Utpal Dey vs State Of West Bengal & Ors.

Words have great power. The use of a wrong word can make sinners out of saints and a devil out of an angel. Something similar has happened in this

case because of the use of a wrong word by the bureaucrats who instructed the leaned advocates. In my order dated July 2, 2018 in the second

paragraph of the second page of the order sheet I had recorded as follows:

“Unfortunately, the written instructions produced by the learned advocates for the State whose appearance is recorded above show that each of

the matters each of the writ petitioners was represented during arbitration and accepted the amount awarded as enhanced compensation under their

signatures without reserving any right to object.â€​

However, it appears that the confusion arises from the use of the word “awardâ€. Compensation was determined, the record shows in respect of

both the structure and the land, by the competent authority. A report has been filed today in Court in respect of each of the matters appearing as item

no.1. The report in case of W.P. No. 2751(W) of 2018 at page 13 clearly shows that the reference to arbitration was in respect of the reconsideration

of market value of land as appears from order no.1 dated April 13, 2017 appearing at page 13 of the said report. Even though at page 21 of the said

report as a part of the order no.4 dated July 6, 2017, the learned arbitrator has discussed why he holds that the structure’s base value after

addition of solatium and interest is quite handsome, when the reference is only in respect of the market value of land, it cannot be said that the amount

awarded in arbitration is also in respect of the compensation payable for the structure.

While it is not disputed that the competent authority determined the market values of both the land and the structure according to his peculiar wisdom,

and Mr. Roy’s client received the compensation thus determined without protest while applying for reference in both the cases of land and

structure, it is equally undisputed that the reference to arbitration was in terms of the said order no.1 passed by the learned arbitrator only in respect of

the compensation determined for land. Therefore, the ultimate arbitral award, which was passed, was only in respect of the land value and the

reference in it to a value of the structure as determined by the competent authority along with solatium and interest was not the arbitral award but a

reference to the amount determined by the competent authority. From the said reports, therefore, I have no hesitation in holding that the confusion

which has percolated into the arbitrator and the competent authority are pleased to call their minds is based on the word “awardâ€​.

So that this confusion does not lead to unfortunate allegations being made against the petitioner or his learned advocates because of the failure of both

the District Magistrate and the Additional District Magistrate â€" who I presume are appointed after they succeed in competitive examinations â€" to

understand the law or the language in which the law has been written, - I now propose to lay down even at this interlocutory stage the difference

between amount and compensation determined under Section 3G(1)(2) and the award passed in the proceeding under Section 3G(5) of the National

Highways Act, 1956.

Under Section 3G(1)(2) the competent authority determines an amount of compensation for land which includes structure. If someone is dissatisfied

with it and reference is duly applied for to the competent authority/Central Government, the Central Government refers it to the arbitrator appointed by

it. Such arbitrator is usually the District Magistrate in a district and a presidency commissioner otherwise. Such arbitrator does not determine

compensation in the manner that the competent authority does â€" he passes an award like any other arbitral award and not as the authority

determining compensation at the first instance. The arbitrator and the competent authority have failed to distinguish between these concepts â€" the

compensation and the award on the compensation. Therefore, the unfortunate and incorrect allegations made against the petitioners and the learned

advocates for the petitioners, as a consequence of such misconception are struck off the records and expunged.

So far as whether there was any arbitration relating to structure is concerned from my aforesaid findings, it is clear even at this stage that no

arbitration was held in respect of the amount determined as compensation for the structure though the definition of land must include structure under

the National Highways Act, 1956. It was perfectly open to the learned arbitrator to decide the matter, especially, since he has already referred to the

amount determined as compensation for the structure. This shall be open to the learned arbitrator to do even now and for that purpose both under the

Arbitration and

Conciliation Act, 1996 and because it is not forbidden under the National Highways Act, 1956, he can pass a supplementary award either allowing or

rejecting the claim of the petitioners. I make no comment about it. Of course, if such a supplementary award is passed or proceeding is started, the

present writ petition will become infructuous. Let copies of the report be served on the learned advocate for the writ petitioners. Learned advocates

for the writ petitioners may take exception if they so want, individually in case of each of the reports.

The order dated July 2, 2018 stands corrected/modified/remarks made against the learned advocates and the writ petitioners are expunged to the

above extent. Let this matter appear for exception of file in the monthly list of September, 2018. The pendency of the writ petition shall not prevent the

learned arbitrator to give compensation in accordance with law and directly accept the application for arbitration in respect of the compensation award

for the structures. If it happens I expect the State shall inform this Court at once for necessary orders.