Telangana High Court

Vasireddy Appa Rao, vs The Union Of India, on 7 November, 2024

Author: T. Vinod Kumar

Bench: T. Vinod Kumar

          THE HON'BLE SRI JUSTICE T. VINOD KUMAR

              WRIT PETITION No.23601 OF 2024

ORDER:

Heard learned Counsel for the petitioner, Sri Gadi Praveen

Kumar, learned Deputy Solicitor General appearing for

respondent No.1, learned Government Pleader for Land

Acquisition appearing on behalf of respondent Nos.2, 3 and 6,

learned Government Pleader for Forests appearing on behalf of

respondent Nos.7 and 8, Sri Dhananjay Naidu, learned Counsel

appearing on behalf of respondent Nos.4 and 5 and perused the

record.

2. Shorn of unnecessary details, the case of the petitioner in

brief, is that though this Court while disposing of the Writ

Petition vide W.P. No.3901 of 2023 filed by the petitioner herein

directed the District Collector, the 2nd respondent herein to

constitute a Committee of experts and proceed with revaluation

of petitioners claim of red sandal wood trees and the

compensation to be paid in respect of the said trees that have

been chopped by the authorities without taking note of the age

of the trees and the yield the petitioner would derive by not

paying the compensation for the same; and that the 2nd

respondent instead of mutating the said exercise had assumed

jurisdiction on to himself as arbitrator even though the

petitioner did not make any application in terms of Section

3(g)(v) of National Highways Act, 1956; and thus, the impugned

proceeding dated 06.06.2024 as passed by the 2nd respondent

authority terming the same as Award cannot be held to be

validly passed.

3. Petitioner further contends that since the petitioner did

not seek any reference to the Arbitrator, the impugned Award

passed by the 2nd respondent is to be held as a nullity and as

such the petitioner is not required to call in question the said

Award in terms of the provisions of Section 34 of Arbitration and

Conciliation Act, 1996.

4. Per contra, learned Government Pleaders and the learned

Standing Counsel appearing for respondents submits that even

assuming the Collector had assumed jurisdiction on to himself

as an Arbitrator and having passed an Award, it is always open

for the petitioner to assail the said Award under Section 34 of

the Arbitration and Conciliation Act, 1996 and, as such, the

petitioner should be relegated to avail the said remedy.

5. Learned Government Pleader and learned Standing

Counsel appearing on behalf of respondents further submit that

the petitioner having taken part in the proceeding before the

Collector, it is not open for him now to claim and contend that

the Collector had assumed jurisdiction on to himself which he

lacked.

6. I have taken note of the respective contentions urged.

7. A reading of Section 34 of the Arbitration and Conciliation

Act, 1996 which is made applicable in terms of Section 3G(6) of

the National Highways Act, 1956 reads as under:

(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).

(2) An arbitral award may be set aside by the Court only if - (a) the party making the application (establishes on the basis of the record of the arbitral tribunal that) -

     i.        A party was under some capacity, or

     ii.       The arbitration agreement is not valid under the law to which the

parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

iii. The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

iv. The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decision on matters not submitted to arbitration may be set aside; or

v. The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or

b). the Court finds that -

(i). the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii) the arbitral award is in conflict with the public policy of India.

8. Though the petitioner contends that the 2nd respondent

authority had assumed jurisdiction on to himself which he

lacks, it is to be noted that the petitioner had participated in the

aforesaid proceedings before the Collector. Though it was

sought to be contended on behalf of the petitioner that the

participation of the petitioner in the proceeding before the

Collector was pursuant to the directions of this Court in W.P.

No.3901 of 2023, it is to be noted that the petitioner having

taken part in the aforesaid proceeding as directed by this Court

whereby this Court had directed the 2nd respondent to

constitute a Committee of Experts and thereafter take a decision

thereon based on the said report, even in the absence of

petitioner making application the matter is required to be

treated as a reference made at the behest of either of the parties

as provided under Section 3G(v) of the National Highways Act,

1956.

9. A Division Bench of this Court in National Highways

Authority of India, Project Implementation Unit,

Sangareddy District, Telangana. V. G. Narsing Rao 1

speaking through is Lordship Hon'ble Sri Justice Ujjal Bhuyan,

(as His Lordship then was) held that "National Highways Act,

1956 lays down the procedure for acquisition of land for laying

of national highways including the award of compensation. Writ

Petitioners have their remedy thereunder.

10. Further, in the decision of the Supreme Court in Union of

India v. Kushala Shetty 2 it was observed that the National

Highways Authority of India is a professionally managed

statutory body having expertise in the field of development and

maintenance of national highways; the projects involving

construction of new highways and widening and development of

the existing highways, which are vital for the development of

infrastructure in the country, are entrusted to experts in the

1 2022 (5) ALD 329 (TS) (DB) 2 (2011) 12 SCC 69

field of highways; it comprises of persons having vast knowledge

and expertise in the field of highway development and

maintenance; NHAI prepares and implements projects relating

to development and maintenance of national highways after

thorough study by experts in different fields; detailed project

reports are prepared keeping in view the relative factors

including intensity of heavy vehicular traffic and larger public

interest; Courts are not at all equipped to decide upon the

viability and feasibility of a particular project and whether a

particular alignment would sub-serve the larger public interest;

in such matters, scope of judicial review is very limited.

11. The Hon'ble Supreme Court dealing with the scheme of

acquisition and the application of provisions of Arbitration and

Conciliation Act, 1996 in the case of Project Director, National

Highways No.45 E and 220 National Highways Authority of

India v. M. Hakeem 3 had held that the scheme of Section 34 of

Arbitration and Conciliation Act, 1996 provides for setting aside

the Award or approving the same and on a challenge being

made.

3 (2021) 9 SCC 1

12. Further, the Supreme Court in Bhaven Construction

through Authorised Signatgory Premjibhai K. Shah v.

Executive Engineer Sardar Sarovar Narmada Nigam Ltd. 4

while referring to the judgment in Nivedita Sharma v. Cellular

Operators Association of India 5 by referring to the Deep

Industries Limited v. Oil and Natural Gas Corporation

Limited 6 observed as under:

"This being the case, there is no doubt whatsoever that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. At the same time, we cannot forget that Article 227 is a constitutional provision which remains untouched by the non-obstante clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction."

13. While the petitioner contends that since the Award passed

by the 2nd respondent is a nullity and the scope of challenge

under Section 34 of Arbitration and Conciliation Act, 1996 is

4 (2021) 1 SCR 1 5 (2011) 14 SCC 337 6 (2019) SCC Online SC 1602

limited, it is to be noted that since Section 34 of the Act also

takes in its ambit, the challenge to the Award being made on the

ground of the petitioner not being given proper notice or as

specified under Clause 3 of sub-section 2 of Section 34 deals

with a dispute not contemplated or not falling within the terms

of the submission of arbitration, this Court is of the view that as

the petitioner has an effective remedy of assailing the order of

the 2nd respondent by filing an application under Section 34 of