Rakhal Ch. Ghosh vs Union Of India And Ors

Heard Mr. A. Nandi, learned counsel appearing for the petitioner as well as Mr. D.C. Saha, learned counsel appearing for the respondents.

On the asking of the court, Mr. D.C. Saha, learned counsel appearing for the respondents has produced the records of the Arbitration proceeding being No.171/Arbitration/2016.

The grievance of the petitioner falls within a short compass. The land of the petitioner measuring 0.005 acre classified as dokan viti was acquired by the competent authority for National Highway No.44 by the notification No.F.NH-12037/86/2014/TR/SARDP-NE(part) dated 01.01.2015 issued under Section 3D of the National Highways Act, 1956. On 11.09.2015, the notice of award was issued, but the petitioner was dissatisfied with the determination of the market value and he had immediately raised the claim for determination of the appropriate value of the acquired land. In view of dissatisfaction as expressed by the petitioner, the case was referred to Arbitration being Arbitration Case No.171 of 2016 and as per the notification, the District Magistrate and Collector, Gomati District was appointed as the arbitrator. Due notice was issued to the petitioner by the competent authority on 06.10.2016 and the matter was taken on 04.11.2016 and the following order was passed :

"A proceeding under section 3G(5) of the NH Act, 1956 has been drawn up in the case for arbitration of award in mouja-Barabhiya under Udaipur Sub-Division in response to the petition filed by one Sri Rakhal Ch. Ghosh, S/o-Manmohan Ghosh of Barabhiya against the LA compensation awarded by the Competent Authority (AMD & Collector), Gomati vide App.Sl.No.31 of award No.1189 dated 09.06.2015 for acquisition of land in c/w widening/double laning of Agartala-Sabroom Section of NH-44.

On the basis of petition a notice was issued on 06.10.2016 and served on 01.11.2016.

As per application submitted through legal assistant i.e. Ld. Advocate Sri Joyesh Dey submitted below mentioned claims.

The petitioner claimed that, the present market value of the said plot of land would be more than @ Rs.5,00,00,000/- per Kani.

As per office records it appears that an area of land measuring 0.005 acres in Plot No.1204/P of mouja-Barabhiya was acquired in c/w above mentioned project and an award for Rs.13,13,760/- only was declare as his total LA compensation in the following manner laid down in the Act.

Land value :- Rs.55,000/- @ Rs.44,00,000/- per kani), then factor 1.5 on land value= Rs.82,500/- Plus 100% solatium on factor 1.5 = Rs.82,500/- Plus 12% Addl. Compensation on land value (w.e.f. 16/06/2014 to 15/06/2015)=Rs.6,600/- Total Rs.1,71,600/-.

Compensation for Trees :- Rs.Nil Plus 100% solatium = Rs.Nil Total Rs.Nil.

Compensation for Structure :- Rs.5,58,580/- Plus 100% solatium Rs.5,58,580/- Total Rs.11,17,160/-.

Second Schedule :- Rs.25,000/-

Total compensation is (1,71,600 + 11,17,160 + 25,000) Rs.13,13,760/- for 0.005 acres.

First party Sri Rakhal Ch. Ghosh, S/O Manmohan Ghosh appeared along with his advocate in the court. On behalf of the first party, the advocate sought for time [by] petition as they have not been provided calculation sheet of award amount. And also demanded for providing calculation sheet. Now as per Arbitration Act, 1996 their time petition is accepted with an instruction to supply proper documents for perusal of the party.

[sic. by]

Notices may be served to the party for next date of hearing which is schedule at 10.30 am on 23.12.2016."

It is apparent that the next date for arbitration was fixed on 23.12.2016 and on that day no effective hearing had taken place for unavoidable circumstances. The first date was fixed on 16.05.2017 and on that day the following order was passed :

"Party along with advocate present before arbitrator.

Advocate could not produce any evidence in party's favour.

Hence, older compensation will remain unchanged.

Petition is rejected."

So there had been no further or additional compensation by way of enhancement in the arbitration proceeding.

That order dated 16.05.2017 has been challenged in the writ petition on the ground that appropriate opportunity was not given to the petitioner at whose instance reference to the arbitration was made. Moreover, the reassessment in terms of Section 3(G)(7) of the National Highways Act, 1956 was not at all made by the arbitrator.

According to Mr. A. Nandi, learned counsel appearing for the petitioner, no fresh evidence is required to be led before the arbitrator, unless, such prayer is made to the arbitrator. On the basis of the records, meaning the documents or any other type of evidence which are considered by the competent authority for determining the award, would be reappraised by the arbitrator to come to his inference but there is no semblance of such exercise. For purpose of reference, Sub-section-7 of Section-3(G) of the National Highways Act, 1956 is extracted hereunder :

"(7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration-

(a) the market value of the land on the date of publication of the notification under section 3A;

(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;

(c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;

(d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.]"

From the other side, Mr. D.C. Saha, learned counsel appearing for the respondents has admitted that no signed arbitral award has been issued by the designated arbitrator as yet. But the petitioner has also not approached the arbitrator for issuance of such signed arbitral award. Therefore, the petitioner cannot absolve him from the laches in respect of obtaining of the arbitral award. Now, the process cannot be expected to commence after lapse of such a long time. The records as produced by Mr. D.C. Saha, learned counsel appearing for the respondents show that each of the contention raised on the writ petition is correct and duly verified.

Section 32 of Arbitration and Conciliation Act, 1996, as amended, provides that the arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section 32(2) of the said Act. Sub-section 2 of Section 32 provides that the arbitral tribunal shall issue an order for the termination of the arbitral proceedings where the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute where the parties agree on termination of the proceeding, or the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

Section 34(3) provides further that an application for setting aside may not be made after three months from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal provided however that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.

Mr. Nandi, learned counsel appearing for the petitioner has submitted that no signed copy of the arbitral award was ever issued to the petitioner. Section 31(5) of the Arbitration and Conciliation Act, 1996 does cast a duty on the arbitrator to deliver a signed copy of the arbitral award to each party. For purpose of reference, Section 31(5) of the Arbitration and Conciliation Act, 1996 is extracted hereunder :

"After the arbitral award is made, a signed copy shall be delivered to each party."

The date of delivery of the signed copy of the arbitral award is the date of commencement for purpose of limitation for filing the application under Section 34 of the Arbitration and Conciliation Act, 1996 challenging the award within the parameters as prescribed under Section 34 of the Arbitration and Conciliation Act, 1996.

Though the petitioner has challenged the order dated 16.05.2017, the petitioner cannot challenge such order in this writ petition as an effective remedial mechanism has been prescribed by the statute. But definitely the petitioner has the right firstly to get a signed copy of the arbitral award and finally to prefer a petition under Section 34 of the Arbitration and Conciliation Act, 1996 within the parameters as laid down, if he intended.

In view of this observation, this court is of the view that the respondent No.3 be directed to deliver the signed copy of the arbitral award within a period of 15(fifteen) days from the date of receipt a copy of this order.

With this observation and direction this petition stands partly allowed.

There shall be no order as to costs.

Records as produced by Mr. D.C. Saha, learned counsel for the respondents be returned.

A copy of this order, be supplied to the counsel for the parties.