National Highways Authority of India Vs K B Abdul Khader

NATIONAL HIGHWAYS AUTHORITY OF INDIA PIU MANGALORE, DOOR NO. 3-29, BETHEL, THARETHOTA, NEAR PUMPWELL (NH 66), MANGALORE 575005. REP BY ITS DGM (TECH) AND PROJECT DIRECTOR, MR. SHISHU MOHAN.

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…APPELLANT

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Digitally signed by SHARADAVANI B Location: High Court of Karnataka

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(BY SRI. SHOBHITH N SHETTY.,ADVOCATE)

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AND:

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K B ABDUL KHADER S/O. IDINABBA, KANNURU VILLAGE AND POST, BORUGUDDE, MANGALORE 575030.

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THE COMPETENT AUTHORITY AND SPECIAL LAND ACQUISTION OFFICER NH 48, HASAN B C ROAD SECTION,

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HC-KAR

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OPP. HDCC BANK, BM ROAD, HASSAN 573201.

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THE DEPUTY COMMISSIONER AND ARIBITRATOR DAKSHINA KANNADA DISTRICT, MANGALURU 575008.

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…RESPONDENTS

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(BY SRI. RAJASHEKAR S., ADVOCATE FOR R1; SMT. NAMITHA MAHESH B.G., A.G.A. FOR R2 & R3)

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THIS MFA IS FILED UNDER SECTION 37(1)(C) OF THE ARBITRATION AND CONCILIATION ACT, 1996, AGAINST THE ORDER DATED 02.03.2021 PASSED IN A.S.NO. 135/2019 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU, DISMISSING THE ARBITRATION APPLICATION FILED UNDER SECTION 34 (2) OF ARBITRATION AND CONCILIATION ACT 1996 READ WITH SECTION 3G(6) OF THE NATIONAL HIGHWAYS ACT.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN

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AND

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HON'BLE MR. JUSTICE RAJESH RAI K

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)

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This is an appeal preferred under Section 37 of the Arbitration and Conciliation Act, 1996 (for short, ‘ the Act ’) as against an order dated 02.03.2021 passed by I Additional District Judge, Dakshina Kannada, Mangaluru, (‘ Section 34 Court’ , for short) in A.S. No.135/2019 under Section 34 of the Act upholding the Arbitral Award under Section 3-G(5) of the National Highways Act, 1956 (‘ the NH Act ’, for short).

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The learned counsel for the appellant submits that the preliminary Notification was issued on 20.08.2015 and final Notification was issued on 04.08.2016 with regard to the acquisition of two extents of land from respondent No.1 herein. The two extents were in Panemangaluru village of Bantwal Taluk in Sy.No.127/3 to an extent of 445 sq.mtrs. of dry land, while in Sy.No.127/1B2 to an extent of 405 sq.mtrs. of converted land.

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It is submitted that the Authority had ordered an amount of Rs.24,190/- per Cent for dry land and an amount of Rs.2,22,200/- per Cent in respect of the converted land. It is submitted that the Arbitrator after considering the contentions advanced, had enhanced the compensation in respect of both dry land as well as converted land to an amount of Rs.2,48,864/- per Cent with statutory benefits.

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Learned counsel for the appellant submits that since the enhancement in respect of the converted land was only from an amount of Rs.2,22,200/- per Cent to Rs.2,48,864/- per Cent, the appellant is not seriously aggrieved by the said enhancement.

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However, it is submitted that granting the same amount of compensation i.e., Rs.2,48,864/- per Cent in respect of dry land as well, was per se unsupported by any documents. It is submitted that since admittedly the 445 sq.mtrs. of land in Sy.No.127/3 was dry land and the

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guidance value fixed was only Rs.24,190/- per Cent. The undue enhancement granted to the amount of Rs.2,48,864/- per Cent without any supporting documents is liable to be set aside.

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The appellants have preferred an application under Section 34 of the Act before Section 34 Court and that the same had also been dismissed without considering the contentions advanced.

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The learned counsel appearing for respondent No.1, on the other hand, submits that it was admittedly two small extents of land which were acquired for the widening

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of the National Highway and in view of the fact that the extents of land were only small portions, the compensation granted equally for dry land and converted land is liable to be upheld.

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The learned counsel would also place reliance on a circular issued by the State Government with regard to the valuation of agricultural land for the purpose of

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HC-KAR

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registration. It is submitted that when the site of land measures between 1 and 15 cents, the site area of respective area is to be taken into account to fix the value of the land.

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We have considered the contentions advanced. We noticed that the initial amount ordered in respect of converted land was Rs.2,22,200/- per Cent while for the dry land i.e., comprised in Sy.No.127/3, it was only Rs.24,190/- per Cent.

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Having considered the contentions advanced, we find that no specific reason has been stated for fixing the same

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amount of compensation for dry land as well as the converted land. No documents produced by the land losers to substantiate their contentions that both the extents of lands are liable to be granted with the same compensation are available on record.

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In the above view of the matter, we are of the opinion that the finding of the Arbitrator as well as the

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Section 34 Court that the dry land and the converted land

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are liable to be granted the same compensation is unsupported by the facts. In view of the patent illegality vitiating the award which has not been addressed by the

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Court, we are of the opinion that the Award as well as the order are unsustainable.

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In the above view of the matter,

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i. The Award dated 20.08.2019 passed by the Arbitrator in No.ARB(3) NH.LAQ.250/2017-

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18 as well as the order passed by I Additional District Judge, Dakshina Kannada, Mangaluru,

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in A.S. No.135/2019 is set aside to the limited extent of fixing of the compensation in respect of the 445 sq.mtrs. of dry land in Sy.No.127/3.

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ii. The Award as well as the order of the District Court in respect of 405 sq. mtrs. of

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converted land in Sy.No.127/1B2 is

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confirmed .

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iii. The matter is remanded to the Arbitrator to consider the fixation of compensation in respect of 445 sq. mtrs. of dry land in Sy.No.127/3.

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iv. The parties shall mark their appearance before the Arbitrator on 01.09.2025 . All issues are left open to be decided by the Arbitrator in respect of the fixation of the compensation in respect of 445 sq.mtrs. of land in Sy.No.127/3 without awaiting for further notice.

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v. Both the parties are free to produce any documents before the Arbitrator to substantiate their claims.

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vi. The Arbitrator shall endeavour to see that the matter is disposed of without undue

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delay, preferably within a period of six months from the date of receipt of a copy of this order.

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vii. The amount of compensation which has been received by the land loser - respondent No.1 shall be computed and taken note of by the Arbitrator and in case it is in excess of the compensation in respect of both the properties, as found by the Arbitrator, appropriate further steps for refund shall be taken in accordance with law.

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SD/(ANU SIVARAMAN) JUDGE

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SD/(RAJESH RAI K) JUDGE

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LIST NO.: 1 SL NO.: 3

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HNM

National Highways Authority of India v. K B Abdul Khader

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National Highways Authority of India v. K B Abdul Khader

Case brief

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