# Bhartiya Rashtriya Rajmarg Pradhikaran v. Rajesh Kaushik & Ors. Opp. Parties

- **Citation:** (2021) 1 ILRA 1135
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-08
- **Bench:** Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhartiya-rashtriya-rajmarg-pradhikaran-v-rajesh-kaushik-ors-opp-parties-46759
- **Pages:** 5

## Headnote

Civil Law-Award passed for re determining
amount of compensation-Objection filed
against the award-held not maintainablein no event the arbitrator can remit the
matter to competent authority -it's a
power of Court or Tribunal in Appeal or
Revision specifically granted by a statuteAward being passed beyond the scope of
reference-award was open to challenge in
terms of section 34(2) (a) (iv).

Appeal disposed. (E-7)

List of Cases cited: -

## Text

1 All. Bhartiya Rashtriya Rajmarg Pradhikaran Vs. Rajesh Kaushik & Ors.
1135
rectification of a mistake in the Court's
record, when that mistake otherwise
appears to exist, solely because the litigant
did not come to it in the first instance, may
never be relevant for this Court considering
the obligation cast on it under Article 215
of the Constitution of India. The Court is
not a party to the dispute. On the other
hand, a litigant has complained that its
record is incorrect. Thereafter, it is
necessary for the Court, as a non-partisan
and independent adjudicator to correct its
record especially, since the litigant is not
shown to have accepted as correct the order
dated 08.05.2019.

27. Accordingly, the review application
is found to be wholly maintainable in law, by
virtue of Article 215 of the Constitution of
India and since no consent existed (of the
respondent), to appoint the sole arbitrator.
The observation made in the order dated
08.05.2019, to that effect, is erroneous.

28. In so far as, it has been urged that
the Court has a power of procedural review,
again, there can be no dispute to that.
However, no ground of procedural review
has been made out in the facts of the present
case. As to the third line of reasoning adopted
by Sri Girish Chand Sinha relying on the
provisions of the Commercial Courts Act, the
same is left undetermined as this Court
clearly has the power to review and correct
it's record by virtue of Article 215 of the
Constitution of India.

29. Put up the review application for
consideration on 01.02.2021.
----------
(2021)01ILR A1135
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2021

BEFORE
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Appeal U/s 37 of Arbitration & Conciliation Act
1996 No. 36 of 2020

Bhartiya Rashtriya Rajmarg Pradhikaran
 ...Appellant
Versus
Rajesh Kaushik & Ors. ...Opp. Parties

Counsel for the Appellant:
Sri Pranjal Mehrotra, Sri Gaurav Pundir

Counsel for the Respondents:
Sri Shesh Kumar Srivastava, Sri Gaurav
Pundir

Civil Law-Award passed for re determining
amount of compensation-Objection filed
against the award-held not maintainablein no event the arbitrator can remit the
matter to competent authority -it's a
power of Court or Tribunal in Appeal or
Revision specifically granted by a statuteAward being passed beyond the scope of
reference-award was open to challenge in
terms of section 34(2) (a) (iv).

Appeal disposed. (E-7)

List of Cases cited: -

1. Writ C No.8347 of 2018 (Rajiv Memorial
Academy Welfare Society Vs. U.O.I. & ors.

2. Ashok Leland Ltd. Vs St.of T.N.& anr., (2004) 3 SCC 1 i

3. S. P. Manohar Reddy & Bros. Vs Maharashtra
Krishna Valley Development Corpn., (2009) 2
SCC 494

4. Indian Oil Corp. Ltd. & ors. Vs M/S Raja
Transport (P) Ltd., (2009) 8 SCC 520

5. Writ C No. 8347 of 2018 (Rajiv Memorial
Academy Welfare Society Vs. U.O.I. & ors.

(Delivered by Hon'ble Saumitra Dayal Singh, J.)

1. Heard Sri Pranjal Mehrotra, learned
counsel for the appellant through video
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
conferencing
and
Sri
Shesh
Kumar
Srivastava,
learned
counsel
for
the
respondent-claimant who is present in
Court. Sri Gaurav Pundir, learned counsel
is also present through video conference on
behalf of a brother of respondent no.1. His
impleadment application stands rejected by
order dated 25.11.2020. Hence, he was not
heard.

2. The present appeal is directed
against the order dated 07.03.2020 passed
by
the
District
Judge,
Mathura
in
Miscellaneous Arbitration Case No.35 of
2017,
Bhartiya
Rashtriya
Rajmarg
Pradhikaran Vs. Rajesh Kaushik & Others.
By that order, the learned District Judge,
Mathura has rejected the objection filed by
the appellant under Section 34 of the
Arbitration & Conciliation Act, 1996
(hereinafter referred to as the 'Act'), as not
maintainable. That objection had been filed
against the award of the arbitrator dated
25.10.2016, referable to Section 3-G (5) of
The
National
Highways
Act,
1956
(hereinafter referred to as the 'Highways
Act') - arising from the order dated
31.01.2013 passed by the 'competent
authority'. Perusal of that order reveals,
amongst others, compensation for the 3600
sq. mtrs land, plot no.332/1M belonging to
the respondent had been determined. Being
aggrieved, the respondents had invoked
arbitration under Section 3-G (5) of the
Highways Act. By that award, the learned
arbitrator, directed the 'competent authority'
under the 'Highways Act' to redetermine
the amount of compensation under Section
3-G (1) of the Highways Act.

3. Sole submission advanced by
learned counsel for the appellant is, though
there was no defect in the arbitration
proceedings thus instituted, however, the
learned
arbitrator
has
acted
without
jurisdiction in remitting the matter to the
competent authority to redetermine the
amount of compensation. Referring to
Section 3-G (7) of the Highways Act and a
Division Bench decision of this Court in
Writ C No.8347 of 2018 (Rajiv Memorial
Academy Welfare Society Vs. Union of
India & 4 Others, it has been submitted
that the only power vested with the
arbitrator was to determine the amount of
fair compensation. While doing so, the
learned arbitrator had no power vested in
him, either under the Highways Act or the
Act - to act as an appeal court or to even
otherwise pass an order to set aside the
order of the competent authority and to
remit the matter back for redetermination.

4. Then, referring to Section34(2)(a)(iv) read with Section-34(2)(b)(ii)
of the Act, it has been submitted that the
award of the learned arbitrator to the
extent, he has remitted the matter back for
redetermination, is both outside the scope
of implied reference and against the public
policy of India.

5. On the contrary, learned counsel
for the respondent-claimant submits, the
competent authority had by order dated
31.01.2013 correctly valued 1200 sq. mtrs.
out of the total area 3600 sq. mtrs, as nonagricultural land. The balance area 2400 sq.
mtrs was undervalued as agricultural land.
Hence arbitration had been sought. By his
award dated 25.10.2016, the learned
arbitrator has valued the 2400 sq. mtrs. land
also
as
non-agricultural
land
with
commercial potential. The rate of nonagricultural land being specified in the
order dated 31.01.2013 passed by the
competent authority, the total compensation
amount may be paid out to the claimant,
accordingly. It is his submission that
nothing remains to be done by the
1 All. Bhartiya Rashtriya Rajmarg Pradhikaran Vs. Rajesh Kaushik & Ors.
1137
competent authority and the respondentclaimant has already become entitled to
payment at the enhanced rate. Accordingly,
the learned District Judge has rightly
rejected the objections filed against the
award dated 25.10.2016.

6. Having heard learned counsel for the
parties and having perused the record, there can
be no two opinions about the scope of the
proceedings
before
the
arbitrator.
Such
proceedings arose purely in terms of the
provision of Section 3-G (5) of the Highways
Act. For ready reference, the said provision
reads as below:

"(5) If the amount determined by the
competent authority under sub-section (1) or
sub-section (2) is not acceptable to either of the
parties, the amount shall, on an application by
either of the parties, be determined by the
arbitrator to be appointed by the Central
Government."

7. Thus, such arbitration may arise only at
the instance of a party to whom the amount
determined by the competent authority may not
be acceptable. That party may apply for
determination of the amount by the arbitrator
and for no other purpose. The scope or terms of
reference have been chosen or determined or
limited by the legislature to determination of the
amount payable to the claimant. In Ashok
Leland Ltd. v. State of Tamil Nadu &
Another, (2004) 3 SCC 1 it has been observed:

"94.The word "determination" must also
be given its full effect, which presupposes
application of mind and expression of the
conclusion.
It
connotes
the
official
determination and not a mere opinion of (sicor)
finding".

8. Then the law recognises arbitration
as a private dispute resolution mechanism
agreed upon by the parties, P. Manohar
Reddy & Bros. v. Maharashtra Krishna
Valley Development Corpn., (2009) 2
SCC 494. It is a binding voluntary
alternative dispute resolution process by a
private forum chosen by the parties, Indian
Oil Corp. Ltd. & Others v. M/S Raja
Transport (P) Ltd., (2009) 8 SCC 520.
Therein a final determination of a matter in
dispute is made by the judgement of one,
two
or
more
persons,
called
the
arbitrators/Arbitral Tribunal. The concept
of any further or other proceeding to
resolve the dispute that may be made a
subject matter of reference to an arbitral
tribunal, is an absolute anathema to the
founding principle of arbitration. It is for
that reason, that a limited scope of
challenge exists against any award of
arbitrator/s, under section 34 of the Act.

9. There is no provision or general
principle in law, that may allow an
arbitrator to act outside the scope or terms
of his reference. An arbitrator to a dispute
comes into existence upon an agreement
between the parties to the dispute and his
jurisdiction is confined to adjudicate the
dispute brought by them. Arbitration under
section 3-G (5) of the Highways Act is a
proceeding to resolve the dispute between
the parties to determine the fair amount of
compensation, by the arbitrator. It is not a
proceeding to judge the correctness of the
order already passed by the competent
authority.

10. While it may be true that in the
conduct of such an arbitration proceeding,
the order passed by the competent authority
may come to be read in evidence, however,
the
subject
matter
of
the
arbitral
proceedings under section 3-G (5) of the
Highways Act would never be to uphold or
to set-aside the existing order passed by the
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
competent authority but to independently
determine the amount of compensation
payable to the claimant. It is possible that
no enhancement may arise upon arbitration
however, it would not, and it cannot
amount to upholding the order of the
competent authority.

11. Irrespective of the fate of the
arbitration proceedings, the order of the
competent authority would not merge in the
award rather it would continue to exist,
though its enforceability (as to quantum of
compensation payable), may, in given facts
be eclipsed by the arbitral award. It is so
because, the terms of reference arise from
the plain language of section 3-G (5) of the
Highways Act. That provision of law
would ever limit the scope of arbitration
proceedings and command the arbitrator to
himself determine the just amount of
compensation.

12. Thus, in no event, the arbitrator
may set aside the order passed by the
competent authority and he may never
remit the matter to the original/competent
authority to pass a fresh order. Typically,
that power is a power of a Court or
Tribunal sitting in appeal or revision that
too, if specifically granted by statute, and
not implied. In absence of any such power
given to the arbitrator either under the
Highways Act or the Act, the direction
issued by the arbitrator is a nullity in law.

13. Perusal of the order passed by the
arbitrator again does not leave any manner
of doubt that he has not determined the
amount of compensation to be paid, since,
he has neither mentioned the rate at which
compensation may be awarded for 2400 sq.
mtrs of land nor he has quantified the total
compensation amount. In fact, he has
specifically remitted the matter to the
competent authority for that purpose. That
direction clearly falls foul with Section 3-G
(5) of the Highways Act.

14. Hence the award was open to
challenge in terms of Section 34(2)(a)(iv)
of the Act being beyond the scope of
reference to arbitration and also under
Section 34(2)(b)(ii) of the Act, being
contrary to be public policy of India.

15. Therefore, the learned District
Judge has erred in rejecting the objections
raised by the appellant as not maintainable.
The above conclusion is also fortified by
the view taken by the Division Bench of
this Court in Writ C No.8347 of 2018
(Rajiv Memorial Academy Welfare Society
Vs.
Union
of
India
&
4
Others.
Accordingly, the order dated 07.03.2020
cannot be sustained and it is set aside.

16. In absence of any other challenge
raised in this appeal and in view of the
language of the proviso to Section34(2)(iv) of the Act, the newly appointed
arbitrator may determine the compensation
for the land in question on the same
parameters as approved in the award dated
25.10.2016. For purpose of clarity, it is
provided, it is only the direction of remand
that is erroneous, however, the entire award
has been set aside on account of peculiar
limitation of the law.

17. The award of the arbitrator dated
31.01.2013 is also set aside with leave to
the claimant-respondent to seek a fresh
arbitration. That arbitration may be held
between the appellant and the claimant
respondent only. Such exercise may be
completed, as expeditiously as possible,
preferably within a period of three months
from today. The amount that has been paid
to the respondent-claimant pursuant to the
1 All. Smt. Ram Dei & Ors. Vs. Joint Director of Consolidation, Ghazipur & Ors.
1139
earlier order passed in the present appeal
may remain in deposit with him. It shall
abide by the final computation made by the
arbitrator, pursuant to this order.

18. With the above observations, the
appeal is disposed of. No order as to costs.
----------
(2021)01ILR A1139
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ B-No. 3934 of 1985

Smt. Ram Dei & Ors. ...Petitioners
Versus
Joint Director of Consolidation, Ghazipur &
Ors. ...Respondents

Counsel for the Petitioners:
Sri Vishnu Singh, Sri A.K. Rai, Sri V.K. Rai,
Sri V.K. Singh

Counsel for the Respondents:
S.C., Sri A.R. Dubey, Sri L.P. Singh, Sri S.
Rai, Sri Bhola Nath Yadav, Sri Ganesh
Pandey, Sri R.N. Singh, Sri Ram Niwas
Singh, Sri V.K. Chandel, Sri V.K.S. Chandel

A.
Civil
Law
-
Non-concurrent
determination of objections - Transfer of
Property Act: Section 6(a), 43; Uttar
Pradesh Consolidation of Holdings Act,
1953: Section 9-A(2); U.P.Z.A. & L.R. Act:
Section 174, 229-B.

Transfer of Property Act: Section 43 -
Feeding the estoppel - a right based on the
principle of feeding the estoppel is available, so
long as the transferee does not know for a fact
that the transferor who represents title in
himself, does not hold it. In a case where the
transferee knows for a fact that the transferor
does not hold title that he transfers by his deed,
a subsequent acquisition of that title by the
transferor, would not serve to feed the estoppel.
(Para 27)

Evidently, during proceedings before the Deputy
Director of Consolidation, the petitioner had
ample opportunity to take a plea based on
Section 43 of the Transfer of Property Act,
which she never did. The Revisional Authority's
judgment is testimony to the fact that no such
plea was taken before the said Authority by the
petitioner. (Para 33)

A plea based on Section 43 of the Transfer of
Property Act would always give rise to a mixed
question of fact and law. It is not a plea giving
rise to one of those pure questions of law that
may be determined, abstracted from facts by
this Court, at a stage as late as address of
arguments with no foundation laid for it. A plea
of that kind that may be urged, bereft of any
foundation is classically associated with a case
about total lack of jurisdiction in the Court,
relating to the subject matter. A plea and a
question of that kind is invariably based on
facts, of which the Court must take judicial
notice. The present plea based on Section 43 of
the Transfer of Property Act is far from it.

In the considered opinion of the Court, it cannot
be examined on the existing state of the parties'
pleadings here, and before the Revisional
Authority. (Para 34)

B. The opinion of the Authority of first
instance, on an issue that primarily rests
on evaluation of oral evidence, ought not
to have been disturbed by the Appellate
and the Revisional Authorities, who did
not see the witnesses. Wherever an issue
arises that is primarily to be decided on the
basis of oral evidence, the Appellate Court
should invariably accept the Trial Court's
evaluation, unless the conclusions drawn or the
reasoning adopted is patently flawed. (Para 37)

When there is a conflict of oral evidence on any
matter in issue and its resolution turns upon the
credibility of the witnesses, the general rule is
that the appellate court should permit the
findings of fact rendered by the trial court to
prevail unless it clearly appears that some
special feature about the evidence of a
particular witness has escaped the notice of the