eee TT STATE TPT TOT ote enn 1-1 220 reorsorcv0 ase oftaet aft asrarf arena) ART Fax :91-11-25093507 / 2509351 National Highways Authority of India (Ministry of Road Transport and Highways) ‘Sf-s wa 6, daet-10, wre, 7E feeeit-110075 6.5.8 6 Sector, Dwerte, New Debi-t1007S NHAI/Policy Guidelines/Land Acquisition/2019 Policy Circular No. 7.1.62/2019 Dated \g'November, 2019 [Decision taken on File No. NHAI/LA/Policy/2019] Sub: Irregularities in the award passed by the arbitrator for land acquisition exceeding his jurisdiction and cancelling his own award passed earlier. A copy of letter no. 117/2019/20 dated 13.09.2019 of Shri SD Sanjay, Additional Solicitor General of India, addressed to Secretary(RTH), MORT&H on the subject matter is enclosed. 2. Ld ASG, vide his ibid letter has brought out that he has come across the following cases while rendering legal opinion, wherein he has observed that the Arbitral Award, once passed finally under Arbitration and Conciliation Act, 1996 by the arbitrator appointed by the Central Government, has been enhanced by the arbitrator for which he has no locus standii: (a) Land Acquisition for 4 RCE for Rehabilitation and Upgrading to 2 lane / 2lane with paved shoulders configuration and strengthening of Fathua-Hamaut-Barh Section (Km 0.00 to Km 69.60) NH-30A: ) The land was acquired under National Highways Act, 1956 and the compensation was determined under the provisions of RFTCLARR Act, 2013 fixing Rs. 40,00 Lac per acre. Not satisfied with the compensation amount, the land owners approached the then Commissioner, Patna Division cum Arbitrator who treated the land as developing instead of agriculture and enhanced the rate from Rs. 40.00 Lac to Rs, 65.00 Lac per acre. (ii) The land owners again approached the Divisional Commissioner in the same proceeding who purporting to be the Arbitrator (from which he had ceased) passed another order on 29.05.2019 to constitute a committee for site inspection and passed another order on 24.06.2019 in the same Arbitration Case 2019 making the value of land from Rs. 65.00 Lac per acre to Rs. 125.00 lac per acre by making it additional rate of homestead nature and directed for payment of the same. (iii) After termination of passing of the final award on 21.02.2019, he has no locus standii to constitute a six men committee and to pass such order by cancelling his earlier order. (b) Land Acquisition for_construction of Ordinance Factory at Rajgir by the Ministry of Defence: Land owners had taken compensation up to 2010 but by legal engineering, they got their applications for enhancement of compensation transferred to the authority under the new act and as an example one land owner who had taken full compensation of his land to the tune of Rs. 2.52 lac was awarded revised compensation under the New Act to the tune of Rs. 48.5Crore. There was large reatnumber of such cases affecting the revenue of Government of India to the extent of more than Rs.3000 core. The legal battle was taken up in the matter and concluded in favour of govt. 3. Ld. ASG has, therefore, advised that such matters may be verified because large chunk of lands are acquired for National Highways and because of negligence or indifferent attitude, there is likelihood of leakage of huge revenue of Government of india which needs to be protected. He has also advised to take up such matters with the State Government so that in future such type of action is not repeated. 4, Further, kind attention is also drawn towards relevant provisions of Arbitration and Conciliation Act, 1996, which are as under: (i) Wherever, either party finds that the Arbitral Award requires correction and interpretation, it may file an application under Section 33 of the Arbitration and conciliation Act, 1996 within 30 days for the said purpose. (ii) In case either of the parties is aggrieved with the Arbitrator’s Award, it may take recourse to a Court under Section 34 of the Arbitration and conciliation Act, 1996, (Chapter VII of the Arbitration and Conciliation Act, 1996) strictly within a period of 3 months, reckoned from the date of receipt of signed copy of the Arbitral Award [ref. Section 31 (5) of the Act ibid]. 5, It is evident from the above provisions quoted that any Arbitrator has no locus standii to revisit his own Arbitral Award, once passed. Hence, such matters may be examined thoroughly while processing/approving the cases of enhancements in compensation amount for land acquisition and in case, any irregularity is found the same may also be taken up with the State Govt. in addition to challenging the arbitral award before the District Court. 6. This issues with the approval of Competent Authority. Encl: As above. (yu (V.K. Sharma) CGM (Coord.) (i) All Officers of HQ/ROs/PIUs/CMUs/Site Offices. (ii) Hindi Officer for Translation in Hindi. (iii) Library - for hosting the circular in library site.S. D. SANJAY ADDITIONAL SOLICITOR Ge oF INIA fond? PATNAHIGH COURT eat ere aS oo srt Paz, WA RefNo. 117/2019-20. Date: 13.09.2019, ‘The Secretary, Ministry of Road! Transport & Highways, Gowmmentoflncia, ‘Transport Bhawan, 1, Parhiament Steet, NewDelhi-1 10001 Dear Sir, A serious matter affecting huge revenue of Goverment of India needs your attention hence I have writen this Iter to you, Tt came to my notioe when the Regional Officer cum Chief Engineer, Ministry of Road Transport 8 Highways, Bihar sought my lege opinion with respect to an Award passed by the then Dhisional Commissioner, Patna who was appointed as Arbitrator under Section 306) of the National Highway Act, 1956. Infact, he exceeded his jurisdicton and ‘canceled his own carer Avera with respect to determination of nature and rate for compensation ofa land from Rs ‘acre within a span of six months, that too, apparently without any notice (0 Ministy of Road, Transpart & Highways even when the land lias been aoquired at the instance of MORTH. Hence, It that there s something wrong in the matter and in have achised such Award which has the provisions of Arbitration & Conaiiation Act, 1996 hel came toan endl with the passing of awarel on 21.2.2019, ‘The Divisional Commissoner by a subsequent order dt. 246.2019 cancelad his eater award dt, 21.2.2019 and substitute it by another order wherein he substituted the caver award by determining the value of land fiom Rs. 40,00,000/- per acre to Rs. 65,00,000/- per acre and thereafter to Rs. 1,2500,000/- peracre ‘What has happened that certain lands were soquired for 4 RCE for Rehabilitation and Upgeding to 2 lane/ 2 Lane with paves. shouikiers ‘and stengthening of Fathua-Hamaut Barh Section (TOOK? |As per the record originally the compensation of the land which ‘was estimated was between Rs. 27 Lacs per acre. The lanel has been acquire under National Highway Act, 1956 and finally the competent authority under the Act determined the compensation under the provisons of Right to Fair Compensation and Transparency in Land Acquistion, Rehalstation & Resettlement Act, 2013 fing Rs 40,00 Lae per acre. However, the land owners OftResitence: For Al COrreapondences ‘205 Venkatesh Apartment, 2nd Floor, Budh Mz Buch Mara, Near Land Developmen San ain 800004 "elfox 0612 2504117, 06122204400 ObNS024EED FS Nico. sBDatbasse Ema sdsarjyang@gmai com, ssanjayQhot ai comCONTINUATION SHEET chimed to be not satisied and invoked the protons of Section 36) of the National Highway Act, 1956 and approached the Commissar, Patne: Division cum Arbitrator appointed by the Govemmment of India under the previsons ofthe said Act. ‘The Divisional Commissioner cum Arbitator, Patna Division registered this Gase a8 NH Arbitation Case No, 171/2018 and apparently ater hearing the Pacts determined that the nature of land should be developing land instead! of agioutural lind athowh he has recorded his finding in his order ct 132.2019/21.2.2019 that fr decting the nature of land as per the provisions of the Act itis the use of land which isthe most relevant actor. He also recorded in his order that all the ands sought to be ecxpired was being used for aggculture but thereafer by his crderhe tested the lnd as dewling instead of agriculture and enhanced the rate from Rs. 40.00 Lac to Rs 6500 Lac per acre, vide his fina Oreier/Awarel dt. 21,2.2019, Once the final Award was passed the remedy x either parties was to prefer gran application under Section 3 ofthe Arbitration & Concition Act, 1996 but itis not kmown as to howthey egain approached the Divsenal Commissioner in {he same proreeing who purporting tobe Arbitrator (ram which be had oeasee) passed another orcer-on 295.2019 to constitute a Committe fr ste inspection ren though eatlic a site inspection was held and its report was censicered, ‘Thereafter, fee passod ancther order on 24,6,2019 in the seme Aritration Case No, 171/2018 which stood terminated by his final Order/Awerd dt. 2122019 oe same, The most surprising things that when the arbitration proceeding under the ott provsions of Arbitration & Conciaton Act, 1996 stood terminate! cn passing of 2 © the final aware on 21.22019 where wes the oceasio to constitute ¢ sk re Coramittee and to pass such order by canceling he eater ore: To my tind the ‘hole exercises not only without jursction but something appears tobe Say. | appears that for the frst. ime after passing ofthis order the Authorities of Road Construction Department brought to the notice of the Regional Oficer cum, ‘Therelore, [have advised to challenge the orders because I this order remains Unchallenged or is alowed to continue then other nearby land owners will aso Sn on reenact E-mail. :sdsanjayasg@gmail.com, sdsanjay@hotmail.comCONTINUATION SHEET ‘Sat camming on Uhe basis of this order and in such situation the ggwemmment will ave to incur huge lily umnceessarily which willbe recuiied to be paid in the Cevelopmental projet. Hence, this matter should be taken up fan your end with the State Government so that in future such type of action is not repeated which bes the potential to allot huge revenue ofthe Govemment of India by exbtrary and egal exercise of power. Tay inform you that recently one matter relating to land acquisition came to Ry notice where the land was acquired for constructim of Ordinance Factory at Reig by Ure Ministy of Defence where lane comers had talen compensation up {© 2010 but by Legal Engineering they got their application for enhancement of compensation transfered to the authority under the New Act and as an example ‘one kand owner who had taken fall compensation of his land to the tune of Rs 2 Lacs 52 Thousand was awarded revised compensation under the New Act to the tune of Rs. 48 Crore 50 Lac. There was lge number of such cases effecting the reverue of Govmment of Inca to the extent of more than 3000 Grote: Somehow at the stage of execution before payment it was brought to my ‘otice and I took up the matter with the Ministry of Defence, Director General of Defence Estate, and thereafter I got the legal proceeding re-opened in the High Court ane finally saccede in kgal battle in Apri, 2019 and July, 2019 and image revenue of Goverment of india could be saveel Iti, there, advised that Kindly get such matters verified because lage chunk of lands are accpiec on behalfof Ministy of Road Transport & Highways clivctly or through National Highway Authority of nda or though the Agency of State Goverment. Even though the money which is invoked far acquisition is of Goverment of india but these agencies do the process of acquisition and becatise Copy to: The Cabinet Secretary, Government of India, New Delhi ‘The Secretary, Department of Legal Affairs, New Delhi The Chairman, National Highway Authority of India, New Delhi ‘The Chief Secretary, Government of Bihar , Patna ‘The Principal Secretary to the Chief Minister, Government of Bihar , Patna ‘OftfResidence: For All COrrespondences ent Bank, Patna-800001 katesh Apartment, 2nd Floor, Budh Marg, Near Land Development Bank, Men tn STFS, bra 2x4 BOD, P'S, oh 83040850 E-mail sdsarjayasg@gmalcom, sdsarjay@hoimailcom Sa Gary Enclo: As above. [S. D. Sanjay]205 Ver Date : 11.09.2019, OPINION ‘The Superintending Engineer, Sri Pradeep Kumar Lal, has sent a letter dt, 09.08.2019 to me on behalf of Chief Engineer cum Regional Officer, Patna for my opinion as to what steps should be taken for challenging the Award of the Learned Arbitrator cum Commissioner, Patna Division, Patna in ‘Arbitration Case No. 171/2018 dated 20.6.2019 in the matter of Land Acquisition for the 4% RCE for Rehabilitation and Upgrading to 2 Lane/2 Lane with paved shoulders configuration and strengthening of Fathua-Harnaut-Barh Section (km 0.00 to km 69.60) of NH-30A. I have minutely perused the entire file and also the Order/Award of the Arbitrator cum Commissioner, Patna Division, Patna in NH Arbitration Case No. 171/2018 dt 13.2.19/21.2.19/29.5.19/20.6.19 and 24.6.2019. I have also seen the Site Inspection Report dated 11.06.2019. I have also perused the Legal Opinion of my Central Government Counsel, Sri A. B. Mathur. ‘The fact of this case is that the land has been acquired for the above referred project and the Notification under Section 3A(1) was issued on 30.10.2013 for acquisition of land mentioning it to be of the nature of agricultural land. On that basis the competent authority prepared the Award after determination of compensation wherein the value of land was taken as Rs. 40.00 Lac per Acre, considering the nature of land as Agricultural Land, in terms of the provisions of Sections 26, 27 and 29 of the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 on 10.12.2016. It appears that the land owners were not satisfied by the quantum of compensation:on the basis of nature of land. Accordingly, the matter was referred for arbitration in terms of Section 3G(5) of the National Highway Act, 1956, Iefurther appears that in terms of the provisions of the:Act, theCommissioner, Patna Division, Patna has been appointed as Arbitrator by the Central Government and further in terms of sub-section(6) of Section 3G the provisions of Arbitration & Conciliation Act, 1996 has been made applicable for the purpose of arbitration. It appears that in the present case when the land owners were not satisfied with the compensation they approached the Learned Arbitrator cum Commissioner, Patna Division giving rise to NH Arbitration Case No. 171/2018. Here, it may not be out of place to mention that Section 3G(7) of the National Highway Act, 1956 has also laid down that the Arbitrator while determining the amount under sub-section(1) or sub-section (6}, as the case may be, shall take into consideration the components laid down therein, particularly, the market value of land on the date of publication of the Notification under Section 3A(b) the damage, if any, sustained by the person interested and the consequence of acquisition leading to compelling the owner to change his residence. In the present case, from the record of proceedings the Arbitrator cum Commissioner, it is evident that he heard the parties and passed his Award in NH Arbitration Case No 171/2018 on 13.2.2019 /21.2.2019. He has discussed in detail the submissions made on behalf of the parties and has recorded a finding wherein he has observed that the main point of the dispute is with respect to the nature of the land and for the said purpose he had constituted a Committee which had submitted its Report of site verification/spot verification. He also observed that most of the land was being used for agriculture and nearby to the land there were some new constructed buildings. He also considered and discussed the letter of Government of Bihar bearing No. 450/RA dt. 12.4.2017 and recorded that in that letter it has been mentioned that the nature of land may be determined on the basis of its actual use. In Clause 5 of the said letter of the Government of Bihar, The Learned Arbitrator also observed that on site verification no construction was found on the land, in question, and also observed that in the site verification report it is evident that the land, in question, was not in use either for homestead purpose or for any commercial purpose: 5 pment Brink, Patna-800001 934034838On the basis of facts, the Learned Arbitrator cum Commissioner recorded a finding that the nature of land cannot be held to be residential/homestead or of commercial nature. However, the Learned Arbitrator cum Commissioner, Patna Division held that upon consideration of the facts in totality the land can be Considered in the category of developmental land and accordingly he held that the nature of land decided to be of the nature of agricultural land by the competent authority is modified to file in the category of developmental land and its MVR rate 1s 65,000/- per Decimal, i.e. Rs. 65.00 Lac per Acre. Here, it is important to mention that as soon as the Arbitrator cum Commissioner, Patna Division, Patna passed the Award, the proceeding got terminated in terms of Section 3(1) of the Arbitration & Conciliation Act, 1996. Here, it may not be out of place to mention that after termination of proceeding under Section 32 there is only power of correction and interpretation of ‘Award or additional Award vested in the Arbitrator. However, the pre-condition js that any correction must be done within 30 days from the receipt of the Award, that too, with notice to the other party and the nature of correction would be ()) computation error, and (ii) clerical or typographical error or any other error of similar nature, but the ‘Award cannot be changed. Similarly, under Section 33(2) the Arbitrator can considered the request to give the interpretation to clarify the seraral but it must also be done within 30 days. In terms of geetion 3314) the “Arbitrator has the power only on Agreement between the parties with notice to the other party, a request aoe entertained to make an additional award, In the present case, once the Arbitrator passed his Award on 21.2.2019 he ceased to be continue to be the Arbitrator of the same case, Save and except, for the purpose of Section 33 of the Arbitration & Conciliation Act, 1996. He was within his. jurisdiction to act only within 30 days of the Award to correct, opment Bank, ath Mob - & 2 20000 maiorinterpret or pass any additional award in terms of Section 33 of the Arbitration & Conciliation Act, 1996. However, the Arbitrator who has already been divested with his jurisdiction and had no jurisdiction passed an order for Arbitration Case no. 171/2018 on 29.5.2019 even though when he had disposed off the Arbitration Case No. 171/2018 on 21.2.2019. Thus, his act as wholly without jurisdiction. It further appears that there appears to be no notice to the other party, ie. the Government of India and the competent authority, and unilaterally a direction was made vide order dated 29,5.2019, Further, the Commissioner, Patna Division who had ceased to become an Arbitrator again picked up the file and passed an order dated 20.6.2019/24.6.2019 wherein he appears to have cancelled the earlier Award without any order under Section 34 and passed a fresh Award and made a fresh determination by enhancing the value of land to Rs. 1,25,000/- per Decimal! meaning thereby Rs. 1 Crore 25 Lac per Acre. ‘The two orders of the Commissioner, Patria Division cannot be said to have been passed in exercise of power as an Arbitrator appointed under Section 3A(g) of the National Highway Act, 1956 or under the provisions of Section 32 and 33 of the Arbitration & Conciliation Act, 1996. The orders are wholly without any authority of law and fit to be challenged on the basis of quorum non judice. In my opinion, there are two options available for the Ministry of Road, Transport & Highways which are as follows :- i) To file an application under Section 34 of the Arbitration & Conciliation Act, 1996 before the District Judge challenging the original award dt. 21.2.2019 along with the orders dt. 29.5.2019 by which the Arbitrator had after termination of proceeding had invoked his jurisdiction, andii) To file a Writ Petition before the Hon'ble Patna High Court challenging the order dt.21.2.2019 passed by the Commissioner, Patna Division as it cannot be said to be an Award under Section 31 of the Arbitration & Conciliation Act, 1996 as after the termination of the proceeding under Section 32 the Commissioner had absolutely lacked the jurisdiction to pass any order in the file of Arbitration Case No. 171/2018 fore, it is a case of inherent lack of jurisdiction. The land owners could not have approached the Arbitrator cum Commissioner as the remedy available to them was to challenge the Award and determination of compensation by filing an Application under Section 34 of the Arbitration & Conciliation Act, 1996. However, the most important aspect is that there is only 90 days time available to challenge the Award and thereafter only 30 days further time is available. Thus, to challenge the order dt, 29.5.2019 there is hardly another 15 days time left. So far as the filing of the Writ Petition is concerned, that can be done but the application u/s 34 must be filed before 28.09.2019, otherwise it will become time barred. I opine accordingly. SpSvyrt [S. D. Sanjay] Note =“The aforesaicl opinion is a privileged communication. between me and my client and can be used only for the official purpose and it is a confidential document which cannot be provided to anyone under the'provisons: of RTL Actand CP.G.RAMS.