Karnataka High Court
M/S Sri Ramakrishna Enterprises vs The Arbitrator Cum Deputy Commissioner on 9 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:1050
MFA No. 6130 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 6130 OF 2016 (AA)
BETWEEN:
M/S. SRI. RAMAKRISHNA ENTERPRISES,
SHRI. DURGA KRIPA,
TEMPLE SQUARE,
MANGALURU - 575 001,
REPRESENTED BY ITS PARTNER
1. SRI. G. JANARDHANA KAMATH,
S/O KRISHNANANDA KAMATH,
AGED ABOUT 53 YEARS.
2. SRI. G. RAMANANDA KAMATH,
AGED ABOUT 45 YEARS.
3. SMT. G. RADHA KAMATH,
Digitally signed
by SHARANYA T AGED ABOUT 70 YEARS.
Location: HIGH
COURT OF ADDRESS SAME AS ABOVE.
KARNATAKA ...APPELLANTS
(BY SRI. VISHWAJITH RAI M., ADVOCATE)
AND:
1. THE ARBITRATOR CUM
DEPUTY COMMISSIONER,
D.K. MANGALURU - 575 001.
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MFA No. 6130 of 2016
2. THE SPECIAL LAND ACQUISITION OFFICER
AND COMPETENT AUTHORITY
NATIONAL HIGHWAYS,
KIADB, BIKAMPADY,
MANGALURU - 575 007.
3. THE NATIONAL HIGHWAY AUTHORITY OF INDIA
PROJECT IMPLEMENTATION UNIT,
ROS VILLA, BISHOP'S COMPOUND,
BEHIND S.B.M.,
VALENCIA KANKANADY,
MANGALURU - 575 003,
BY ITS PROJECT DIRECTOR.
...RESPONDENTS
(BY SMT. M.V. ADHITHI, AGA FOR R1;
SRI. M.V. KINI, ADVOCATE FOR R2 AND R3)
THIS MFA IS FILED UNDER SECTION 37(1)(C) OF THE
ARBITRATION AND CONCILIATION ACT, AGAINST THE ORDER
DATED 30.11.2016, PASSED IN A.S.NO.27/2010, ON THE FILE
OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K,
MANGALURU, DISMISSING THE SUIT FILED UNDER SECTION
34 OF ARBITRATION AND CONCILIATION ACT 1996 READ
WITH SECTION 3G(6) OF THE NATIONAL HIGHWAYS ACT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 6130 of 2016
JUDGMENT
Heard the learned counsel appearing for the appellant
and also the counsel appearing for respondents.
2. This MFA is filed against the order of rejection of
Arbitration Suit of 27/2010 dated 30.11.2015, on the file of I
Addl. District Judge, Dakshina Kannada, Mangaluru. The
factual matrix of the case is that the appellant is the owner of
Sy.No.43/4 of Padukodi Village, Mangalore Taluk, which is
subject of matter of acquisition for the purpose of widening of
the existing National Highway into four lines and forwarded the
same to respondent No.3 for acquisition of aforesaid land of the
appellant along with other lands. In pursuance of the same the
acquisition proceedings bearing No.NHAI/LA/SR/10/2005-06
dated 07.09.2006 initiated and issued a paper publication and
called for the objections from the interested parties. By virtue
of the said paper publication, the plaintiff filed the detailed
objection before the 2nd respondent/Land Acquisition Officer.
The Land Acquisition Officer has passed award dated
30.10.2007 by fixing the compensation amount. Aggrieved by
the award passed by second respondent third respondent
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referred the matter to the Arbitration to the First respondent
under Section.3(G)(5) of the National Highways Act 1956.
Accordingly, first respondent issued enquiry notice to the
appellant. The appellant not only appeared in pursuance of the
notice of the first respondent but also filed detailed objections
including application for spot inspection. The same was
dismissed and hence the Arbitration Suit was filed and the
same was also dismissed. Hence, the present appeal is filed.
The main contention of the counsel is that the District Judge
failed to notice that the first respondent has not decided the
case as per reference for Arbitration and as per the provisions
of National Highways Act. The Arbitrator has not considered
the value of improvements, such as compound wall, gate,
plastic sign board and damages cost due to severance of land,
loss caused to non-formation of rain water channel as well as
loss of business due to non-availability of sufficient parking
facility. It is also contended that the District Judge did not
consider the case of the appellant that he was not given
sufficient opportunity both oral and documentary to support his
case, which has resulted in serous miscarriage of justice.
Learned counsel vehemently contends that the main contention
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of the appellant before the District Court was that the
Arbitration has not given appropriate opportunity and the
counsel requested for appointment of Court Commissioner and
the same is also not considered. The District Court while
considering the order passed by the arbitrator failed to take
note of the said contention and improvement made by the
appellant.
3. Per contra, learned counsel for respondents submit
that the area was acquired and arbitrator has also considered
the case of the appellant herein and awarded a compensation
for the acquired land at the rate of Rs.1,40,000/- per cent with
9% interest. Counsel submits that the arbitrator even exceeded
his limit, by considering the guidance value instead of average
value and now the appellant cannot urge that an appropriate
opportunity was not given to him.
4. Having heard the appellant's counsel and also the
respondent's counsel, the very case of the appellant is that the
arbitrator has not given an opportunity and the same ground is
urged in A.S.No.27/2010. The District Court has taken note of
the same and particularly in paragraph 31 with regard to the
contention taken in the Arbitration Suit in paragraph 32 and 33,
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an observation is made that the Arbitrator has tried to strike a
balance between the objects of Land Acquisition Act and the
Provisions of Section 3G(7) of the National Highway Act. Thus
the wisdom of the Arbitrator in adopting the guidance value
fixed for the year 2010 cannot be said to be opposed to public
policy. With regard to the other contention that no opportunity
is given, in paragraph 34 the District Court has taken note of
the fact that ample opportunities were granted to the plaintiff in
Arbitration proceedings and then they did not file application for
appointment of the Commissioner and what was lost by them
was only compound wall with gate and the signboard. Counsel
vehemently contends that they have filed an application for
appointment of Commissioner and the said application is on the
part of record of appellant. On query, made by this Court
whether any such reference with making of such application
before the concerned Arbitrator and there is no such entry in
the ordersheet also. When such being the case, in the
observations made by the District Court, I do not find any
error. It is also important that the District Court also while
considering the present suit, has taken note of the fact that the
appellant has not placed any record to show that there was
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depletion in income on account of the absence of the parking
place for their hotel. Counsel vehemently contends that on
account of expanding the road, the value is decreased in view
of no parking area. The same cannot be a ground since he has
lost the parking area on account of acquisition. When such
being the case, I do not find any error committed by the
District Court in dismissing the suit filed against the award of
the Arbitrator. The scope of Section 34 is also very limited
while entertaining the Arbitration Suit. Hence, no merit in the
appeal. In view of the discussions made above, I pass the
following order:
ORDER
The Miscellaneous First Appeal is dismissed.
Sd/-
JUDGE
NJ
CT:SNN
