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

ARB No. 103 of 2021

Village: Jainpur

In Re:

Meenu Pal Khanna & Others ...Applicants/Objectors

Versus

Union of India & Others …Respondents

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

objections filed by the Objectors 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 31.12.2020 bearing case no.

ARB/210/2021 titled “U.o.I & Anr. v. Meenu Pal Khanna & 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 on the ground that

the land was mentioned as ‘gair-mumkin’ in the Khasra Girdawari as

against the nature of land reflected in the Jamabandi. There is no

presumption of truth attached to the entries in the Khasra Girdawari. It is

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further the case of the answering respondents that at best, even as per the

Khasra Girdawari so relied, the land has been mentioned ‘gair-mumkin

char diwari’ i.e. mere boundary wall. Moreover, the Khasra Girdawari was

provided only at the time of final arguments. As such, the Ld. Arbitrator

has on its own changed the nature of land as against the factual position

and 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, 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 31.12.2020 passed by Ld. Arbitrator in

Case No. MA 85/18/LBP, whereby the Ld. Arbitrator has wrongly and

arbitrarily allowed the application filed by the Objectors and enhanced the

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

granted by the Competent Authority, to Rs. 4,372.26/ per sq. meter

against the evidence on record. It is the case of the answering respondent

that the entire Award dated 31.12.2020 is wrong, perverse, patently illegal

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

the illegal award dated 31.12.2020, the Answering Respondents had filed

an application under Section 34 of the Arbitration and Conciliation Act,

1996 seeking setting aside of the Award dated 31.12.2020 on the grounds

as mentioned therein in ARB/210/2021.

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 S.O.

2562(E), under Section 3-A of the National Highways Act, 1956 (‘the NH
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Act’) was issued on 18.09.2015, and after following the due procedure

prescribed under the NH Act, notification under Section 3-D of the NH Act,

was issued on 12.05.2016 and the Competent Authority had passed

Award no. 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 ‘RFCTLARR, 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 Objectors by way of filing an

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

Arbitrator bearing Case No. MA-85/2018/LBP titled “Meenu Pal Khanna &

Ors. 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 Objectors had been allowed

wrongly, illegally and perversely by the Ld. Arbitrator vide Award dated

31.12.2020, in the following terms:

“23. There are other cases noted below pertaining to this

very same village Jainpur, wherein the nature of land is gair-
mumkin as per revenue record i.e. khasra girdawri for the year
2013-14 to 2017-18. Therefore, in these cases non-irrigated
rates/benefits as mentioned in para 21 above are ordered to be
given for same reasons mentioned above in the award. Therefore, all
the cases noted below are disposed off by this single order of mine.
Copy of this order be place on each file.
…….

2. Case No.MA 85/18/LBP (Date of Instt.: 06.12.2018)…”

Further, the para 21 of the impugned award is reproduce below for ready

reference:-
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“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 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.

(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 31.12.2020 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:-

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

the land of the Objectors to be gair-mumkin solely on the basis of

the entries in the Khasra Girdawari as per which the land was

mentioned as ‘gair-mumkin char diwari’ i.e. boundary wall. It is

submitted that the said document was supplied only at the time of

final arguments therefore, no opportunity has been granted by the

Ld. Arbitrator to the Answering Respondent to rebut the same. It is

the case of the Answering Respondent that while holding the land

of the Objectors as gair-mumkin, the Ld. Arbitrator has completely

ignored the fact that the said document was provided only at the

time of final arguments. It is respectfully submitted that though

the Ld. Arbitrator has referred to a number of judgments to hold

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that the Khasra Girdawari has evidentiary value, however, the Ld.

Arbitrator has completely ignored the ratio of the said judgments

with respect to the evidentiary value of the Jamabandi.

B. The Ld. Arbitrator failed to appreciate that even as per the Khasra

Girdawari, the land was mentioned as gair-mumkin char diwari’. It

is necessary to point out that though it had been vehemently

denied that the land was not gair-mumkin in nature, and the same

was agricultural. Be that as it may, assuming without admitting

the observation of the Ld. Arbitrator as true, it is submitted that a

land that has been mentioned as only a gair-mumkin boundary

wall which could not be equated with the residential, commercial

or industrial land. A land merely having a boundary wall cannot in

any condition be granted the rate higher than the rate for

commercial or residential area. It had been argued by the

Answering Respondent before the Ld. Arbitrator, further detailed

written submissions were also filed wherein it had been stated that

several legal conditions such as CLU certificate etc. have to be

complied to change the nature of the land which the Objectors had

miserably failed to produce on record. However, the Ld. Arbitrator

had without any discussion on the argument with respect to the

grant of CLU raised by the Answering Respondent, outrightly

rejected the contention and proceeded to decide the nature of the

land solely on the basis of Khasra Girdawari. It is humbly

submitted that a statement of reasons showing the application of

mind is sine-qua-non to ensure that the decision has been arrived

at after due consideration of all relevant submissions, arguments

and the evidence produced by both the parties. However, in

absence of a reasoned decision, the award is unsustainable being

against the principles of natural justice. It is further submitted

that surprisingly, despite the admission that there was only a char

diwari i.e. boundary wall (only fencing) on the acquired land, the
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Ld. Arbitrator has granted higher than commercial/residential

rates which is totally unjustified and illegal. As such, the present

award is liable to be set aside on the sole ground of it being vitiated

by patent illegality appearing on the face of record.

C. The Ld. Arbitrator had tried to pick and choose the paragraphs

from the judgment to support the case of the Objectors, when the

judgment, if read in totality, is not applicable. Reliance in this

regard may be placed on the judgment in the case of

Commissioner of Income Tax Vs. M/s Sun Engineering Works

Private Limited [AIR 1993, SC 43], wherein the Hon'ble Apex

Court held that, “while applying the decision to a later cases, the

court must carefully try to ascertain the true principle laid down by

the decision of the Supreme Court and not to pick out words or

sentences from the Judgment divorced from the context of question

under consideration by the court to support their reasoning.” As

such, the Award dated 31.12.2020 is liable to be set aside having

being passed by culling an erroneous premise of law based on the

judgement of the Hon’ble High Court having no similarity to the

facts of the present case.

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

Objectors is gair-mumkin in nature as per the entries in the

Khasra Girdawari, 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 the 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 granted only to govt. land i.e. roads etc. which can in no

manner be compared to the acquired land being agricultural

in nature. Be that as it may, the land only consisting of

boundary wall could not have been granted similar rates that

had been granted to the roads.

As such, the award dated 31.12.2020 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. The Ld. Arbitrator while changing the nature of land from

agricultural to gair-mumkin has relied on the site plan submitted

by the Objectors to hold that 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
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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 of the Objectors could not

be taken into account as the same was never supplied to the

Answering Respondent herein in violation of the mandatory

procedure prescribed under Section 24(3) of the A&C Act, 1996,

had taken into consideration the said site plan which was never

proved. 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. It is reiterated that

the rates of gair-mumkin land were higher than the rates of

residential area as per the report of Tehsildar. Thus, even

otherwise, without prejudice to be argument of the Answering

Respondent that no enhancement is liable to be granted to the

agricultural land of Objectors, the compensation could only be

enhanced at residential rates and not gair-mumkin rates that have

been wrongly awarded.

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 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 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
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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. It is

respectfully submitted that the construction of a boundary wall on

the agricultural land does not entitle the Objectors to non-

agricultural rates.

It would be relevant bring to the notice of this Hon’ble Court

that the Ld. Arbitrator while passing another award dated

08.02.2021 relating to Village Sanghol, wherein a contention was

raised by the 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 the Ld. Arbitrator 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 31.12.2020 is erroneous, perverse and
arbitrary and liable to be set aside.
G. The Answering Respondent had placed on record 7 sale deeds

pertaining to the same village wherein the average value of the land
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was Rs.1037/- per sq. meter as against the sum of Rs.1195/- per

sq. meter granted by the Competent Authority. The details of sale

deeds led by the Answering Respondent is reproduced below in a

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

Exhibit No. Sale Deed Date Rupees Per

No. 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
Ex. RW-1/7 38 24.08.2015 1076
AVERAGE RATE: Rs.1037/ sq. meter

It is submitted that a reference of the said sale deeds was also

given in the written submissions filed by the Answering

Respondent but 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. It is the case of the

Answering Respondent that this Hon’ble Court while exercising

powers under Section 34 of the A & C Act, 1996 can interfere in

the award if the finding is perverse and/ or contrary to the

evidence and/ or is against the public policy. Reference in this

regard may kindly be placed on the judgment of the Hon’ble

Supreme Court in Associate Builders Vs. DDA [(2015) 3 SCC 49]

and in State of Jharkhand v. M/s HSS Integrated SDN. [2019

(9) SCC 798]. As such, the present award is liable to be set aside

on the sole ground of it being contrary to the evidence on record.

H. 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

account while determining the market value. Thus, the Ld.

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Arbitrator had in contravention to Explanation-1 of Section 26,

relied upon the rates of gair-mumkin when the land was

agricultural in nature. 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. The Hon’ble High Court held

that when the evidence established that different plots of the

acquired land varied greatly as to the size, shape and location, they

could not have fetched a uniform rate. As such, the award is liable

to be set aside being contrary to the evidence on record.

I. 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 Respondents 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 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.”

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

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submitted that firstly the Answering Respondent would never have

an opportunity to rebut the said report since the proceedings have

come to an end after the passing of the award 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 Objectors. 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, if there was no cogent evidence at all and the

amount claimed is merely on the basis of the claim statement

without anything else as none of the documents relied upon the

Objectors have been duly proved, the claim 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].

J. The Ld. Arbitrator has given no reasoning as to how 30% severance

rate has been reached at. It is submitted that compensation @30%

has been granted uniformly irrespective of the extent of severance.

It is further submitted that severance is in the form of damages

and damages cannot be granted on the basis of mere pleadings

without any actual proof thereof. As such the amount of

compensation granted on account of severance is illegal.

K. The Ld. Arbitrator granted interest @9% without framing any issue

with respect to the grant of interest to the Objectors. It is the case

of the Answering Respondent 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

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that the power of exercising discretions is also coupled with the

duty of exercising reasonableness. It is further submitted that

action of granting interest to the Objectors as if the same was a

matter of right, was highly arbitrary and against principles of

Natural Justice. It is submitted that an application under Section

29-A of the A & C Act, 1996 had been filed by the Respondent-

landowners. The Hon’ble Court was please to grant extension of

time and had directed the Ld. Arbitrator to consider the issue of

grant of interest. However, despite such direction, the Ld.

Arbitrator failed to take into account the factual position that no

delay could be attributed to the Answering Respondent. As such,

the present award, insofar as it relates to the grant of interest to

the Objectors is also liable to be set aside.

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

present petition, the Objectors are, in essence, seeking for the

enhancement of the amount of compensation awarded by the Ld.

Arbitrator. However, the Objectors have 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 respondents 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 objectors 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 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 and 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 2021DHBVN 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 the Hon’ble Supreme

Court in Project Director, NHAI Vs. M.Hakeem & Anr. [SLP (c) 13020
 15

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

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 Supreme 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 Objectors 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 Objectors. 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

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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

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 Objectors, 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

 17

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 respondents 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:

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

 18

(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

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

 19

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 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 Objectors have no locus standi to file present petition.

8. That the Objectors are estopped by their acts, conduct, acquiescence and

admissions from filing the present petition.

PARA WISE REPLY:

1. 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.

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

land by NHAI are a matter of record and hence, warrants no reply.

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

vehemently denied. Rests of the contents of this para are wrong and

denied. It is vehemently denied that the Khasra No. 23//11/1 was

acquired by the Answering Respondent. It is submitted that a bare

perusal of the award by the Competent Authority shows that the Khasra

No. 23//11/1 was not acquired by the Answering Respondent. It is

 20

denied that the land of the Objectors was also acquired. It is further

denied that the share of the Objectors as mentioned in the table in

Objection Petition is correct.

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

Objectors had been allowed compensation by the Collector/Competent

Authority at a very meagre rate. It is denied that the total amount

worked thereon by the Competent Authority was quite on lower side. It is

submitted that the Competent Authority had rightly awarded adequate

compensation to the landowners @ Rs. 1195.73 per sq. meter in

accordance to the parameters laid down under Section 3-G(7) of the NH

Act and Section 26 of RFCTLARR, 2013. It is further submitted that Ld.

Arbitrator has wrongly enhanced the compensation by treating the

property as Gair Mumkin instead of agricultural and as such the Arbitral

Award dated 06.01.2021 is wrong, perverse, against the substantive law

and public policy of India, and thus, liable to be set aside in toto, on the

grounds mentioned in ARB/235/2021 and Preliminary Submissions of

the present reply.

4. That the contents of this para are a matter of record and hence, warrants

no reply.

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

Ld. Arbitrator has framed the issues at the time of passing of the order

and has mentioned as to whether the acquired land of the Objectors was

residential and not agricultural. It is submitted that a perusal of the

arbitral award shows that the issue framed was “Whether or not, the

applicants are entitled for compensation at non-agricultural/gair-mumkin

rates?” and as such the averment made by the Objectors is misleading. It

is denied that the so far as the award passed by the Ld. Arbitrator that

the land has been wrongly mentioned as agricultural in the award is

correct. It is also denied that the land of the Objectors is commercial. It

is submitted that the Ld. Arbitrator has wrongly, perversely and illegally

held that the land of the Objectors is gair mumkin whereas the land of
 21

the Objectors is agricultural in nature as per the Jamabandi. Insofar as

the claim pertaining to potential value of land is concerned, it is

submitted that the commercial potential of the land could not be looked

into for the assessment of the market value of the land. It is submitted

that the compensation is to be determined in consideration of the

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

Section 26 of the RFCTLARR Act, 2013 and not potentiality of the land. It

is denied that the land is situated close to Delhi Pubic school, South City

and is surrounded by well developed posh residential colonies and

commercial premises. It is denied that there is a big show room Element

Garden & furniture and various shops and show rooms located in the

vicinity and there are offices of the realtors also and as such the property

was commercial and not residential. It is submitted that no cogent

evidence was led before the Ld. Arbitrator to show the location and

proximity of the land. It is submitted that the authenticity of the site

plan referred to in this para is required to be firstly proved and only then

it can be relied upon. Be it as it may, it is 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

applicants have miserably failed to produce on record. It is vehemently

denied by Answering Respondent that the land was residential or

commercial in nature, as the same was agricultural.

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

there was structure by way of boundary wall. It is submitted that no

documentary evidence was led before the Ld. Arbitrator to show that

there was any structure whatsoever. Being bereft of any evidence, the

claim was rightly rejected.

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

Ld. Arbitrator has not taken into consideration the other record

produced by the Objectors. It is denied that the owner Sh. Kimat Rai

sikri of the nearby land had submitted online Sangat Darshan

 22

application with Dy. Chief Minister, Punjab wherein requesting for

informing the market value of the acquired land. It is submitted that a

perusal of the record shows that no reliable and admissible evidence was

adduced by the Objectors in support of the claims made. Insofar as the

Sangat Darshan application and averred letter is concerned, it is

submitted that the application and letter averred in this para was not

produced/pleaded before the Ld. Arbitrator or the Competent Authority

at the relevant time and the same cannot be relied upon now in the

Section 34 proceedings as the Objectors are now estopped due to his act

and conduct. It is submitted that no such letter or other documents as

averred in this para has been attached for the perusal of the Answering

Respondent. Be it as it may, it is further submitted that the letter has

not been proved and also the averred letter is not providing for the

market rate of the land in question but merely mentions the market rate

for residential property and commercial property in the area where

property of Sh. Kimat Rai Sikri is located. No evidence has been adduced

to prove parity with the land owned by Sh. Kirmat Rai Sikri.

Furthermore, the evidenciary value of such letter and its reply for

enhancement purpose is questionable in the eyes of law. It is also denied

that there are various reports from the revenue agency showing the

nearby land are commercial one and were valued more than Rs.

40,000/- per square yard, even the value of the residential was also Rs.

40,000/- per sq. Meter. It is further denied that the property of the

objectors had much potential value than the land owned by Kimat Rai

Sikri and others. It is submitted that no evidence was led before the Ld.

Arbitrator to show that the market value of the land. Insofar as the

potentiality is concerned, it is submitted that it is well settled law that

the potentiality of the land cannot be a factor while ascertaining the

market value of the land.

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

Ld. Arbitrator has fell in error in not computing the amount of

 23

compensation of the award as per the sale deeds produced by the

objectors. It is submitted that the Objectors have attached sale deeds

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

agricultural nature as per the Jamabandi. Be it as it may, it is submitted

that the the Respondent herein 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. It is reiterated

that a reference of the said sale deeds was also given in the written

submissions filed by the Respondents, the Ld. Arbitrator has not referred

to even a single sale deed relied upon by the Answering Respondents.

Further, it is vehemently denied that the acquisition of the land was

disintegrated and mutilated the property of the objectors and has

deprived the objectors of the area owned by them and the remaining

property will be of no use and practical for all intents and purposes. It is

submitted that the no documentary evidence was led before the Ld.

Arbitrator to show that the land was disintegrated and mutilated in order

to claim damages. Being bereft of any evidence the claim was rightly

rejected. However, it is worthwhile to mention here that perusal of the

award shows that the Ld. Arbitrator has awarded compensation on

account of severance subject to verification by the collector which is

against the provisions of law and such an order is patently illegal,

perverse and against public policy.

9. In reply to this para, it is submitted that the sale deeds referred to in this

para pertains to residential property whereas the land of the Objectors is

agricultural and as such these sale deeds are not relevant for

determining compensation for agricultural land acquired under the NH

Act.
 24

10. That the contents of this para are wrong and denied for want of

knowledge. It is vehemently denied that the said application has been

produced on record. However, it is submitted that the relevancy of such

an application as averred in this para is questionable and the same does

not pertain to the land in question. 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 Objectors have miserably failed to

produce on record. Be it as it may, the endorsed report by the Ld.

Tehsildar has not been adduced to rely upon it. In absence of any

reliable evidence, the claim is liable to be rejected.

11. That the content of this para are wrong and denied. It is denied that the

boundaries of villages Jhamat, Malakpur, Jainpur and Ayali Khurd

adjoin each other and the potential value of the land in all these villages

is same. With regard to the sale deeds mentioned in this para, it is

submitted that the same cannot be considered as they do not fall within

the ambit of preceding three years from the Section 3-A notification.

Insofar as the averment relating to potential value is concerned, it is a

well settled law that the market value of the land at the time of Section

3-A notification is to be considered and not the ‘potential value’ as per

the provisions of Section 26 of the RFCTLARR Act, 2013 read with

Section 3-G(7) of the NH Act. Furthermore, the Answering Respondent

have also adduced the sale deeds of the nearby area and a bare perusal

of these sale deeds (mentioned in detail in Preliminary Submissions)

reflect the true picture in relation to the market value of the land i.e.

Rs.1037 per sq. meter.

12. That the contents of this para are wrong and denied. It is vehemently

denied that the rate of the property is Rs. 40,000/- per Sq. Yard. It is

submitted that no evidence was led to show that the rate of the property

was Rs. 40,000/- per Square Yard at the time of Section 3-A notification

of the NH Act. It is further submitted that the nature of the land acquired
 25

is agricultural in nature and as such a perusal of the sale deeds

mentioned in Preliminary Submission clearly shows that the average

market value of land is Rs. 1037 per sq. meter.

13. That the contents of this para are a matter of record and hence, warrants

no reply.

14. That the contents of this para are denied for the want of knowledge.

15. That the contents of this para are a matter of record and hence, warrants

no reply.

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/210/2021, 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.

Place: Ludhiana
Dated: Prashant Dubey,
Project Director,
PIU – Ludhiana.
26