Jayaram Panda vs Project Director
2022 Latest Caselaw 2486 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                              ARBA No.58 of 2018
                             (Through hybrid mode)

            Jayaram Panda                          ....            Appellant

                                                 Mr. S.K. Sarangi, Advocate
                                      -versus-

            Project Director, M/s. National        ....         Respondents
            Highway Authority of India and
            others
                                                   Mr. A.K. Sharma, AGA
                                              Mr. U.C. Mohanty, Advocate

                     CORAM: JUSTICE ARINDAM SINHA
                                     ORDER

09.05.2022 Order No.

10. 1. Mr. Sarangi, learned advocate appears on behalf of

appellant and on 22nd March, 2022 had submitted, impugned

judgment dated 5th December, 2018 is liable to and should be

set aside in appeal. The Court below erred in not appreciating

that his client had mounted good challenge against award by

order dated 13th June, 2016 regarding quantum of compensation

to be paid to his client on acquisition by National Highways

Authority of India (NHAI). There were two technical

evaluations of industrial loss suffered and compensation to be

paid to his client. The earlier assessment returned finding of

compensation payable at Rs.55,69,904/-. There was a

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subsequent assessment, which returned figure Rs.92,38,627/-.

He submits, there is no reasoning in the award as to why latter

assessment stood rejected.

2. Today, he draws attention to comments made by

General Manager DIC-Ganjam-Berhampur-cum- Chairman

Technical Committee dated 11th May, 2010. He submits, copy

of this document have been circulated to respondents, State and

NHAI.

3. He demonstrates from the comments that actual loss of

interest of Rs.31,49,513/- had not been considered basing on

Rs.24,61,359/- as fixed capital investment. Loss of interest was

calculated on Rs.17,90,759/- towards fixed capital investment,

determined by the previous committee. Furthermore, specific

damages were taken by the previous committee at

Rs.19,10,375/- but calculation given in the comments show the

figure to be Rs.38,10,538/-. The aggregate difference added to

the award amount make up the sum of Rs.92,38,627/-. He

submits, this recommendation by the comments was urged by

his client before the arbitrator but rejected out of hand.

4. Mr. Mohanty refers to impugned judgment dated 5th

December, 2018, paragraph-8. He submits, the learned judge

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has given clarification as to why the comments are baseless. In

the circumstances, the award could not have been interfered

with and the Court below did not do so.

5. Mr. Sharma, learned advocate, Additional Government

Advocate appears on behalf of State and submits, the comments

are personal opinion/views of the General Manager, not

approved by the State Government. The recommendation of the

Technical Committee approved by the State Government is at

Rs.55,69,904/- as awarded by the arbitrator. He submits, there

should not be interference.

6. Perused impugned award. It appears from finding

therein that the assessment report at Rs.55,69,904/- was signed

by representative of NHAI with a dissent note. The findings

continue to he, inter alia, as appearing in the paragraph

reproduced below.

"The learned Advocate appearing for the PD, NHAI, in his counter, has stated that since the technical committee and DIC have assessed the compensation in this case and the Land Acquisition Officer-cum-CA concurs the same, he has no other agency to go into correctness of the assessment and he has no other course except to carry out the orders

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of the authority as deems fit and proper and to place fund with the LAO-cum-CA for its payment.

Since the new Technical Committee has assessed the loss at Rs.55,69,904/- and recommended it to the Government in industries Department who have accepted the same and communicated for needful action vide his letter No.6577 dt.29.05.2010, the said assessment with regard to compensation is found justified. But the claim for payment of compensation of Rs.92,38,627/- has not been accepted by the Technical Committee. Taking advantage of the comments of GM, DIC dt.11.5.2010 on the objection of PD, NHAI, the OP No.1 has claimed the aforesaid amount. As the said amount has not been approved by the Technical Committee members formed by the Govt. Industries Department, the prayer for payment of compensation of Rs.92,38,627/- merits no consideration and accordingly it is rejected."

7. It is clear from impugned award that the Tribunal took

into consideration as decisive factor, change of stand of NHAI

in accepting recommendation of the Technical Committee made

at Rs.55,69,904/-. It may be that the Director, being Chairman

of the Committee, had commented on omissions made by the

Committee, in his personal capacity. However, appellant had

based its case for higher amount of compensation based on the

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comments. The dispute before the Tribunal was not controversy

regarding acceptance of the Technical Committee

recommendation of reassessed amount at Rs.55,69,904/-

between the administration and NHAI. The controversy was

between appellant on the one hand and the authorities on the

other, regarding claim for higher compensation at

Rs.92,38,627/-. Perusal of the award does not give illumination

of a single reason directed towards the controversy.

8. It is true that by paragraph-8 in impugned judgment

several reasons have been given by the Court below but the

Court adjudicating a challenge against arbitral award is to be

guided by provisions in section 34, Arbitration and Conciliation

Act, 1996. The challenge is not akin to a first appeal being

continuation of the suit. Challenge against an award is on

grounds limited by section 34.

9. Sub-section (3) in section 31 mandates that the arbitral

award shall state the reasons, upon which it is based unless,

inter alia, it is to be made as per the clauses (a) and (b) in the

sub-section. Said clauses do not apply in the facts and

circumstances, as parties had not agreed to have the award

without reasons or that it was an award based on agreed terms.

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Appellant had a contesting claim in the Tribunal, of seeking

higher compensation. As aforesaid, the Tribunal directed its

attention to settling the dispute between State and NHAI

regarding the reassessment made by the Technical Committee at

Rs.55,69,904/- and awarded the same.

10. The award being bereft of reason, goes against the

mandate of the Act and therefore is against public policy. It is

set aside.

11. On query from Court parties submit that a different

person is now holding office as Collector, Ganjam. Said office

is directed to deal with and dispose of the reference, as

expeditiously as possible.

12. The appeal is disposed of.

(Arindam Sinha) Judge

Sks