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2018 Supreme(Gau) 1478
IN THE HIGH COURT OF GAUHATI
Kalyan Rai Surana, J.
National Highway Authority of India - Appellant
Vs.
Sanjib Saikia & Ors. - Respondents
Arbitration Appeal No. 6 of 2012
Decided On : 04-01-2018
Advocate Appeared:
C. Baruah, J. Roy, V.L. Singh, C.K.S. Baruah
Headnote:
Arbitration and Conciliation Act, 1996 - Section 18 ,34 and 37 - National Highways Act, 1956 - sub section 7 ,3, and section 3G - Portion of land - Appeal of Arbitration and Conciliation Act is directed against judgment and order passed by District Judge in Misc - This case is that for purpose of development of 4 lane National Highway from Slither as a part of linking East West Corridor a portion of land of respondent was acquired by invoking Right of way under National Highways Act and Pursuant to a notification under section of National Highways Act no objection was received from any of land owners affected by said notification and Accordingly by a notification issued under section of National Highways Act which was published land of respondent herein was acquired and As per notification published in Gazette of India on Additional Deputy Commissioner district was appointed as competent authority for hearing objections and said competent authority determined compensation under section of National Highways Act and a compensation of Rs was awarded by competent authority in favor of respondent - Held, Court observed from order passed by Arbitrator that assessment was made of loss in respect of remaining part of building which was of no use to respondent Arbitrator had relied on estimate prepared by Assistant Engineer Development Authority and by letter has not been assailed because appellant is proceeding - if assessment of acquired portion of RCC building was done by a Private Engineer which appears to be a miss-conceived ground because it is not borne by record and order dated reflects that assessment of un-acquired/remaining portion of land and RCC building was done by engineers of Development Authority and that Executive Engineer (B) as Circle Officer Mayan Revenue Circle were present at time of hearing and in application under section of Act incorrectness of said estimate and report of Executive Assistant Engineer (B) could not be successfully demonstrated and District Judge has re-appreciated calculation and has found no infirmity in Arbitral award in order - There is no material before this Court to take any contrary view and second point of determination is answered accordingly and in view of discussions above and Court considered opinion of this Court appeal fails and impugned order passed by District Judge, in MC Case as order passed by Arbitrator in Case are both upheld and parties are left to bear their own cost of this appeal and Let LCR be returned back – Order Accordingly
Kalyan Rai Surana, J.
Heard Mr. C. Baruah, learned Standing Counsel for the National Highway Authority of India, the appellant herein. Also heard Mr. J. Roy, learned counsel for the respondent No.1, Mr. C.K.S. Baruah learned Government Advocate for the respondents No.2, 5 and 6 as well as Mrs. V.L. Singh, learned counsel for the respondents No. 3 and 4.
2. This appeal under section 37 of the Arbitration and Conciliation Act is directed against the judgment and order dated 21.01.2012 passed by the learned District Judge, Morigaon in Misc. (Arbitration) Case No.7/2010, thereby declining to interfere with the arbitral award dated 13.11.2009 passed by the learned Arbitrator in Case No.174/2009.
3. The brief facts of this case is that for the purpose of development of 4 lane National Highway from Silchar to Srirampur as a part of linking East West Corridor, a portion of the land of the respondent was acquired by invoking the Right of way under the National Highways Act, 1956.
4. Pursuant to a notification under section 3 of National Highways Act, 1956 on 13.04.2005, no objection was received from any of the land owners affected by the said notification. Accordingly, by a notification issued under section 3D of the National Highways Act, 1956 which was published on 11.11.2005, the land of the respondent herein was acquired. As per the notification dated 13.04.2005, published in the Gazette of India on 19.04.2005, the Additional Deputy Commissioner, Morigaon district was appointed as the competent authority for hearing the objections.
5. The said competent authority determined the compensation under section 3G of the National Highways Act, 1956 and a compensation of Rs. 15,44,676/- was awarded by the competent authority in favour of the respondent No.1.
6. As against the unused portion of the land and building/left out portion which was left unassessed, the respondent No.1 preferred an appeal before the Commissioner, North Assam Division, Tezpur. The said Appellate Authority registered the said appeal as Case No.174/09.
7. The said Appellate Authority by an order/arbitral award dated 13.11.2009, by evoking the provisions of section 3G(5) of the National Highway Act, 1956 awarded to the respondent No.1 a sum of Rs. 29,29,554/- as additional compensation for acquisition of remaining portion of 3 storied building and Assam type house for the purpose of construction of 4 lane National Highway, directing that such payment shall be released within one month's time. Aggrieved by the said order award, an application under section 34 of the Arbitration and Conciliation Act was filed before the Court of learned District Judge, Morigaon and the said application was registered and numbered as Misc. (Arb) Case No.7/2010.
8. The learned District Judge, Morigaon by judgment and order dated 21.01.2012, inter-alia, held that as per the opinion of the engineer, a practically unused and unacquired part had become useless and it was not possible for the owner to construct the same with the same money due to cost acceleration and therefore, it was held that the learned Arbitrator had committed no illegality and had committed no wrong. So accordingly, the said application was dismissed and the order dated 13.11.2009 passed by the learned Arbitrator was confirmed.
9. The learned counsel for the appellant has assailed the said order as well as the award passed by the learned Arbitrator, inter-alia, by submitting that at the commencement of the proceeding, as the authorities were pre-occupied at the relevant time for the land acquisition proceeding which was actively going on with the logistic support of the District Administration, Police Administration and other Government Agencies like the Forest Department, ASEB, PHE Department, etc., the authorities of National Highway Authority of India would be extremely busy and therefore, praying for postponement of the date of hearing scheduled on 9th, 10th, 11th and 16th November, 2009, an application dated 04.11
