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Judgment
Looking to the similitude of the issue involved in all these appeals and the fact that they are based on identical set of facts, the same are being decided by this common order. However, for the sake of convenience, the facts of Arbitration Appeal No. 150/2025 are being referred to.
The present appeal has been filed under Section 37 of the Arbitration and Conciliation Act 1996 being aggrieved by the order dated 09.05.2025 passed by 11th District Judge, District-Indore whereby the application filed by the appellant in terms of Section 34 of the said Act was dismissed.
The facts relevant for the purpose of the present appeal are that National Highways Authority of India (NHAI) caused acquisition of land for construction/widening/four laning of Khalghat MP/Maharashtra section of National Highway No.3, thus, notification dated 01.08.2007 was issued in terms of Section 3 (A) of National Highways Act, 1956 and after following the process, notification was published in official Gazette on 29.07.2008 thereby declaring acquisition of land in terms of Section 3(D) of the Act.
The present is an appeal by the land owner of Survey No.103/6 of village-Khulkhurd, Tehsil-Dharampuri, District-Dhar whose 0.045 hectare land was acquired out of the aforesaid land by the above mentioned notification. The competent authority passed award dated 10.08.2009 which was communicated to the appellant on 08.10.2009. The compensation was, according to the appellant, not adequate thus the appellant sent legal notice on 12.09.2011 thereby invoking arbitration under the provisions of National Highways Act which was taken up by the statutory arbitrator (Additional Commissioner, Indore Division, Indore). The appellant raised several grounds including that (i) the land in question was diverted for industrial purposes, (ii) It was partitioned among the members of the family, (iii) In the initial notice under Section 3(A) the subject land was shown to be diverted for the industrial purposes, however, in notification issued under Section 3(D) the same was changed to irrigated, no opportunity of hearing was provided by the competent authority, (iv) the award is contrary to the provisions of Section 3(G)(7) of the National Highways Act, (v) The award was passed without physical verification of the subject land which can be verified from mere perusal of photographs of the subject land, (vi) Independent valuer has assessed the value of land much higher than the amount awarded by the competent authority, (vii) Similarly situated persons were awarded higher compensation and (viii) lower compensation has been awarded to the appellant and the sale deeds of adjacent land clearly shows the higher market value of the property.
The statutory arbitrator dismissed the claim of the appellant vide award dated 29.01.2014 merely by observing that the compensation is determined based on spot inspection carried out by the inspection team.
The appellant being aggrieved by award dated 29.01.2014 filed an application in terms of Section 34 of the Arbitration and Conciliation Act, 1996 before the District Judge, Indore. The matter was placed before 11th District Judge, Indore who vide impugned order dated 09.05.2025 dismissed the application.
Learned counsel has raised several grounds on merits, however, he also points out that present case is an example of complete ignorance of relevant facts inasmuch there were total seven land holders of village-Khulkhurd, Tehsil-Dharampuri, District-Dhar. The lands of all these seven persons are situated adjacent to each other in the same village. He submits that by the above referred notification lands of all the seven persons were acquired. The competent authority passed similar awards and the arbitrator then also passed similar awards either in the month of January, 2014 or in the month of February, 2014. All of these awards then were challenged by these seven persons before the district court by filing their separate applications in terms of Section 34 of The Arbitration and Conciliation Act, 1996. These cases were based on identical set of facts. Out of 8 cases, 3 cases were heard by one presiding officer, 2 cases were heard by another presiding officer and 3 cases were heard by yet another presiding officer. Out of these 8 cases, the other 2 presiding officer on identical set of facts allowed Section 34 applications and set aside the awards of the arbitrator with an observation to initiate arbitration afresh. However, in the present case on same set of facts Section 34 application of the present appellant was dismissed. He submits that the examples, reports and the material in those cases which were allowed by the coordinate Benches of the District Judges were same which were relied on by the appellant in the present case. However, in their cases the compensation was not found adequate by the presiding officer and in the present case, the same was approved by rejecting the application. He submits that present is a classic example of breach of public policy for the reason that the National Highways Authority of India was common respondent in all the cases i.e. the cases which were allowed and the cases which were dismissed. He submits that 3 cases were allowed on 04.05.2024 and 2 cases were allowed on 02.09.2024. In all these 5 cases, same counsel of National Highways Authority of India was present before the concerned court, however, in the present case the order was passed on 09.05.2025. The same counsel who was there in earlier cases which were allowed was present in the present case also, neither the officer of National Highways Authority of India nor counsel disclosed the fact that for the same scheme, for the same notification, for the same village the applications under Section 34 have already been allowed by the coordinate Benchs of the District Judge. He thus submits that the act of the respondent is in breach of public policy, thus, squarely covered under the provision of Section 34 of the Arbitration and Conciliation Act.
Per contra, learned counsel for the respondent submits that each case has to be examined on its own set of facts. Parity in land acquisition matters cannot be drawn. He thus submits that there is no infirmity if out of total 8 cases, 5 are allowed and 3 are dismissed. He further submits that the scope of examination in an appeal filed under Section 37 of the Act, 1996 is very limited. The Court has to see whether the district court while exercising its jurisdiction under Section 34 has travelled beyond the scope of its power and nothing else. In support of his submission, he has placed reliance upon the judgment of the Hon'ble Apex Court passed in the case of M/S. C and C Constructions Ltd vs Ircon International Ltd., 2025 (4) SCC 234. He further placed reliance on the judgments of Delhi High Court in the case of MS K S Jain Builders Vs. Indian Railway Welfare Organization (O.M.P.[COMM] 456/2022) dated 25.01.2024 . Thus, he prays for dismissal of appeal by submitting that the impugned order has properly been passed by the District Judge.
Heard the learned counsel for the parties and perused the record.
In the considered view of this Court, the examination on the similitude of the causes i.e. those cases which were allowed and the present appeal has to be examined so as to ascertain whether in the same set of facts, two different results have come. A perusal of the orders enclosed as annexure A-2 passed in case No.MJC AV No.257/2019, MJC AV No.256/2019, MJC AV No.255/2019, MJC AV No.1600071/2014 and MJC AV No.1600069/2014 are considered. A close scrutiny would show that in all those cases the acquired land is situated in same village i.e. village-Khulkhurd. Survey numbers of the lands are also near to each other for example in MJC AV No.1600071/2019 the land of survey No.130/5 was acquired. In the present case, the land of survey No.130/6 was acquired. MJC AV 255/2019 land of survey No.103/11, MJC AV No.1600069/2014 survey No.103/6, MJC AV No.257/2019 survey No.103/4 and MJC AV No.256/2019 survey No.103/7, the lands were acquired. It is thus clear that even survey numbers are same and parcels of same survey numbers have been acquired in all these cases including the case of the present appellant. Even If we examine the contentions raised in these cases before the District Court then it is seen that the same/identical contentions were raised.
Further, significantly in all cases same counsel for National Highways Authority of India was present, thus, in all fairness, the respondent/NHAI should have informed the court about the orders passed by the other presiding officer in identical cases of same survey number for same acquisition process. As such, this Court finds substance in the submission made by the learned counsel for the appellants.
As far as the submission of the learned counsel for the NHAI that the scope of Section 37 is very limited, it is to be kept in mind that jurisdiction under Section 37 of the Arbitration and Conciliation Act 1996 is akin to jurisdiction under Section 34 of the said Act. The public policy of India established since beginning that all persons are to be treated equally passing two contrary orders on identical set of facts in a land acquisition proceeding is, in the considered view of this Court, in conflict with the public policy of India. As such keeping in view the award passed by the District Court in the cases of other land holders which have been referred hereinabove whereby their Section 34 applications have been allowed and matters have been reopened before the arbitrator. The present appeals are also allowed and the impugned order dated 09.05.2025 as well as the award dated 29.01.2014 passed by the arbitrator are hereby set aside. The appellants are set at liberty to re-agitate their case before the arbitrator. It is hereby directed that in case appellants approaches the arbitrator then the proceedings be completed as early as possible preferably within a period of 8 months from the date of filing of claim before the arbitrator.
With the aforesaid, the present appeals stand disposed of.