in the high court of punjab and haryana at chandigarhnhai.org.in/spw/courtcase/fao 8377-14 nhai...

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

F.A.O. No.____________of 2014

National Highways Authority of India .…..Appellant

Versus

Sukhwinder Singh and others …..Respondents

I N D E X

Sr.No Particulars Date Page No. Court Fee1. Application for Exemption. 30.08.2014 1-2 3.00

2. Affidavit. 30.08.2014 3-4 ----

3. Application for Stay. 30.08.2014 5-6 3.00

4. Affidavit. 30.08.2014 7-8 ----

5. Grounds of Appeal 30.08.2014 9-17 ----

6. Affidavit 30.08.2014 18 ----

7. Memo of Parties 30.08.2014 19 500.00

8. Award passed by ADJ,(FTC)

Rupnagar 28.05.2014 20-30 9.00

9. Award passed by Arbitrator 03.03.2012 31-45 15.00

10. Award passed by Competent

Authority

04.05.2010 46-50 5.00

11 Power of Attorney alongwith

authority letter 30.08.2014 51-52 5.00

Total Rs. 540/-

Note : No Caveat has been received.

Chandigarh (Puneet Kaur Sekhon) Dated: 30.08.2014 Advocate Counsel for the Appellant


Civil Misc. Application No.______________ of 2014 IN

F.A.O. No.____________of 2014

National Highways Authority of India .…..Appellant/Applicant

Versus

Sukhwinder Singh and others …..Respondents.

Application U/s 151 of the C.P.C. seeking exemption

from filing certified copy & typed copy of the Awards

dated 04.05.2010 & 03.03.2012 passed by the

Competent Authority under the National Highways

Act, 1988 & the Arbitrator respectively; and typed

copy of the impugned Award dated 28.05.2014.

Respectfully Submitted;

1. That the applicant is filing the accompanying appeal against the Award

dated 28.05.2014 passed by the Learned Additional District Judge, (Fast Track

Court) Rupnagar dismissing the petition filed by the applicant under Section 34 of

the Arbitration and Conciliation act, 1996, by upholding the Award of the

Arbitrator dated 03.03.2012 enhancing the compensation awarded for the land

acquired.

2. That the applicant is filing the appeal alongwith certified copy of the

impugned Award. As at present the applicant is not having certified copy of the

awards dated 04.05.2010 & 03.03.2012 and to avoid delay in filing the appeal

true Photostat copy of the Original/Certified copy of the same is appended.

3. That the applicant undertakes to place on record the certified copies/typed

copies of the Awards on the record in case this Hon’ble Court so directs.

It is, therefore, most respectfully prayed that in the interest of justice

the present application may kindly be allowed and exemption may be granted

from filing certified copy & typed copy of the Awards dated 04.05.2010 &

03.03.2012 passed by the Competent Authority under the National Highways

Act, 1988 & the Arbitrator respectively; and typed copy of the impugned Award

dated 28.05.2014.

Chandigarh Dr. Puneet Kaur Sekhon Dated: 30.08.2014 Advocate Counsel for the Appellant/Applicant



F.A.O. No.____________of 2014


Versus


Affidavit of O.C. Mathur, Project Director, National Highways

Authority of India, Project Implementation Unit-Chandigarh-

Bays No. 35-38, Sector-4, Panchkula.

I, the above named deponent do hereby solemnly state and affirm as under;






acquired.

2. That the applicant is filing the appeal alongwith certified copy of the

impugned Award. As at present the applicant is not having certified copy of the

awards dated 04.05.2010 & 03.03.2012 and to avoid delay in filing the appeal

true Photostat copy of the Original/Certified copy of the same is appended.

3. That the applicant undertakes to place on record the certified copies/typed

copies of the Awards on the record in case this Hon’ble Court so directs.

Chandigarh Deponent Dated: 30.08.2014

Verification: Verified that the contents of para 1 to 3 of the affidavit are true and

correct to my knowledge. No part of it is false and nothing relevant has been

concealed therein.




F.A.O. No.____________of 2014


Versus


Application under Order 41 Rule 5 read with Section 151

CPC seeking stay of operation of the impugned Award dated

03.03.2012 of the Arbitrator and the Award dated 28.05.2014

passed by the Learned Additional District Judge, (Fast Track

Court) Rupnagar.

Respectfully Submitted;





Arbitrator dated 03.03.2012 exorbitantly enhancing the compensation awarded

for the land acquired.

2. That as detailed in the grounds of appeal, both the Awards are totally

arbitrary being against the facts and law. That the applicant has a good prima

facie case in its favour and the applicant is sanguine about the success of

appeal. Balance of convenience is also in favour of the applicant as in case the

amount awarded by the Arbitrator is paid to the contesting

respondents/landowners, it would not be possible to recover the same in the

eventuality of success of the present appeal.

It is therefore, respectfully prayed that keeping in view the

facts and circumstances of the case the application may kindly be allowed

and operation of the impugned Award dated 03.03.2012 of the Arbitrator and

the Award dated 28.05.2014 passed by the Learned Additional District Judge,

(Fast Track Court) Rupnagar may kindly be stayed during the pendency of

appeal.

Chandigarh Dr. Puneet Kaur Sekhon Dated: 30.08.2014 Advocate Counsel for the Appellant/Applicant


Civil Misc. Application No.______________ of 2014

IN

F.A.O. No.____________of 2014


Versus



Authority of India, Project Implementation Unit-Chandigarh-

Bays No. 35-38, Sector-4, Panchkula.

I, the above-named deponent do hereby solemnly state and affirm as under;





Arbitrator dated 03.03.2012 exorbitantly enhancing the compensation awarded

for the land acquired.

2. That as detailed in the grounds of appeal, both the Awards are totally

arbitrary being against the facts and law. That the applicant has a good prima

facie case in its favour and the applicant is sanguine about the success of

appeal. Balance of convenience is also in favour of the applicant as in case the

amount awarded by the Arbitrator is paid to the contesting

respondents/landowners, it would not be possible to recover the same in the

eventuality of success of the present appeal.

Chandigarh Deponent Dated:30.08.2014



concealed therein.


GROUNDS OF APPEAL

1. That the appellant, National Highways Authority of India, a body

corporate constituted under Section 3 of the National Highways Authority of

India Act, 1988, (for short NHAI Act) is filing the present appeal through Sh.

O.C. Mathur, Project Director, Project Implementation Unit, Chandigarh, who

is well conversant with the facts of the case and is duly authorised to file the

present appeal against the Award dated 28.05.2014 passed by the Learned

Additional District Judge, (Fast Track Court) Rupnagar in Arbitration Petition

No. 449 of 2012 dismissing the petition filed by the appellant under Section 34

of the Arbitration and Conciliation Act, 1996, by upholding the Award of the


acquired under the provisions of NHAI Act.

BRIEF FACTS 2. That the Government of India vide its Notification dated 24.11.2009

issued under Section 3 (A) of the NH Act, declared its intention to acquire the

land for building (widening four laning etc.), maintenance, management and

operation of NH-21 on the stretch of land from K.M.32.250 to K.M.66.250

(Kurali-Kiratpur Section of NH-21), in the Revenue Estate of Bharatgarh,

Barapind, Bari Jhakian, Chhoti Jhakian, Haner and Bhouwal, District

Rupnager. Thereafter, vide Notification dated 09.03.2010 issued under

Section 3-D of the NH Act declaration was made that the land specified in

the schedule shall vest absolutely in the Central Government.

3. That during the proceedings for assessment of compensation under

Section 3-G of the NH Act before the ‘competent authority’, the measurement

and classification of the land described in the aforesaid Notifications was not

disputed by the land owners. As per the aforesaid classification land of the

private respondents/land owner is as follows:-

Village Bharatgarh, H.B. No.327

Khasra No. Area Kanal-Marla

Type of land Nature of land

1049/1 0-4 Private Gair Mumkin Abadi

1104 0-3 Private Gair Mumkin Abadi

1105 0-6 Private Gair Mumkin Abadi

1052 0-4 Shamlat Gair Mumkin School

4. That the competent authority vide its award dated 04.05.2010 awarded

compensation at the following rates:-

Sr. No

Name of the village & H.B.No.

Nature of land

D.C Rates of that particular type of land

Rate of compensation

Remarks

1 Bharatgarh-

327

Residential-

cum-

Commercial

40,00,000/-

(Residential)

96,00,000/-

(Commercial)

68,00,000/- As the land is

being used

for residential

and

Commercial

purpose, the

average of

commercial

and rates has

been

awarded

2 Bara Pind-

326

Residential 32,00,000/- 32,00,000/- -----

3 Bari Jhakian

-324

Residential 32,00,000/- 32,00,000/- ---

4 Chotti

Jhakian -5

Residential 32,00,000/- 32,00,000/-

---

5 Halerh-323 Residential 32,00,000/- 32,00,000/- ---

6 Bhouwal-325 Residential 32,00,000/- 32,00,000/- ---

5. That against the award of the competent authority, the private

respondents/land owners availed the statutory remedy of the arbitration and

demanded compensation for land @ 4.0 crore per acre.

6. That the arbitrator vide its award dated 03.03.2012 assessed the

market price of the aforesaid land @ Rs.0.975 lacs per Marla.

Disadvantageous factor of statutory restrictions on the use of land have not

been taken in to consideration while assessing the market value of the land.

Not only this, despite the fact that Arbitrator was a full time Government

servant and was discharging the duties as an Arbitrator on the instructions of

the Central Government, he has illegally claimed arbitration cost of

Rs.14,000/-, to be shared by both the parties to the arbitration.

7. That faced with this, the appellant filed petition under Section 34 of the

Arbitration and Conciliation Act, 1996 for setting aside the aforesaid illegal,

arbitrary and perverse award. However, learned Addl. District Judge (Fast

Track Court), Rupnagar, failed to exercise its jurisdiction under the

misconception of fact and law that the case is not covered by the grounds

provided under Section 34 of the said Act. Resultantly, the aforesaid petition

filed by the appellant against the totally illegal and perverse award of arbitrator

was dismissed in perfunctory manner vide award dated 28.05.2014.

8. That in the aforesaid factual background the appellant is impugning the

award dated 03.03.2012 passed by the Arbitrator and the award dated

28.05.2014 passed by the learned Additional District Judge (Fast Track Court)

Rupnagar, upholding the award of the arbitrator by dismissing the petition filed

by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996

on the grounds detailed hereunder.

GROUNDS OF CHALLENGE

9. That learned Additional District Judge (Fast Track Court) Rupnagar,

failed to exercise the jurisdiction vested in it on the erroneous assumption that

the case is not covered under Section 34 (2) of the Arbitration and Conciliation

Act, 1996. In view of the following position of law reiterated by Hon’ble

Supreme Court in its Judgememt in the matter of DELHI DEVELOPMENT

AUTHORITY V/S R S SHARMA AND COMPANY reported in 2008 (13) SCC

80, it was incumbent upon the learned Additional District Judge (Fast Track

Court) Rupnagar to set aside the Award of the arbitrator;

“[12] From the above decisions, the following principles emerge:

(a) An Award, which is

(i) contrary to substantive provisions of law ; or

(ii) the provisions of the Arbitration and Conciliation Act, 1996 ; or

(iii) against the terms of the respective contract ; or

(iv) patently illegal, or

(iv) prejudicial to the rights of the parties, is open to

interference by the Court under Section 34(2) of the Act.

(b) Award could be set aside if it is contrary to :

(a) fundamental policy of Indian Law; or

(b) the interest of India; or

(c) justice or morality;

(c) The Award could also be set aside if it is so unfair and

unreasonable that it shocks the conscience of the Court.

(d) It is open to the Court to consider whether the Award is

against the specific terms of contract and if so, interfere with it on

the ground that it is patently illegal and opposed to the public

policy of India.”

Hence, if the Arbitral Tribunal does not dispense justice, it cannot

truly be reflective of an alternate dispute resolution mechanism. Hence, if the

award has resulted in an injustice, a Court would be well within its right in

upholding the challenge to the award on the ground that it is in conflict with the

public policy of India.

10. That under Section 28 of the Arbitration and Conciliation Act, 1996,

the arbitrator is bound to pass the award according to the substantive law of

India and Section 31 (3) of the said Act mandates to give reasons. In the

present case the award of the arbitrator has been passed in utter disregard of

these provisions. The principle applied to arrive at the market rate of the land

is not discernable from the award of the arbitrator, the award does not satisfy

the requirement of a reasoned award. Therefore, the same is contrary to the

provisions of the Act and is contrary to the public policy of India.

11. That in the present case the arbitrator failed to take into consideration

the relevant facts and based his decision on irrelevant factors, thus has

committed a legal misconduct. Therefore, in view of the following observations

of Hon’ble Supreme Court in the matter of UNION OF INDIA V/S V

PUNDARIKAKSHUDU AND SONS reported in 2003 (8) SCC 168, the award

of the arbitrator deserved to be set aside;

“ ……………………… and furthermore if in determining the

disputes between the parties the arbitrator failed to take into

consideration the relevant facts or based his decision on

irrelevant factors not germane therefor; the arbitrator must be

held to have committed a legal misconduct.”

12. That the arbitrator acted illegally in referring to sale instances without

there being any evidence that the same pertain to the land having

disadvantageous factor of statutory restrictions on the use of land and the

same are the relevant comparable instances.

13. That a perusal of the impugned award of the arbitrator would reveal that

the arbitrator, while granting compensation has over looked the provisions of

sub-section 7 of section 3-G of the NH Act, hence the judgment upholding the

award of Ld. Arbitrator is liable to be set aside on this ground alone.

14. That the Ld. Arbitrator while determining the market value of the land

failed to take into consideration the effect of statutory provisions and the

material on record, especially the Notification dated 05.10.2005 banning

construction upto 50 meters along the National Highway on the market value

of the land under acquisition. The Ld. Addl. District Judge, Ropar has failed to

appreciate this glaring illegality.

15. That neither there was any structure meant for being used as

commercial building on the land in question nor the private

respondents/landowners in the present case claimed the existence of any

such structure. Therefore, there is no basis to treat the land as commercial.

However, without going into the issue with regard to the nature of land, Ld.

Arbitrator own its own declared the land as commercial land.

16. That Ld. Arbitrator as well as the Ld. Addl. District Judge, Ropar failed

to consider the fact that only small strips of the land were acquired for

widening of NH. The value of such land cannot be same as that of the plots in

the developed commercial area.

17. That the award passed by the Competent Authority and Ld. Arbitrator

are on the basis of contradictory record. Perusal of both the awards reveal

that during the proceedings of both the awards, the revenue officials produced

the different average rates of the land. Thus Ld. Arbitrator granted the

compensation by making reference to the record which is contradictory in

itself.

18. That for determination of the market value of the land to be acquired,

the collector rates are the safest guiding factor. The market rate to be taken

into the consideration is, the rate prevailing at the time of issuance of

notification under 3 A of the National Highways Act, 1956. Perusal of the

award passed by the Ld. Arbitrator reveal that both the compensation has

been awarded at much higher than the market rates and the same has been

upheld by the Ld. Addl. District Judge, Ropar. Hence the impugned awards

are liable to be set aside.

19. That Ld. Arbitrator as well as the Ld. Addl. District Judge, Ropar has

completely overlooked the provision of the National Highways (Land and

Traffic) Act, 2002; Punjab Regional & Town Planning & Country Development

Act, 1995; Punjab Scheduled Roads And Controlled Areas Restriction Of

Unregulated Development Act, 1963 where under several restrictions have

been imposed regarding construction and approach to the Highways, making it

almost impossible to use the land abutting the National Highways for

commercial purpose. Thus the Ld. Arbitrator as well as the Ld. Addl. District

Judge, Ropar proceeded on totally misconceived assumption that the land in

question is adjoining to National Highway No. 21 and its market value would

be on the higher side. Hence the impugned Awards are liable to bet set aside.

20. That that Arbitrator is a member of All India Service and was appointed

arbitrator under the provisions of Section 3 G (5) of the NH Act. Being full time

Government servant he was discharging the duties as an Arbitrator on the

instructions of the Central Government, but he has illegally claimed arbitration

cost of Rs.14,000/-, to be shared by both the parties to the arbitration. This

illegality has totally been overlooked by the Ld. Addl. District Judge, Ropar.

21. That the Division Bench judgment of this Hon’ble High Court in CWP

No. 11461 of 2005 in the matter of “M/s. Golden Iron & Steel Forging Vs.

Union of India and others” relied upon to award solatium and interest in terms

of the land Acquisition Act, 1894, is under challenge before the Hon’ble

Supreme Court in Appeal No. 10695 of 2011 which is still pending.

22. That without prejudice to the aforesaid, grant of interest @ 18 % p.a on

the amount awarded is not in terms of the Land Acquisition Act, 1894.

Provisions of an Act are to be applied in its entirety. Therefore, award of

interest over and above the rate of interest provided under the Land

Acquisition Act, 1894 is illegal and arbitrary.

23. That the appellant has not filed any such or similar appeal either before

this Hon’ble Court or before Hon’ble Supreme Court of India nor such appeal

is pending.

24. That the present appeal is within limitation.

It is, therefore, respectfully prayed that the present appeal may

kindly be allowed and the Award dated 28.05.2014 passed in Arbitration

Petition No. 449 of 2012 by the Ld. Addl. District Judge, (Fast Track Court)

Ropar, and the Award dated 03.03.2012 passed by the Arbitrator may kindly

be set aside in the interest of justice.

DATED:30.08.2014 (Dr. Puneet Kaur Sekhon) CHANDIGARH E. No. P-3004/07 Advocate Counsel for the Appellant


F.A.O. No.____________of 2014

National Highways Authority of India .…..Appellant

Versus



Authority of India, Bays No. 35-38, Sector-4, Panchkula.

I, the above named deponent do hereby solemnly state and affirm as under;

1. That the deponent is Project Director, National Highways Authority of India

(for short NHAI) and is duly authorized to file the accompanying appeal on behalf

of NHAI, which has been drafted on the instructions of the deponent.

2. That the facts stated in para 1 to 24 of the grounds of appeal are true and

correct to the knowledge of the deponent.

3. That the appellant has not filed any such or similar appeal before this

Hon’ble Court against the award which is impugned in the accompanying appeal.




concealed therein.

Chandigarh Deponent Dated 30.08.2014


F.A.O. No.__________________of 2014 In

Arbitration Case No.: 449/2012

MEMO OF PARTIES

National Highways Authority of India, Project Implementation Unit, Chandigarh -

Bays No. 35-38, Sector-4, Panchkula through O.C. Mathur, Project Director.

..…..Petitioner.

Versus 1. Sukhwinder Singh S/o Ujjagar Singh R/o Village Bharatgarh Tehsil and

District Ropar.

2. Sovinder Kaur d/o Sohinder Kaur R/o Village Bharatgarh Tehsil and

District Ropar.

3. Harwinder Singh S/o Sohinder Kaur R/o Village Bharatgarh Tehsil and

District Ropar.

4. Divisional Commissioner, Patiala Division, Patiala, Sole Arbitrator O/O

Divisional Commissioner, Mini Secretariat, Nabha Road, Patiala.

5. Sub Divisional Magistrate, Ropar, Competent Authority under the National

Highways Act, 1956.

…..Respondents.

6. State of Punjab through its Secretary Punjab Secretariat, Chandigarh.

…..Proforma Respondent.

Chandigarh (Puneet Kaur Sekhon) Dated: 30.08.2014 Advocate Counsel for the Petitioner

in the high court of punjab and haryana at chandigarhnhai.org.in/spw/courtcase/fao 8377-14 nhai...

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