Karnataka High Court
Shavantravva W/O Basappa ... vs The Assistant Commissioner And ... on 21 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
M.F.A. NO.200230/2022 (AA)
BETWEEN:
SHAVANTRAVVA W/O BASAPPA
MUKARTIHAL, AGE: 58 YEARS
OCC: HOUSEHOLD R/O NIDAGUNDI
TQ.BASAVANA BAGEWADI
DIST.VIJAYAPURA-586101.
... APPELLANT
(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER
CUM COMPETENT AUTHORITY FOR
LAND ACQUISITION OF NH-13,
VIJAYAPURA-586101.
2. THE GENERAL MANAGER, (TECH AND P.D)
NH-13 DHARWAD NOW THE PROJECT
DIRECTOR (PIU) NATIONAL HIGHWAY
AUTHORITY OF INDIA PLOT NO.65
KOTHARI LAYOUT VENKATESH NAGAR,
KALABURAGI-585103.
2
3. THE ARBITRATOR
NATIONAL HIGHWAY AUTHORITY
OF INDIA AND DEPUTY COMMISSIONER
VIJAYAPURA-586101.
... RESPONDENTS
(SRI MALLIKARJUN C. BASAREDDY, HCGP FOR R1;
SRI SUDHIRSINGH R. VIJAPUR, ASGI FOR R2 & R3)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 37(1) (C) OF ARBITRATION AND CONCILIATION ACT
1996, PRAYING TO ALLOW THIS APPEAL WITH COSTS SETTING
ASIDE THE JUDGMENT AND AWARD PASSED BY THE COURT OF
III ADDL. DIST. JUDGE, VIJAYAPURA DATED 31.05.2021 IN
A.A.NO.46/2018 AND CONSEQUENTLY ALLOW THE
ARBITRATION APPLICATION OF THE APPELLANT, FURTHER
GRANT ANY OTHER RELIEF.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
S.R.KRISHNA KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the impugned judgment
and order dated 31.05.2021 passed in A.A.No.46/2018 by the
III Addl. District Judge, Vijayapur (for short ' Trial Court' )
whereby the trial Court dismissed the application/petition/suit
filed by the appellant-plaintiff/applicant under Section 34 of the
Arbitration and Conciliation Act, 1996 (for short ' Act of 1996').
2. Heard the learned counsel for the appellant and
learned ASGI for respondents and perused the material on
record.
3. The material on record indicates that the subject
land belonging to the appellant was acquired by the
respondent No.2/National Highway Authority of India pursuant
to which an award dated 06.02.2012 was passed by the
competent authorities. Aggrieved by the quantum of
compensation awarded by the competent authority, the
appellant sought for re-determination and enhancement by
invoking Section 3 (G) (5) & (6) of the National Highways Act,
1956 (for short ' the said Act of 1956')
4. The Arbitral Tribunal comprising of a Sole
Arbitrator appointed by the Central Government having
entered into reference proceeded to pass the impugned
arbitral award dated 27.11.2017 re-determining and enhancing
the market value of the subject land belonging to the
appellant. However, not being satisfied by the amount so
determined by the Arbitrator, the appellant approached the
jurisdictional Court under Section 34 of the said Act of 1996.
By impugned judgment and order dated 31.05.2021, the trial
Court proceeded to dismiss the said application/suit filed by
the appellant, aggrieved by which the appellant is before this
Court by way of present appeal.
5. In addition to reiterating the various contentions
urged in the appeal and referring to the material on record, the
learned counsel for the appellant submits that the impugned
judgment and order passed by the trial Court is not only
contrary to the provisions contained in Section 34 of the said
Act of 1996, but the same is also contrary to the decision of
the Apex Court in the case of Union of India and another Vs.
Tarsem Singh and others reported in AIR 2019 Supreme
Court 4689. It is also submitted that certain other land losers
in relation to the same acquisition notification had approached
the trial Court in Arbitration Application No.141/2018 which
was allowed by the jurisdictional trial Court (IV Addl. District
Judge, Vijayapur) vide judgment and order dated 21.12.2020
whereby the said trial Court remitted the matter back to the
Arbitral Tribunal for reconsideration afresh in accordance with
law. It is therefore submitted by virtue of the doctrine of parity
coupled with the non-consideration by the Trial Court of the
material on record as well as the decision of the Apex Court in
Union of India and another Vs. Tarsem Singh and others
referred supra, the impugned judgment and order passed by
the trial Court in the present appeal also deserves to be set
aside and the matter be remitted back to the Arbitral Tribunal
for reconsideration afresh in accordance with law.
6. Per contra, learned ASGI for the respondent
Nos.2 and 3 and learned HCGP for respondent No.1 would
support the impugned judgment and order passed by the trial
Court and submits that there is no merit in the appeal and that
the same is liable to be dismissed.
7. We have given our anxious consideration to the
rival contentions and perused the material on record.
8. In the case of Union of India and another Vs.
Tarsem Singh and others the Apex Court considered the
vires and validity of Section 3J of the National Highways Act.
It was held that Section 3J which excludes applicability and
operation of the Land Acquisition Act, 1894 to the acquisition
under National Highways Act, 1956 is discriminatory, arbitrary,
ultra vires and violative of Article 14 of the Constitution of
India. Under the said circumstances and after examining the
relevant case law in its entirety, the Apex Court was please to
strike down Section 3J of the National Highways Act, 1956.
Consequently, the bar/embargo provided in Section 3J to
apply and invoke Land Acquisition Act, 1894 to the acquisition
of the Act of 1956 no longer exists in view of the decision of
the Apex Court in Union of India and another Vs. Tarsem
Singh and others supra.
9. In the instant case, it is the grievance of the
appellant that both the competent authorities as well as
Arbitral Tribunal comprising of the Sole Arbitrator appointed by
the Central Government have committed an error in not
awarding solatium, interest and other statutory benefits in
terms of Sections 23, 23(1-A), 23 (2) and Section 28 of the
Land Acquisition Act, 1894. However, in view of the striking
down of Section 3J of the National Highways Act, 1956, the
appellant would be entitled to request the Arbitrator to invoke
and apply aforesaid provisions of Land Acquisition Act which
cannot be said to be not applicable to the acquisition
proceedings under the National Highways Act in the light of
the decision of Apex Court in Union of India and another Vs.
Tarsem Singh and others supra.
10. So also, as rightly contended by the learned
counsel for the appellant by applying doctrine of parity in view
of the fact that under identical circumstances in relation to the
very same acquisition notification, the trial Court in
A.A.No.141/2018 has set aside the award Arbitral Award and
remitted back the matter to the Arbitral Tribunal for
reconsideration afresh, we are of the considered opinion that
the impugned judgment and order passed by the Trial Court
in the present appeal as well as the Arbitral Award also
deserve to be set aside and the matter remitted back to the
Arbitral Tribunal for reconsideration afresh in accordance with
law.
11. In the result, we pass the following:
ORDER
i) Appeal is hereby allowed.
ii) Impugned judgment and order dated 31.05.2021
passed in A.A.No.46/2018 by the III Addl. District
Judge, Vijayapura is hereby set aside.
iii) So also, the Arbitral Award dated 27.11.2017
passed by the respondent No.3/ Arbitrator-cum-
Deputy Commissioner is also hereby set aside.
iv) Matter is remitted back to the respondent
No.3/Arbitrator-cum-Deputy Commissioner for
reconsideration afresh in accordance with law
bearing in mind the observations made in the
order within a period of six months from the date
of receipt of copy of this order.
v) All rival contentions are kept open and no opinion
is expressed on the same.
Sd/-
JUDGE
Sd/-
JUDGE
NSP
