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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Mohammad Rafiq, J.
Vijyant Davra S/o Vishwamitra - Appellant
Versus
Union of India through Secretary, Ministry of Road Transport & Highways - Respondent
S.B. Arbitration Application No.2,3/2015
Decided on : 23-09-2016
National Highways Act, 1956 - Section 3(g) and 3G(5) - Arbitration and Conciliation Act, 1996 - Section 9 - Arbitration agreement - Appointment of Arbitrator - Land Issue - Possession - Applicant is an owner of land bearing khasra no.425 situated at National Highway No.8, Village - A part of that land, admeasuring 593 square meters, is subjected under proposed acquisition proceedings by the Central Government for acquisition of land for National Highways - Applicant received a letter from the authority whereby it was informed that compensation has been determined under Section 3(g) of the National Highways Act, 1956, in lieu of land admeasuring 593 square meters of khasra no.425. The applicant appeared before the competent authority and objected to the proposed acquisition and determination of the amount of compensation on the ground of its unjust and unfairness - Applicant even filed application under Section 9 of Act, 1996 before learned Single Judge praying that an independent commissioner may be ordered to be appointed by non- applicant no.1 to assess the true market value of the land with attached trees and other constructed structures - If competent authority is permitted to proceed then it will lead to irreparable loss to the applicant and that if the non-applicant is allowed to take possession of the land in question then the applicant will not be in a position to show the actual loss suffered by him due to in-existence of the demolished structures – Held, court seeking a direction by way of mandamus or otherwise to the Central Government to make made appointment of the arbitrator rather than approaching the Chief Justice or his designate under Section 11 of the Arbitration and Conciliation Act, 1996. Besides, it appears from the judgment of the Calcutta High Court in Tosiur Rahaman, supra, that that view was taken primarily because in that case the court was, as a question of fact, not informed about the appointment of arbitrator by the Central Government, whereas in the present case, non-applicants have, by production of positive order, proved the appointment of District Collector, Jaipur, as arbitrator - had the occasion to deal with the question of limitation in Madhavi Sharma, supra, for filing the claim under Section 3G(5) of the National Highways Act, 1956 by the aggrieved person. In that case, while relying on the division bench judgment of Karnataka High Court in T. Yunis Vs. National Highways Authority of India and Others in W.A. which was rendered in a petition filed by the National Highways Authority of India itself, it was held that since no period of limitation is stipulated in Section 3G(5) of Act, 1956, the Article 137 of the Limitation Act, which applies in a situation when no period of limitation is provided in the said Act – Ordered Accordingly
Key Points: - The appointment of arbitrator under Section 3G(5) of the National Highways Act, 1956 is exclusive to the Central Government, and failure to appoint does not automatically invoke Section 11 of the Arbitration and Conciliation Act, 1996 (!) (!) (!) . - A landowner whose land is acquired for National Highways has the right to approach the Central Government for appointment of an arbitrator if dissatisfied with the compensation determined (!) (!) (!) . - The provisions of the Arbitration and Conciliation Act, 1996 apply to arbitration under the National Highways Act, 1956, subject to the provisions of the National Highways Act itself (!) (!) .
These two applications have been filed by applicants under Section 11 of the Arbitration and Conciliation Act, 1996 praying for appointment of independent Arbitration Tribunal for resolving their disputes with non-applicants, namely, Union of India through Secretary, Ministry of Road Transport & Highways, and Competent Authority, Land Acquisition (Sub Divisional Officer), Amber, District Jaipur.
2. Since facts of both the applications are almost similar, facts of Arbitration Application No.2/2015 are taken for consideration for the purpose of their disposal. Facts, as averred in the application, are that applicant is an owner of land bearing khasra no.425 situated at National Highway No.8, Village Salarwas, Tehsil Amber, District Jaipur. A part of that land, admeasuring 593 square meters, is subjected under proposed acquisition proceedings by the Central Government for acquisition of land for National Highways. The applicant received a letter from the authority whereby it was informed that compensation has been determined under Section 3(g) of the National Highways Act, 1956, in lieu of land admeasuring 593 square meters of khasra no.425. The applicant appeared before the competent authority and objected to the proposed acquisition and determination of the amount of compensation on the ground of its unjust and unfairness. The applicant even filed application under Section 9 of the Arbitration and Conciliation Act, 1996 (Annexure-A) before learned Single Judge praying that an independent commissioner may be ordered to be appointed by the non- applicant no.1 to assess the true market value of the land with attached trees and other constructed structures. The applicant received a notice dated 30.05.2014 on 16.06.2014 calling upon the applicant to surrender the said land within seven days, otherwise competent authority will be authorized to take possession thereof and to demolish the construction/trees. If the competent authority is permitted to proceed then it will lead to irreparable loss to the applicant and that if the non-applicant is allowed to take possession of the land in question then the applicant will not be in a position to show the actual loss suffered by him due to in-existence of the demolished structures. To protect the interest and rights and in order to ascertain the real loss/damage, the applicant moved an application under Section 9 of the Arbitration and Conciliation Act, 1996 before the District & Sessions Judge, for interim measures, which subsequently got transferred to the court of Additional District & Sessions Judge No.14, which came to be dismissed vide order dated 30.09.2014. Aggrieved thereby, the applicant preferred an appeal before this court, which is pending consideration.
3. Mr. Prateek Kasliwal, learned counsel for applicants, argued that a piece of land out of the same khasra no.425 was required by the Central Government in the year 2009 and in lieu thereof the competent authority was pleased to determine the market value of the land on the date of publication of the notification under Section 3A of the National Highways Act, 1956 at the rate of Rs.4280/- per square yards, whereas the market value of the purportedly acquired land is assessed to be Rs.2270/- per square yards. It is contended that no valuation has been done for the construction on the said land and also number of trees is not counted in the record. It is contended that for protection of the rights of the applicant, a dated 30.06.2014 was written to the non-applicant for appointment of the arbitrator as per the mandate of law but the non-applicant did not pay any heed thereto. There has been no appointment of the arbitrator till date and applicant has been continuously under pressure for securing his rights. It is contended that in order to protect the interest and rights and in order to ascertain the real loss/damage, the applicant moved an application under Section 9 of the Arbitration and Conciliation Act, 1996 before the
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