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IN THE COURT OF HON’BLE ADDITIONAL DISTRICT JUDGE, PATIALA

ARB No. 273 of 2021

Village: Jainpur

Anil Jain ...Applicant/Objector

Versus

Union of India & Others …Respondents

Reply on behalf of Respondent No.1 & 2 to the

objections filed by the Objector under Section 34 of the

Arbitration and Conciliation Act, 1996

RESPECTFULLY SHOWETH:

The present reply is being filed through Prashant Dubey, presently

working as General Manager–cum-Project Director, Project

Implementation Unit, NHAI, Ludhiana with the office at Ludhiana who is

fully conversant with the facts and circumstances of the case and is

authorized to file reply on behalf of respondent no. 1 & 2. (hereinafter

referred as ‘Answering Respondent’). Copy of Resolution is attached

herewith.

PRELIMINARY SUBMISSIONS:

1. That it is humbly submitted that Answering Respondent herein being

aggrieved by the present award in question has assailed the same and has

also filed a petition u/S. 34 of the A & C Act, 1996 for setting aside the

impugned arbitral award dated 07.01.2021 bearing case no.

ARB/310/2021 titled “U.o.I & Anr. Vs. Anil Jain & Ors” which is pending

adjudication before this Hon’ble Court. It is the case of the Answering

Respondent that the Ld. Arbitrator while passing the Award had wrongly

enhanced the amount of compensation and proceeded to award gair-

mumkin rates which were higher than the residential as well as

commercial rates, on the ground that the land was mentioned as ‘Banjar’

in the Jamabandi. It is submitted that ‘Banjar’ refers to waste land and

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the said land cannot carry value greater than the piece of an irrigated

agricultural land. As such, the Ld. Arbitrator has on its own changed the

nature of land as against the factual position. Thus, the award is vitiated

by patent illegality and is in conflict with the public policy of India, liable

to be set aside in view of Section 34(2)(b)(ii) and Section 34(2A) of the

Arbitration & Conciliation Act, 1996. It is most humbly submitted herein

that the present reply is being filed subject to the contents of the objection

petition filed by the Answering Respondent, and the grounds mentioned

therein may kindly be read as part and parcel of the present reply as well.

2. That the impugned Award dated 07.01.2021 passed by Ld. Arbitrator in

Case No. MA-9/19/LBP, whereby the Ld. Arbitrator has wrongly and

arbitrarily allowed the application filed by the Objector and enhanced the

amount of compensation from Rs.1195.73/ per sq. meter, as had been

granted by the Competent Authority, to Rs. 4372.26 per sq. meter against

the evidence on record. It is the case of the Answering Respondent that

the entire Award dated 07.01.2021 is wrong, perverse, patently illegal and

against public policy of India, and is thus, liable to be set aside in toto.

Given the illegal award dated 07.01.2021, the Answering Respondent

herein had filed an application under Section 34 of the Arbitration and

Conciliation Act, 1996 seeking setting aside of the Award dated

07.01.2021 on the grounds as mentioned therein in detail in

ARB/310/2021.

3. That the brief facts of the case are that the Answering Respondent had

acquired land situated in village Jainpur, Distt. Ludhiana, in the State of

Punjab for the purposes of building, development and maintenance of

Laddowal Bypass linking NH-95 with NH-1 via Laddowal seed farm at

Ludhiana from Km 0.000 to Km 17.041. The notification bearing No. S.O.

2562(E), under Section 3-A of the NH Act, 1956 was issued on

18.09.2015, and after following the due procedure prescribed under the

NH Act, 1956, notification under Section 3-D of the NH Act, 1956 was

issued on 12.05.2016 and the Competent Authority had passed Award no.
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664/SDC-II/LAC dated 21.04.2017 as per the provisions of the NH Act,

1956 read with Right to Fair Compensation and Transparency in Land

Acquisition Rehabilitation and Resettlement Act, 2013 (hereinafter

referred to as ‘LARR Act, 2013’) and awarded compensation at the rate of

Rs.1195.73/ sq. meter for Irrigated Land alongwith 100% solatium and

interest @12%.

4. The said award had been challenged by the Objector by way of filing an

application under Section 3-G(5) of the NH Act, 1956 before the Ld.

Arbitrator bearing Case No. MA-09/2019/LBP titled “Anil Jain vs. Union of

India & Ors.” The Answering Respondent herein had appeared in the

matter and filed the reply. No rejoinder was filed by the Objector. On the

completion of pleadings by the parties, the matter was fixed for evidence,

whereby both the parties led their evidence. Thereafter, arguments were

heard by the Ld. Arbitrator and the award was reserved.

5. That application under Section 3-G(5) filed by Objector had been wrongly,

perversely and illegally allowed by the Ld. Arbitrator vide Award dated

07.01.2021, in the following terms:

“21. Based on my above discussion of the facts and circumstances

of the case, I pass the following award on this application:

(a) The acquired land of the applicants was non-irrigated i.e.

gairmumkin property. Therefore, its market value is determined
@Rs.4,372.26/per sq. meter.

(b) The applicants are entitled to 100% solatium on the market

value determined in para (a) above and also interest on it.

(c) Additional compensation @ 30% of the market value of the

acquired land as severance compensation subject to the condition
that the remaining land of the applicant has been actually bifurcated
into two taks due to this acquisition and maximum land which is left
unacquired is not more than 2 acres. This fact would be verified by
the Collector, and only upon the verification by the Collector, the
severance compensation would be given to the applicant.
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(d) The respondents are directed to make payment of award

along with interest @ 9 per cent per annum (on enhanced amount)
from the date of award or dispossession, whichever is earlier till the
date of actual deposit thereof.

(e) Payment already made to be deducted from award money.”

6. That the entire Award dated 07.01.2021 is wrong, perverse, against the

substantive law and public policy of India, and thus, liable to be set aside

in toto, on the following grounds, amongst others as mentioned in

ARB/310/2021 :-

A. The Ld. Arbitrator has changed the entire nature of land and held the

land of the Objector to be gair-mumkin solely on the ground that the

land was mentioned as ‘Banjar’ in the Jamabandi. It is the case of the

Answering Respondent that the Ld. Arbitrator failed to appreciate the

fact that the term Banjar refers to waste land and the said land cannot

carry value greater than the piece of an irrigated agricultural land. At

this stage it would be relevant to look into the definition of the term

Banjar as per the Punjab Land Records Manual (See Page 336):

“10. ‘Current fallowes’ (Also called Khali) denote lands which are
left fallow during the current year (i.e. Kharif and Rabi harvests of
that year), only

11. 'Other fallowes' (Also called banjar jadid) denotes all lands,
which were taken up for cultivation, but are temporarily out of
cultivation for a period of not less than one year and not more than
five years.

12. ‘Culturable waste’ (Also called Banjar qudim) denotes all lands
available for cultivation whether not taken up for cultivation or
abandoned for more than five years for one reason or the other.
Such lands may be either fallow or covered with shrubs and jungles,
which are not put to any use. They may be assessed or unassessed
and may lie in isolated blocks or within cultivated holdings. Land
once cultivated, but not cultivated for five years in succession shall
also be included in this category, at the end of the five years.”
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A perusal of the above would reveal that Banjar land is actually part of

agricultural land which has not been cultivated for certain period of time.

As such, Banjar land could not have been be granted higher rate.

B. The Ld. Arbitrator failed to take into account that it was the own pleaded

case of the Objector that the land was falling within a residential colony

namely ‘Jain Mandir Colony/Vidyapuram’. It is submitted that the said

colony is an unauthorized colony, which can be verified from the list of

unauthorized colonies made available by GLADA on its website

http://glada.gov.in/ and the name of ‘Vidhya Puram’ is mentioned at Sr.

No. 1027 of the said list. It is worthwhile to mention here that GLADA

has been carrying out various demolishing drives in a number of villages

across Ludhiana including Jainpur. However, despite the submission

with respect to the existence of an unauthorized colony and the

argument of the Answering Respondent that an illegal act of the Objector

can in no manner entitle the Objector to any rate other than that

awarded by the Competent Authority, the Ld. Arbitrator enhanced the

compensation granted to the Objector. Further, the Objector was

required to submit an APR-I form before the Ld. Arbitrator but the

Objector had miserably failed to produce any document in shape of CLU/

APR-I form to show that any residential colony was in existence. As such,

the award is liable to be set aside on the sole ground that no reasoning

has been given by the Ld. Arbitrator to reject the argument of the

Answering Respondent with respect to the existence of unauthorized

colony.

C. The Ld. Arbitrator erred in granting enhanced compensation to the

Objector without taking into account the pleadings of the Objector

wherein it has been admitted that the land falls within a residential

colony. It is the case of the Answering Respondent that when admittedly

the land falls within an unauthorised residential colony, there was no

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occasion for the Ld. Arbitrator to grant gair-mumkin rates which were

evidently higher than commercial as well as residential rates.

D. The Ld. Arbitrator erred in awarding compensation at gair-mumkin rates

instead of holding that the Competent Authority had rightly determined

the amount of compensation payable. At this stage, it would be relevant

to bring to the notice of this Hon’ble Court that Ld. Arbitrator has taken

into account the rates determined by the Collector based on the report of

Tehsildar whereby the Tehsildar has provided the following rates apart

from the rate already awarded i.e. Rs.1195.73/- per sq. meter for

irrigated land:

i) For gair-mumkin land: Rs. 3,655.35/- sq. yard (Rs. 4,372.26/ per
sq. meter)
ii) For residential area: Rs.2,900/- sq. yard
iii) For commercial area: Rs.3,500/- sq. yard.

Thereafter, the Ld. Arbitrator while observing that the land of Objector is

gair-mumkin in nature (although the land was Banjar) as per the entries

in the Jamabandi, the Ld. Arbitrator had granted compensation at gair-

mumkin rates as per the aforesaid report of the Tehsildar. It is the case

of the Answering Respondent that such an observation of the Ld.

Arbitrator would reveal a number of patent illegalities on the face of the

Award, such as the follows:

(a) The Ld. Arbitrator erred in relying upon the report of the

Tehsildar without there being any actual sale deeds/ agreement to

sell or the collector rates on record, which the Ld. Arbitrator was

obligated to look into as per the unequivocal provisions of Section

26 of the LARR Act, 2013.

(b) The Ld. Arbitrator erred in relying on the gair-mumkin rates

as per the report of the Tehsildar which were evidently higher than

rates of residential and commercial area.

(c) The Ld. Arbitrator failed to appreciate that as per the award

passed by the Competent Authority, the gair-mumkin rate was

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granted only to govt. land i.e. roads etc. which can in no manner

be compared to the acquired land being agricultural in nature.

As such, the award dated 07.01.2021 is liable to be set aside on

the sole ground that the mode of assessment and reasoning

adopted by the Ld. Arbitrator is completely flawed.

E. While changing the nature of land from agricultural to gair-mumkin, the

Ld. Arbitrator has observed as follows:

“.. To resolve the controversy at hand and to ascertain whether the

evidentiary document is matching with the said factual position, I
have perused the site plan shown by the applicant during
arguments. As per the site plan shown by the applicant, I have
observed, that in the vicinity of acquired land, there were
vacant plots with boundaries and residential colonies that
clearly indicate and conform that in the area nearby, the
acquired land was fastly developing and is being developed
for commercial, residential and industrial purposes. Further,
this fact of nature of land of the acquired strip is again confirmed by
the pertinent observations made by my predecessor in the case no.
MA 39/18/LBP [decision rendered on 19.1.20], wherein an
immediate piece of land was acquired vis-à-vis the land in question
via the same notification dated 18.9.2015, and thereafter, after
making the spot visit of the immediate land, he treated the said land
as ‘non/agricultural/residential’”

It is respectfully submitted from a perusal of the aforesaid observation

made by the Ld. Arbitrator it can be seen that Ld. Arbitrator has relied

on the site plan submitted by the Objector ‘during arguments’ to hold

that in the vicinity of acquired land there were vacant plots with

boundaries and residential colonies that clearly indicate and confirm

that the area nearby was fastly developing and is being developed into

commercial, residential and industrial purposes. In this regard, it is

submitted that firstly the Ld. Arbitrator, in complete ignorance of the

legal submission of the Answering Respondent that the site plan

submitted by the Objector could not be taken into account as the same

was never supplied to the Answering Respondent herein, in violation of

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the mandatory procedure prescribed under Section 24(3) of the A&C Act,

1996, but the Ld. Arbitrator had still taken into consideration the said

site plan which was never proved. It is the case of the Answering

Respondent that any award wherein a decision has been taken on the

basis of the documents i.e. the site plan in the present case which was

never provided to the opposite party is unsustainable in the eyes of law

being contrary to the procedure prescribed under the A & C Act, 1996.

Secondly, the Ld. Arbitrator erred in holding that the land was gair-

mumkin by looking into the site plan wherein vacant plots and

residential colonies were allegedly present in the vicinity. It is humbly

submitted that the existence of vacant plots/residential colonies in the

vicinity cannot be the basis of grant of gair-mumkin rate to the present

land.

F. The Ld. Arbitrator has further erred in relying upon the case bearing No.

MA/39/18/LBP wherein the predecessor of the Ld. Arbitrator has after

making the spot visit held the nature of the neighbouring land as ‘non-

agricultural/residential’. In this regard it is brought to the notice of this

Hon’ble Court that the reliance of the Ld. Arbitrator on the previous

award is completely misplaced as the said award has already been

challenged both by the landowners as well as by the Answering

Respondent herein by filing of separate petitions under Section 34 of the

A & C Act, 1996. As such, when both the parties to the proceedings are

seeking setting aside of the award passed by the Ld. Arbitrator, such an

award could not have been relied upon. It is further submitted that the

observation of the Ld. Arbitrator that as per the earlier award dated

19.01.2020, the predecessor of the Ld. Arbitrator after making the spot

visit has treated the land as non-agricultural/residential is also flawed

as the nature of land could not have been changed merely on the basis of

site visit.

G. The Ld. Arbitrator while passing another award dated 08.02.2021

relating to Village Sanghol, wherein a contention was raised by the

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landowner that the neighbouring land had been awarded higher rate, the

Ld. Arbitrator had rejected such contention while observing as follows:

“.. The contention that since some of the land owners of this village
and adjoining villages were compensated at a commercial rate, the
applicant too deserved the same treatment is again misplaced. The
very fact that some of the landowners of adjoining village were given
commercial rate, is testimony to the assertion of the counsel for the
respondents that the Collector took all the care and precaution at the
time of the award.”

A perusal of the aforesaid observation shows that the Ld. Arbitrator has

been passing contradictory awards i.e. on one hand, in the present case

has awarded compensation by looking into the nature of the adjoining

land and on the other hand has rejected similar contentions. As such,

the present Award is liable to be set aside on the sole ground that the Ld.

Arbitrator has adopted contradictory viewpoints while passing its award.

Therefore, the Award dated 07.01.2021 is erroneous, perverse, against

public policy, arbitrary and as such is liable to be set aside.

H. The Answering Respondent had placed on record 7 sale deeds pertaining

to the same village wherein the average value of the land was Rs.1037/-

per sq. meter as against the sum of Rs.1195/- per sq. meter granted by

the Competent Authority. It is submitted that a reference of the said sale

deeds was also given in the written submissions filed by the Answering

Respondent after the completion of the arguments. It is respectfully

submitted that the Ld. Arbitrator has ignored the sale deeds on record by

simplicitor stating that the sale deeds could not be relied upon as the

land was gair-mumkin in nature.

I. As per the document adduced by the Objector i.e. Jamabandi the land of

Objector has been shown as Banjar, meaning thereby that the acquired

land was waste land. It is brought to the notice of this Hon’ble Court that

the market value of the land is to be assessed in terms of Section 26 of

the LARR Act, 2013 and as per Explanation-1 to Section 26 of the LARR

Act, 2013, only sale deeds for ‘similar type of area’ are to be taken into
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account while determining the market value. Explanation 1 is

reproduced below for ready reference:

“Explanation 1.- The average sale price referred to in clause (b) shall

be determined taking into account the sale deeds or the agreements

to sell registered for similar type of area in the near village or near

vicinity area during the immediately preceding three years of the

year which such acquisition of land is proposed to be made.”

Thus, the Ld. Arbitrator had in contravention to Explanation-1 of Section

26, relied upon the rates of gair-mumkin when the land was admittedly

waste land. Thus, the present award is liable to be set aside being in

contravention to the provisions of law. At this stage, it would be relevant

to mention here that the Hon’ble Punjab and Haryana High Court in the

recent judgment in the case of Renu Mehra & Ors. Vs. National

Highways Authority of India [FAO No. 5104 of 2015, Decided on

27.11.2020] held that merely because all the lands were situated in and

around the Village, it did not automatically mean that they were similar

in all respects, warranting an identical valuation.

J. The Ld. Arbitrator erred in granting compensation @30% on account of

‘severance’. It is submitted that as per Section 3-G(7) (b) of the NH Act,

1956, severance is in form of damages. It is the case of the Answering

Respondent that damages can only be granted if the same are proved by

cogent evidence. However, in the present case, the Ld. Arbitrator has

granted conditional compensation on account of severance in the

following terms:

“Additional compensation @ 30% of the market value of the acquired

land as severance compensation subject to the condition that the

remaining land of the applicants has been actually bifurcated into

two taks due to this acquisition and maximum land which is left

unacquired is not more than 2 acres. This fact would be verified by

the Collector, and only upon the verification by the Collector, the

severance compensation would be given to the applicant.”

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It is respectfully submitted that a perusal of the above would show that

the award passed by the Ld. Arbitrator is a conditional award subject to

the verification report by the Collector. It is respectfully submitted that

firstly, the Answering Respondent never had an opportunity to rebut the

said report since the proceedings have come to an end after the passing

of the award and as such is contrary to the provisions of Section 23(4) of

the A & C Act, 1996. Secondly, the severance compensation has been

granted without any evidence being placed on record by the Objector. It

is a well settled law that while the quantum of evidence required to

accept a claim, may be a matter within the exclusive jurisdiction of the

arbitrator to decide, but if there was no cogent evidence at all and the

amount claimed is merely on the basis of the claim statement without

anything more, as none of the documents relied upon by the Objector

have been duly proved, the claim of the Objector was liable to be

rejected. Reliance in this regard can be placed upon State of Rajasthan

vs. Ferro Concrete Construction Pvt. Ltd. [2009(4) SCC (Civil) 604].

Thus, it is reiterated that the award passed without their being any

evidence on record is perverse and is contrary to the fundamental policy

of Indian law.

K. The Ld. Arbitrator granted interest @9% to the Objector without framing

any issue with respect to the grant of interest. It is submitted that the

grant of interest is not mandatory but is a discretionary power granted to

the Ld. Arbitrator. In case the same has to be awarded then a specific

issue with respect to the grant of interest ought to have been framed by

the Ld. Arbitrator. In absence of which, there was no occasion for the

Answering Respondent to lead evidence or make any submissions

regarding the interest amount. It is submitted that the power of

exercising discretions is also coupled with the duty of exercising

reasonableness. It is the case of the Answering Respondent that no

interest could have been awarded to the Objector who has approached

the Ld. Arbitrator with undue delay.

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L. A bare perusal of impugned award shows that the same is passed

without taking into consideration the issues raised by the Answering

Respondent, relevant proposition of law applicable thereto and is beyond

the pleadings and evidence of the parties. The award passed by the Ld.

Arbitrator is in conflict with fundamental policy and is liable to be set

aside.

7. That the Ld. Arbitrator has failed to appreciate that compensation under the

NH Act, 1956 must be paid in accordance with the settled principles of law

and that public money cannot be handed out in the form of charity.

Allowing the highly belated claims of the Objector would lead to a grave

burden on the Central Exchequer.

8. That it is submitted that the Ld. Arbitrator has failed to appreciate that the

Doctrine of Latches and the well established legal maxims of “interest

republicae ut sit finis litium” (it is for the general welfare that a period be put

to litigation and“Vigilantibus non dormientius aequitas subvenit”, i.e. that the

equity aids the vigilant and not the ones that sleep over their rights.

PRELIMINARY OBJECTIONS:
1. That it is brought to the notice of this Hon’ble Court, that by way of the

present petition, the Objector is, in essence, seeking for the enhancement

of the amount of compensation awarded by the Ld. Arbitrator. However,

the Objector has failed to prove any violation of any of the grounds

mentioned in Section 34(2) (a) & (b) of the Arbitration Act, 1996. It is the

case of the Answering Respondent that the scope of Section 34(2) of the

Arbitration and Conciliation Act, 1996 is limited and Court would not be

justified in re-appreciating the material on record and substituting its

own view in place of Arbitrator’s view. It is further pertinent to mention

herein that no power is vested with this Hon’ble Court to enhance the

compensation as claimed by the objector in the present petition. It is well

settled law that this Hon’ble Court while exercising power under Section

34 of the A & C Act, 1996, cannot enhance the compensation and/or

modify the award of an arbitral tribunal. On a bare reading of the

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provision of Section 34 of the said Act, it is clear that it specifically deals

with only the setting aside of the arbitral award, and it does not provide

any power to the Court to make any further enhancement. It is the case

of the Answering Respondent that this Hon’ble Court while exercising

power under Section 34 of the A&C Act, 1996 cannot modify the award.

It can either dismiss the objection & uphold the award or set aside the

award if the grounds contained in sub-sections (2) and (2A) are made

out. There is no power to modify an arbitral award. Reference in this

regard may kindly be placed on the judgment rendered by Hon’ble

Supreme Court in CA No.791 of 2021 DHBVN Vs. M/s Navigant

Technology Pvt. Ltd. decided on 02.03.2021

2. It is humbly submitted that under the provisions of Section 34 of the

Arbitration and Conciliation Act, 1996, there is no power to modify the

award of the Ld. Arbitrator as the award can only either be set aside or

remanded back. Reliance in this regard is placed on Hon’ble Supreme

Court in Project Director, NHAI Vs. M.Hakeem & Anr. [SLP (c) 13020

of 2020 decided on 20.07.2021]. For the convenience of this Hon’ble

Court, relevant para of this judgment is reproduced hereinbelow:-

“29. Thus, there can be no doubt that given the law laid

down by this Court, Section 34 of the Arbitration Act, 1996

cannot be held to include within it a power to modify an

award….”

……

“40. …. given the limited judicial interference on extremely

limited grounds not dealing with the merits of an award, the

‘limited remedy’ under Section 34 is co-terminus with the ‘limited

right’, namely, either to set aside an award or remand the matter

under the circumstances mentioned in Section 34 of the

Arbitration Act, 1996.”

3. It is submitted that the Arbitration & Conciliation Act, 1996 makes

provision for the supervisory role of courts, for review of the arbitral
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award only to ensure fairness. Intervention of the court is envisaged in

few circumstances only. The court cannot correct errors of the

arbitrators. It can only quash the award leaving the parties free to begin

the arbitration again if it is desired so. Reliance in this regard is placed

on the Hon’ble Apex Court in McDermott International Inc. Vs. Burn

standard Co. Ltd. And Ors. [ I.A. Nos. 2-3 in Civil Appeal No. 4492

of 1998 decided on 12.05.2006].

4. It is humbly submitted that the Objector had an opportunity to file

objections w.r.t the market rate under Section 3-G (3) of the National

Highways Act, 1956. It is brought to the notice of the Hon’ble Court that

before determining the compensation for the acquired land, the

Competent Authority had duly invited claims from the persons interested

vide public notice published in two daily newspapers. However, no such

objections/claims were filed by the Objector. Thus, the market value and

nature of the acquired land cannot be brought into question, in the

present proceedings. The attention of this Hon’ble Court is invited

towards the judgment delivered by the Hon’ble Punjab and Haryana High

Court in the case of Renu Mehra and Others Vs. National Highways

Authority of India, [FAO No. 5104 of 2015], wherein it has been held

that the claims under Section 3-G (3) of the National Highways Act, 1956

ought to have been made by the landowners before the Competent

Authority. For the convenience of this Hon’ble Arbitrator relevant para of

the judgment is reproduced hereunder:

“.... as no claim petition seems to have been filed by the

appellants before the CALA or, at least, a copy thereof was never

produced by them in later proceedings, it is not clear whether

the appellants raised any claim for damages under

Section 3 G(7) (b), (c) and (d) of the Act of 1956. Whether the

acquisition caused any damage due to severance of land;

whether other immovable property or earnings of the landowner

were injuriously affected by the acquisition; and whether the

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acquisition compelled change of place of business and the

reasonable expenses, if any, incidental to such change, were all

issues of fact that had to be determined by the CALA in

the first instance. However, there is no evidence of the

appellants even raising such claims before the

CALA..... There is no reason why he would not have

adverted to such claims by the appellants, had they been

made. It was only before the Arbitrator that the appellants

raised this issue but they failed to produce any documentary

proof in support of any of their claims under Section 3 G(7) of the

Act of 1956. In these circumstances, they have no sustainable

ground to complain that the Arbitral Award dated 15.11.2011

did not address such claims.”

5. That it is submitted that the Objector, inter-alia, are asking this Hon’ble

Court to sit as a Court of Appeal and thereby re-appreciate the entire

evidence, which is not permissible. Reliance in this regard in placed on the

Hon’ble Supreme Court case of Associate Builders v. Delhi

Developmental Authority Civil Appeal No. 10531 Of 2014. It is

reiterated that it is settled position of law that a Court dealing with the

petition under Section 34 of Arbitration and Conciliation Act, 1996 cannot

sit as an Appellate Court and is not empowered to appreciate or re-

appreciate the evidence.

6. Without prejudice to the aforementioned Arbitration petition filed by the

Answering Respondent, it is submitted that the present petition, filed by

the objector, is not maintainable and is liable to be dismissed. It is the

case of the Answering Respondent that there is no ground, much less

justifiable or tenable, which would invite and/or call for the consideration

for enhancement and/or modification of the captioned Arbitral Award as

passed by the Learned Arbitrator. Therefore, this petition is liable to be

dismissed. In this context, reliance is placed upon the following

pronouncements reported as:

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i. Venture Global Engineering LLC and Ors v Tech Mahindra Ltd.

and Ors, reported as [2017] 13 SCALE 91 (SC), wherein the

Hon’ble Supreme Court has held that :

“The Award of an Arbitral Tribunal can be set aside only on the

grounds specified in Section 34 of the A&C Act,1996 and on no

other ground. The Court cannot act as an Appellate Court to

examine the legality of Award, nor can it examine the merits of the

claim by entering into the factual arena like an Appellate Court.”

ii. P.R.SHAH, Shares and stock brokers Private limited V/s B.H.H.

Securities Private Limited , reported as (2012) 1 SCC 594,

wherein the Hon’ble Supreme Court, in respect of a case pertaining

to the Stock Exchange bye-laws, held as under:

”21. A court does not sit in appeal over the award of an arbitral

tribunal by re-assessing or Re-appreciating the evidence. An award

can be challenged only under the grounds mentioned in Section 34

(2) of the Act. Therefore, in the absence of any ground under

section 34(2) of the Act it is not possible to re-examine the facts to

find out whether a different decision can be arrived at.”

iii. Maya Devi V/S Nirmal Chand &Anr 2002 (2) Arb. I. R. 30 (Delhi),

wherein it was held by the Hon’ble Delhi High Court that “the

arbitrator is the master of the facts and that while adjudicating

upon the objections to the award, the court would not reappraise

the evidence unless the conclusions arrived at are wholly perverse.”

iv. U.P. State Electricity Board V/S Sear Sole Chemicals Limited II

2000 (SLT) 314- (001) 3 SCC 397, the Hon’ble Apex Court was

pleased to observe that, “when the Arbitrators have applied their

mind to the pleadings, the evidence adduced before them and the

terms of the contract, we do not think, it is within our scope to

reappraise the matter as if this were an appeal and it is clear where

 17

two views are possible the view taken by the Arbitrator would

prevail.”

v. Puri Construction Private Limited Vs UOI AIR 1989 SC 777, it

was held that besides a court while examining the objections taken

to award filed by an arbitrator is not required to examine the

correctness of the claims on merits. It was further held that the

court cannot sit in appeal over view of the Arbitrator by re-

examining and re-assessing the materials. Thus the captioned

proceedings are liable to be dismissed, out rightly with exemplary

costs.

vi. Bharat Cooking Coal Limited v/s L. K. Ahuja 2004 (1) Arb. LR.

652 (SC) The Hon’ble Apex Court has been pleased to observe that

when the Arbitrator has applied his mind to the pleadings, the

evidence adduced before him and the terms of the contract, there is

no scope for the Court to reappraise the matter as if this were an

appeal and even if two views are possible, the view taken by the

Arbitrator would prevail.

vii. Ramchandra Reddy & Co. V/S State of A. P. 2001 (1) Arb. LR.

643 (SC) The Hon’ble Apex Court has been pleased to observe that

when there is no patent error on the face of the award, it is not open

for the Court to go into the proceedings of the award.

viii. V. K. Mittal V/S DDA and another 2001 (Suppl.) Arb. LR. 52

(DELHI) It was held that wrong or right decision of Arbitrator, is

binding if it has been reached fairly after giving adequate

opportunity to the parties.

From the perusal of the above, it can be culled out that this

Hon’ble Court has no scope, as per the provisions of the law, to

reappraise the matter once the Arbitrator has apprised the evidence
 18

adduced before him. Thus, the present petition, being patently illegal

and against the settled principles of law, is liable to be dismissed.

7. That the Objector has no locus standi to file present petition.

8. That the Objector is estopped by their acts, conduct, acquiescence and

admissions from filing the present petition.

PARA WISE REPLY:

1. That the contents of this para are wrong and denied. It is denied that the

Ld. Arbitrator has partly allowed the claim petition for enhancement of the

acquired land belonging to the Petitioner.

2. That the contents of this para insofar as they relate to acquisition

proceeding and arbitral award are a matter of record and hence, warrants

no reply. Rests of the contents of this para are wrong and denied. For

convenience of this Hon’ble Court, sub-para reply is as follow:-

a) That the contents of this sub-para are wrong and denied. It is denied

that the land of the objector was acquired by the Answering Respondent.

The Petitioner has not even mentioned the Khasra Numbers of the land

which was acquired.

b) That the contents of this sub-para to the extent of notification under

Section 3-A & Section 3-D of the NH Act and the award dated 21.4.2017

are a matter of record and hence, warrants no reply. It is denied that the

‘said’ land of the Petitioner was acquired.

c) That the contents of this sub-para are a matter of record and hence,

warrants no reply.

d) That the contents of this sub-para, insofar as they relate to filing of claim

petition are a matter of record and hence, warrants no reply. It is

vehemently denied that the compensation awarded by the Competent

Authority was very less and inadequate. It is submitted that the

Competent Authority had already awarded higher compensation in

accordance with the provisions of Section 3-G(7) of the NH Act read with

Section 26 of RFCTLARR, 2013 and the same was illegally and perversely

enhanced by the Ld. Arbitrator.

 19

e) That the contents of this sub-para are a matter of record and hence,

warrants no reply. It is reiterated that the Competent Authority had

already awarded higher compensation to the landowners.

f) That the contents of this sub-para are wrong and denied. It is

vehemently denied that the compensation awarded by the Respondent

No. 3 was very less and inadequate. It is submitted that no cogent

evidence was led before the Ld. Arbitrator in support of the claims of the

Objector. It is submitted that the Objector has attached sale deeds which

are of residential property whereas the land in question is agricultural in

nature. Be it as it may, the Competent Authority had already awarded

higher compensation to the landowners in consideration of the

parameters laid down under Section 3-G(7) of the NH Act read with

Section 26 of the RFCTLARR Act, 2013. It is submitted that the

Answering Respondent had placed on record 7 sale deeds pertaining to

village Jainpur wherein the average value of the land was Rs.1037/- per

sq. meter as against the sum of Rs.1195/- per sq. meter as has been

granted by the Competent Authority. It is submitted that the Ld.

Arbitrator had not taken into account the sale deeds produced by the

Answering Respondent during the Arbitration proceedings. The details of

sale deeds led by the Respondents are reproduced below in a tabular

format for the ready reference of this Hon’ble Court:

Exhibit No. Sale Deed Date Approx.

No. Rate

(Rupees Per

Sq. Meter)

Ex. RW-1/1 12370 15.11.2012 1175

Ex. RW-1/2 10863 12.10.2012 1174

Ex. RW-1/3 18364 11.03.2013 1176

Ex. RW-1/4 15403 09.01.2013 1174

Ex. RW-1/5 14446 24.12.2012 323

Ex. RW-1/6 4340 15.07.2013 1163

 20

Ex. RW-1/7 38 24.08.2015 1076

AVERAGE RATE: Rs.1037/ sq. meter

It is reiterated that a reference of the said sale deeds was also given in

the written submissions filed by the Answering Respondent after the

completion of the Arguments despite which, the Ld. Arbitrator has not

referred to even a single sale deed relied upon by the Answering

Respondent.

g) That the contents of this para are wrong and denied. It is denied that the

Answering Respondent did not lead evidence, but referred to sale deeds

so allegedly submitted in some other case and also did not supply copy of

the said document and did not place on record the same. It is submitted

that a perusal of Para 12 of the Award dated 07.1.2021 makes it clear

that the Answering Respondent not only referred to the sale deeds but

also duly submitted the same in accordance with the provisions of law

for the consideration of Ld. Arbitrator and the same was duly made as

part of the record. For convenience relevant lines of para 12 of impugned

order is reproduced below:-

“The Learned Counsel submitted 7 sale deeds, all for

agricultural land, pertaining to the same village (in case No. MA-

5/2018/LBP titled as Surinder Kaur Vs. UoI). Regarding the sale

deeds annexed by the applicant, he commented that the sale deed

No. 8925 dated 30.08.2012 does not fall within the ambit of

preceding three years from the Notification 3-A. Rest of the sale

deeds, he claimed, are not applicable to the issue at hand, as the

acquired land was of agricultural usage in his view, whereas the

sale deeds are of residential property as well as pertained to the

other villages.”

It is also vehemently denied that the sale deeds were perse admissible

being public documents. It is submitted that the sale deeds produced by

 21

the Petitioner were neither relevant nor admissible in the arbitral

proceedings as the sale deed No. 8925 dated 30.8.2012 doesn’t fall

within the ambit of preceding 3 years from the Notification 3-A and rest

of the sale deeds are of residential property whereas the acquired land is

agricultural in usage.

h) That in reply of this sub-para, it is submitted that the Ld. Arbitrator

while passing the Award had wrongly enhanced the amount of

compensation on the ground that the land was mentioned as ‘banjar’ in

the Jamabandi. It is the case of the Answering Respondent that the Ld.

Arbitrator failed to appreciate that the term Banjar refers to waste land

and the said land cannot carry value greater than the piece of an

irrigated agricultural land. As such, the Ld. Arbitrator has on its own

without any rationale proceeded to grant compensation at a higher rate,

thereby passing an award which is vitiated by patent illegality and is in

conflict with the public policy of India. It is reiterated that the sale deeds

produced by the Objector is not relevant to the present case as the same

pertains to residential property whereas the land acquired is agricultural

in usage. It is vehemently denied that very meager compensation was

awarded by award dated 07.01.2021 and even did not allow other

benefits permissible as per law. It is submitted that the Ld. Arbitrator

had in fact illegally and perversely enhanced the compensation vide

award date 07.01.2021 even though the Competent Authority had

already awarded higher compensation and as such the impugned award

is liable to be set aside. Insofar as the claim of severance is concerned,

the same was illegally allowed subject to the verification by the Collector,

which is alien to law and against the public policy for the reasons stated

in ARB/310/2021.

3. In reply to this para, it is submitted that the award dated 07.01.2021 is

totally wrong, illegal and liable to be set aside on the grounds mentioned in

the Objection Petition of the Answering Respondent. It is vehemently denied

that the award is liable to be modified and compensation is liable to be

 22

enhanced as per prevalent market price of the acquired land and other

statutory benefits may be allowed. It is submitted that there is no power to

modify an arbitral award under Section 34 of the A&C Act. An arbitral

award can only be either set aside or remanded back as per the provisions

of law and catena of judgements. Sub-parawise are replied herein below:-

a) That in reply to this sub-para, it is submitted that the procedure

adopted by Respondent No. 5 for deciding the claim is totally wrong,

illegal and against the public policy on the grounds as mentioned in

ARB/310/2021. It is vehemently denied that since the land of all the

above stated villages was acquired by the same authority and for the

same purpose and as such, all the claim cases pertaining to same

award were required to be consolidated and decided by a common

award. It is vehemently denied that it is settled law that there can be no

discrimination in awarding the compensation for the land acquired

having same potential value. Insofar as the potential value of the land

is concerned, it is submitted that the compensation is to be determined

in accordance with the parameters laid down in Section 3-G(7) of the

NH Act read with Section 26 of RFCTLARR, 2013 and not the potential

value of the land. It is further submitted that since the nature of land,

market value, etc. in every village in different, therefore, the award is to

be made independently on merits of each case. It is further submitted

that the compensation awarded for the land acquired at village Jainpur

cannot be at parity with the compensation awarded for land acquired at

village Cholle and Jhamat as the compensation is determined on the

basis of parameters as laid down under Section 3-G(7) of the NH Act

read with Section 26 of the RFCTLARR Act, 2013. Be it as it may, no

evidence was led to show that the Village Jhamat and Cholle are

adjoining village Jainpur and to substantiate the claim to the extent

that the market value of land in village Jainpur is similar to the market

value of land in village Jhamat and Cholle. Furthermore, the nature of

 23

land in present case in village Jainpur, being agricultural, is different

from nature of land in village Cholle and Jhamat.

b) In reply to this sub-para, it is submitted that the Answering

Respondent had brought to the notice of the Ld. Arbitrator that the sale

deed No. 8925 dated 30.08.2012 does not fall within the ambit of

preceding three years from the Notification 3-A. Rest of the sale deeds,

are not applicable to the issue at hand, as the acquired land was

agricultural in usage whereas the sale deeds are of residential property.

The objection, in this regard, was duly made by the Answering

Respondent at the relevant time before the Ld. Arbitrator but still the

Ld. Arbitrator passed a patently illegal, wrong and perverse award. It is

submitted that the Answering Respondent had also produced relevant

sale deeds pertaining to the same village before the Ld. Arbitrator as

detailed hereinabove with the average rate of Rs. 1037/- per square

meter but the Ld. Arbitrator without appreciating those sale deeds,

illegally and perversely, enhanced the compensation.

c) That the contents of this para are wrong and denied. It is denied that

the act of respondent No. 5 was otherwise discriminatory with the cases

of present Objector as in the other cases, the same set of documents

were considered being produced as evidence and the compensation was

accordingly enhanced. It is submitted that no relevant and cogent

evidence was led before the Ld. Arbitrator to substantiate the claim of

enhancement. Being bereft of any evidence, the compensation was

wrongly enhanced by the Ld. Arbitrator.

d) That in reply to this sub-para, it is submitted that the acquisition of

land by the same authority for the same purpose in the adjoining

village is no ground to claim parity with the adjoining village with

regard to the compensation. Had acquisition being made by the same

authority for the same purpose been a parameter, in that case utter

injustice and prejudice would have been caused to the public at large

and would lead to a grave burden on the Central Exchequer as

 24

agricultural land owners would claim parity with the

Commercial/Residential property owners just by the reason of land

being in the adjoining village. It is submitted that the awards referred to

in this sub-para do not pertain to the village Jainpur and thus, the

averment made herein has no merit. It is denied that glaring mistake

and injustice has been done with the claimants particularly the matter

with regard to acquisition of adjoining village Cholle. It is submitted

that the compensation is to be awarded to the land owners on the basis

of parameters laid down under Section 3-G(7) of the NH Act read with

Section 26 of RFCTLARR, 2013 and not the award of the adjoining

village. It is further submitted that potential value of land is not a factor

to be considered while determining compensation for the land acquired

under the NH Act. It is brought to the notice of the Hon’ble Court that

no annexure has been attached alongwith the present petition as

averred by the Petitioner.

e) That the contents of this sub-para are wrong and denied. It is denied

that it is settled law as per Section 26 of the act 2013 that if the land is

acquired by the same Authority and for the same purpose, in that case

the compensation is to be awarded at the same rate to the land of

various villages adjoining each other, particularly when there is specific

proviso which reads as “whichever is higher”. It is submitted that as per

Section 26 of the RFCTLARR, 2013 the nature/type of the land of both

the ‘nearest village or nearest vicinity’ should be ‘similar’ to be a

parameter while determining compensation whereas in the present case

the nature of land is agricultural while the sale deeds adduced by the

Objector of adjoining villages pertain to residential property.

f) The contents of this sub-para are wrong and denied. It is vehemently

denied that the Objector was entitled to the same compensation which

was awarded through award 27.09.2019 and award dated 28.05.2019,

particularly when the land has been acquired for the same purpose and

for adjoining villages having same potential value. It is denied that

 25

otherwise also the awards dated 27.09.2019 and 28.05.2019 should

have been relied upon and the compensation should be given at the

same rate. It is submitted that parity can only be claimed with the

awards of nearest village if the nature and other factors enshrined in

the provisions of law are similar and at equal footing, which is not the

case in the issue at hand. It is further submitted that the potentiality of

the land is not a parameter for the purpose of determination of

compensation for the acquisition made under the NH Act. It is denied

that the at the when the award was passed, the DMC College, Ludhiana

had purchased land in the village Malakpur which is even farther away

from the present land so acquired when moving away from the MC limit

of Ludhiana at the rate of Rs. 8500 per sq. yard for the agricultural

land. No evidence was led before the Ld. Arbitrator to show the nature,

proximity of land acquired by the DMC College & land in the present

case and the market value of land by DMC College, Ludhiana at the

time of Section 3-A notification under the NH Act.

g) That the contents of this para are repetitive and as such a detailed

reply is already given in the preceding sub-paras & paras and the same

may be read as a reply to this sub-para.

h) That in reply to this para, it is submitted that the quoted observation of

the Ld. Arbitrator in this sub-para is wrong, perverse, patently illegal

and against the substantive provisions of law. It is further submitted

that illegality and perversity in passing of one award cannot be a

ground to pass another award which will be patently illegal, perverse

and against the public policy. It is brought to the notice of the Hon’ble

Court that no annexure has been attached alongwith the present

petition as averred by the Petitioner.

i) That the contents of this sub-para are wrong and denied. It is denied

that the land in question is situated within the Industrial Town of

Ludhiana. It is submitted that no cogent evidence had been adduced by

the Objector before the Ld. Arbitrator to show that the land was
 26

situated within the Industrial Town of Ludhiana at the time of Section

3-A notification of the NH Act. It is submitted that no master plan has

been attached as annexure alongwith the present petition. Be it as it

may, the master plan of Ludhiana referred herein pertains to only show

the future potentiality of the land and not the market value of land at

the time of Section 3-A notification. It is well settled that the future

potential of land is not to be seen while determining compensation for

the land acquired under the NH Act. It is further submitted that the

parity as claimed by the Objector is not maintainable and the

potentiality of the land cannot be parameter while awarding

compensation to the landowners.

j) That the contents of this sub-para are wrong and denied. It is denied

that the Respondent No. 3 & 4 were required to determine the potential

value of the acquired land at the time of acquisition. It is submitted

that the market value of the land is ascertained on the date of passing

of the S. 3A notification. It is further submitted that the market value is

determined as per S. 3-G (7) of the NH Act, 1956 r/w S. 26 of the

RFCTLARR Act, 2013 and not as per the future potentiality of the land.

It is further submitted that several legal conditions such as CLU

certificate etc. have to be complied to change the nature of the land

from agricultural to residential/commercial which the applicant has

miserably failed to produce on record. It is brought to the notice of the

Hon’ble Court that no annexure has been attached alongwith the

present petition as averred by the Petitioner.

k) That the contents of this para to the extent of documents placed by the

respondent are a matter of record and hence, warrants no reply. It is

vehemently denied that the potential value of the acquired land in

village Malakpur and Jainpur is either residential or commercial and

not agricultural so held. It is submitted that as per the Jamabandi, the

acquired land is Banjar and as such agricultural in nature. It is

submitted that the potential value is not a factor for consideration

 27

while awarding compensation for the acquisitions made under the NH

Act. It is also submitted that the averments made in this para are

based on conjectures and surmises and the same cannot be considered

in the eyes of law. It is further submitted that the potential value of

land is not a parameter under the provisions of law while determining

compensation for the land acquired under the NH Act. It is reiterated

that the compensation is to be awarded in accordance with the Section

3-G(7) of the NH Act read with Section 26 of the RFCTLARR, 2016 and

not as per the potential value of the land.

l) That the contents of this sub-para are wrong and denied. It is

vehemently denied that the Competent Authority and the Respondent

No. 5 was required to apply a multiplying factor as per the provisions of

the act. It is submitted that the Competent Authority had rightly

decided that the multiplying factor on basis of the provisions laid down

under law and the same was rightly upheld by the Ld. Arbitrator. It is

submitted that the multiplier is to be taken into consideration only

when the land is situated in rural areas whereas in the present case

land is banjar in nature and agricultural in usage. With regard to the

notification dated 12.03.2021, it is denied that the same multiplying

factor should be allowed to the present case. Without commenting on

the merits or applicability of the said notification in the present case, it

is submitted that benefit on the basis of such a notification cannot be

taken retrospectively, as the same is against the substantive law and

would tantamount to a patent illegality. It is brought to the notice of the

Hon’ble Court that no annexure has been attached alongwith the

present petition as averred by the Petitioner.

m) That the contents of this sub-para are wrong and denied. It is denied

that the Ld. Arbitrator was required to assess the compensation for

pursuing litigation as per Section 48(2) of the Land acquisition Act,

1984 which is Para Materia to Section 93(2) of the Land Acquisition Act

2013. It is submitted that the provisions of Section 3-J of the NH Act

 28

are abundantly clear that the Land Acquisition Act, 1894 does not

apply to acquisitions made under NH Act. In addition to that, it is

submitted that the Section 93(2) of RFCTLARR, 2013 is also not

applicable to the acquisitions made under the NH Act.

n) That the contents of this sub- para are wrong and denied. It is

vehemently denied that the Ld. Arbitrator has not assessed the

compensation for easement right as no access to the said bypass or

service lane has been left. It is further denied that the landowners are

entitled to severance charges to the extent of 50%. It is submitted that

the Objector had not led any evidence to show that no access has been

left or that the land has been severed, so as to claim damages in this

regard. It is well settled principle of law that damages are not just to be

pleaded but proved as well by the means of reliable and cogent

evidences.

4. That in reply to this para, it is submitted that the clear and unequivocal

provisions of Section 26 of RFCTLARR, 2013 is abundantly clear that sale

deeds of similar nature of land is to be considered. It is submitted that the

sale deed deed No. 8925 dated 30.08.2012 pertaining to the Village Jainpur

is barred from being taken into consideration as the same is beyond the

statutory requirement of being within 3 years from Section 3-A notification

of the NH Act. The rest of the sale deeds produced by the Objector do not

pertain to the same nature of land i.e. banjar as in the present case. It is

vehemently denied that no steps were taken by the Competent Authority to

update the Collector rates as per prevalent market rates before the initiation

of acquisition proceedings and in those circumstances the sale deeds so

placed by the claimant were relevant piece of evidence and compensation

was required to be allowed accordingly. It is submitted that the averments

made herein are vague and based on conjectures and surmises. It is further

submitted that the Competent Authority had duly followed the procedure

laid down under law and the award passed by the Competent Authority is

fair, adequate and as per the provisions of law.

 29

5. That the contents of this para are wrong and denied. It is denied that in

these facts and circumstances, the present award is liable to be modified

and compensation may be enhanced for the acquired land to the extent of

Rs. 25,000/- per sq. yard as claimed in the claim petition. It is submitted

that there is no power to modify an arbitral award under Section 34 of the

A&C Act. However, it is made clear that the impugned award is liable to be

set aside on the grounds well laid down in the Objection Petition of the

Answering Respondent.

6. That the contents of this para are a matter of record and hence, warrants no

reply. However, if anything is found contrary to the record, the same is

vehemently denied.

Prayer clause is denied.

PRAYER

In light of the submissions made hereinabove, the present objections

may kindly be dismissed as no enhancement/modification of award can be

granted in the present petition, however, the award being illegal is liable to be

set aside, in light of the contentions raised by the Answering Respondent in the

objection petition bearing ARB/310/2021, in the interest of justice.

Place: Ludhiana
Dated: Prashant Dubey,
Project Director,
PIU – Ludhiana.

(Raghujeet Singh Madan& Avinash Bansal)

( Deepshikha Gupta & Abhishek Vashista)

Advocate
Counsel for the Respondent No.1 & 2

VERIFICATION:-

Verified that the contents of preliminary objections/preliminary

submissions and the contents of the para-wise reply are true and correct to my

knowledge and knowledge derived from the official record. No part of it is false

and nothing material has been concealed therefrom.

 30

Place: Ludhiana
Dated: Prashant Dubey,
Project Director,
PIU – Ludhiana.
31