultural land. The tyre factory, namely; M/s Michigan Rubber India Ltd. was being operated on the agricultural land without there being any diversion, therefore, the appellant is not entitled for any compensation.
He further contended that land situated at Khasra No.356/1 and 356/2 is basically an agricultural land. The tyre factory, namely; M/s Michigan Rubber India Ltd. was being operated on the agricultural land without there being any diversion, therefore, the appellant is not entitled for any compensation. It is also submitted that only the trees/buildings, boundary wall and electrical transformers existed on the land, but the competent authority exceeded in granting the shifting charges of the factory in spite of holding that the main building of the factory does not fall within the acquired portion. The property was evaluated by CALA on a higher side and incorrect compensation of Rs.21,84,55,299/- has been determined in favour of the appellant. The CALA also exceeded its jurisdiction in awarding the shifting charges, inasmuch as the factory building was not situated within the parameters of the National Highway, therefore, shifting charges could not have been awarded. It is further argued that the Arbitrator has framed the issues with regard to the proceedings under Section 3-G(5) of the Highways Act and also examined all the relevant aspects of the matter, therefore, the award dated 23.02.2017 passed by the Arbitrator is just and proper and the trial Court has erroneously interfered in the well reasoned award. In view of the aforesaid, the appeal filed by the appellant-Jai Devi Verma deserves to be dismissed, whereas the appeal filed by the NHAI deserves to be allowed. 20. Heard the learned counsel for the parties and perused the record. 21. In view of the aforesaid submissions, the following questions crop up for consideration before this Court, which are as under:- (i) Whether the order of the trial Court dated 27.09.2021 is just and proper to the extent remanding the case to the competent authority for fresh adjudication after lapse of 12 years and whether the remand is proper in view of the patent illegality as defined by the Apex Court in the case of Associate Builders (supra)? (ii) Whether the NHAI is justified in its stand in not depositing the amount of compensation as determined by the competent authority and particularly in the light of the directions passed by this Court in W.P. No.14273/2016 or not? (iii) Whether the award dated 23.02.2017 passed by the Tribunal is without jurisdiction or the Tribunal has exceeded its jurisdiction ?
(ii) Whether the NHAI is justified in its stand in not depositing the amount of compensation as determined by the competent authority and particularly in the light of the directions passed by this Court in W.P. No.14273/2016 or not? (iii) Whether the award dated 23.02.2017 passed by the Tribunal is without jurisdiction or the Tribunal has exceeded its jurisdiction ? (iv) Whether in the facts and circumstances of the case, the provisions of Right to Fair Compensation& Transparency in Land Acquisition Act, 2013, would be applicable in the present case? 22. Before considering the rival contentions of the parties, it would be appropriate to deal with the relevant sections of The National Highways Act, 1956. The aforesaid act was amended in 1997. Para 2 of the Statement of Objects and Reasons for this amendment is set out hereunder: 'STATEMENT OF OBJECTS AND REASONS: One of the impediments in the speedy implementation of highways projects has been inordinate delay in the acquisition of land. In order to expedite the process of land acquisition, it is proposed that once the Central Government declares that the land is required for public purposes for development of a highway, that land will vest in the Government and only the amount by way of compensation is to be paid and any dispute relating to compensation will be subject to adjudication through the process of arbitration.' 23. The 'competent authority' under the National Highways Act is defined in Section 3(a), which reads as under: '3. Definitions.- In this Act, unless the context otherwise requires,- (a) 'competent authority' means any person or authority authorised by the Central Government, by notification in the Official Gazette, to perform the functions of the competent authority for such area as may be specified in the notification; (b) 'land' includes benefits to arise out of land and things attached to earth or permanently fastened to anything attached to the earth. 3A. Power to acquire land, etc.- (1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land. (2) Every notification under sub-section (1) shall give a brief description of the land.
(2) Every notification under sub-section (1) shall give a brief description of the land. (3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language. 3B. Power to enter for survey, etc. - On the issue of a notification under sub-section (1) of section 3A, it shall be lawful for any person, authorized by the Central Government in this behalf, to - (a) Make any inspection, survey, measurement, valuation or enquiry; (b) take levels; (c) dig or bore into sub-soil; (d) set out boundaries and intended lines of work; (e) mark such levels, boundaries and lines placing marks and cutting trenches; or (f) do such other acts or things as may be laid down by rules made in this behalf by that Government. 3C.Hearing of objections.- (1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of section 3A, object to the use of the land for the purpose or purposes mentioned in that sub- section. (2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections. Explanation.- For the purposes of this sub-section, 'legal practitioner' has the same meaning as in clause (i) of sub- section (1) of section 2 of the Advocates Act, 1961 (25 of 1961). (3) Any order made by the competent authority under subsection (2) shall be final.' 24.
Explanation.- For the purposes of this sub-section, 'legal practitioner' has the same meaning as in clause (i) of sub- section (1) of section 2 of the Advocates Act, 1961 (25 of 1961). (3) Any order made by the competent authority under subsection (2) shall be final.' 24. The requisite declaration is made under Section 3D, which reads as under: '3D.Declaration of acquisition.- (1) Where no objection under sub- section (1) of section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in subsection (1) of section 3A. (2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances. (3) Where in respect of any land, a notification has been published under sub-section (1) of section 3A for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect: Provided that in computing the said period of one year, the period or periods during which any action or proceedings to be taken in pursuance of the notification issued under sub- section (1) of section 3A is stayed by an order of a court shall be excluded. (4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority. 3E. Power to take possession.
(4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority. 3E. Power to take possession. - (1) Where any land has vested in the Central Government under sub-section (2) of section 3D, and the amount determined by the competent authority under Section 3G with respect to such land has been deposited under sub-section (1) of section 3H, with the competent authority by the Central Government, the competent authority may by notice in writing direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof to the competent authority or any person duly authorised by it in this behalf within sixty days of the service of the notice. (2) If any person refuses or fails to comply with any direction made under sub-section (1), the competent authority shall apply- (a) in the case of any land situated in any area falling within the metropolitan area, to the Commissioner of Police; (b) in case of any land situated in any area other than the area referred to in clause (a), to the Collector of a District, and such Commissioner or Collector, as the case may be, shall enforce the surrender of the land, to the competent authority or to the person duly authorised by it. 3F. Right to enter into the land where land has vested in the Central Government. - Where the land has vested in the Central Government under section 3D, it shall be lawful for any person authorised by the Central Government in this behalf, to enter and do other act necessary upon the land for carrying out the building, maintenance, management or operation of a national highway or a part thereof, or any other work connected therewith.' 25. Section 3G deals with the dispute in question and which speaks about determination of an amount payable as compensation, the same reads as under: '3G. Determination of amount payable as compensation.-(1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.
Section 3G deals with the dispute in question and which speaks about determination of an amount payable as compensation, the same reads as under: '3G. Determination of amount payable as compensation.-(1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority. (2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent. of the amount determined under sub- section (1), for that land. (3) Before proceeding to determine the amount under sub- section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired. (4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land. (5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) 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. (6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.
(6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act. (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.' 26. (A) So far as the answers to questions No.(i) to (iii) are concerned, it is not in dispute that Section 3-A notification has been published by the Central Government for acquisition of land bearing Khasra No. 356/1 and 356/2. After the notification, the land has been vested in the Central Government. The language of the notification under Section 3-D is very clear and the Legislature has clarified that 'where no objection under sub-Section 3 (c) has been made before the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub- Section 2 of that Section, the competent authority shall, as soon as possible submit a report accordingly the Central Government and on receipt of such report, the Central Government shall declare, by notification in the official gazette, that the land should be acquired for the purpose or purposes mentioned in sub-Section 1 of section 3A.' In terms of Section 3-D (2), on the publication of the declaration for its acquisition but no declaration under sub-Section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall seize to have any effect.
On reading of Section 3-D, it is clear that on the publication of the declaration under sub-Section (1), the land shall vest absolutely in the Central Government, therefore, the contention of the respondent- NHAI that they have not taken any possession of the land is incorrect. In the light of the Apex Court's judgment in the case of M.Hakeem (supra), the trial Court could not have remanded the matter back for fresh adjudication after a lapse of 12 years. Moreover, in spite of direction issued by this Court in W.P. No.14273/2016, to determine the compensation, the Court below ought to have determined the compensation instead of remanding the matter back to the SDM. Looking to the fact that the scope of Section 37 of the Arbitration Act being very limited and also in view of the judgment rendered by the Apex Court in the case of Radha Chemicals Vs. Union Of India on 10 October, 2018 (Civil Appeal No.10386 of 2018), the order of remand under Section 34 of the Arbitration Act cannot be upheld. The order of remand creates multiplicity of litigation and the same will never come to an end. The appellant would be left high and dry without any compensation despite acquisition of land by the respondent. In other words, if the remand order is treated as just and proper, then both the parties would be required to appear before the SDM for fresh adjudication and after adjudication, again the parties would be at liberty to challenge the fresh determination and then appeal and so on. Thus, the order of remand would be nothing but abuse of process of law. On the one hand the party would enjoy the fruits of remand, whereas other party, whose land has been acquired as per 3-A notification and 3-D notification, would be left high and dry. The Apex Court in the case of M. Hakeem (supra) has observed that the land owner is suffering for last 10 years for getting the compensation, therefore, modification made by the trial Court as also affirmed by the Madras High Court does not require any modification, therefore, the same analogy can be very well applied in the facts and circumstances of the present case.
So far as the patent illegality committed by the learned Court below as well as Arbitrator cum Commissioner is concerned, the Arbitral award could not have been interfered in the light of the judgment of the Apex Court in the case of Associate Builders (supra). In view of the aforesaid, the order of the Court below only in respect of remand is not sustainable and therefore, the same is quashed in the peculiar facts and circumstances of the present case. (B) So far as the question of exceeding the jurisdiction is concerned, the Arbitral Tribunal ought to have decided the issue of compensation in terms of Section 3-G(5) of the Highways Act instead of remanding the matter to the SDM for fresh adjudication since it would create multiplicity of litigation. In the light of the judgment of the Apex Court in the case of M. Hakeem (supra), the compensation determined by the SDM ought not to have been disturbed. Admittedly, the Arbitral Tribunal has exceeded its jurisdiction, therefore, this Court approves the view taken by the Court below that the Arbitral Tribunal has exceeded its jurisdiction. (C) In the case of Radha Chemicals (supra) the Apex Court has held that the Civil Court while deciding the application under Section 34 has no jurisdiction to remand the matter back to the Arbitrator for fresh decision, however, it has to decide the same on merits. The tribunal could not have remanded back the matter. (D) The Supreme Court in the case of Smt. Kinnari Mullick and Anr. Vs. Ghanshyam Das Damani and Anr. as reported in (2018) 11 SCC 328 held that the Court while deciding a Section 34 petition has no jurisdiction to remand the matter to the Arbitrator for a fresh decision and therefore, set aside the order of the learned single judge as well as the Division Bench of the High Court. The judgment in the case of Smt. Kinnari Mullick (supra) was followed in SLP(C) No.2334/2018. (E) The Apex Court in the case of Mutha Construction vs. Strategic Brad Solutions Pvt. Ltd.(SLP (C) 1105/2022) held that once parties have agreed to set aside the award and remand the matter back to the sole Arbitrator for a fresh reasoned award, it was not open for the petitioner to contend that the matter may not be and/or ought not to have been remanded to the same sole Arbitrator.
In the present case there was no consent between the parties for remand. 27. So far as the answer to question No.(iv) is concerned, the Right to Fair Compensation and Transparency in Land Acquisition Act, 2013 (hereinafter shall be referred to as the 'Act of 2013') would be applicable. From the perusal of the pleadings as also from the order passed by this Court, the amount of compensation has not been deposited by the respondent NHAI in the account of CALA though the amount was determined by the competent authority on 02.07.2012. According to the circular dated 28.12.2017, which in clear terms speaks about depositing of amount in the account of CALA. The circular provides that where the compensation amount has been determined by the competent authority but not deposited by the Central Government upto 31.12.2014 or prior to that, in those cases the benefit of the Act of 2013 would be applicable. Despite directions by this Court, the amount has not been deposited, therefore, the appellant is entitled for benefit of the Act of 2013 w.e.f 01.01.2015. The respondent-NHAI cannot take shelter of the fact that they have filed the application under Section 3-G(5) of the Arbitration Act as the same does not debar the appellant from receiving the compensation determined by the competent authority. In other words the NHAI cannot absolve itself from its duty to deposit the amount of compensation determined by the CALA. 28. Now, the issue with regard to determination of the compensation is concerned, is to be adjudicated in light of the pronouncements made by the Apex Court as also the pleadings of the parties and the amount determined by the competent authority vide award dated 02.07.2012. 29. The claim made by the appellant before the competent authority is reproduced in the chart form as under: d Hkfe ,oavU; ifjlifRr;ka vkond nokjk DyEM jk'kh 1- 316248 o-eh-2-938 g- tehu [kjhnusgrw 8854944-00 2- uohu fcfYMx fuek.kZ624 oxj~ehVj 780000-00 3- u;k yll ,;j dkQV gxj 2800000-00 4- fjU;oy yll ,oajftLV'ku 5000000-00 5- fyt dly {kfr 1/4bfM;u bUlhV;V vkQ ,;jot Vfux 1/2 18000000-00 6- lc LV'ku pktZ 34402151-00 7- IykV vkj ef'kujh f'kfQVx] fcfYMx f'kfQVc ,oa ,;jot gsxj jpsLFkku ij f'kQV grq 401536600-00 8- vU; {kfr 1/4N% ekg1/2 21000000-00 9- mRiknu {kfr 1/4N% ekg1/2 20000000-00 10- Vduhdy Qhl dfe'kfux grw 200000000-00 11 dy ;kx 592068191-00 30.
The claim made by the appellant before the competent authority has been duly considered and rightly rejected. However, the competent authority has determined the compensation under various heads as per the valuation carried out by the Public Works Department, on which the NHAI had already given its consent. The amount of compensation under various heads as awarded by the competent authority is as under: d . Hkfe ,oavU; ifjlifRr;ka l{ke ikf/kdkjh nokjk inRr jk'kh 1. Effected properties and shifting charge of two Transformer and awarded amount has per the valuation of the department 10808671 2. Shifting charges 180196600 3. Value of land 1252560 4. Value of plants 189853 5. Building/boundary wall 4005274 6. Electric sub-station shifting charge 10808671 7. Well 327684 8. As per Section 3(G)(2) 10% additional amount awarded 1658404 9. As per Section 3(G)(7)(D) 36000 10. As per Section 3(G)7(C) 120680 11. TOTAL 19,8595726/- 12. That on this amount 10% service charge add by competent authority 1,98,59,573 13. The amount determined by the competent authority. 21,84,55,299 14. 100% Solatium as per the Right to Fair Compensation and Transparency in Land Acquisition Act, 2013 43,69,10,598 31. In view of the above circumstances, the conduct of NHAI is evident as there has been gross delay on their part at every stage. Undisputedly, the appellant is the owner of the land acquired, who had fought this long battle and may have a further struggle ahead in receiving the awarded compensation and will be made to run from pillar to post once again. Even otherwise on merits the owner cannot be deprived of the compensation. To avoid the multiplicity of litigation, instead of remanding the matter, this Court is of the considered view that the appellant is entitled to receive the compensation as awarded by the competent authority. 32. In the present case, the Arbitrator-cum-Commissioner had rejected the claim for enhancement of the amount to Rs.277.20 crores. At this juncture, taking into consideration the scope of Section 37 of the Arbitration Act, this Court cannot consider the claim with regard to enhancement. Moreover, after perusing the records and analyzing the award of the Arbitrator dated 23.02.2017, the appellant has failed to establish its enhanced claim of Rs.277.20 crores. The aforesaid claim was not raised before the competent authority at all. 33. As per the award, the competent authority has awarded a sum of Rs.21,84,55,299/- under different heads.
Moreover, after perusing the records and analyzing the award of the Arbitrator dated 23.02.2017, the appellant has failed to establish its enhanced claim of Rs.277.20 crores. The aforesaid claim was not raised before the competent authority at all. 33. As per the award, the competent authority has awarded a sum of Rs.21,84,55,299/- under different heads. The appellant would be entitled for the aforesaid amount as already awarded on 02.07.2012. 34. So far as applicability of Act of 2013 is concerned, this Court has already held in the preceding paras that it is applicable. In the present case, the compensation as determined by the competent authority has not been deposited till date despite the directions of this Court in W.P. No. 15902/2013. Apart from this, the circular dated 28.12.2017 clearly stipulates that if the amount as awarded is not deposited in the account of competent authority upto 31.12.2014, the benefit of the Act of 2013 would be applicable. 35. In view of the above conclusions, the following order is passed: (i) The respondent- NHAI shall deposit a sum of Rs.21,84,55,299/- alongwith 9% interest w.e.f. 02.07.2012 to 31.12.2014. (ii) The respondent-NHAI shall pay 100% solatium on the awarded amount of compensation i.e. 21,84,55,299/-. Thus, total amount of Rs.43,69,10,598/- (Rupees Forty Three Crores Sixty Nine Lakh Ten Thousand Five Hundred Ninety Eight) shall also carry the interest @ 9% w.e.f 01.01.2015, the date on which the Act of 2013 was made applicable. (iii) The aforesaid amount shall be computed and calculated by the respondents from the date as directed hereinabove till the date of actual payment. (iv) The aforesaid directions be complied with and payment be made within a period of 120 days. (v) The Arbitration Appeal No.82/2021 filed by Smt. Jai Devi Verma is hereby allowed to the extent indicated hereinabove and on the other hand the Arbitration Appeal No.92/2021 filed by the NHAI is hereby rejected. (vi) No order as to costs.