IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 11 TH DAY OF JANUARY 2013 BEFORE THE HON BLE MR.JUSTICE ARAVIND KUMAR

Transcription

1 : 1 : IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 11 TH DAY OF JANUARY 2013 BEFORE THE HON BLE MR.JUSTICE ARAVIND KUMAR MFA NO.21806/2012 (AA) C/W MFA NOS.21807, 21808, 21809, 21810, 21811, 21812, 21813, 21814, & OF 2012 MFA NO.21806/2012: BETWEEN: NINGANAGOUDA S/O SHIVANAGOUDA PATIL & OTHERS, LEGAL HEIRS OF LATE SHIVANAGOUDA, S/O NINGANAGOUDA PATIL AGE: 41 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TALUK & DIST: BELGAUM [BY SHRI SRINAND A.PACHHAPURE & SHRI RAJENDRA R. PATIL, ADVS.] APPELLANT AND: 1. THE MANAGER, TECHNICAL & COMPTENT AUTHORITY, FOR LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, SATTUR COLONY, VIDYAGIRI, DHARWAD. 2. THE SPECIAL DEPUTY COMMISSIONER, LAQ. R&R, MAJOR IRRIGATION PROJECTS, BELGAUM AND ARBITRATOR FOR NATIONAL HIGHWAY AUTHORITY OF INDIA, BELGAUM. RESPONDENTS [BY SMT. P.R.BENTUR & H.R.BENTUR, ADVS. FOR R1]

2 : 2 : THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37(1)(B) OF ARBITRATION AND CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND AWARD DATED PASSED IN ARBITRATION CASE NO.4/2011 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BELGAUM, REJECTING THE PETITION FILED UNDER SECTION 34 OF ARBITRATION AND CONCILIATION ACT. MFA NO.21807/2012: BETWEEN: BABU S/O MALLAPPA YAMMINAKATTI, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TALUK & DIST: BELGAUM. APPELLANT [BY SHRI SRINAND A.PACHHAPURE & SHRI RAJENDRA R. PATIL, ADVS.] AND: 1. THE MANAGER, TECHNICAL & COMPTENT AUTHORITY, FOR LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, SATTUR COLONY, VIDYAGIRI, DHARWAD. 2. THE SPECIAL DEPUTY COMMISSIONER, LAQ. R&R, MAJOR IRRIGATION PROJECTS, BELGAUM AND ARBITRATOR FOR NATIONAL HIGHWAY AUTHORITY OF INDIA, BELGAUM. RESPONDENTS [BY SMT. P.R.BENTUR & H.R.BENTUR, ADVS. FOR R1] THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37(1)(B) OF ARBITRATION AND CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND AWARD DATED PASSED IN ARBITRATION

3 : 3 : CASE NO.5/2011 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BELGAUM, REJECTING THE PETITION FILED UNDER SECTION 34 OF ARBITRATION AND CONCILIATION ACT. MFA NO.21808/2012: BETWEEN: BASAPPA S/O IRAPPA PISHANNAVAR, AGE: 56 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TALUK & DIST: BELGAUM. APPELLANT [BY SHRI SRINAND A.PACHHAPURE & SHRI RAJENDRA R. PATIL, ADVS.] AND: 1. THE MANAGER, TECHNICAL & COMPTENT AUTHORITY, FOR LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, SATTUR COLONY, VIDYAGIRI, DHARWAD. 2. THE SPECIAL DEPUTY COMMISSIONER, LAQ. R&R, MAJOR IRRIGATION PROJECTS, BELGAUM AND ARBITRATOR FOR NATIONAL HIGHWAY AUTHORITY OF INDIA, BELGAUM. RESPONDENTS [BY SMT. P.R.BENTUR & H.R.BENTUR, ADVS. FOR R1] THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37(1)(B) OF ARBITRATION AND CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND AWARD DATED PASSED IN ARBITRATION CASE NO.6/2011 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BELGAUM, REJECTING THE PETITION FILED UNDER SECTION 34 OF ARBITRATION AND CONCILIATION ACT.

4 : 4 : MFA NO.21809/2012: BETWEEN: SRI. PRAKASH S/O VEERAPPA JAPATI AGE: 45 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TALUK & DIST: BELGAUM. APPELLANT [BY SHRI SRINAND A.PACHHAPURE & SHRI RAJENDRA R. PATIL, ADVS.] AND: 1. THE MANAGER, TECHNICAL & COMPTENT AUTHORITY, FOR LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, SATTUR COLONY, VIDYAGIRI, DHARWAD. 2. THE SPECIAL DEPUTY COMMISSIONER, LAQ. R&R, MAJOR IRRIGATION PROJECTS, BELGAUM AND ARBITRATOR FOR NATIONAL HIGHWAY AUTHORITY OF INDIA, BELGAUM. RESPONDENTS [BY SMT. P.R.BENTUR & H.R.BENTUR, ADVS. FOR R1] THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37(1)(B) OF ARBITRATION AND CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND AWARD DATED PASSED IN ARBITRATION CASE NO.7/2011 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BELGAUM, REJECTING THE PETITION FILED UNDER SECTION 34 OF ARBITRATION AND CONCILIATION ACT.

5 : 5 : MFA NO.21810/2012: BETWEEN: GANGAPPA S/O BASAPPA AMBADAGATTI AGE: 56 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TALUK & DIST: BELGAUM. APPELLANT [BY SHRI SRINAND A.PACHHAPURE & SHRI RAJENDRA R. PATIL, ADVS.] AND: 1. THE MANAGER, TECHNICAL & COMPTENT AUTHORITY, FOR LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, SATTUR COLONY, VIDYAGIRI, DHARWAD. 2. THE SPECIAL DEPUTY COMMISSIONER, LAQ. R&R, MAJOR IRRIGATION PROJECTS, BELGAUM AND ARBITRATOR FOR NATIONAL HIGHWAY AUTHORITY OF INDIA, BELGAUM. RESPONDENTS [BY SMT. P.R.BENTUR & H.R.BENTUR, ADVS. FOR R1] THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37(1)(B) OF ARBITRATION AND CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND AWARD DATED PASSED IN ARBITRATION CASE NO.8/2011 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BELGAUM, REJECTING THE PETITION FILED UNDER SECTION 34 OF ARBITRATION AND CONCILIATION ACT.

6 : 6 : MFA NO.21811/2012: BETWEEN: MOTAPPA URF DUNDAPPA S/O BASALINGAPPA ROTTI AGE: 61 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TALUK & DIST: BELGAUM. APPELLANT [BY SHRI SRINAND A.PACHHAPURE & SHRI RAJENDRA R. PATIL, ADVS.] AND: 1. THE MANAGER, TECHNICAL & COMPTENT AUTHORITY, FOR LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, SATTUR COLONY, VIDYAGIRI, DHARWAD. 2. THE SPECIAL DEPUTY COMMISSIONER, LAQ. R&R, MAJOR IRRIGATION PROJECTS, BELGAUM AND ARBITRATOR FOR NATIONAL HIGHWAY AUTHORITY OF INDIA, BELGAUM. RESPONDENTS [BY SMT. P.R.BENTUR & H.R.BENTUR, ADVS. FOR R1] THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37(1)(B) OF ARBITRATION AND CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND AWARD DATED PASSED IN ARBITRATION CASE NO.9/2011 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BELGAUM, REJECTING THE PETITION FILED UNDER SECTION 34 OF ARBITRATION AND CONCILIATION ACT.

7 : 7 : MFA NO.21812/2012: BETWEEN: YALLAPPA S/O RUDRAPPA SHINTRI AGE: 46 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TALUK & DIST: BELGAUM. APPELLANT [BY SHRI SRINAND A.PACHHAPURE & SHRI RAJENDRA R. PATIL, ADVS.] AND: 1. THE MANAGER, TECHNICAL & COMPTENT AUTHORITY, FOR LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, SATTUR COLONY, VIDYAGIRI, DHARWAD. 2. THE SPECIAL DEPUTY COMMISSIONER, LAQ. R&R, MAJOR IRRIGATION PROJECTS, BELGAUM AND ARBITRATOR FOR NATIONAL HIGHWAY AUTHORITY OF INDIA, BELGAUM. RESPONDENTS [BY SMT. P.R.BENTUR & H.R.BENTUR, ADVS. FOR R1] THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37(1)(B) OF ARBITRATION AND CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND AWARD DATED PASSED IN ARBITRATION CASE NO.10/2011 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BELGAUM, REJECTING THE PETITION FILED UNDER SECTION 34 OF ARBITRATION AND CONCILIATION ACT.

8 : 8 : MFA NO.21813/2012: BETWEEN: SRI. NAGANAGOUDA S/O BASANAGOUDA HADIMANI AGE: 56 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TALUK & DIST: BELGAUM. APPELLANT [BY SHRI SRINAND A.PACHHAPURE & SHRI RAJENDRA R. PATIL, ADVS.] AND: 1. THE MANAGER, TECHNICAL & COMPTENT AUTHORITY, FOR LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, SATTUR COLONY, VIDYAGIRI, DHARWAD. 2. THE SPECIAL DEPUTY COMMISSIONER, LAQ. R&R, MAJOR IRRIGATION PROJECTS, BELGAUM AND ARBITRATOR FOR NATIONAL HIGHWAY AUTHORITY OF INDIA, BELGAUM. RESPONDENTS [BY SMT. P.R.BENTUR & H.R.BENTUR, ADVS. FOR R1] THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37(1)(B) OF ARBITRATION AND CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND AWARD DATED PASSED IN ARBITRATION CASE NO.11/2011 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BELGAUM, REJECTING THE PETITION FILED UNDER SECTION 34 OF ARBITRATION AND CONCILIATION ACT.

9 : 9 : MFA NO.21814/2012: BETWEEN: SRI. BASAPPA S/O RUDRAPPA SHINTRI AGE: 57 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TALUK & DIST: BELGAUM. APPELLANT [BY SHRI SRINAND A.PACHHAPURE & SHRI RAJENDRA R. PATIL, ADVS.] AND: 1. THE MANAGER, TECHNICAL & COMPTENT AUTHORITY, FOR LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, SATTUR COLONY, VIDYAGIRI, DHARWAD. 2. THE SPECIAL DEPUTY COMMISSIONER, LAQ. R&R, MAJOR IRRIGATION PROJECTS, BELGAUM AND ARBITRATOR FOR NATIONAL HIGHWAY AUTHORITY OF INDIA, BELGAUM. RESPONDENTS [BY SMT. P.R.BENTUR & H.R.BENTUR, ADVS. FOR R1] THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37(1)(B) OF ARBITRATION AND CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND AWARD DATED PASSED IN ARBITRATION CASE NO.12/2011 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BELGAUM, REJECTING THE PETITION FILED UNDER SECTION 34 OF ARBITRATION AND CONCILIATION ACT.

10 : 10 : MFA NO.21815/2012: BETWEEN: FADIGOUDA S/O SANGANAGOUDA PATIL & OTHERS HEIRS OF LATE SANGANAGOUDA S/O NINGANAGOUDA PATIL, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TALUK & DIST: BELGAUM. APPELLANT [BY SHRI SRINAND A.PACHHAPURE & SHRI RAJENDRA R. PATIL, ADVS.] AND: 1. THE MANAGER, TECHNICAL & COMPTENT AUTHORITY, FOR LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, SATTUR COLONY, VIDYAGIRI, DHARWAD. 2. THE SPECIAL DEPUTY COMMISSIONER, LAQ. R&R, MAJOR IRRIGATION PROJECTS, BELGAUM AND ARBITRATOR FOR NATIONAL HIGHWAY AUTHORITY OF INDIA, BELGAUM. RESPONDENTS [BY SMT. P.R.BENTUR & H.R.BENTUR, ADVS. FOR R1] THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37(1)(B) OF ARBITRATION AND CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND AWARD DATED PASSED IN ARBITRATION CASE NO.13/2011 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BELGAUM, REJECTING THE PETITION

11 : 11 : FILED UNDER SECTION 34 OF ARBITRATION AND CONCILIATION ACT. MFA NO.21816/2012: BETWEEN: IMAM HUSSAIN S/O NABISA NADAF AGE: 66 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TALUK & DIST: BELGAUM. APPELLANT [BY SHRI SRINAND A.PACHHAPURE & SHRI RAJENDRA R. PATIL, ADVS.] AND: 1. THE MANAGER, TECHNICAL & COMPTENT AUTHORITY, FOR LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, SATTUR COLONY, VIDYAGIRI, DHARWAD. 2. THE SPECIAL DEPUTY COMMISSIONER, LAQ. R&R, MAJOR IRRIGATION PROJECTS, BELGAUM AND ARBITRATOR FOR NATIONAL HIGHWAY AUTHORITY OF INDIA, BELGAUM. RESPONDENTS [BY SMT. P.R.BENTUR & H.R.BENTUR, ADVS. FOR R1] THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 37(1)(B) OF ARBITRATION AND CONCILIATION ACT, 1996, AGAINST THE JUDGMENT AND AWARD DATED PASSED IN ARBITRATION CASE NO.14/2011 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BELGAUM, REJECTING THE PETITION

12 : 12 : FILED UNDER SECTION 34 OF ARBITRATION AND CONCILIATION ACT. THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - JUDGMENT These appeals are by the claimants questioning the correctness and legality of the judgment passed by the District Judge, Belgaum, in Arbitration Case Nos.4, 5, 6, 7, 8, 9, 10, 11, 12, 13 & 14 of 2011 dated , whereunder the awards passed by the 2 nd respondent herein and petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to Act for the sake of brevity) challenging the said awards came to be affirmed. 2. This Court by order dated condoned the delay and matter was listed for admission on and at the request of learned Advocates, matter was listed for today. By consent, it is taken up for final disposal.

13 : 13 : 3. The grounds urged, pleas advanced and arguments canvassed in these appeals are identical and as such, these appeals are disposed of by this common order. 4. I have heard the arguments of Shri Srinand A. Pachhapure, learned counsel appearing along with Rajendra R. Patil for appellants and Smt. P.R.Bentur, learned counsel appearing for R1. Notice to R2 has been dispensed with by order dated , at the risk of the appellant. The contentions raised by the learned counsel appearing for the appellants are as under: - i) The trial Court has remanded the matter to the 2 nd respondent to determine the market value of the property, as per Section 3-G(7) of the National Highways Act (Amendment), 1956, in as much as the said provision had not been taken into consideration by 2 nd respondent while determining the compensation and even in present appeals same factual matrix appears.

14 : 14 : ii) iii) There is no proper determination of the market value of the acquired land and the Arbitrator as well as the Court below has not taken into consideration the registered sale deed produced by the appellants in support of their contention seeking for enhancement of compensation which related to an abutting land, the potentiality of which land was same as that of the lands acquired. In identical circumstances, the very same Court itself had accepted similar contentions raised by the claimants and as such, it has remanded the matter back to the 2 nd respondent for computation or re-determination of compensation and same has not been followed in the present appeals and as such, compensation has to be redetermined. 5. On these grounds, the learned counsel for the appellants seeks for setting aside the judgment and award passed by the 2 nd respondent which has been affirmed by the trial Court and prays for allowing the

15 : 15 : appeal and awarding the of Rs.19,000/- per gunta, which was the market value prevailing as on or in the alternate, he prays for appeals being remanded to the 2 nd respondent for adjudication afresh, so that the claimants would have ample opportunity to produce all other materials to establish their claim and also substantiate their claim for grant of award of of Rs.19,000/- per gunta. 6. Per contra Smt. P.R.Bentur, learned counsel appearing for the 1 st respondent would support the judgment and award passed by the tribunal and she would submit that trial Court has taken into consideration as to how the sale deed relied upon by the claimants could not have been taken as an yardstick to determine the compensation in so far as the lands belonging to the appellants/claimants acquired herein are concerned, would also attract the same price. She would also submit that the trial Court has taken note of the judgment of the Apex Court in the case of

16 : 16 : M.P.HOUSING BOARD VS. PROGRESSIVE WRITERS AND PUBLISHERS reported in 2009 (SCCR) 787 and the judgment of the Division Bench of this Court in H.M.SHANKARMURTHY VS. NATIONAL HIGHWAYS AUTHORITY OF INDIA AND OTHERS reported in ILR 2010 Kar 3711, to arrive at a conclusion that an award passed can only be set aside on anyone of the grounds as indicated in Section 34(2) of the Arbitration Act, 1996 and contends that there is no error committed by the trial Court either on facts or on law calling for interference at the hands of this Court and as such, she prays for dismissal of the appeal. 7. Learned counsel appearing for the appellants has made available a chart which depicts the details of claim made in each of the appeals and this fact having not been disputed by the learned counsel appearing for respondent, same is extracted herein below. Case No. R.S.No. Measurement/ Extent Award Enhanced by 50% weightage of Award Nature of the Land MFA 21806/ (1/2 share) 4,453 Sq. Mts. (44.08 guntas) 2,21,536/- 3,32,304/- Agricultural Land

17 : 17 : MFA 21807/ ,239 Sq. Mts. (12.26 guntas) 61,640/- 92,460/- Agricultural Land MFA 21808/12 225/2 (1/2 Share) 1,011 Sq. Mts. (10 guntas) 3,39,664/- Nil (Dismissed) N/A Land MFA 21809/12 MFA 21810/ ,984 Sq. Mts. (29.54 guntas) 320/ Sq. Mts. (5 guntas) 92,504/- 1,38,756/- Agricultural Land 1,26,672/- 1,98,008/- Agricultural Land MFA 21811/12 463/03 & 800 Sq. Mts. (7.92 guntas) 464/ Sq. Mts. (24.45 guntas) 39,800/- 59,700/- 1,22,882/- 1,84,323/- Agricultural Land MFA 21812/12 363/05 (1/2 Share) 1,769 Sq. Mts. (17.51 guntas) 1,20,007/- 1,80,010/- Agricultural Land MFA 21813/12 MFA 21814/12 358/ Sq. Mts. (3.5 guntas) 363/05 1,769 Sq. Mts. (17.51 guntas) 10,974/- 16,461/- Agricultural Land 1,20,007/- 1,80,010/- Agricultural Land MFA 21815/ (1/2 Share) 4,453 Sq. Mts. (44.08 guntas) 2,21,536/- 3,32,304/- Agricultural Land MFA 21816/12 463/ Sq. Mts. (3.56 guntas) 17,910/- 26,865/- Agricultural Land 8. Having heard the learned Advocates appearing for the parties and on perusal of the judgment passed by the trial Court and also the award passed by the 2 nd respondent, I am of the considered view that following points would arise for my consideration.

18 : 18 : i) ii) iii) Whether the awards passed by the 2 nd respondent suffers from any patent errors which called for interference at the hands of the trial Court in exercise of its appellate power under Section 34 of the Act and same having not been exercised should it be exercised by this Court? If not, whether the trial Court was justified in not interfering with the award passed by 2 nd respondent and whether it was justified on facts and also on law in affirming the said awards and dismissing the petitions filed under Section 34? What order? BRIEF BACKGROUNDS: 9. Appellants were the claimants before the 2 nd respondent. In view of a preliminary notification issued under Section 3 A(1) of the National Highways (Amendment) Act, 1997, published in the Gazette of India dated for formation of 4 6 lane National Highway, the lands of the claimants came to be

19 : 19 : acquired by the National Highway Authority of India. Pursuant to the said acquisition, awards came to be passed by the Competent Authority and compensation as enumerated in column No.4 of the table extracted herein above, came to be awarded in favour of each of the claimants. 10. Not being satisfied with the compensation awarded, appellants/claimants filed an application under Section 3-G of the National Highways (Amendment) Act, 1997, before the 2 nd respondent herein, contending that the award passed by the Competent Authority is on the lower side, not commensurate with the prevailing market value of the land amongst other grounds. The 2 nd respondent after recording the evidence produced by both the parties and after affording opportunities of granting a personal hearing to all the parties, an order came to be passed on , , , , , , , , , and respectively

20 : 20 : and enhanced the compensation by 50% weightage as enumerated in column No.5 of the table extracted herein above. 11. It is to be noticed at this juncture itself that in so far as M.F.A. No.21805/2012 is concerned, appeal filed by the claimant came to be rejected by taking note of the fact that the land acquired and compensation determined was by a consent award and the compensation that had been awarded by the 2 nd respondent did not call for interference. 12. Aggrieved by these orders passed by the 2 nd respondent, claimants filed a petition under Section 34 of the Act, 1996, and sought for enhancement of compensation by reiterating their contentions raised by them before the 2 nd respondent. Trial Court having noticed the contentions raised which are identical and similar contentions now raised in the present appeals held that the claimants do not satisfy the ingredients of Section 34(2) of the Act to entertain their claim and even

21 : 21 : otherwise on merits it was noticed that full opportunity was extended and utilised by the claimants before the Competent Authority as well as before the 2 nd respondent herein. It also held that 2 nd respondent has taken note of the average market value of the lands for the year , in respect of different classes of lands, their situation and potentialities of the lands located in adjoining villages would be applicable or not, as also the sale deed produced by the claimants on the basis of which it was contended that market value as found in the sale deed as should be the yardstick and found that it is not having same potentiality and it is sale of a plot and concluded that awards in question not being opposed to public policy by relying upon the judgments of the Hon ble Apex Court as well as Division Bench of this Court referred to supra to reject said contentions and affirmed the orders passed by 2 nd respondent. These facts are not in dispute. In this background, now, let me consider the points formulated herein above: -

22 : 22 : RE. POINT NO.1 & 2: 13. These two points being inter-linked with each other and discussion on these two points are likely to overlap with each other, they are taken up together for adjudication. 14. At the outset, it can be noticed that the Competent Authorities under the National Highways (Amendment) Act, on acquiring the land have determined the compensation payable to each of the land holders whose land came to be acquired by awarding compensation. The average amount determined to each of the land holders is around Rs.5, per gunta. Being aggrieved by the said determination of compensation and not being satisfied with the market value so determined, it came to be challenged by them under Section 3-G(5) of the National Highways Act, 1956, before the Special Deputy Commissioner i.e., 2 nd respondent herein, contending inter alia that transaction and surrounding development costs Rs.10,000/-, total Rs.29,000/- per gunta is to be

23 : 23 : given and the market value has to be determined accordingly. 2 nd respondent after considering the evidence tendered by both the parties and after hearing the learned Advocates appearing for the parties and on perusal of the entire material available on record, opined as under: - Here the point which needs to be noted is that the average market value for the lands located near a village and lands located on the National Highway cannot be the same. The government through the Sub- Register has prescribed that additional 50% weightage needs to be given to the lands which are abutting the National Highway. This however has not been taken into cognizance of by the Competent Authority, NHAI. As regarding considering the average market value of the other villages, The Hon ble Supreme Court in AIR 1999 SC 317 has held that Situation and potentialities of lands in adjoining villages are different and the same cannot be relied upon. It is seen that different villages lie at different distance and have different potentialities and therefore the rates of lands in the village in

24 : 24 : question cannot be made same. The advocate for petitioner has requested to consider sale deed Sy. No.220/6 extent 101 Sqm. Dated of Hirebagewadi, registered for Rs.19,000/ gunta to fix the value of suit property. On perusal of the village map of Hirebagewadi village the suit properties are located near Siddanavabi and are abutting siddanabavi. Where as Sy. No.220 is nearer to Hirebagewadi village and as the registered property and suit properties lie at different distance and have different potentialities. I disagree to equate the same value to the lands acquired by the NHAI. 15. However, the claim petitions came to be allowed in part by awarding additional 50% compensation for the lands acquired and interest of 9% per annum was also ordered to be paid on the additional award amount. A perusal of the said order would clearly indicate that 2 nd respondent has taken into consideration, as to how the sale deed dated relied upon by the claimants cannot form

25 : 25 : the basis or foundation for applying the same to the lands of the appellants for acquired determination of compensation. The reasons given by the 2 nd respondent, as extracted herein supra, would clearly indicate that these two lands are different and independent and the said sale deed relied upon by the claimants cannot be used as an yardstick for the purposes of determination of compensation in respect of the lands belonging to the claimants/appellants acquired. The said finding arrived at by the 2 nd respondent which is based on proper evaluation of the materials and also evidence tendered by the parties cannot be construed as suffering from any infirmities either on facts or on law. 16. Reiterating the said contentions, petition under Section 34 of the Act came to be filed before the District Judge inter alia contending that awards passed are erroneous, compensation awarded by the Competent Authority is on lower side and enhanced by the Arbitrator are not inconsonance with the material

26 : 26 : evidence placed on record and as such, it requires to be enhanced. While considering the said contentions, trial Court examined the scope and power of Section 34 of the Arbitration Act, 1996 and by taking note of the contours defined by the Apex Court as well as by the Division Bench of this Court in the judgments referred to supra rejected the petition. Though said judgments have been noticed by the trial Court at the cost of repetition, the same requires to be noticed by this Court, since learned counsel appearing for the claimants has also reiterated the contentions before this Court which were raised before the trial Court contending that awards passed in question are opposed to public policy and as such, the trial Court ought to have interfered with said awards in exercise of the appellate power and set aside the awards passed under Section 34 of the Act and prays exercising of said power by this Court. The Division Bench of this Court had an occasion to consider similar question in the matter of H.M.SHANKARMURTHY VS. NATIONAL HIGHWAY

27 : 27 : AUTHORITIES OF INDIA AND OTHERS reported in ILR 2010 KAR 3711 and it has been held under: A provision for setting aside an award contending that the award is not sustainable in law on any one of the grounds as indicated above can never be construed as a provision enabling the land owner seeking for enhancement of the compensation amount as determined by the Arbitrator. The Learned Judge of the District Court has rightly rejected the application under Section 34 of the Arbitration and Conciliation Act, The application itself was not tenable. The appeal also is equally not tenable and even otherwise without any merit. 17. This Court rejected the appeal which was filed under Section 37 of the Act, wherein the award passed by the Competent Authority under the National Highways Act by affirming the award passed by the Deputy Commissioner who had enhanced the compensation and appeal filed thereon before this Court came to be rejected. On the ground that claimant was

28 : 28 : not able to demonstrate before this Court that award is not sustainable or any of the grounds enumerated under Section 34 of Arbitration Act, The same factual matrix is appearing in all these present appeals. If an award made by the Arbitrator is vitiated on account of either over looking the contents of a document brought to his notice or ignoring it, then it can be held or construed that there has been nonexamination of material evidence available on record and in such an event, the award would have called for modification, as otherwise, it cannot be construed as vitiated or opposed to public policy on account of nonconsideration of material available on record. It is precisely this aspect which came to be construed in KONKAN RAILWAY CORPORATION LIMITED, KARWAR, UTTAR KANNADA DISTRICT VS. SPECIAL LAND ACQUISITION OFFICER-II, MANGALORE SUPER THERMAL POWER PROJECT, MULKI, DAKSHINA KANNADA DISTRICT AND ANOTHER reported in 2004(1) KAR. L.J. 210, wherein their Lordships considered as to when an

29 : 29 : award should be construed as opposed to public policy, namely when there is non consideration of material evidence available on record and only then it would come within the mischief of being opposed to public policy as otherwise it would not. 18. In this background, when the facts on hand are examined, it can be noticed that the claimants contention is that potentiality of the land acquired for the purposes of formation of National Highway was not considered by the Competent Authority as well as by the 2 nd respondent. 2 nd respondent while enhancing the compensation by awarding additional 50% compensation for the lands acquired, has rightly come to the conclusion that the situation and potentialities of lands in adjoining villages are different from the land covered under sale deed dated and same cannot be relied upon by relying upon the judgment of the Apex Court reported in AIR 1999 SC 317. The said finding is based on sound appreciation of facts and applying the dicta laid down by the Apex Court, yet

30 : 30 : another factor which requires to be noticed is that sale deed dated is relating to R.S. No.220/6 of Hirebagewadi village sold for a consideration of Rs.19,000/- per gunta and it was sought to be established or made as a basis by the claimants to seek for the same amount of compensation being awarded to them. Arbitrator on perusal of the village map of Hirebagewadi village found that the acquired lands are found to be nearer to Siddanabavi village and land in R.S. No.220/6 is nearer to Hirebagewadi village. Thus, taking into consideration, the distance between the acquired lands and Survey No.220/6 of Hirebagewadi, he held that sale deed sought to be relied upon by the claimants cannot accept. At this juncture, it requires to be noticed that what was acquired is an agriculture land and the extent of land covered is around 4453 square metres or guntas. Whereas, the land covered under the sale deed dated that is R.S. No.220/6 which was said to have been sold for Rs.19,000/- per gunta, the extent covered is only 101

31 : 31 : square metres., which is less than a gunta. As such, the smaller chunk of the land which has been sold under the said sale deed dated cannot form the basis or it cannot be construed to be the yardstick for determining the compensation, in respect of the larger area which has been acquired and that too agricultural lands. 19. Though Shri Srinand A. Pachhapure, learned counsel appearing for the claimants has made a valiant attempt to persuade this Court that finding recorded by the 2 nd respondent that lands of the appellants which are acquired is not abutting, Siddanabavi village and it is an erroneous finding on the premise that there is no such village called as Siddanabavi and it is non existent in the village map, I am not inclined to accept the said submission or contention for two reasons: - i) The claimants were fully aware as to what was the finding that was recorded by the 2 nd respondent, when he enhanced a compensation and passed the orders. Nothing prevented them to

32 : 32 : demonstrate this fact before the trial Court when they filed a petition under Section 34(2) of the Act, 1996, challenging the said award. However, no such ground was urged in this regard before the District Court. ii) Even otherwise, even in the grounds urged before this Court in the present appeal memorandums, there is no such contentions raised or grounds urged. For the first time, in this appeal which is virtually a second appeal, a new ground is sought to be put forward and same is impermissible. Hence, said contention raised by the learned counsel for the appellants cannot be entertained and it stands rejected. 20. Last but not the least, an award passed by the Arbitrator which can be the subject matter of challenge before the District Court can be challenged or in other words can be entertained by said Court only on the grounds enumerated indicated in Section 34(2) and

33 : 33 : none of these grounds are available to the claimants or they are attracted to facts on hand, since the claimants had proper notice of the appointment of Arbitrator; they had availed full opportunity before the Arbitrator; it was a dispute to be dealt as contemplated under Section 3-G of National Highways Act; there was no complaint regarding composition of the Arbitrator or tribunal; no complaint with regard to the procedure adopted by the Arbitrator was made at any point of time; and, the Arbitrator has taken into consideration the statutory provision, namely Section 3-G(7) into consideration, namely clauses (A) to (D) for enhancing the compensation and as such, the learned trial judge has rightly come to the conclusion, the award passed by the Arbitrator cannot be interfered with considering the scope of Section 34 of the Act, 1996,. The said finding recorded by the trial Court while affirming the awards passed by the 2 nd respondent cannot be held or construed as suffering from infirmities either on facts or on law calling for interference, by this Court in exercise

34 : 34 : of Appellate powers. Hence, point Nos.1 and 2 formulated herein above, deserves to be answered against the appellants/claimants and in favour of the 1 st respondent. RE. POINT NO.3: 21. For the reasons aforestated, following order is passed. ORDER i) Appeals are hereby dismissed. ii) iii) The judgment passed by the Principal District Judge, Belgaum, in Arbitration Case Nos.4, 5, 6, 7, 8, 9, 10, 11, 12, 13 & 14 of 2011 dated rejecting the petition filed under Section 34 of the Arbitration Act, 1996, are hereby affirmed. Parties to bear their costs. SD/- JUDGE Rsh