Nazir vs The National High Way
2022 Latest Caselaw 2082 Kant

                            -1-


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 9TH DAY OF FEBRUARY, 2022

                      PRESENT

THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                           AND

     THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ

MISCELLANEOUS FIRST APPEAL NO.5799 OF 2016 (AA)

BETWEEN:
NAZIR
S/O ISMAIL KHAN
AGED ABOUT 71 YRS
R/O NEAR GUBBI
GATE CHECK POST, B.H.ROAD
TUMKUR - 5772001
SINCE DEAD BY LEGAL HEIRS

1.   REHANA BI
     W/O NAZIR
     AGED ABOUT 62 YEARS

2.   SHABBEER AHAMED KHAN
     S/O NAZIR
     AGED ABOUT 43 YEARS

3.   FAIROZ AHAMED KHAN
     S/O NAZIR
     AGED ABOUT 41 YEARS

4.   FARHANA KHANUM
     D/O NAZIR
     AGED ABOUT 36 YEARS

5.   AZEEMA KHANUM
     D/O NAZIR
     AGED ABOUT 24 YEARS

6.   NOOR AHAMED KHAN
     S/O NAZIR
     AGED ABOUT 32 YEARS
                            -2-


7.   RAHAMATHULLAKHAN
     S/O NAZIR
     AGED ABOUT 32 YEARS

     ALL ARE R/O BEHIND DHANA PALACE
     OPP: BHEEMANNA GARDEN
     SALMA MANZIL
     MELEKOTE ROAD
     TUMAKURU - 572 102
                                         ... APPELLANTS
(BY SRI T.GOVINDA RAJA, ADVOCATE)


AND:
1.   THE NATIONAL HIGH WAY
     AUTHORITY OF INDIA
     BY ITS SECRETARY
     NEW DELHI, INDIA
     BRANCH OFFICE AT
     SREE RUDRA KRUPA
     NO.1075, OPP. TO PETROL BUNK
     HEDEDI ROAD
     DAVANAGERE - 57705
     NOW SHIFTED TO
     CHITRADURGA - 577 501

2.   THE ARBITRATOR
     & THE DEPUTY COMMISSIONER
     (NATIONAL HIGH WAY
     AUTHORITY OF INDIA)
     TUMKUR DISTRICT
     TUMKUR - 572 101
                                       ... RESPONDENTS
(SMT.SHILPA SHAH, ADVOCATE FOR RESPONDENT NO.1
 SMT.VANI H, ADDITIONAL GOVERNMENT ADVOCATE FOR
 RESPONDENT NO.2)
                           ---

       THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 39(1) OF THE ARBITRATION AND CONCILIATION ACT,
1996 PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
THE 1ST ADDL. DISTRICT & SESSIONS JUDGE, TUMKUR IN
AC.13/2011 DATED 1.6.2016 AND ETC.
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      THIS APPEAL COMING ON FOR HEARING THROUGH VIDEO
CONFERENCING      THIS    DAY,     SURAJ        GOVINDARAJ    J.,
DELIVERED THE FOLLOWING:


                          JUDGMENT

The appellants are before this Court challenging the

judgment dated 01.06.2016 passed in Arbitration and

Conciliation Case No.13/2011 by the I Additional District

and Sessions Judge, Tumakuru. In the said Arbitration and

Conciliation Case No.13/2011, in turn, the appellants had

challenged the arbitral award passed by the Arbitrator and

Deputy Commissioner, Tumakuru in LAQ.CR.546/2004-

2005 dated 21.03.2011.

2. The arbitral proceedings before the Arbitrator and

Deputy Commissioner at Tumakuru were referred under

Section 3(G)(5) of the National Highways Act, 1956, being

a statutory arbitration, on account of acquisition of land for

and on behalf of the National Highway Authority. The issue

in question before the Arbitrator and Deputy Commissioner

was with regard to the quantum of compensation to be paid

to the appellants as regards the acquisition of land. The

Arbitrator having considered all the submissions enhanced

the compensation on acquired land by 50% of the

compensation already paid and awarded amount of

Rs.1,89,535/- per acre. It is this award which was

challenged in Arbitration and Conciliation Case No.13/2011

on the ground that the same was in violation of Section 34

of the Arbitration and Conciliation Act, 1996 (for short, "the

Act of 1996").

3. The only contention which has been urged before the

Court in the case filed under Section 34 of the Act of 1996

was that the compensation which was awarded was

insufficient and as such, the award has to be set aside.

Considering that the said contention was not one covered

under Section 34 of the Act of 1996, the Court, under

Section 34(4), dismissed the challenge to the arbitral

award. It is aggrieved by the said dismissal that the

appellants are before this Court.

4. Sri T.Govinda Raja, learned counsel for the appellants

would once again submit that the valuable land of the

appellants had been acquired and the appellants have not

been awarded suitable compensation. Non awardal of

suitable compensation is in violation of public policy and

therefore, the contention would come under Section

34(2)(b)(ii) of the Act of 1996. Since the challenge having

been made to post amendment of Section 34(2)(b)(ii), it is

the amended provision which would apply.

5. Section 34(2)(b)(ii) of the Act of 1996, which is being

invoked by the appellants, reads as under:

"34. Application for setting aside arbitral award (1) xxxx (2) An arbitral award may be set aside by the Court only if

(a) xxxx

(b) the Court finds that -

(i) xxxx

(ii) the arbitral award is in conflict with the public policy of India."

6. It is clear on a reading of the above provision that the

ground which is urged by learned counsel for the appellants

is not the one provided under Section 34(2)(b)(ii) of the Act

of 1996. In that, the only ground being raised that the

quantum of compensation awarded is less, which in our

considered opinion is not a legal issue but a factual one,

requiring re-appreciation of evidence which cannot be done

in a proceedings under Section 37 of the Act of 1996.

There being no particular ground which is being made out

by the appellants to fall within the ambit of Section 34 of

the Act of 1996, let alone under Section 34(2)(b), we do

not find any merit in the present appeal.

7. The appeal being devoid of merit stands dismissed.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

AHB