Madras High Court
R.Vasantha vs The Arbitrator & District ... on 24 January, 2022
W.P.Nos.212 to 215, 218 and 219 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.01.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.212 to 215, 218 and 219 of 2022
W.P.No.212 of 2022
R.Vasantha ... Petitioner
Vs
1. The Arbitrator & District Collector,
Thiruvallur District.
2. The Special District Revenue Officer (LA),
NH 205, No.3&4, Lal Bagadhur Sasthiri Street,
Periyakuppam Railway Street,
Near Thulasi Theatre, Thiruvallur – 602 001.
3. The Project Director,
National Highways Authority of India,
Project Implementation Unit-Chennai,
“SRI TOWER”, 3rd Floor, DP-34 (SP),
Industrial Estate, Guindy,
Chennai-32. ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus, directing the second respondent to
pay the petitioner the enhanced compensation as per the proceedings of the
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first respondent made in Rc.No.5633-7/2019/F2/Arbitration dated
22.10.2019 for petitioner's lands measuring an extent of 125 sq.mtr situated
in S.No.502/2, Thirupatchur Village, Thiruvallur District within a time
frame as fixed by this Court.
For Petitioners
in all W.Ps. : M/s.M.F.Shabana
For R-1 & R-2
in all W.Ps : Mr.G.Ameedius
Government Advocate
For R-3
in all W.Ps : Mr.Su.Srinivasan
Standing Counsel
COMMON ORDER
W.P.No.212 of 2022 is filed to issue a Writ of Mandamus to direct
the second respondent to pay the petitioner the enhanced compensation as
per the proceedings of the first respondent made in Rc.No.5633-
7/2019/F2/Arbitration dated 22.10.2019 for petitioner's lands measuring an
extent of 125 sq.mtr comprised in S.No.502/2, situated at Thirupatchur
Village, Thiruvallur District within a time frame as fixed by this Court.
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2. W.P.No.213 of 2022 is filed to issue a Writ of Mandamus to
direct the second respondent to pay the petitioner the enhanced
compensation as per the proceedings of the first respondent made in
Rc.No.5633-5/2019/F2/Arbitration dated 22.10.2019 for petitioner's lands
measuring an extent of 120 sq.mtr comprised in S.No.501/28, situated at
Thirupatchur Village, Thiruvallur District within a time frame as fixed by
this Court.
3. W.P.No.214 of 2022 is filed to issue a Writ of Mandamus to
direct the second respondent to pay the petitioner the enhanced
compensation as per the proceedings of the first respondent made in
Rc.No.26260-1/2019/F2/Arbitration dated 31.01.2020 for petitioner's lands
measuring an extent of 186 sq.mtr comprised in S.No.502/17, situated at
Thirupatchur Village, Thiruvallur District within a time frame as fixed by
this Court.
4. W.P.No.215 of 2022 is filed to issue a Writ of Mandamus to
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W.P.Nos.212 to 215, 218 and 219 of 2022
direct the second respondent to pay the petitioner the enhanced
compensation as per the proceedings of the first respondent made in
Rc.No.5633-6/2019/F2/Arbitration dated 22.10.2019 for petitioner's lands
measuring an extent of 20 sq.mtr comprised in S.No.502/14 (Old
S.No.502/7), situated at Thirupatchur Village, Thiruvallur District within a
time frame as fixed by this Court.
5. W.P.No.218 of 2022 is filed to issue a Writ of Mandamus to
direct the second respondent to pay the petitioner the enhanced
compensation as per the proceedings of the first respondent made in
Rc.No.26260-2/2019/F2/Arbitration dated 31.01.2020 for petitioner's lands
measuring an extent of 50 sq.mtr comprised in S.No.552/1B2, situated at
Thirupatchur Village, Thiruvallur District within a time frame as fixed by
this Court.
6. W.P.No.219 of 2022 is filed to issue a Writ of Mandamus to
direct the second respondent to pay the petitioner the enhanced
compensation as per the proceedings of the first respondent made in
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Rc.No.5633-1/2019/F2/Arbitration dated 22.10.2019 for petitioner's lands
measuring an extent of 427 sq.mtr comprised in S.No.319/50B2, situated at
Thirupatchur Village, Thiruvallur District within a time frame as fixed by
this Court.
7. In identical circumstances, this Court has passed the following
order in W.P.No.14766 etc., batch, dated 16.11.2021:-
“2. The Competent Authority-cum-Special District
Revenue Officer, National Highways i.e., the second respondent
herein passed an 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
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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.
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
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W.P.Nos.212 to 215, 218 and 219 of 2022
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 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 application 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
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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 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
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W.P.Nos.212 to 215, 218 and 219 of 2022
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.
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
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W.P.Nos.212 to 215, 218 and 219 of 2022
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 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
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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 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
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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 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
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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 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
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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 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
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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, 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
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such consequence is spelled out under Section 5 of the
Arbitration Act, which reads as “Notwithstanding anything
contained in any other law for the 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
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percent per annum on such excess amount from the date of
taking possession under section 3D till the date of the actual
deposit thereof.
(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
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Highways Act. However, aggrieved by the same, the
petitioners filed application before the Arbitrator for
enhancement of the 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.”
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8. Following the above order, all the Writ Petitions are also
disposed of in the same terms. No costs.
24.01.2022
Index:Yes/No
Speaking Order: Yes
kv
To
1. The Arbitrator & District Collector,
Thiruvallur District.
2. The Special District Revenue Officer (LA),
NH 205, No.3&4, Lal Bagadhur Sasthiri Street,
Periyakuppam Railway Street,
Near Thulasi Theatre, Thiruvallur – 602 001.
3. The Project Director,
National Highways Authority of India,
Project Implementation Unit-Chennai,
“SRI TOWER”, 3rd Floor, DP-34 (SP),
Industrial Estate, Guindy,
Chennai-32.
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G.K.ILANTHIRAIYAN, J.
kv
and 219 of 2022
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24.01.2022
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