Surendra Prasad Sharma vs State Of Bihar Through The Principal Secretary And Ors

Heard learned counsel for the petitioner; learned AAG 12 for the State and learned counsel for the respondents no. 6 to 9.

The petitioner has moved the Court for the following reliefs:

“I. To command and direct the respondents to quash the order dated 21.12.2015 passed by Additional Collector cum Arbitrator, Patna

with regard to compensation amount related to land of petitioner acquired by the Respondent No.8 and 9 for the purpose of construction of

National High way i.e. NH 30 and 84 as well as solicium amount which was awarded by District Land Acquisition officer less amount i.e.

30% instead of 60 % against the land acquisition act 2007 because he is voluntarily ready to give that land to the Govt for the purpose

given above and compensation amount on the basis of Agricultural land instead of commercial / Residential land by which Additional

Collector cum Arbitrator, Patna has rejected the claim of petitioners in arbitrary manner.

II. To further command and direct the respondent to increase the award of Petitioner on the basis of commercial/ Residential land and

solacium amount i.e. 60% amount instead of order passed by Land Acquisition Officer Patna in L.A.No.60/2012-13 relates to land of

Petitioner on 19.6.2013 for the purpose mentioned above i.e. Mouza Phulwari Thana No.35, Plot No. 15, Khata no.452 Khesra No. 3032,

3035, 3037, 3040, 3041 Area- 0.032136, 0.177984, 0.002472, 0.533952, 0.266976 Acre respectively though less calculated amount of

compensation was paid to the petitioner in the year 2015.

III. To further direct the respondents that less compensation amount which was paid to the petitioner in the year May 2015, be as per the

nature of land i.e. residential/commercial and on the basis of “right to fair compensation and Transparency in Land Acquisition Re-

habitation and Re-settlement Act 2013 and compensation amount may fixed on the basis of present market value as a residential/commercial

as rate fixed by the district registration office Patna.

IV. For which petitioner is entitled for.â€​

On 23.01.2020, the Court had recorded the objection raised by learned counsel for the State with regard to the maintainability of the present writ

application. The Court had recorded the following order:

“7. At the outset, learned counsel for the State submitted that the challenge is to the award passed by the Arbitrator and, thus, the same

has to be now assailed under Section 34 of the Arbitration and Conciliation Act, 1996.

Learned counsel for the petitioner submitted that the matter be adjourned for a day as he is not prepared in the matter.

In view thereof, as prayed for by learned counsel for the petitioner, the matter is adjourned to be listed tomorrow (24.01.2020) among

the top five cases.â€​

The matter was adjourned for a day on the plea of learned counsel for the petitioner that he was not prepared in the matter. Today, learned counsel

for the petitioner has not been able to meet the objection of learned counsel for the State that challenge to the award passed by the Arbitrator is to be

assailed under Section 34 of the Arbitration and Conciliation Act, 1996.

Further, learned counsel for the respondents no. 6 to 9 submitted that the matter has been settled by a Division Bench of this Court in Project

Director, National Highway Authority vs. Md. Gufran Alam reported as 2014(1) PLJR 20.7 The Court deems it appropriate to reproduce paragraphs

no. 9 and 10 of the aforesaid judgment which read as under:

“9. As recorded hereinabove, the proceedings before the Arbitrator are governed by the Act of 1996. Section 34 of the Act of 1996

provides for a remedy against the arbitral award by an application for setting aside the arbitral award before the Court. The “Courtâ€​ is

defined under Clause (e) of sub-section (1) of Section 2 of the Act of 1996 to mean, “the principal civil Court of original jurisdiction in a

district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming

the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil Court of a grade inferior

to such principal Civil Court, or any Court of Small Causes.†Hence, it is evident that the remedy against the arbitral award lies before the

civil Court. Section 36 of the Act of 1996 provides for enforcement of the arbitral award under the Code of Civil Procedure, 1908 in the

same manner as if it were a decree of the Court. Thus, the statutory remedy for enforcement of the arbitral award made under Section 3-

G(5) of the Act of 1956 lies before the civil Court.

In view of the statutory remedy for execution of the arbitral award being available, a petition under Article 226 of the Constitution

would not lie. The learned Single Judge has erred in entertaining the writ petition under Article 226 of the Constitution in the subject

matter.â€​

From the aforesaid, it is clear that the challenge to the award of the Arbitrator under Section 3-G(5) of the National Highways Act, 1956 has to be

made before the Civil Court.

In view thereof, the application stands disposed off with liberty to the petitioner to move before the appropriate forum, in accordance with law, in

the present matter.

As it has been informed that now the challenge to the award is hit by limitation due to passage of time, the Court would only observe that if the

petitioner files a petition seeking condonation of delay, the same shall be considered on its own merits, in accordance with law, and also taking into

consideration the pendencey of the present writ application.