CASE TITLE – Akha Ram & Ors. v. National Highway Authority of India
CASE NUMBER – S.B. Civil Misc. Appeals No. 1805/2023, 1806/2023, 1807/2023, 1808/2023, 1993/2023, 1994/2023, 1996/2023 & 1999/2023
DATED ON – 22.05.20244
QUORUM – Hon’ble Justice Rekha Borana
FACTS OF THE CASE
The present appeals have been filed against the orders passed by the District Judge, Jalore whereby the applications/objections under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act of 1996’) as filed by the claimants-objectors have been rejected as being non-maintainable. A Notification dated 20.08.2018, in terms of Section 3A of the National Highways Act, 1956 (hereinafter referred to as ‘the Act of 1956’) was issued for acquisition of land for the purposes of construction of National Highway No.754K of Amritsar-Kandla Project under Bharat Mala Project in Jalore District. Vide the said notification, the khatedari land of the claimants was proposed to be acquired. The objections qua the said acquisition were invited vide communication dated 07.09.2018 and the objections were even filed by the claimants on 18.09.2018. However, the said objections were rejected and the final declaration in terms of Section 3D of the Act of 1956 was made on 05.08.2019. The gazette publication of the said declaration was made on 06.08.2019. the acquisition proceedings were finalised and the amount to be paid qua the acquisition was determined by the Competent Authority i.e. the Land Acquisition Officer cum Sub Divisional Officer, Jalore on 21.11.2019. The said amount was determined on basis of the DLC rates as prevalent at that point of time. An application was preferred by the claimants before the Collector on 24.06.2021. The said application was nomenclated to be under Section 18 of the Land Acquisition Act, 1894 (hereafter referred to as ‘the Act of 1894’). However, an application for an amendment was preferred subsequently with the prayer for the said application to be read to be one under Section 64 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as ‘the Act of 2013’). Ultimately, the application as preferred before the Collector was decided vide order dated 25.08.2022, the Collector proceeded on to dismiss the application as preferred by the claimants while observing that the arbitration application as preferred by the claimants stands rejected. Aggrieved of the order dated 25.08.2022 as passed by the Collector vide which, the determination/Award dated 21.11.2019 was affirmed, application/objections under Section 34 of the Act of 1996 was/were preferred by the claimants before the District Judge, Jalore. Vide Order dated 19.08.2023, the learned District Judge, Jalore proceeded on to reject the said application/objections on the premise that the same was/were not maintainable before the Court.
ISSUE
Whether the claimants can challenge the award passed by the Collector/Arbitrator in terms of Section 3G(5) of the Act of 1956 by filing objections under Section 34 of the Act of 1996.
LEGAL PROVISIONS
Section 3G (5) of the National Highways Act, 1956, lays down the specifications for determination of compensation by Arbitrator.
Section 3G (6) of the National Highways Act, 1956, lays down the process by which Objections to Arbitrator’s award under Section 34 of the Arbitration and Conciliation Act, 1996 can be made.
Section 34 of the Arbitration and Conciliation Act, 1996, lays down the process to challenge an arbitration award.
CONTENTIONS BY THE APPELLANTS
The Learned counsel for the appellants admitted that the application as preferred before the Collector was inadvertently nomenclated first, to be under Section 18 of the Act of 1894 and subsequently under Section 64 of the Act of 2013. Counsel submitted that, in fact, the said application was in terms of Section 3G(5) of the Act of 1956 and even the Collector decided the same treating it to be under the said provision only. He submitted that the operative portion of the order as passed by the Collector makes it clear that the Collector treated the application to be under Section 3G(5) of the Act of 1956 and he, acting as an Arbitrator, dismissed the application treating it to be so. Therefore, in terms of Section 3G(5) of the Act of 1956, once an application under the said provision is rejected, i.e. the claim of the claimants is rejected by the Arbitrator, objections in terms of Section 34 of the Act of 1996 would lie as that was the only remedy available to the claimants in terms of Section 3G(6) of the Act of 1956. Counsel submitted that admittedly, the acquisition in question was an acquisition in terms of the Act of 1956 for the purposes of a National Highway and hence, the acquisition or the proceedings for compensation would be governed by the said act only. Even if the claimants preferred any application under any provision of the Act of 1894, the same could not have governed the dispute and such wrong mentioning of the provision could not have made the Act of 1894 applicable. Counsel further submitted that Section 3G(5) of the Act of 1956 provides that if the amount determined by the competent authority is not acceptable to either of the parties, the same shall be determined by the Arbitrator to be appointed by the Central Government on an application by either of the parties. Therefore, the application as preferred by the claimants was definitely in terms of the said provision. The learned counsel for the appellants submitted that the Order impugned deserves interference even for the reason that no such objection pertaining to jurisdiction or maintainability of the objections was raised even by the respondent Union of India.
CONTENTIONS BY THE RESPONDENTS
The Learned counsel appearing for the NHAI submitted on merits that the award in question is totally in conformity with law and does not deserve any interference. However, counsel was not in a position to refute the submission as made by learned counsel for the appellants that the application/objections as preferred by the claimants was/were very much maintainable before the District Judge in terms of Section 34 of the Act of 1996.
COURT ANALYSIS AND JUDGEMENT
The Hon’ble High Court of Rajasthan noted that it is an admitted position on record that acquisition of the land in question was for the purposes of National Highways in terms of the Act of 1956. Meaning thereby, the provisions of Section 3G of the Act of 1956 would govern the procedure for determination of compensation. They held that the provision under the Act of 1996, which provides for a challenge to an award passed by the Arbitrator, is definitely Section 34. Therefore, the application as moved before the District Judge in the present case, raising a challenge to the award as passed by the Collector/Arbitrator in terms of Section 3G(5) of the Act of 1956, was definitely in terms of Section 34 of the Act of 1996. The fact that the application as preferred before learned Collector was infact in terms of Section 3G(5) of the Act of 1956 was also evident to them from the fact that no prayer for reference of the same in terms of Section 64 of the Act of 2013 was made in the same. The High Court stated that had the application been intended to be made under Section 64 of the Act of 2013, a prayer for reference of the same definitely would have been made, which was clearly not made. They stated that the provisions of the Act of 2013, relating to the determination of the compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule were only made applicable to all cases of land acquisition under the enactments specified in the Fourth Schedule to the said Act. Meaning thereby, all aspects contained under Sections 26 to 28 of the Act of 2013, for determination of compensation, were made applicable to the National Highways Act, 1956 also. The effect of the Act of 2015 was that the beneficiary provisions of Sections 26 to 28 of the Act of 2013 were made applicable to all the land acquisition proceedings. But then, only the said provisions of the Act of 2013 were made applicable to the Act of 1956 and nothing more than that. Meaning thereby, Section 64 of the Act of 2013 as relied upon by the learned District Judge was not applicable in the present matter. And so far as the finding of learned Judge regarding there being no notification in terms of Section 3G(5) of the Act of 1956 appointing an Arbitrator is concerned, the High Court held that the finding cannot be said to be contrary to the material as no such notification was placed on record before the learned District Judge. And since it had been placed before the High Court, due to which the orders impugned were quashed and set aside, and held that the matter is remanded back to the learned District Judge, Jalore for decision afresh on the application/objections as preferred by the claimants treating them to be under Section 34 of the Act of 1996.
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Judgement Reviewed by – Gnaneswarran Beemarao
