Madras High Court
D. Nagarathinammal vs The Project Director on 16 November, 2021
W.P.Nos.14766 etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.11.2021
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.14766 , 14768, 14820, 14824, 14860, 21177, 21185, 21189,
21192, 21198, 21182, 21202, 21207, 21208, 21211, 21239, 21241,
21244, 21247, 21251, 21261, 21275, 21272, 21270, 21265, 17922,
17923, 17926, 17930, 17932, 17934 & 17935 of 2021
W.P.No.14766 of 2021
D. Nagarathinammal .... Petitioner
Vs.
1. The Project Director,
National Highways Authority of India,
Project Implementation Unit – Chennai,
“SRI TOWER”, 3rd Floor, DP-34(SP),
Industrial Estate, Guindy,
Chennai – 32.
2. The Competent Authority cum
Special District Revenue Officer
(Land Acquisition),
National Highways 205,
No.3 & 4, Lal Bagadhur Sasthiri Street,
Periyakuppam Railway Station,
(Near) Thulasi Theatre,
Thiruvallur – 602 001. .... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying to issue a Writ of Mandamus, to direct the respondents to
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grant the enhanced award compensation in respect of Survey No.2/5B for
an extent of 734 sq.mts as per the order passed by the Arbitrator/District
Collector, Tiruvallur District dated 31.01.2020 in R.C. No.26266-
2/2019/F2/Arbitration in the manner as contemplated therein within a
time period as may be stipulated by this Court.
For Petitioner : Mr.N. Chandrasekaran
for Ms.MF.Shabana
For R1 : Mr.Su.Srinivasan
Central Government Standing counsel
For R2 & R3 : Mr.Yogesh Kannadasan
Special Government Pleader
COMMON ORDER
All the petitioners filed Writ Petitions for direction directing the
respondents to grant the enhanced compensation in respect of their
respective lands as per the order passed by the Arbitrator/District
Collector, Tiruvallur District. The petitioners owned their respective
lands and the said lands were acquired for the purpose of laying by-pass
road for National Highways 205 under the provisions of the National
Highways Act, 1956.
2. The Competent Authority-cum-Special District Revenue
Officer, National Highways i.e., the second respondent herein passed an
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award and determined the value of Rs.355/- per sq.ft i.e., Rs.3,819.55/-
per sq.mt and 10% appreciation amount under Section 3G(2) of the
National Highways Act, 1956 and also awarded compensation for
structural value. On several grounds, all the petitioners have filed
Arbitration Petition before the Arbitrator/District Collector, Tiruvallur, to
enhance the award amount passed by the second respondent. The
Arbitrator/District Collector, Tiruvallur passed an Arbitration award,
thereby enhanced the compensation from Rs.355/- to Rs.800/- per sq.ft
i.e., Rs.3,819.55 per sq.mt to Rs.8,608/- per sq.mt with an interest at the
rate of 9% per annum to be paid for excess amount determined in this
order from the date of taking possession viz. under Section 3D(1) of
the National Highways Act 1956, till the date of actual deposit. On
various dates, the award has been passed and enhanced the
compensation. Though all the petitioners approached the respondents for
disbursement of compensation but of no avail. Therefore, all the
petitioners sent their representation as per the Arbitration Award passed
by the Arbitrator/District Collector but of no avail. Hence, they
approached this Court for mandamus directing the respondents to grant
enhanced compensation amount in respect of their respective property
which was acquired for laying by-pass road for National Highways 205.
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3. Mr.N.Chandrasekaran, learned counsel appearing for all the
petitioners and Mr.P Subba Reddy, learned counsel appearing for the
petitioner in W.P.No.14860 of 2021 submitted that the respondents failed
to pay the enhanced compensation amount even after nearly one year
from the Arbitration Award passed by the Arbitrator/District Collector,
Tiruvallur. In fact, they filed petition to set aside the Arbitration Award
as contemplated under Section 34 of the Arbitration and Conciliation Act,
1996 belatedly after expiry of limitation. Therefore, it was returned for
certain compliance. Again it was re-presented on 14.09.2021. The period
of limitation for filing the petition to set aside the Arbitration Award is
only ninety days from the date of award as per proviso to Section 34(3)
and it can be filed with condone delay petition, that too, within a further
period of thirty days but not thereafter. Admittedly, in all the cases, the
first respondent filed petition to set aside the Arbitration Award after the
period of more than six months. Therefore, the petition to set aside the
Arbitration Award is not at all maintainable and barred by limitation.
4. They further submitted that even assuming that the petition
filed in time as per the order passed by the Hon'ble Supreme Court of
India, due to Covid-19 Pandamic circumstances, the period of limitation
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can be extended till March 2021. The first respondent shall issue a prior
notice while filing petition to set aside the Arbitration Award and the said
petition shall be accompanied by the applicantion endorsing compliance
with the said requirement as per Section 34(5) of the Arbitration and
Conciliation Act, 1996. The said petition shall be disposed of within a
period of one year from the date on which the notice referred in sub-
section 5 of the 34 of the Arbitration and Conciliation Act, 1996. Now,
nearly one year already completed from the date of Arbitration Award
and as such, the writ petition is very much maintainable to execute the
Arbitration Award passed by the Arbitrator/District Collector, Tiruvallur.
5. They also submitted that the Arbitration Award cannot be
challenged on the merits of the Award. The Court cannot correct errors
of the Arbitrator. It can only quash the award leaving the parties free to
begin the arbitration again if it is desired. Therefore, the scheme of the
provision aims at keeping the supervisory role of the Court at minimum
level and this can be justified as parties to the agreement make a
conscious decision to exclude the Court's jurisdiction by opting for
arbitration as they prefer the expediency and finality offered by it. In
support of his contention, he relied upon the Judgment reported in lot of
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W.P.Nos.14766 etc., batch
Civil Appeals arising out of SLP (Civil) No.13020 of 2020 by an order
dated 20.07.2021.
6. Mr.Su.Srinivasan, learned Central Government Standing Counsel
appearing for the first respondent vehemently contented that the writ
petitions are not at all maintainable either in law or facts, when there is
specific alternative remedy available under the Arbitration and Conciliation
Act, 1996. As per Section 36 of the Arbitration and Conciliation Act to
execute the Arbitration Award in accordance with the provisions of the Civil
Procedure Code in the same manner as if it were a decree of the Court. The
Arbitration Award is unreasonable, arbitrary and legally unsustainable,
since the Arbitrator enhanced the award from Rs.3,819.55 to Rs.8,608/- per
sq.mt. Therefore, it is challenged under Section 34 of the Arbitration and
Conciliation Act, 1996 before the Principal District Judge, Tiruvallur and
the same was returned for certain compliance and after rectifying the
defects, it was re-presented. Now it is pending for numbering. Therefore,
to enforce the Arbitral award, the writ petition is not maintainable under
Article 226 of the Constitution of India and the petitioners have remedy of
enforcement of the award under Section 36 of the Arbitration and
Conciliation Act, 1996.
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7. In support of his contention, he relied upon the following
Judgments :-
1. Judgement of this Court in W.A.Nos.2627 to 2637 & 2641 to
2644 of 2019 in the case of S.John Vs. Regional Officer, Chennai and
others
2. 2010 (12) SCC 210 in the case of State of Himachal Pradesh
and another Vs. Himachal Techno Engineers and another.
3. Judgment of this Court in W.A.No.4309 of 2019 in the case of
K.Ayyavu and others Vs.The District Collector and Sole Arbitrator,
Salem and others.
4. Judgment of this Court in W.P.Nos.30373 & 30376 of 2019 in
the case of S.P.Anthonisamy Vs. Government of India, New Delhi and
others.
5. Judgment of the Hon'ble Supreme Court of India in Civil
Appeal No.5121 of 2021 in the case of The Assistant Commissioner of
State Tax and others Vs. M/s.Commercial Steel Limited.
6. 2021(1) CTC 450 in the case of Bhaven Construction through
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authorised signatory Premjibhai K.Shah Vs. Executive engineer
Sardar Sarovar Narmada Nigam Ltd & Another
7. 2019 (16) Scale 667 in the case of Genpact India Private
Limited Vs. Deputy Commissioner of Income Tax and another.
8. 2018 (3) SCC 85 in the case of Authorised Officer, State of
Travancore and another Vs. K.C.Mathew.
9. CDJ 2015 MHC 050 in the case of M/s.Cholamandalam
Investment & Finance Company Ltd., Vs. Natarajan and another.
8. The points arise in these writ petitions are that
(i) Whether the writ petition is maintainable to enforce the arbitral
award passed by the Arbitrator ?
(ii) Whether the respondents can be directed to deposit the
enhanced compensation amount as per Section 3H(5) of the National
Highways Act, 1956?
9. Aggrieved by the award passed by the second respondent, the
petitioners/land owners filed application before the Arbitrator/District
Collector, Tiruvallur for enhancement of the award amount. The
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Arbitrator passed an award, thereby enhanced the compensation made by
the first respondent from Rs.3,819.55/- to Rs.8,608/- per sq.mt.
Aggrieved by the same, the first respondent filed petition to set aside the
Arbitral Award under Section 34 of the Arbitration and Conciliation Act.
Admittedly, it was filed belatedly after a period of four months and
returned for want of rectifying the defects. Thereafter, it was
re-presented and it is pending for numbering before the Principal District
Court, Tiruvallur. Therefore, the present writ petitions have been filed to
enforce the Arbitral Award passed by the Arbitrator. The Hon'ble
Division Bench of this Court held that aggrieved by the Arbitration
Award passed by the Arbitrator/District Collector arising out of National
Highways Act, 1956 as well as the Arbitration and Conciliation Act, 1996
comes appeal remedy before the District Court and this Court has no
jurisdiction to entertain the petition under Article 226 of the Constitution
of India. The Hon'ble Supreme Court of India held in the Civil Appeal
No.5121 of 2021 dated 03.09.2021 that instead of availing of the appeal
remedy, filing the writ petition under Article 226 of the Constitution of
India is not an absolute bar to its maintainability. But it can be
entertained in exceptional circumstances where there is a breach of
fundamental rights ; a violation of the principles of natural justice ; an
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excess of jurisdiction ; or a challenge to the vires of the statute or
delegated legislation.
10. In the case on hand, the petitioners have filed these writ
petitions only to enforce the Arbitral Award and not challenging the
same. Whereas, the respondents rightly challenged the Arbitral Award
before the Principal District Court, Tiruvallur and it is pending for
numbering. Though the petition to set aside the Arbitral Award filed
belatedly, the Hon'ble Supreme Court of India, in view of the Covid-19
Pandamic circumstances, passed an order dated 23.03.2020, thereby
extended the limitation as prescribed under the general or special laws
with effect from 15.03.2020 until further orders. Thereafter, the Hon'ble
Supreme Court of India, vide order dated 08.03.2021, modified the order
with regard to clarification of limitation. However, by an order dated
27.04.2021 in M.A.No.665 of 2021 in S.M.W (C) No. 3 of 2020
modified/clarified by holding that “restore the order dated 23.03.2020
and in continuation of the order dated 08.03.2021 direct the period of
limitation as prescribed under any general or special laws in respect of all
judicial or quasi-judicial proceedings, whether condonable or not, shall
stand extended till further orders”. The period from 14.03.2021 till
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further orders shall stand excluded in computing the periods prescribed
under Sections 23(4) and 29A of the Arbitration and Conciliation Act,
1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b)
and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any
other laws, which prescribed period of limitation for instituting
proceedings, outer limits (within which the Court or Tribunal can
condone delay) and termination of proceedings. In view of the said
order, the respondents had filed Arbitration Original Petition before the
Principal District Court, Tiruvallur and it is pending for numbering.
11. The learned counsel for the petitioners relied upon the
Judgment of the Hon'ble Supreme Court of India passed in Batch of Civil
Appeals arising out of SLP (Civil) No.13020 of 2020 dated 20.07.2021.
In the said Civil Appeals, the points for consideration arose whether the
power of a Court under Section 34 of the Arbitration and Conciliation
Act, 1996 to set aside an award of an Arbitrator would include the power
to modify such an award. Therefore, the said judgment is not applicable
to the case on hand that whether the writ petition is maintainable to
enforce the Arbitral Award. However, the petitioners are at liberty to
raise those grounds as held by the Hon'ble Supreme Court in the above
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cited judgment before the Principal District Court, Tiruvallur in the
Arbitration Original Petition filed by the respondents.
12. For maintainability of the present writ petitions under Article
226 of the Constitution of India to enforce the Arbitral Award, it is
relevant to extract the provision under Section 36 of the Arbitration and
Conciliation Act 1996, hereunder ;
“ 36. Enforcement : (1) Where the time for making
an application to set aside the arbitral award under Section
34 has expired, or such application having been made, it
has been refused, the award shall be enforced under the
Code of Civil Procedure, 1908 (5 of 1908) in the same
manner as if it were a decree of the Court.
(2) Where an application to set aside the
arbitral award has been filed in the Court under Section 34,
the filing of such an application shall not by itself render
that award unenforceable, unless the Court grants an order
of stay of the operation of the said arbitral award in
accordance with the provisions of sub-sectiuon (3), on a
separate application made for that purpose.
(3) Upon filing of an application under sub-
section (2) for stay of the operation of the arbitral award,
the Court may, subject to such conditions as it may deem fit,
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grant stay of the operation of such award for reasons to be
recorded in writing ;
Provided that the Court shall, while considering
the application for grant of stay in the case of an arbitral
award for payment of money, have due regard to the
provisions for grant of stay of a money decree under the
provisions of the Code of Civil Procedure, 1908 (5 of
1908)”
13. Accordingly, the Arbitral Award shall be enforced in
accordance with the provisions of Civil Procedure Code in the same
manner as if it were the decree of the Court. Further, mere filing an
application to set aside the Arbitral Award under Section 34 shall not by
its render that an order unenforceable, unless the Court grants an order of
stay of the operation of the said Arbitral Award. The Hon'ble Supreme
Court of India in the case of Bhaven Construction through Authorised
Signatory Premjibhai K.Shah Vs. Executive Engineer Sardar Sarovar
Narmada Nigam Ltd. & Anr. in Civil Appeal No.14665 of 2015 dated
06.01.2021, held that the Arbitration Act is a code in itself. This phrase is
not merely perfunctory, but has definite legal consequences. One such
consequence is spelled out under Section 5 of the Arbitration Act, which
reads as “Notwithstanding anything contained in any other law for the
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time being in force, in matter governed by this Part, no judicial authority
shall intervene except where so provided in this Part”. The non-obstante
clause is provided to uphold the intention of the legislature as provided in
the Preamble to adopt UNCITRAL Model Law and Rules, to reduce
excessive judicial interference which is not contemplated under the
Arbitration Act. Further held that if the Courts are allowed to interfere
with the arbitral process beyond the ambit of the enactment, then the
efficiency of the process will be diminished. Thus, it is clear that the writ
petitions are not maintainable to enforce the Arbitral Award when there is
a specific alternative remedy provided under Section 36 of the Arbitration
and Conciliation Act, 1996.
14. Insofar as the deposit of enhanced award amount is
concerned, it is relevant to extract the provision under Section 3H(5) and
(6) of the National Highways Act, 1956, which is as follows ;
“(5) Where the amount determined under section
3G by the arbitrator is in excess of the amount determined
by the competent authority, the arbitrator may award
interest at nine percent per annum on such excess amount
from the date of taking possession under section 3D till
the date of the actual deposit thereof.
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(6) Where the amount determined by the arbitrator
is in excess of the amount determined by the competent
authority, the excess amount together with interest, if any,
awarded under sub-section (5) shall be deposited by the
Central Government in such manner as may be laid down
by rules made in this behalf by that Government, with the
competent authority and the provisions of sub-sections (2)
to (4) shall apply to such deposit. ”
15. Accordingly, the enhanced amount with interest, if any, shall
be deposited by the respondents with the competent authority. In all the
writ petitions, after passing an award and determining the compensation,
the respondents have paid the compensation to the respective land
owners. The Arbitral Award passed by the Arbitration/District Collector,
Tiruvallur, enhanced the compensation amount has not been deposited
sofar and no records were produced to prove the same. As per the
provision, the amount determined by the authority shall be deposited with
competent authority before taking possession of the land. Accordingly,
the petitioners were paid compensation as determined under Section 3G
of the National Highways Act. However, aggrieved by the same, the
petitioners filed application before the Arbitrator for enhancement of the
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award and accordingly, the compensation award has been enhanced by
the Arbitrator.
16. In view of the above, all the writ petitions are disposed of with
the following directions ;
(1) The respondents are directed to deposit the enhanced
compensation amount as per the Arbitral Award together with interest at
the rate of 9% per annum from the date of taking possession under
Section 3D of the National Highways Act, 1956, with the competent
authority within a period of one week from the date of receipt of a copy of
this order.
(2) If the respondents failed to obtain any interim order against
the arbitral award in the Arbitration Original Petition on the file of the
Principal District Court, Tiruvallur within a period of four weeks from the
date of receipt of a copy of this order, the competent authority is directed
to disburse the compensation amounts which were deposited by the
respondents forthwith.
There shall be no order as to costs.
16.11.2021
Index : Yes/No.
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W.P.Nos.14766 etc., batch
Internet : Yes/No.
Lpp/lok
G.K.ILANTHIRAIYAN, J
Lpp/lok
To
1. The Project Director,
National Highways Authority of India,
Project Implementation Unit – Chennai,
“SRI TOWER”, 3rd Floor, DP-34(SP),
Industrial Estate, Guindy,
Chennai – 32.
2. The Competent Authority cum
Special District Revenue Officer
(Land Acquisition),
National Highways 205,
No.3 & 4, Lal Bagadhur Sasthiri Street,
Periyakuppam Railway Station,
(Near) Thulasi Theatre,
Thiruvallur – 602 001.
W.P.Nos.14766 , 14768, 14820, 14824,
14860, 21177, 21185, 21189, 21192,
21198, 21182, 21202, 21207, 21208,
21211, 21239, 21241, 21244, 21247,
21251, 21261, 21275, 21272, 21270,
21265, 17922, 17923, 17926, 17930,
17932, 17934 & 17935 of 2021
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W.P.Nos.14766 etc., batch
16.11.2021
https://www.mhc.tn.gov.in/judis
