Madhya Pradesh High Court
Smt. Brajrani Bai (Dead) Smt. ... vs Project Director National ... on 25 November, 2021
Author: Vishal Dhagat
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
ARBITRATION APPEAL 64/2019
NO.
Parties Name SMT. BRAJRANI BAI (DEAD)
SMT. RASHMI SAHU
AND OTHERS.
VS.
PROJECT DIRECTOR
NATIONAL HIGHWAY IMPLEMENTATION UNIT
AND OTHERS
Bench Constituted SINGLE BENCH
Judgment delivered By HON'BLE JUSTICE SHRI VISHAL DHAGAT, J
Whether approved for
reporting
Name of counsel for parties For appellants: Smt. Amrit Kaur Ruprah. Advocate.
For Respondents : Shri Vikram Singh, Advocate
(O R D E R )
25/11/2021
1. Appellants have filed this appeal challenging order
dated 17.7.2019 passed by 13th Additional District Judge,
Jabalpur in M.J.C No.217/2016.
2. Brief facts of the case are that appellants were owner
of land bearing Khasra No. 101, Area 0.829 Hectare
situated at village Manaskara, Tehsil Sihora. Part of said
land, i.e. 0.44 Hectare was acquired by respondents under
National Highway Act, 1956 (hereinafter referred to as the
Act of 1956). Notification under Section 3A of the Act of
1956, was published on 27.8.2011.
3. Thereafter appellants did not prefer objection.
Declaration was made under Section 3D of the Act, on
9.8.2012. In intervening period, i.e. between 27.8.2011
and 9.8.2012 appellants had filed an application for
partition of land on 18.3.2011. Application was decided on
19.10.2011 and name of appellants were also mutated in
the records. Award of compensation was passed on
11.9.2013 for a sum of Rs.18,46,407/-.
4. Appellants on 2.1.2014 filed representation before
Land Acquisition Officer-S.D.O (Revenue) Sihora stating
therein that appellants are owner of Kasra No.101 and land
has been partitioned among family members and demand
was made for grant of more compensation amount.
Representation was taken into consideration and order was
passed on 17.4.2014 making amendment to the award.
Awarded amount was substantially increased to a total sum
of Rs.60,17,407/- by Land Acquisition Officer-Project
Director, National Highways Implementation Unit.
5. On basis of order passed in Writ Petition, appellants
filed an application under Section 3G(5) of the Act of 1956
on 17.4.2014, before the Arbitrator (Commissioner,
Jabalpur) challenging modification of award passed by Land
Acquisition Officer-S.D.O. Arbitrator allowed the application
and set aside the modified award and held that payment of
compensation is to be made as per award dated 11.9.2013.
6. Order passed by Arbitrator dated 19.10.2016 was
called in question by filing an application under Section
34(2) of Arbitration and Conciliation Act, 1996
(hereinafter referred to as Act of 1996). 13th Additional
District Judge, Jabalpur vide its order dated 17.7.2019
dismissed the application under Section 34(2) of the Act of
1996. Trial court held that grounds under Sections 34(2)(1)
(i) to (v), 34(2)(d)(i) & (ii) or grounds under sections 28(1)
(a) and 28(3) read with 34(2)(d)(ii) were not raised and in
light of order passed by Apex Court in the case of J. G.
Engineers Private Limited vs. Union of India and
another, (2011) 5 SCC 758, M.J.C No.217/2016 was
dismissed.
7. Appellants have challenged the impugned order dated
17.7.2019 on the ground that Additional District Judge has
dismissed the application filed by appellants in arbitrary
and mechanical manner. There is no application of mind by
Additional District Judge, Jabalpur.
8. It is submitted by learned counsel for appellants that
Arbitrator-Commissioner has issued notices to Brajrani Bai.
Notice was returned back mentioning that Brajrani Bai had
expired. Arbitrator-Commissioner, without considering the
aforesaid fact, went ahead to decide the case without
bringing legal heirs of deceased Brajrani Bai on record.
Order passed against a dead person is null and void,
therefore, Arbitrator-Commissioner committed an error of
law in deciding the application filed by respondent no.1.
9. It was further submitted that application for partition
was filed on 18.3.2011. Notification under Section 3D of
the Act, was published on 9.8.2012. Land is not vested in
the Government when application for partition was filed. It
was also submitted that application was decided on
19.10.2011 and name of appellants was also entered in
revenue records. It is submitted that Land Acquisition
Officer was duty-bound to consider the representation of
appellants and same has rightly been considered by him
and award has been modified accordingly. No error can be
found in the order of Land Acquisition Officer-S.D.O.
Arbitrator-Commissioner committed an error in setting
aside the modified award. District Judge failed to consider
the fact that Fundamentals of Indian Law was involved in
the case, therefore, grounds which were enumerated in
Section 34 of the Act of 1996, was raised and available to
appellants, therefore, case ought to have been decided on
merits. District Judge has committed an error in rejecting
the case mechanically.
10. Learned counsel for respondents submitted that
Arbitrator-Commissioner has rightly decided the application
filed by respondents under Section 3G(v) of the Act.
Competent authority-S.D.O does not have any power to
review or modify the award which has been passed by
competent authority. Appellants had not filed any objection
nor they had challenged the award dated 11.9.2013 before
any forum. If appellants were aggrieved by the original
award, they ought to have filed application before
Arbitrator for enhancement of compensation. Competent
authority does not have any power under National
Highways Act, 1956 to modify the award. Compensation is
to be determined as per section 3G of the Act of 1956. If
parties are not satisfied with amount awarded by
competent authority under Section 3G of the Act of 1956,
they may prefer an application for determination of award
by Arbitrator to be appointed by Central Government.
There is no provision in the National Highways Act, 1956
that competent authority can modify the award. Once
award has been passed by a competent authority it
becomes functus officio, therefore, modification of award
was without jurisdiction and authority. In view of same,
Arbitrator has rightly set aside modified award. He also
supported the order passed by Additional District Judge on
application under Section 34(2) of the Act of 1996. On said
basis, he made a prayer for dismissal of Arbitration Appeal.
11. Heard learned counsel for the parties.
12. Brajrani Bai died 22.4.2015. Arbitrator had passed its
order on 19.10.2016. Brajrani Bai had executed a 'Will' in
favour of Rashmi Sahu, who was not made a party on the
date when she was made legal heir of deceased Brajrani
Bai. On the date when award has been passed Brajrani Bai
had expired, therefore, Arbitrator has passed the award
against a dead person.
13. There is force in the arguments made by learned
counsel for appellants that award which has been passed
against a dead person is a nullity. Since award has been
passed against a dead person, therefore, award of
Arbitrator is a nullity. Learned Additional District Judge has
committed an error of law in holding that application filed
for setting aside award passed by Arbitrator is not within
the scope of Section 34 of Act of 1996 and order was
passed mechanically without proper application of mind.
14. In view of same, order passed by Arbitrator as well as
by Additional District Judge, Jabalpur in M.J.C No.217/2016
dated 17.7.2019 is set aside. Competent authority-S.D.O is
not vested with power under National Highways Act, 1956,
to review the compensation awarded by him or to modify
the same. Competent Authority-S.D.O cannot modify the
award, therefore, modified award is without jurisdiction and
is null and void. Modified award, being a nullity, cannot be
executed. Appellants will only be entitled to get
compensation as per order dated 11.9.2013.
15. Appeal stands disposed of.
(VISHAL DHAGAT)
JUDGE
mms
Digitally signed by MONSI M SIMON
Date: 2021.11.26 16:27:23 +05'30'
