RAGHVENDRA v. Union Of India Through- Secretary, Ministry Of Road Transport And National Highway

2. The petitioner has filed this petition being aggrieved by illegal and arbitrary acts of the respondent authorities by which even after acquisition of the land of the petitioner bearing Khasra No. 14/8 area 0.283 hectares situated at village – Banbandha, P.H. No. 22, R.I. Circle, Tahsil- Pali, District- Korba (C.G.). The respondent authorities have not granted compensation to the petitioner inspite of repeated efforts made by the petitioner.

3. The petitioner has purchased the said property vide registered sale deed dated 18.06.2010 and has installed a Rice Mill upon the same while taking loan from Bank. The respondent No. 2 i.e. National Highway Authority of India in order to widen the National Highway No. 111 from Bilaspur to Katgorha Division has issued notification for acquisition of the land and thereafter land was acquired, however, till date compensation has not been paid. Award dated 15.07.2019 has been passed in respect of land of the petitioner, however, the petitioner has not been given any compensation. Award dated 15.07.2019 has been passed in which Khasra No. 14/8 in respect of land of the petitioner has been shown, however, compensation has not been given as such the petitioner has filed an application before the concerned 4 Commissioner-cum-Arbitrator which has been dismissed by the Arbitrator stating that so far as entitlement and apportionment of the award is concerned, the power is not vested upon the Arbitrator as such the relief as sought by the petitioner cannot be granted. Since the arbitrator has not considered her application as such the petitioner has filed this petition.

4. Learned counsel for the petitioner submits that since the land bearing Khasra No. 14/8 was purchased by the petitioner through sale deed dated 18.06.2010 and further in the land acquisition proceedings award has been passed in respect of aforesaid land but compensation has not been paid as such the petitioner is required to be given the compensation for land bearing Khasra No. 14/8 which has been shown in the award dated 15.07.2019 by the Land Acquisition Officer-cum-Sub Divisional Officer ( R ), Kathghora. When an application was filed before the Commissioner-cum-Arbitrator, the Arbitrator has illegally held that so far as entitlement and apportionment of the compensation is concerned, the Arbitrator is not having power an authority which is totally illegal. When the land of the petitioner has been acquired, the land bearing Khasra No. 14/8 is shown in the notice as well as in the award, it is incumbent upon the authorities to grant compensation which they have denied as such the relief prayed by the petitioner is required to be granted.

5. On the other hand, learned counsel for respondents No. 2 & 3 5 submitted that the petition as framed by the petitioner is not maintainable under Section 4 of the National Highways Act, 1956 as well as under Section 34 of the Arbitration and Conciliation Act, 1996. He further submits that the petitioner is entitled to challenge the award under the said provisions expect this there is no other mode to challenge the award. He further submits that the award is to be challenged within prescribed time as the delay, if any is not condonable. He further submits that as per Section 3G (6) of the National Highways Act, 1956, the provision of Arbitration and Conciliation Act, 1996 shall be applicable to every arbitration under the Act. Therefore, in light of aforesaid Section 3G (6), the remedy lies before the Arbitrator against the award passed by the Land Acquisition Officer. He further submits that the Hon’ble Supreme Court in the matter of Bhaven Construction Vs. Executive Engineer Sardar Sarovar Narmada Nigam Limited and Another reported in 2021 SCC online SC 8, it has held that under Section 5 of the Arbitration and Conciliation Act, 1996, no judicial authority except as provided in the act shall intervene in the matter. Since under Section 34 of the Act, 1996, the efficacious remedy is to approach before the District Court for the purpose of challenging the arbitrator’s award in order to seek quashment of the arbitrator 6 award no judicial authority shall entertain except as provided in this part. He further submits that in another matter, namely, Project Director NHAI vs. M. Hakeem reported in 2021 Online SC 473 the same analogy was expressed by the Hon’ble Supreme Court. He further submits that the Hon’ble Division Bench of this Court has also and confirmed the same aspect in the matter of Chhattisgarh Rajya Sahakari Vipdan Sangh Maryadit vs. Shri Shyam Global Pvt. Ltd in Arbitration Appeal No. 4/2019, the Hon’ble Supreme Court has also held the same aspect in Union of India Vs. Varindera Construction Limited reported in (2020) 2 SCC 111 and in the matter of N. V. International vs. State of Assam and others reported in (2020) 2 SCC 109 as such the aforesaid aspect is no longer res integra. The petition as filed is not in accordance with law and the same is liable to be dismissed in threshold.

6. I have heard learned counsel for the parties and perused the material available on record.

7. After perusal of the record, it is quite evident that there lies an alternative remedy while filing appropriate application under the Arbitration and Conciliation Act, 1996.

8. It would be fruitful to cite Section 4 of National Highways Act, 1956 which reads as under:- 7 "4. National highways to vest in the Union. All national highways shall vest in the Union and for the purposes of this Act "national highway" include - (i) all lands appurtenant thereto, whether demarcated or not; (ii) all bridges, culverts, tunnels, causeways, carriageways and other structures constructed on or across such highways; and (iii) all fences, trees, posts and boundary, furlong and milestones of such highways or any land appurtenant to such highways.”

9. Section 34 of the Arbitration and Conciliation Act, 1996 reads as under:- “34 Application for setting aside arbitral award. (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub- section (3). (2) An arbitral award may be set aside by the Court only if- (a) the party making the application furnishes proof that- (i) a party was under some incapacity, or 8 (11) the arbitration agreement is not valid under the law to which the parties have subjected it or, falling 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: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot 9 derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that- (1) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. Explanation. Without prejudice to the generality of sub-clause (ii) it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may 10 entertain the application within a further period of thirty days, but not thereafter. (4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.”

10. In the matter of Bhaven Construction vs. Executive Engineer Sardar Sarovar Narmada Nigam Ltd and Another reported in 2021 SCC Online SC 8, the Hon’ble Supreme Court has held as under:- “11. We need to note that the Arbitration Act is a code in itself. This phrase is not merely perfunctory, but has definite legal consequences. One such consequence is spelled out under Section 5 of the Arbitration Act, which reads as under "Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part." The non-obstante clause is provided to uphold the intention of the legislature 11 as provided in the Preamble to adopt UNCITRAL Model Law and Rules, to reduce excessive judicial interference which is not contemplated under the Arbitration Act."

11. So far as the scope of judicial intervention is concerned, Section 5 of the Act, 1996 reads as under:- "Section 5: Extent judicial intervention.- notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.”

12. In the matter of Project Director NHAI vs. M. Hakeem reported in 2021 Online SC 473, the Hon’ble Supreme Court has held that there are very limited grounds for challenging the award as per Section 34 of the Act, 1996 sub-sections (2) and (3) of Section 34 which reads as under:- “13. Section 34 of the Arbitration Act, 1996 occurs in Chapter VlI under the title "Recourse against arbitral award". We are directly concerned with sub-sections (1) and (4) of Section 34 which are set out hereunder: “34. Application for setting aside arbitral award.-(1) Recourse to Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub section (3). 12 (4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award."

14. What is important to note is that, far from Section 34 being in the nature of an appellate provision, it provides only for setting aside awards on very limited grounds, such grounds being contained in sub-sections (2) and (3) of Section 34. Secondly, as the marginal note of Section 34 indicates, "recourse" to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-sections (2) and (3). "Recourse" is defined by P Ramanatha Aiyar's Advanced Law Lexicon (3rd Edition) as the enforcement or method of enforcing a right. Where the right is itself truncated, enforcement of such truncated right can also be only limited in nature. What is clear from a reading of the said provisions is that, given the limited grounds of challenge under sub-sections (2) and (3), on application can only be made to set aside an award. This becomes even clearer when we see subsection (4) 13 under which, on receipt of an application under subsection (1) of Section 34, the court may adjourn the Section 34 proceedings and give the arbitral tribunal an opportunity to resume the arbitral proceedings or take such action as will eliminate the grounds for setting aside the arbitral award. Here again, it is important to note that it is the opinion of the arbitral tribunal which counts in order to eliminate the grounds for setting aside the award, which may be indicated by the court hearing the Section 34 application.

15. It is important to remember that Section 34 is modelled on the UNCITRAL Model Law on International Commercial Arbitration, 1985, under which no power to modify an award is given to a court hearing a challenge to an award. The relevant portion of the Model Law reads as follows: Article 34. Application for setting aside as exclusive recourse against arbitral award (1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (2) of this article. (4) The court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral 14 proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside.

16. Redfern and Hunter on International Arbitration (6th edition), states that the Model Law does not permit modification of an award by the reviewing court (at page 570) as follows: "10.06 The purpose of challenging an award before a national court at the seat of arbitration is to have that court declare all, or part, of the award null and void. If an award is set aside or annulled by the relevant court, it will usually be treated as invalid, and accordingly unenforceable, not only by the courts of the seat of arbitration, but also by national courts elsewhere. This is because, under both the New York Convention and the Model Law, a competent court may refuse to grant recognition and enforcement of an award that has been set aside by a court of the seat of arbitration. It is important to note that, following complete annulment, the claimant can recommence proceedings because the award simply does not exist-that is, the status quo ante is restored. The reviewing court cannot alter the terms of an award nor can it decide the dispute based on its own vision of the merits. Unless the reviewing court has a power to remit the fault to the original tribunal, any new submission of the dispute to arbitration after annulment has to be undertaken by commencement of a new arbitration with a new arbitral tribunal." 15 The statutory scheme under Section 34 of the Arbitration Act, 1996 is in keeping with the UNCITRAL Model Law and the legislative policy of minimal judicial interference in arbitral awards.”

13. The aforesaid pronouncement categorically held that no judicial authority shall intervene. In the aforesaid matter except where so provided in the part.

14. Since Section 34 clearly states that while minimizing the judicial reference in stating that very limited grounds are provided under sub section 4 of Section 34.

15. The Division Bench of this Court has also held in Chhattisgarh Rajya Sahakari Vipdan Sangh Maryadit vs. Shri Shyam Global Pvt. Ltd while observing and confirming the pronouncement of the Hon’ble Supreme Court vide para 7 which reads as under:- “7. It is well settled law that scope of interference by a court while hearing and entertaining an application under Section 34 of the AC Act for setting aside the arbitral award is limited to specific grounds enumerated in Section 34 of the AC Act. Least judicial intervention is the basic thread that runs through the scheme of the Act. Section 5 of the AC Act limits the extent of judicial intervention only to the extent provided for in the Act itself. Therefore, the 16 courts while entertaining application under Section 34 of the AC Act have to examine and test the same vis-a-vis the impugned arbitral award on the anvil of the grounds enumerated under the said provision that is Section 34 of the AC Act.”

16. In the matter of Union of India (Supra) and N.V. International (Supra), the Hon’ble Supreme Court has also held that the time limit as prescribed is within the maximum period of 120n days including the grace period of 30 days. The limitation as prescribed is non condonable.

17. Further Section 3H(4) of the Act, 1956 which reads as under:- “(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.”

18. From the aforesaid reading, it is quite vivid that the dispute in respect of apportionment of the amount or any part thereof or entitlement of any person shall be referred for decision to the principles Civil Court for having jurisdiction which has been held by this Court in WP (227) No. 378/2021 “Sohan & Ors vs. Mohar Sai & Ors.” 17

19. The dispute as raised by the petitioner is required to be adjudicated by the competent Civil Jurisdictional Court and not by the Writ Court under its extraordinary jurisdiction of 226 of Constitution of India.

20. Para 12 of the aforesaid matter which reads as under:- "12. It is clearly provided that the dispute regarding apportionment of the amount shall be referred by the competent authority for decision to principal civil Court of original jurisdiction, therefore, there is a clear provision present, which should have been invoked by the respondent No.1 for the purpose of making a claim as he has made in the application under Section 3G(5) of the Act, 1956, before the Commissioner."

21. From the aforesaid facts and judgments, the case is examined in light of aforesaid provisions and the pronouncements made by the Hon’ble Supreme Court and the Division Bench of this Court, it is ample clear that the petition as filed before this Court is misconceived, the petitioner ought to have approached before the concerned Civil Court while challenging the entitlement and apportionment of the award passed by the Land Acquisition Officer. 18

22. Unless and until the dispute as raised by the petitioner is decided by the competent Civil Jurisdictional Court. This Court cannot decide the same under extraordinary jurisdiction. The petitioner has to approach before the concerned authority for redressal of grievances i.e. competent Civil Jurisdictional Court as per statute and Writ Court cannot decide the dispute which has been emerged in this petition.

23. Accordingly, this petition, being devoid of merits, is liable to be dismissed, and it is dismissed.

24. No order as to cost(s). Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat