IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 PRESENT THE HON’BLE MR.L. NARAYANA SWAMY ACTING CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE P.B.BAJANTHRI M.F.A NO.1056 OF 2017 (A-A) BETWEEN:
NAGARAJA S AGED 54 YEARS, # 604, DR.RAJ KUMAR ROAD (NEAR IDBI BANK) 2ND BLOCK, RAJAJINAGAR, BENGALURU - 560 010. ... APPELLANT (BY SRI.NAGARAJA S – PARTY-IN-PERSON) AND:
1. NATIONAL HIGHWAYS AUTHORITY OF INDIA (TUMKUR-HARIHAR SECTION, K.M. 75 TO K.M. 282), AEROPLANE BUILDING, V.P. BADAVANE, CHITRADURGA - 577 501.
REPRESENTED BY THE SPECIAL LAND ACQUISITION OFFICER.
2. PROJECT DIRECTOR N.H.A.I – 4 (TUMKUR - HARIHAR SECTION, K.M. 75 TO K.M. 282) PROJECT IMPLEMENTATION UNIT, NEAR J.M.I.T. NH-4 (201 KM) CHITRADURGA - 577 502.
3. DEPUTY COMMISSIONER AND ARBITRATOR OFFICE OF THE DISTRICT MAGISTRATE, DEPUTY COMMISSIONER & ARBITRATOR, TUMAKURU - 572 101. ... RESPONDENTS (BY SMT: SHILPA SHAH, ADV. FOR R1 & R2; SRI.VASANTH V FERNANDES, AGA FOR R3) THIS MFA IS FILED U/S 37(1)(C) OF THE ARBITRATION AND CONCILIATION ACT, R/W SEC.151 OF CPC, AGAINST THE JUDGMENT DT.12.01.2016 PASSED IN ARBITRATION CASE NO.1/2015 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, TUMAKURU, DISMISSING THE PETITION FILED U/S 34 OF ARBITRATION AND CONCILIATION ACT AND SEC.14 & 15 OF NATIONAL HIGHWAYS AUTHORITY OF INDIA ACT R/W SEC.151 OF CPC.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 18.12.2018 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ACTING CHIEF JUSTICE., DELIVERED THE FOLLOWING:-
JUDGMENT This Miscellaneous First Appeal is filed by the appellant party-in-person under Section 37(1)© of the Arbitration & Conciliation Act, 2015 r/w Section 151 CPC challenging the judgment dated 12.01.2016 in Arbitration Case No.1/2015 passed by the Principal District Judge, at Tumakuru.
2. The facts of the case are that appellant was owner in possession and enjoyment of 2 acres 12 guntas of land in Sy.No.184 of Oorukere, Tumakuru. The proposed layout plan was submitted by him before Panchayath office for approval without leaving road margin. The Gram Panchayath officials suggested for leaving 75 ft., from the centre of the highway as road margin as per the guidelines. The appellant approached the National Highway Authority of India office, Davangere who suggested to leave portion of the land 100 feet from centre of the highway as road margin. Accordingly, the appellant got the layout plan made and approached the National Highways Authority of India office for compensation and other formalities.
3. The respondent No.1 marked 9 guntas in Sy.No.184P and earthwork was made before the preliminary notification in the year 2000 itself and thereafter it was subjected to acquisition through preliminary and final notification made on 11.9.2001 to an extent of 6 guntas. Initially the payments were made for three times and later a part enhancement of compensation was made as per the Arbitration Award dated 28.7.2010 for 6214.25 guntas and fourth part enhanced compensation to an extent of 6214.75 sq. ft., at Rs.54.40 per sq. ft., on 29.1.2011 under the award passed by the Arbitration Court, Tumakuru. It is stated, respondent No.1 insisted the appellant to collect compensation amount including part of enhancement of compensation with respect to 8 guntas under protest leaving 01 gunta unpaid.
4. Under Court’s direction in writ petitions by this Court, a survey was conducted by Department of Survey Settlement and Land Records. This court further directed in W P No.49425/2012 to expeditiously complete the acquisition proceedings and to pass an award determining the compensation payable and also the amount of damages to which the petitioner is entitled for deprivation of his possession of 1guntas of land for the previous years. It is stated, liberty was reserved to the petitioner to seek damages for one gunta of land used by the respondent No.1 for more than 15 years. He stated that he had no intention to dispose of the land in the year 2000. Thus the appellant filed Arbitration Case No.1/2015 before the court below claiming a compensation of Rs.3,92,04.000/-.
5. The respondents No.1 & 2 opposed the petition and inter alia contended that application filed under Section 34(2) of the Arbitration and Conciliation Act, hereinafter referred to as `the Act’ is not in accordance with Rules 4 & 12 of the High Court of Karnataka Arbitration Rules, 2001, hereinafter referred to as `the Rules’ and the reliefs prayed are beyond the scope of Section 34(2) of the Act. Neither cause of action nor schedule of the property is disclosed. For the purpose of widening of Tumakuru – Harihara NH-4 road, land Sy. No.184 situated in Urukere village, measuring 600 sq. mtrs. was acquired vide final notification dated 11.9.2001. The compensation amount was paid to the appellant through cheques. The appellant being not satisfied with the award passed by the SLAO vide award dated 31.12.2002, approached the Deputy Commissioner/Arbitrator, who dismissed the claim of the petitioner. Thereafter the appellant preferred writ petition before this court wherein the respondent No.2 was directed to pay additional compensation for 1 gunta of land, which was taken possession along with 8 guntas of land. After following procedure prescribed under Section 3C, the SLAO submitted report to the Central Government recommending acquisition of the land. Subsequent to which, notification under Section 3D of the Act has been issued acquiring the land to an extent of 1 gunta. The SLAO initially passed award at a sum of Rs.250/-per sq. ft., and later the Deputy Commissioner enhanced the same to Rs.300/- per sq.ft., The scope of interference by the Civil Court is very limited under Section 34 of the Act and the jurisdiction cannot be used as a means to abuse process of law. Thus they prayed for dismissal of the petition.
6. The court below framed points relating to maintainability of the petition filed by the petitioner under Section 34 of the Act, whether the award passed by the first respondent was liable to be interfered with and answering both the points in the negative, dismissed the petition.
7. Being aggrieved, the present appeal is filed by the appellant.
8. We have heard the appellant party-in-person and the learned counsel for the Respondents No.1 & 2 and learned AGA for Respondent No.3.
9. The appellant submitted that payments were made to him in installments. The respondent No.1 enforced the appellant to collect all the compensation with respect to 8 guntas under protest, leaving 01 gunta unpaid even today. Unilateral decisions were taken by the respondent No.1 authority in the absence of the appellant. The respondent No.1 authority has over thrown the law and ignored the court order and initiated with one more acquisition proceedings without clearing the legal obligations of the previous acquisition proceedings initiated in the year 2000. This way the respondent No.1 made a self-declaration that acquisition proceedings initiated on 17.08.2012 stands null and void including the previous acquisition initiated on 03.11.2000. Accordingly, all the payments made from the year 2000 till date in the acquisition proceedings are forfeited. The land was subjected to acquisition by the respondent No.1 authority through two preliminary notifications and two final notifications in the year 2000-01 and 2012-13 for the same purpose in respect of the same land. The land owner is deprived of his enjoyment of the scheduled land as the same was utilized to an extent of 9 guntas by the respondent authority for more than 16 years. Thus he prays for allowing the appeal directing the respondent No.1 to pay the claimed amount as mentioned in the beginning of this judgment.
10. On the other hand, the learned counsel for respondents No.1 & 2 and learned Additional Government Advocate for Respondent No.3 submitted to dismiss the appeal. It is submitted, the Deputy Commissioner & Arbitrator had properly considered the materials and rightly dismissed the petition filed by the appellant and the scope of interference under Section 34 of the Act being very limited, the Civil Court was justified in rejecting the petition. There is no ground made out by the appellant for interference and thus they pray for dismissal of the appeal.
11. The point that arises for consideration in the present appeal is, whether court below has committed any error or illegality in passing the impugned judgment calling for interference at the hands of this Court? Our finding would be in the negative for the following reasons.
12. It is seen that proceeding has taken place before the Deputy Commissioner and Arbitrator. Section 34(2) of the Act makes it clear that arbitral award could be set aside only in case where party was under some incapacity, or the agreement is not valid, or party was not given proper notice and it contains decision on matters beyond the scope of submission to arbitration, or procedure was not in accordance with the agreement of the parties and if the dispute is not capable of settlement. None of the ingredients as aforesaid exist in the present case. The appellant wanted enhanced compensation of Rs.3,92,04,000/-. The arbitrator has enhanced amount from Rs.250/- per sq. ft., to Rs.300/- per sq. ft., and has awarded the compensation amount. The appellant except stating about the proceedings he has initiated and the directions made by this Court to award compensation, the appellant has not stated how he is entitled for the said amount. He has not stated under what provision he could forfeit the award amount received by him.
Neither he has stated as to how the order passed by the Arbitrator is incorrect nor the amount awarded is less. The grievance of the appellant is that compensation amount was paid to him in installments. The said reason cannot be a ground to set aside the arbitral award exercising power under Section 34(2) of the Act. The appellant has not produced any material to show his entitlement to the amount claimed as above. Already the proceedings relating to 8 guntas of land in Sy.No.184 has attained finality and the appellant cannot make grievance in respect thereof. In respect of 1 gunta of land also, compensation was awarded and it was further enhanced. It is not stated as to how the said award is inadequate. The court below also noticed Section 3-J of the National Highways Act barring application of provisions of Land Acquisition Act and opined that no ground was made out for interference under Section 34(2) of the Act.
13. In the circumstances, we are of the view that the court below has not committed any illegality or irregularity in passing the impugned judgment calling for interference by this Court.
Accordingly, M F A is dismissed. No order as to costs.
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ACTING CHIEF JUSTICE akd Sd/-
JUDGE