Dismissed

Ahalya v. Project Director

Karnataka HC14 Dec 2022MFA/3676/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka heard an appeal under Section 37 of the Arbitration Act against a District Court judgment confirming an arbitrator's award. The court held that the Section 34 application was time-bound and lacked merit, and the 2013 Land Acquisition Act did not apply as proceedings ended in 2010. The appeal was dismissed.

What did the court decide?

The Miscellaneous First Appeal was dismissed, upholding the District Judge's order confirming the arbitral award.

Ahalya Vs Project Director — Arbitration | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON’BLE MS. JUSTICE JYOTI MULIMANI

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MISCELLANEOUS FIRST APPEAL No.3676 OF 2015 (AA)

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BETWEEN:

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AHALYA D/O GANAPATHIRAO, AGED ABOUT 41 YEARS, R/O KANDALI VILLAGE, KASABA HOBLI, HASSAN TALUK – 573 201. …APPELLANT

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(BY MS.NALINA MAYEGOWDA, SENIOR COUNSEL FOR SMT.KAVITHA H.C., AND BYRAREDDY G.S., ADVOCATES)

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AND:

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PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, NH 48, SY. NO.13, 14, K.M.NAGSANDRA, BANGALORE-TUMKUR ROAD, N.H.4, BANGALORE - 73.

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SPECIAL LAND ACQUISITION OFFICER & COMPETENT AUTHORITY, NATIONAL HIGHWAY AUTHORITY OF INDIA, (NELAMANGALA-HASSAN DIVISION) KUNIGAL.

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TECHNICAL MANAGER NHAI, KUNIGAL. …RESPONDENTS

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(BY SRI BIDAN CHANDRAN AND SRI SREENATH V.K., ADVOCATES

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FOR M.V.KINI AND CO. FOR R2 AND R3; SRI PADMANABHA HOLLA S., AND CHAITHANYA V.JOSHI, ADVOCATES FOR M/S M.V.KINI AND CO. FOR R1)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37 (1)(b) OF THE ARBITRATION ACT PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE DATED:16.09.2014 PASSED IN AC.NO.283/2013 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE AT HASSAN WHEREBY THE AWARD PASSED BY THE ARBITRATOR IN NO.LAQ:ARB/NH.48/CR/51/2010-11 DATED: 10.05.2013 WAS CONFIRMED, THEREBY ENHANCING THE COMPENSATION AS SOUGHT FOR AND ETC.

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THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THROUGH VIDEO CONFERENCING, THIS DAY, SITTING AT DHARWAD, THIS COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Ms.Nalina Maye Gowda., learned Senior counsel on behalf of Smt.Kavitha.H.C., for appellant and Sri.Bidan Chandran., learned counsel on behalf of M.V.Kini & Co. for respondents 1 to 3 have appeared in person.

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The facts, put briefly are these:

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It is stated that the Special Land Acquisition Officer vide Preliminary Notification under Section 3A (1) of the National Highways Act, 1956 (for short N.H.Act) acquired the lands owned by the appellant for the formation of 4/6

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laning of National Highway NH 48 for a public purpose and the appellant received the compensation as per the prevailing market rate in the locality for the acquisition of land measuring an extent of 78 square meters, situated at Kandali Village. Base on the said Notification, the Competent Authority for Land Acquisition determined the amount of compensation as per sub-section (1), (2), (3) & (4) of Section 3G of the National Highways Act, 1956. Finally, the Competent Authority, at the time of determining the compensation, fixed the compensation at Rs.3,09,560/- (Rupees Three Lakh Nine Thousand Five Hundred and Sixty only) per acre for dry land and Rs.1,20,000/- (Rupees One Lakh Twenty Thousand only) per acre for the wetland. The appellant was paid compensation for land and structure. Contending that the compensation awarded by the Special Land Acquisition Officer was very meager, the appellant filed an Claim Statement before the Deputy Commissioner, Hassan seeking enhancement of compensation.

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The Deputy Commissioner, Hassan, vide Order No.LAQ:ARB/NH.48/CR/51/2010-11 dated 10.05.2013, enhancing the compensation by four times as against the award passed by the Competent Authority. The appellant challenged the order of the Deputy Commissioner by filing an arbitration suit before the District Court in A.S.No.283/2013. The learned Judge of the District Court vide Judgment dated 16.09.2014, dismissed the suit. This Judgment is called into question in the captioned appeal on various grounds as set out in the Memorandum of Appeal.

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Smt.Nalina Maye Gowda., learned senior counsel appearing for the appellant submits that the Judgment passed by the District Court is arbitrary and illegal.

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Next, she submitted that the District Court erred in not considering that the appellant was entitled to compensation for the building/malkies/trees situated in the land in question apart from the compensation for the land itself which is also very meager.

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A further submission is made that the District Court erred in confirming the Award of the Arbitrator without considering that Kandali Village is situated adjoining Hassan City. She submitted that the District Court ought to have considered that the value of the land is more than Rs.7,00,000/- to Rs.8,00,000/- per Gunta and the Deputy Commissioner passed the award without following the sales statistics method or capitalization method or expert opinion.

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She submitted that the acquisition of the lands under the National Highways Act is discriminatory vis-a-vis the compensation paid under the Land Acquisition Act wherein the land losers stand to be compensated under various heads. She also submitted that the District Judge ought to have set aside the arbitral award on the ground of public policy.

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Learned Senior Counsel vehemently contended that the appellant is entitled to the extension of the benefit of

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the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 (for short LARR Act 2013).

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Lastly, she submitted that viewed from any angle, the Judgment passed by the District Court is unsustainable in law and hence, the same is liable to be set aside and the matter is to be remanded to the arbitrator for consideration of all aspects for grant of compensation on the parameters set down in section 26 to 28 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 for grant of solatium, market value and interest, etc.,

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Learned Senior counsel has placed reliance on the following decisions:

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1. N.V. INTERNATIONAL Vs. STATE OF ASSAM AND OTHERS - (2020) 2 SCC 109.

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2. GUJRAT INDUSTRIAL DEVELOPMENT CORPORATION Vs. S.R. PARMAR AND CO. AND OTHERS - 1993 SCC ONLINE 194.

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3. LACHMESHWAR PRASAD SHUKUL AND OTHERS Vs. KESHWAR LAL CHAUDHURI AND OTHERS.

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4. WEST COAST PAPER MILLS LTD. Vs. INDIRA RAO - ILR 1991 KAR 2516.

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5. UNION OF INDIA AND ANOTHER Vs. TARSEM SINGH AND OTHERS - (2019) 9 SCC 304.

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6. LALITHA AND OTHERS Vs. UNION OF INDIA, NEW DELHI AND OTHERS, ILR 2002 KAR 259.

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7. NATIONAL HIGHWAYS AUTHORITY OF INDIA Vs. P. NAGARAJU @ CHELUVAIAH AND ANOTHER - 2022 SCC ONLINE SC 864.

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8. STATE OF CHATTISGARH AND ANOTHER Vs. SAL UDYOG PRIVATE LIMITED - (2022) 2 SCC 275.

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9. GOVERNMENT OF INDIA AND OTHERS Vs. INDIAN TOBACCO ASSOCIATION – (2005) 7 SCC 396.

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10. ARKANIYAMMA, SINCE DECEASED BY HER LR. N. VELUSWAMY, S/O.LATE K. NALLIYANAGOUNDER Vs. NATIONAL HIGHWAYS AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT - LAWS(KAR) 20121-257.

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11. PARAMASIVAM SINCE DEAD BY LR’S Vs. NATIONAL HIGHWAYS AUTHORITY OF INDIA AND OTHERS - MFA NO.7297/2009.

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Sri.Bidan Chandran., learned counsel

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appearing on behalf of the National Highways Authority justified the Judgment passed by the District Court.

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Next, he submitted that the Competent Authority by following the provision of law as contained in Section 3G (7) of N.H.Act, passed an award determining the compensation payable to the appellant as well as other rightful owners whose land is acquired under the aforesaid Notifications.

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It is also submitted that as per Section 3G(7)(a) of N.H.Act, the Competent Authority has to fix the market value as of the date of Notification issued under Section 3A (1) of the National Highways Act.

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A further submission is made that the Competent Authority after because the average market value as per

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sale statistics being Rs.11,615/- (Rupees Eleven Thousand Six Hundred and Fifteen only) per-cent is less than the market value guidelines issued by the Registration Department, the Competent Authority has adopted the Guideline Value issued by the Registration Department for determining the compensation payable to the land. As per the guideline value, the value of the land by the side of NH66 for the residential purpose was fixed at Rs.26.40 Lakhs per acre (Rs.26,400/- per-cent) and for Commercial sites, it was Rs.28.60 lakhs per acre (Rs.28,600/- percent). Therefore, the Competent Authority has determined compensation for all acquired land under Haleyanagadi Village at a commercial rate and fixed compensation at the rate of Rs.26,400/- per-cent.

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Learned counsel vehemently contended that the second award was passed by the Competent Authority on 14.05.2010, since the land value has to be determined as of the date of notification issued under Section 3-A(1) of N.H Act, the sales statistics value arrived was more than

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the guideline value, the market value for Dry Agricultural Land was fixed at Rs.3,09,560/- per acre and for wet-land, it was fixed at Rs.1,20,000/- per acre and for the converted site, the rate was fixed at Rs.25/- per square feet.

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The appellant not satisfied by the Award passed by the Competent Authority sought arbitration as per Section 3G (5) of the N.H Act and filed a claim statement before the Arbitrator. The Arbitrator vide Award bearing No.LAQ/ARB/NH-48/CR/51/2010-11 passed Arbitral Award on 10.05.2013 enhancing the compensation by four times as against the award passed by the Competent Authority together with 10% easementary rights on the enhanced compensation along with 9% interest after taking into consideration the claimant’s entitlement to solatium and interest as per the order dated 11.10.2002 passed by this Court in W.P.Nos.42505-506 of 1999 c/w W.P.No.3755 of 2000.

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Learned counsel submits that the ground about acquired land fetches more compensation without basis. It is also submitted that this Court in H.M.SHANKARAMURTHY’s case reported in ILR 2010

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KAR 3711 held that a provision for setting aside an award contending that the award is not sustainable in law on any of the grounds as indicated above can never be construed as a provision enabling the land-owner seeking for enhancement of the compensation amount as determined by the Arbitrator.

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He also submitted that the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 do not apply to the facts and circumstances of the case.

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Lastly, he submitted that the award passed by the arbitrator can be challenged only on the grounds stated in Section 34 of the Arbitration Act and none of the grounds under Section 34 is urged either in proceedings under Section 34 or in the appeal. Accordingly, he submits that

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the appellant has not made out any good grounds to interfere with the Judgment of the District Court. Accordingly, he submitted that the appeal is liable to be dismissed.

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Learned counsel has placed reliance on the following decisions:

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ASSOCIATE BUILDERS VS. DELHI DEVELOPMENT AUTHORITY – (2015) 3 SCC 49.

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SSANGYONG ENGINEERING & CONSTRUCTION CO. LTD. VS. NATIONAL HIGHWAYS AUTHORITY OF INDIA (NHAI) – MANU/SC/0705/2019.

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PATEL ENGINEERING LTD. VS. NORTHEASTERN ELECTRIC POWER CORPORATION LTD - MANU/SC/0447/2020.

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PROJECT DIRECTOR, NATIONAL HIGHWAYS NO.45 E AND 220 NATIONAL HIGHWAYS AUTHORITY OF INDIA VS. M. HAKEEM AND ANOTHER – (2021) 9 SCC 1.

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NATIONAL HIGHWAYS AUTHORITY OF INDIA VS. P. NAGARAJU AND ORS. – MANU/SC/0850/2022.

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SRI H.C.KUMARASWAMY VS. SPECIAL LAND ACQUISITION OFFICER AND THE COMPETENT AUTHORITY IN M.F.A.NO.5302/2019 AND CONNECTED NUMBERS DATED 19.07.2021.

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H.M. SHANKARAMUTHY VS. NATIONAL HIGHWAYS AUTHORITY OF INDIA AND OTHERS – ILR 2010 KAR 3711.

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S. NINGAPPA VS. SPECIAL LAND ACQUISITION OFFICER AND COMPETENT AUTHORITY AND OTHERS – 2022 SCC ONLINE KAR 680.

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Heard, the submissions and contentions put

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forth on behalf of the respective parties and perused the material evidence on record with utmost care.

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In the appeal before me, the appellant questioned the order passed by the District Judge under Section 34 of the Arbitration and Conciliation Act 1996.

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The first and main area of challenge is section 34 of the Arbitration and Conciliation Act 1996; the second is the

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extension of the benefits of the provisions of the LARR Act 2013 to the appellant.

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Based on the above-said challenges, the following points would arise for my consideration:

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Is the District Judge right in rejecting the application filed under Section 34 of the Arbitration and Conciliation Act?

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Is the appellant entitled to the extension of the benefits of provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013?

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The detailed narration of facts would not call for reiteration. The case falls within a small compass. The issue before the Arbitrator was quite simple, but as it went on appeal, it widened out.

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This is an appeal filed under Section 37(1)(b) of the Arbitration and Conciliation Act, 1996 by the landowner

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whose lands were acquired under the provisions of the National Highways Act, 1956.

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Suffice it to note that the Competent Authority passed the Award under Section 3G (1) and (2) of N.H. Act in line with Section 3G (7) on 10.05.2010. The owner not being satisfied with the award passed by the Competent Authority sought a reference from the Arbitrator in terms of sub-section (5) of Section 3G of the NH Act and filed a claim statement before the Arbitrator. The Arbitrator passed the Award on 10.05.2013 and enhanced the compensation amount four times as against the award passed by the Competent Authority.

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The Competent Authority determined the compensation amount in the year 2010 itself. The landowner had recourse to the provision of Section 34 of the Arbitration and Conciliation Act, 1996 for enhancement of compensation amount. The learned District Judge who functioned as the Judge presiding over the Court to which such an application was made under Section 34 of the

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Arbitration and Conciliation Act 1996 examined the application and rejected the same on the 16^th day of September 2014.

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Smt.Nalina Maye Gowda. learned Senior counsel in presenting her argument strenuously urged that the District Court ought to have enhanced the compensation as sought by the land-owner, particularly, as the land is situated adjoining Hassan city, etc. she also argued that the order passed by the District Judge suffers from patent illegality.

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By way of answer, learned counsel Sri.Bidan Chandran submitted that the scope of Section 34 is limited and the Award passed by the Arbitrator can only be challenged on the grounds enumerated in Section 34 of the Arbitration and Conciliation Act, 1996, and none of the grounds as set out in Section 34 of the Act is urged.

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I have examined the rival contentions about Section

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34 of the Arbitration and Conciliation Act of 1996.

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A reading of section 34 of the Arbitration and Conciliation Act 1996, clearly indicates that it is a provision to enable a person aggrieved with the award to seek for setting aside the award on any one or the other of the enumerated grounds as indicated in sub-section [2] of section 34 of the Arbitration and Conciliation Act 1996.

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Extracting Section 34 is helpful in indicating the right approach.

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34. Application for setting aside an

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arbitral award. —

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(2) An arbitral award may be set aside by the Court only if—

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(a) the party making the application furnishes proof that—

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(i) a party was under some

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incapacity, or

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(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

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

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(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:

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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 decisions on matters not submitted to arbitration may be set aside; or

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(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

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(b) the Court finds that—

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

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(ii) the arbitral award conflicts with the public policy of India.

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Explanation – Without prejudice to the generality of sub-clause (ii) it is hereby declared, for the avoidance of any doubt, that an award conflicts with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81.

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This section, in conjunction with Section 5 makes it clear that an arbitration award that is governed by Part I of the Arbitration and Conciliation Act 1996 can be set aside only on grounds mentioned under Sections 34 (2) and (3), and not otherwise.

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Section 5 reads as follows:

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5. EXTENT OF JUDICIAL INTERVENTION- “ Notwithstanding anything

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contained in any other law for the time being in force, in matters governed by this part, no judicial authority shall intervene except where so provided in this part ”.

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It is pivotal to note that the 1996 Arbitration Act was enacted to replace the 1940 Arbitration Act to provide for an arbitral procedure that is fair, efficient, and capable of meeting the needs of arbitration; also to provide that the tribunal gives reasons for an arbitral award; to ensure that the tribunal remains within the limits of its jurisdiction; to minimize the supervisory roles of courts in the arbitral process.

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Bearing these principles in mind, I will now consider the point urged on behalf of the appellant about Section 34 of the Arbitration and Conciliation Act 1996. The language is very plain. It is seen that none of the grounds contained in sub-section (2)(a) of section 34 deal with the merits of the decision made by an arbitral award. It is only when the award conflicts with the public policy of India that the

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merits of an arbitral award are to be looked into under certain specified circumstances.

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It is well settled that a provision for setting aside an award contending that the award is not sustainable in law on any one of the grounds as indicated in Section 34 can never be construed as a provision enabling the land owner to seek enhancement of the compensation amount as determined by the Arbitrator.

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The law relating to Section 34 of the Arbitration and Conciliation Act 1996 has been laid down by the Apex Court from time to time. Further, we cannot ignore the parameters laid down in a series of judgments by the Apex Court as to the limitations that a Judge hearing objections to an arbitral award under Section 34 of the Arbitration Act.

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Suffice it to note that t he contention about the perversity and illegality of Section 34 is no longer resIntegra.

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In ASSOCIATE BUILDER ’s case, the Apex Court has considered the parameters of the judgments as to the limitations to which a Judge hearing objection to an arbitral award under Section 34.

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In SSANGYONG’ s case, the Apex Court while considering a challenge to an award passed in an international commercial arbitration considered the expansive interpretation given to the “public policy of India” in ONGC LTD VS SAW PIPES LTD popularly known as “SAW PIPES” CASE reported in (2003) 5 SCC 705 and ONGC LTD VS WESTERN GECO INTERNATIONAL LTD, popularly known as “WESTERN GECO” CASE reported in (2014) 9 SCC 263 has done away with, and new ground of “patent illegality”, was introduced which would apply to applications under Section 34 made on or after 23.10.2015.

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Suffice it to note that in paragraphs 26 and 27 of the judgment, the Apex Court held that in so far as domestic

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awards in India are concerned, an additional ground of patent illegality is available under Sub-Section 2A added by the Amendment Act 2015, to Section 34. The Apex Court has also held that there must be patent illegality appearing on the face of the award, which refers to such illegality as goes to the root of the matter but which does not amount to the mere erroneous application of the law. In short, what is not subsumed within “the fundamental policy of Indian law”, namely, the contravention of a statute not linked to public policy or the public interest, cannot be brought in by the backdoor when it comes to setting aside an award on the ground of patent illegality. However, re-appreciation of evidence is not allowed under the ground of “patent illegality” appearing on the face of the record.

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To answer the argument about Section 34, it is necessary to give a few dates and facts.

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Suffice it to note that the Competent Authority determined the compensation on 10.05.2010 and

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14.05.2010. The arbitrator passed the arbitral award on 10.05.2013. The appellant/ land loser filed application under Section 34 of the Arbitration and Conciliation Act 1996 on 01.10.2013. The District Judge rejected the Section 34 application on 16.09.2014. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 has come into force on the first day of January 2014. The Arbitration and Conciliation (Amendment) Act 2015 (No.3 of 2016) has come into force on the 23^rd of October 2015.

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As already noted above, the Apex Court has held new ground of “patent illegality”, which would apply to applications under Section 34 made on or after 23.10.2015. But in the present case, the appellant filed a section 34 application before 23.10.2015. Hence, the point urged on behalf of the appellant about patent illegality is not available to the appellant since the application under Section 34 is made before 23.10.2015. Turning now to the other question which arises namely, whether Section

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34(2)(A) of the Arbitration and Conciliation (Amendment) Act 2015 applies to the facts and circumstances of the present case. The answer is no. The reason is simple section 34(2)(A) was substituted by an amendment to section 34 with effect from the 23^rd day of October 2015.

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The law is settled by the Apex Court that the new ground of patent illegality would apply to applications under Section 34 made on or after 23.10.2015. In the present case, the application under Section 34 is made on the 1^st day of October 2013.

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In my opinion, it is not correct to say that the order passed by the learned Judge of the District Court suffers from infirmity much less any illegality. The District Judge has rightly rejected the application under Section 34 of the Arbitration and Conciliation Act, 1996. In my considered view, the application itself was not tenable. Therefore, the contention about Section 34 is satisfactorily hopeless.

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In this view of the matter, I must negate Ms.Nalina Maye Gowda’s plea about patent illegality. Hence, I am constrained to hold that the learned judge of the District Court has rightly rejected the application under Section 34 of the Arbitration and Conciliation Act, 1996.

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Now, I will go ahead to consider the other point urged on behalf of the appellant i.e., about the extension of the benefits of the provisions of the Right to Fair Compensation Act, 2013 to the facts and circumstances of the present case.

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Smt.Nalina Maye Gowda. learned Senior counsel argued that during the pendency of the present appeal, the Land Acquisition Act 1894 has been repealed and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 has come into force. Hence the extension of the benefits of the provisions under the LARA Act, 2013 be applied to the appellant herein.

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She contended by saying that the Apex Court in TARSEM ’s case extended the benefits of the provisions of the LARA Act, 2013 to the land losers. She argued that the appellant is deprived of negotiating and bargaining power. She drew attention of the court to section 37 and strenuously urged that the section 37 Appeal is a continuation of proceedings and if the benefits of the provisions of the LARR Act are extended to the appellant, the same would equalize the negotiating and bargaining power. In support of her contention, she relied upon the decision reported in M/S N.V. INTERNATIONAL V/s THE STATE OF ASSAM & OTHERS – Civil Appeal No.9244/2019 .

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In reply, Sri.Bidan Chandran., learned counsel appearing on behalf of the National Highways submitted that Power is vested in Central Government to acquire the lands for public purposes. In the instant case, the Central Government is satisfied that for a public purpose, the land of the appellant is acquired i.e., for the operation of the

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National Highway and the Provision of Sections 3A to 3J has been adhered to. He argued that the compensation amount is paid to the appellant and he has received the compensation amount without any resistance. As regards the point about, the extension of the benefits of the LARR Act, 2013, the learned counsel strenuously urged the new Act not applicable to the facts and circumstances of the present case for the simple reason that the Acquisition proceedings in the present case have already ended before 01.01.2014.

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Considered the submission made on behalf of respective parties minutely and I have not failed to keep ever present in my mind the relevant provisions of two enactments.

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Suffice it to note that both the Houses of Parliament passed the National Highways Bill and it received the assent of the President on 11^th September 1956. It came on the Statute Book as THE NATIONAL HIGHWAYS ACT, 1956 (48 of 1956) (came into force on 15.04.1957).

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As is well known that there were amendments to N.H. Act. One such amendment was to Section 3(A) of the National Highways Act of 1956. The section was substituted by Act 16 of 1997, (with effect from 24.01.1997).

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The object sought to be achieved by the 1997 Amendment Act to the National Highways Act, of 1956 was the speedy implementation of highway projects which could only be achieved by expediting the process of land acquisition.

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Section 3A deals with the Power to acquire land, etc.

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Section 3B deals with the Power to enter for a survey, etc.

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Section 3C deals with the Hearing of objections.

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Section 3D deals with the Declaration of acquisition.

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Section 3E refers to the Power to take possession.

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Section 3F refers to the Right to enter into the land where land has vested in the Central Government.

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Section 3G deals with the Determination of the amount payable as compensation.

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Section 3H deals with the Deposit and payment of the amount.

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Section 3I deals with the Competent authority to have certain powers of civil court.

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Section 3J contemplates that nothing in the Land Acquisition Act, of 1894 shall apply to an acquisition under this Act.

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The plain language of Section 3G unequivocally indicates that whenever any land is acquired under the National Highways Act, 1956, the Competent Authority shall determine the amount and the compensation shall be paid to the land losers.

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It is not in dispute that the Land Acquisition Act 1894, has been repealed. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has come into force with effect from the first day of January 2014. The objects and reasons are several. The market value calculated will be multiplied by a factor of two in the rural areas. Solatium will also be increased up to 100 percent of the total

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compensation. The benefits under the new law would be available in all the cases of land acquisition under the Land Acquisition Act, of 1894 where an award has not been made or possession of land has not been taken. The provisions of the New Act can be applied to those existing enactments by a Notification of the Central Government.

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The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has come into force i.e., on the first day of January 2014. The Notification reads as under:

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*NOTIFICATION No.13011/01/2013-LRD, dated 19^th December 2013

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S.O. 3729(E). - In exercise of the powers conferred by sub-section (3) of Section 1 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 (Act No.30 of 2013), the Central Government hereby appoints the 1^st day of January 2014 as the date on which the said Act shall come into force.

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Section 26 of the 2013 Act deals with the determination of the Market Value of land by the Collector.

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Section 27 deals with the determination of the amount of compensation.

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Section 28 deals with parameters to be considered by Collector in the determination of the award.

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It is pivotal to note that in the present case, the entire land acquisition proceedings concluded in the year 2010 itself i.e., before the commencement of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 repeals only the old Land Acquisition Act and not the National Highways Act 1956. Therefore, The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 would not regulate the acquisition proceedings initiated and concluded under the National Highways Act 1956. Needless to say that the proceedings

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are concluded much before the commencement of the LARR Act 2013.

¶185

Coming now to the question at issue before me about the application of the decision of Tarsem’s case it is noticed that in TARSEM' s case [ 2009 (9) SCC 304 ,] the Hon'ble Apex Court has dealt with the payment of solatium and interest under the Land Acquisition Act, 1894, and not one under the provisions of the New Act. Needless to say, the Apex Court has held that the solatium and interest be awarded under the old Act and not under the 2013 Act. Hence, the contention of the appellant that the award of solatium and interest under the New Act 2013 and extension of the provisions of the said Act is also satisfactorily hopeless.

¶186

In the last resort, the appellant contended that he has lost negotiating and bargaining power. I have considered the contention with utmost care. The appellant in my opinion, has entirely misunderstood the issue involved in the present case. As is well known that

¶187

¶188

Negotiation is a process in which a joint decision is made by two or more parties. Bargaining power refers to the relative capacity of parties in a negotiation to influence, persuade or secure an agreement with terms that best suit their objectives.

¶189

Needless to say that solatium and interest are merely statutory rights and the appellant/ land loser cannot negotiate and bargain the right accrued under the statute. Hence, the contention of losing the negotiating and bargaining power is unsustainable.

¶190

There is one small and last point that requires to be answered by me is whether NAGARAJU’s case applies to the facts and circumstances of the present case. The answer is no for the simple reason that in NAGARAJU' s case, the lands were acquired in 2016. But in the present case, the lands are acquired before 2015 and I have no hesitation to say that the entire acquisition proceedings are concluded in the year 2010. Hence, the contention

¶191

¶192

urged on behalf of the appellant about the applicability of NAGARAJU' s case is untenable.

¶193

The decision in M/S N.V. INTERNATIONAL Vs. THE STATE OF ASSAM & OTHERS and LACHMESHWAR PRASAD SHUKUL AND OTHERS Vs. KESHWAR LAL CHAUDHURI AND OTHERS regarding continuation of proceedings and change in law are not applicable to the facts and circumstances of the present case.

¶194

To summarize, I can say only this much there is no substance in the appeal and it will appear from the records that there are no justifiable grounds for concluding that there is infirmity and illegality in the order passed by the District Judge and the extension of the benefits of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 to the facts and circumstances of the present case. I am of opinion that there is no substance whatsoever in this appeal and it must be dismissed.

¶195

¶196

Answered the points formulated by me.

¶197

Learned counsel for the appellant and the respondents have cited several decisions. I have given full consideration to the decisions cited by the learned counsel for the appellant and the respondents and I do not think that the law is in doubt. Each decision turn on its facts. The present case is also tested in light of the aforesaid decisions.

¶198

As a result, the Miscellaneous First Appeal is

¶199

dismissed .

¶200

Sd/JUDGE

¶201

TKN

Ahalya v. Project Director

Case brief

What is this about?

What did the court decide?

Ahalya v. Project Director

Case brief

What is this about?

What did the court decide?

What the court decided

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