1
R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21st DAY OF SEPTEMBER 2012
BEFORE
THE HON’BLE MR.JUSTICE MOHAN SHANTANAGOUDAR
W.P.NO.11214 OF 2012 (GM-RES)
AND
W.P.NO.21999 OF 2012(GM-RES)
BETWEEN:
SMT G JAYASHREE
D/O LATE RAJASHEKARAIAH G
AGED ABOUT 49 YEARS,
R/O METIKURKE, HIRIYUR TALUK,
CHITRADURGA DISTRICT
... PETITIONER
(By Sri: B M SIDDAPPA, ADV., )
AND :
1
THE SECRETARY
MINISTRY OF SURFACE TRANSPORT
GOVERNMENT OF INDIA,
DEPARTMENT OF ROAD,
TRANSPORTATION & HIGHWAYS
NEW DELHI-110 001
2
THE MEMBER (ADMINISTRATION)
NATIONAL HIGHWAYS AUTHORITY OF INDIA
MINISTRY OF SHIPPING ROAD TRANSPORT
AND HIGHWAYS, G-5 AND 6 SECTOR-10
DWARKA, NEW DELHI-110 075
3
THE CHAIRMAN
NATIONAL HIGHWAYS AUTHORITY OF INDIA
MINISTRY OF SHIPPING ROAD TRANSPORT
2
AND HIGHWAYS, G-5 AND 6 SECTOR-10,
DWARKA,
NEW DELHI-110 075
4
THE SPECIAL LAND ACQUISITION OFFICER
NATIONAL HIGHWAY AUTHORITY OF INDIA
IST FLOOR, AEROPLANE BUILDING,
V.P.EXTENSION,
CHITRADURGA-577 501
5
THE PROJECT DIRECTOR
NATIONAL HIGHWAYS AUTHORITY OF INDIA
PROJECT IMPLEMENTATION UNIT
NEAR JMIT, NH-4 (KM-201)
CHITRADURGA-577 502
... RESPONDENTS
(By Smt : SHILPA SHAH, ADV., FOR R3-5
-------
)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE PROCEEDINGS PENDING
BEFORE
THE
LEARNED
PRL.
DIST.
JUDGE,
CHITRADURGA IN AC(A) 76/07, VIDE ANN-F, TO THE WP.
THESE WRIT PETITIONS COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner has sought for quashing the
proceedings pending before the Prl. District Court,
Chitradurga in AC(A) 76/07. She has also sought
for quashing the order dated 31.1.2012 vide
3
Annexure-M
in
Arbitration
Suit
No.5/2009.
Consequential reliefs are also sought for.
The land bearing Sy.No.78 of Metikurke,
Hiriyur Taluk, Chitradurga District, owned by the
petitioner was acquired by respondent No.4 for
widening
of
National
Preliminary notification
Highway
No.4
by
dated 20th November
2000 and Final notification dated 23.12.2000. The
competent authority passed the award granting
certain compensation in favour of the petitioner.
Feeling aggrieved, the petitioner filed appeal under
Section 3G(5) of the National Highways Act, 1956
(for short ‘N.H. Act’) before the Arbitrator/Deputy
Commissioner,
Chitradurga
enhancement
of
praying
compensation.
for
The
Arbitrator/Deputy Commissioner enhanced the
compensation to certain extent as per Annexure-B
4
dated 8th May 2007. Feeling aggrieved by the award
passed by the Arbitrator/Deputy Commissioner,
Chitradurga, The National Highway Authority of
India(for short “NHAI”) made an application under
Section 34(2) of the Arbitration and Conciliation Act,
1996(for short ‘Arbitration Act’) by filing A.C.76/07.
The NHAI has sought for setting aside the order
passed
by
the
Arbitrator
by
filing
the
said
application. The said appeal was renumbered as
A.S.Suit No.5/2009 before the Prl. District Court,
Chitradurga. The same is being proceeded with.
During
the
pendency
of
the
said
suit,
an
application came to be filed by the petitioner
herein praying for deciding the preliminary issue
relating to jurisdiction.
The
petitioner contended
that the Civil Court has no jurisdiction to proceed
with
the
matter
under
Section
34(2)
of
the
Arbitration Act and that the award made by the
5
Arbitrator
is
final
and
consequently
the
compensation needs to be deposited pursuant to
the award made by the Arbitrator as provided
under Section 3H of the concerned Rules. The
question of jurisdiction was decided by the
District Court by holding that the Civil Court has
got jurisdiction under Section 34 of Arbitration
Act.
2. Sri. Siddappa, learned counsel for the
petitioner submits that the proceedings before the
Civil Court are not maintainable, inasmuch as,
the award made by the Arbitrator is final in all
aspects and that the same should be accepted by
both
the
parties
and
accordingly,
the
compensation needs to be paid as per the award
made by the Arbitrator. According to him, only the
procedure as contemplated under the provisions
6
of Arbitration Act will apply to every arbitration
before the Arbitrator (i.e., Deputy Commissioner)
under the N.H. Act and the same cannot be
stretched
to
maintainable
mean
under
that
Section
further
34(2)
suit
of
is
the
Arbitration Act.
Writ petition is opposed by learned Advocate
Smt. Shilpa Shah, appearing on behalf of NHAI by
contending that there is nothing under the
provisions of N.H. Act to restrict the operation of
Arbitration Act in respect of procedure only.
3. Section 3G of the N.H. Act deals with
determination of amount payable as compensation
in respect of the land lost by the landowners for
the benefit of the National Highway Authority.
Sub-section (1) of Section 3G reveals that where
the land is acquired under the provisions of N.H.
7
Act, compensation shall be determined by the
competent authority. Under Sub-section (5) of
Section 3G, if the amount determined by the
competent authority under sub-sections (1) or (2)
is not agreeable to either of the parties, an
application by either of the parties may be made
and
the
same
Arbitrator
to
shall
be
be
determined
appointed
by
the
by
the
Central
Government. Undisputedly, in the matter on
hand, the jurisdictional Deputy Commissioner is
appointed
as
Government.
Arbitrator
Thus
the
by
the
Central
Arbitrator/Deputy
Commissioner has determined the compensation
between the parties as per Annexure-B.
Sub-section (6) of Section 3G clarifies that
subject
to
the
provisions
of
N.H.
Act,
the
provisions of Arbitration Act shall apply to every
8
arbitration under the N.H. Act. If sub-sections (5)
and (6) are read together and homogeneously, it is
clear that the Arbitrator will have to conduct the
proceedings as per the provisions of Arbitration
Act and all the provisions of Arbitration and
Conciliation Act will apply to every arbitration.
Thus sub-section (6) of Section 3G does not
restrict the application under the N.H. Act as
contended by Sri. Siddappa. On the other hand,
all the provisions of Arbitration Act will apply to
every arbitration conducted under the provisions
of N.H. Act. If it is so, as a natural corollary, the
provisions of Section 34(2) of Arbitration Act also
would apply to the Arbitration conducted under
N.H. Act. It is also relevant to note that the
provisions of the Land Acquisition Act will not
apply to such matters, as is clear from Section 3J
of N.H. Act.
9
Section 2(1) (e) of Arbitration Act defines the
‘Court’. Section 2(4) of the said Act reads thus:-
This Part except sub-section (1) of
Section 40, Sections 41 and 43 shall apply to
every arbitration under any other enactment
for the time being in force, as if the
arbitration were pursuant to an arbitration
agreement and as if that other enactment
were an arbitration agreement, except in so
far as the provisions of this Part are
inconsistent with that other enactment or
with any rules made thereunder.”
Section 2(4) falls under Part I of Arbitration
Act. So also, Section 34 falls in Part I of
Arbitration Act. Thus the provisions of Section 34
shall apply to every arbitration under any other
enactment for the time being in force, as if the
arbitration
were
pursuant
to
an
arbitration
agreement and as if that other enactment were an
10
arbitration agreement, except in so far as the
provisions of that part are inconsistent with that
other
enactment
or
with
any
rules
made
thereunder.
Thus, it is clear that the provisions of Section
34(2) will apply to every arbitration arising under
the provisions of N.H. Act, as if, there is
arbitration
agreement
particularly
when
there
between
is
no
the
parties,
inconsistency
between the provisions of Arbitration Act and the
provisions of N.H.Act in that aspect of the matter.
Thus, is it amply clear that the Civil Court has got
jurisdiction to proceed with the matter under
Section 34(2) of Arbitration Act, to find out the
legality of the award made by the Arbitrator under
the provisions of N.H. Act.
11
Sri. Siddappa, learned counsel relying upon
the judgment of the Apex Court in the case of
M/s. Braithwaite and Co., (India) Ltd., Vs. The
Employees’ State Insurance Corporation reported
in AIR 1968 SC 413 submits that the provisions of
Arbitration Act are to be adopted in law for a
limited and definite purpose and therefore, there
is no justification to extend it beyond the purpose
for which the Legislature adopted it.
The dictum
laid down in the aforementioned judgment of the
Apex Court is not applicable to the facts of this
case, inasmuch as, the provisions of Sub-sections
(5) and (6) and Section 3G nowhere limit the
applicability of the Arbitration Act only for the
purpose of procedure to be adopted by the
Arbitrator. It is by now well settled that the
Arbitrator can adopt his own procedure
by
consent of the parties. Thus there cannot be any
12
set of procedure to be adopted by the Arbitrator.
On the other hand, sub-section (6) of Section 3G
of N.H. Act would clearly disclose that the
provisions of Arbitration Act apply to every
arbitration under the provisions of N.H. Act.
So also, Sri. Siddappa, learned counsel
submits that the provisions of Section 3H(5) of
N.H. Act would become redundant if procedure as
contemplated under Section 34 and Section 37 of
Arbitration
Act
is
made
applicable
to
the
acquisition made under the provisions of the N.H.
Act. Such a contention also cannot be accepted.
Since
the
procedure
is
prescribed
by
the
Legislature, that has to be followed in letter and
spirit and that there cannot be any deviation from
such procedure, merely because the party to the
proceedings are put to hardship.
13
Hence, this Court does not find any ground
to interfere with the impugned order as well as the
proceedings
under
challenge.
Petitions
stand
dismissed. The Court below is directed to decide
the application filed by NHAI on merits and in
accordance with law at an early date. Both the
parties shall co-operate.
Sd/JUDGE
*mn/-