IN THE HIGH COURT OF KERALA AT ERNAKULAM
V. CHITAMBARESH, R. NARAYANA PISHARADI, JJ.
Udayakumar - Petitioners
Versus
Project Director Nhai & Ors. - Respondents
ARB. A. No. 68 of 2015
Decided On : 21-01-2019
Facts of the case
The Special Land Acquisition Officer, who is the competent authority under the National Highways Act, fixed the value of the land at Rs.5,88,100/- per Are and granted compensation for land at that rate. The Special Land Acquisition Officer also granted Rs.3,38,666/- as compensation for the structure in the acquired property-Dissatisfied with the compensation granted by the competent authority, the appellant filed application under Section 3G(5) of the National Highways Act before the District Collector, Ernakulam (the arbitrator appointed by the Central Government under that Act) for initiating arbitral proceedings. The arbitrator found that the compensation granted by the Special Land Acquisition Officer is fair and reasonable and that the appellant is not entitled to get enhancement of compensation-Aggrieved by the award passed by the arbitrator, the appellant filed application under Section 34(1) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as `the Act`) in the District Court. The learned Additional District Judge dismissed the application. The order passed by the learned Additional District Judge is challenged in this appeal.
What is the remedy of the appellant to redress his grievance regarding inadequate compensation granted for the land acquired?
Finding of the courts
The party concerned is entitled to make a request to the statutory arbitrator to begin the arbitration afresh and if such request is not considered, he/she is entitled to approach this Court under Article 226 of the Constitution, as otherwise, the statutory remedy provided to him/her for redressal of grievance concerning the compensation determined by the competent authority under the Highways Act would become otiose-Since the right to property is a constitutional right guaranteed under Article 300A and the constitutional remedy under Article 226 is a remedy intended for advancing the cause of justice and not for defeating the same
Result : Allowed
R. NARAYANA PISHARADI, J.
1. Land having an extent of 59 square metres, owned by the appellant in Aluva West Village, with a portion of the building therein, was acquired for the purpose of widening of National Highway from Mannuthy to Aluva. Acquisition of land was made under the National Highways Act, 1956.
2. The Special Land Acquisition Officer, who is the competent authority under the National Highways Act, fixed the value of the land at Rs.5,88,100/- per Are and granted compensation for land at that rate. The Special Land Acquisition Officer also granted Rs.3,38,666/- as compensation for the structure in the acquired property.
3. Dissatisfied with the compensation granted by the competent authority, the appellant filed application under Section 3G(5) of the National Highways Act before the District Collector, Ernakulam (the arbitrator appointed by the Central Government under that Act) for initiating arbitral proceedings. The arbitrator found that the compensation granted by the Special Land Acquisition Officer is fair and reasonable and that the appellant is not entitled to get enhancement of compensation.
4. Aggrieved by the award passed by the arbitrator, the appellant filed application under Section 34(1) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') in the District Court. The learned Additional District Judge dismissed the application. The order passed by the learned Additional District Judge is challenged in this appeal.
5. We have heard the learned counsel for the appellant and the learned Government Pleader and the learned counsel for the first respondent. We have also perused the records.
6. Admittedly, the appellant had not produced any document before the arbitrator in support of his claim for enhancement of compensation for land. Admittedly, no evidence was adduced by the appellant before the arbitrator.
7. Learned counsel for the appellant has prayed that the award may be set aside and the arbitration case may be remanded to the arbitrator for enabling the appellant to adduce evidence. The prayer in the application filed by the appellant under Section 34(1) of the Act is also to set aside and remit the case to the arbitrator.
8. The court has no power, while exercising jurisdiction under Section 34(1) of the Act, to remand or remit the arbitration matter to the arbitral tribunal. The decision of the Apex Court in Kinnari Mullick v. Ghanshyam Das Damani : AIR 2017 SC 2785 is an authority for this proposition.
9. Therefore, the prayer made by the appellant for setting aside the award and to remit the matter to the arbitral tribunal cannot be allowed.
10. The application under Section 34(1) of the Act was filed by the appellant challenging the award on the ground that the arbitrator did not award compensation for land in accordance with the provisions contained in the Land Acquisition Act, 1894. Section 3J of the National Highways Act, 1956 specifically provides that nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under the aforesaid Act. Therefore, the learned Additional District Judge has rightly held that the provisions of the Land Acquisition Act, 1894 cannot be invoked to enhance the compensation for land granted to the appellant.
11. The Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 came into force with effect from 01.01.2014, repealing the Land Acquisition Act, 1894. In the instant case, the acquisition of land was made and arbitration proceedings were terminated long before that date. Therefore, no question of determination of compensation as per the provisions of the aforesaid Act also arises here.
12. Learned counsel for the appellant has also made a prayer for remanding the case to the District Court to enable the appellant to file an application under Section 34(4) of the Act. The prayer in this regard cannot also be allowed. The appellant had not produced any document before the
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