Veerabhadrappa vs The Assistant Commissioner And ...
2022 Latest Caselaw 2823 Kant

                             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

                MFA NO. 200228/2022 (AA)

BETWEEN:
VEERABHADRAPPA
S/O RAMAPPA BILAGI, AGE: 55 YEARS,
OCCU: AGRICULTURE, R/O ABBIHAL
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,
   VIJAYPURA-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.

3. THE ARBITRATOR,
                                 2



   NATIONAL HIGHWAY AUTHORITY OF INDIA AND
   DEPUTY COMMISSIONER,
   VIJAYAPURA-586101.
                                         ... RESPONDENTS

(BY SRI MALLIKARJUN C. BASAREDDY, HCGP FOR R1;
 SRI SUDHIRSINGH R. VIJAPUR, ASGI FOR R2 & R3)

      THIS MFA 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. DISTRICT JUDGE,
VIJAYPURA DATED 16.04.2021 IN AA NO. 121 OF 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 16.04.2021 passed in A.A.No.121/2018 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 16.12.2010 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 26.02.2018 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 16.04.2021, 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.142/2018 which

was allowed by the jurisdictional trial Court (IV Addl. District

Judge, Vijayapur) vide judgment and order dated 19.12.2020

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.142/2018 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 16.04.2021

passed in A.A.No.121/2018 by the III Addl.

District Judge, Vijayapura is hereby set aside.

iii) So also, the Arbitral Award dated 26.02.2018

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