# N.H.A.I v. Dwarikesh Sugar Industries Ltd. & Anr

- **Citation:** (2024) 11 ILRA 4
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-12
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/n-h-a-i-v-dwarikesh-sugar-industries-ltd-anr-51019
- **Pages:** 4

## Headnote

Civil Law - Arbitration and Conciliation
Act, 1996 - Section 34 - Right to Fair
Compensation and Transparency in Land
Acquisition
in
Land
Acquisition,
Rehabilitation and Resettlement Act, 2013
- Section 26 - In impugned order, learned
court
below
remanded
matter
to
arbitrator for fresh consideration and
found that amount of compensation was
not computed in light of provisions of
Land Acquisition Act - Contention by
appellant that court below had no power
to remand matter to arbitrator. (Para 1, 2)

Question
before
High
Court
was
to
examined
whether
court
below
was
justified in remanding matter to arbitrator
- In P. Nagaraju alias Cheluvaiah (infra),
question regarding power of remand in
proceedings u/s 34 of Arbitration and
Conciliation Act arose for consideration.
(Para 6)

The judgement of Supreme Court in
Kinnari Mullick (infra) relied upon by
appellant was not applicable to instant
case and it arose out of private contract
between parties - Dealing with distinction
between private contracts and statutory
contracts under National Highways Act,
Supreme Court held in P. Nagaraju alias
Cheluvaiah (infra) there exists statutory
arbitrator as in instant case - Private
contracts
between
parties
which
contemplate appointment of arbitrator
and cases where statutory arbitrators are
appointed under statute fall in two
separate classes. (Para 8)

Appeal dismissed. (E-13)

List of Cases cited:

## Text

4 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 11 ILRA 4
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2024

BEFORE

THE HON'BLE AJAY BHANOT, J.

Appeal U/S 37 of Arbitration and Conciliation Act
1996 No. 423 of 2024

N.H.A.I. ...Appellant
Versus
Dwarikesh Sugar Industries Ltd. & Anr.
 ...Respondents

Counsel for the Appellant:
Pranjal Mehrotra

Counsel for the Respondents:
Tarun Agrawal

Civil Law - Arbitration and Conciliation
Act, 1996 - Section 34 - Right to Fair
Compensation and Transparency in Land
Acquisition
in
Land
Acquisition,
Rehabilitation and Resettlement Act, 2013
- Section 26 - In impugned order, learned
court
below
remanded
matter
to
arbitrator for fresh consideration and
found that amount of compensation was
not computed in light of provisions of
Land Acquisition Act - Contention by
appellant that court below had no power
to remand matter to arbitrator. (Para 1, 2)

Question
before
High
Court
was
to
examined
whether
court
below
was
justified in remanding matter to arbitrator
- In P. Nagaraju alias Cheluvaiah (infra),
question regarding power of remand in
proceedings u/s 34 of Arbitration and
Conciliation Act arose for consideration.
(Para 6)

The judgement of Supreme Court in
Kinnari Mullick (infra) relied upon by
appellant was not applicable to instant
case and it arose out of private contract
between parties - Dealing with distinction
between private contracts and statutory
contracts under National Highways Act,
Supreme Court held in P. Nagaraju alias
Cheluvaiah (infra) there exists statutory
arbitrator as in instant case - Private
contracts
between
parties
which
contemplate appointment of arbitrator
and cases where statutory arbitrators are
appointed under statute fall in two
separate classes. (Para 8)

Appeal dismissed. (E-13)

List of Cases cited:

1. Kinnari Mullick & anr. Vs Ghanshyam Das
Damani reported at (2018) 11 SCC 328

2. National Highways Authority of India Vs P.
Nagaraju @ Cheluvaiah & anr. reported at
(2022) 15 SCC, (Para 42, 45, 47)
(Delivered by Hon'ble Ajay Bhanot, J.)

1. The instant arbitration appeal arises
out of an order dated 18.05.2024 passed by
the Additional District Judge, POCSO Act,
Bijnor in Misc. Arbitration Case No.218 of
2022 (Dwarikesh Sugar Industries Limited
v. National Highway Authority of India and
another) in proceedings under Section 34 of
the Arbitration and Conciliation Act, 1996.
By the impugned order dated 18.05.2024,
the learned court below has remanded the
matter
to
the
arbitrator
for
fresh
consideration in light of the observations
made in the body of the judgement. The
learned court below has found that the
amount of compensation was not computed
in light of the provisions of the Land
Acquisition Act.

2. Shri Pranjal Mehrotra, learned
counsel for the appellant contends that the
learned court below had no power to
remand the matter to the arbitrator. In this
regard, reliance is placed on the judgement
rendered by the Hon'ble Supreme Court in
Kinnari
Mullick
and
another
v.
11 All. N.H.A.I. Vs. Dwarikesh Sugar Industries Ltd. & Anr.
5
Ghanshyam Das Damani reported at
(2018) 11 SCC 328.

3. Per contra, Shri Naveen Sinha,
learned Senior Counsel assisted by Shri
Tarun Agrawal, learned counsel for the
respondent
No.1
submits
that
the
prerequisites of remand are satisfied in the
facts of this case. The learned court below
had the jurisdiction to remand the matter to
the arbitrator. In this regard, reliance is
placed on the judgement rendered by the
Hon'ble
Supreme
Court
in
National
Highways Authority of India v. P.
Nagaraju alias Cheluvaiah and another,
reported at (2022) 15 SCC.

4. Heard Shri Pranjal Mehrotra,
learned counsel for the appellant and Shri
Naveen Sinha, learned Senior Counsel
assisted by Shri Tarun Agrawal, learned
counsel for the respondent No.1.

5. While remanding the matter, the
learned court below has opined that the
arbitrator had erred in law by computing the
compensation in the teeth of Section 26 of the
Right to Fair Compensation and Transparency
in Land Acquisition in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.

6. It needs to be examined whether the
learned court below was justified in remanding
the matter to the arbitrator. In P. Nagaraju
alias Cheluvaiah (supra) the question as
regards the power of remand in proceedings
under Section 34 of the Arbitration and
Conciliation Act arose for consideration.
Dealing with the distinction between the
private contracts and the statutory contracts
under the National Highways Act, the
Supreme Court held as under:

"42. Having taken note of the said
decision, though it is seen that it was held
so while considering the maintainability of
petition under Section 11 of the Act, 1996
to exclude the right of the land loser to seek
the appointment of an Arbitrator keeping in
view the statutory provision in the NH Act,
the larger perspective of such limited right
to the land loser in the process of
arbitration is also to be kept in view. Unlike
the arbitration in a contractual matter where
the parties from the very inception at the
stage of entering into a contract would
mutually agree to refer any future dispute
to an arbitrator, at that very stage are aware
that in the event of any dispute arising
between the parties the contours of the
right,
remedy,
and
scope
from
the
commencement of the arbitration up to the
conclusion through the judicial process.
The terms of arbitration and the rights and
obligations will also be a part of the
agreement and a reference to the same in
the award will constitute sufficient reasons
for sustaining the award in terms of Section
31(3) of Act, 1996. Whereas, in the
arbitration proceedings relating to NH Act,
the parties are not governed by an
agreement to regulate the process of
arbitration. However, in the process of
determination
of
just
and
fair
compensation, the provisions in Section 26
to 28 of RFCTLARR Act, 2013 will be the
guiding factor. The requirement therein
being adverted to, should be demonstrated
in the award to satisfy that Section 28(2)
and 31(3) of Act, 1996 is complied."

45. Therefore, while examining
the
award
within
the
parameters
permissible under Section 34 of Act, 1996
and while examining the determination of
compensation as provided under Sections
26 and 28 of the RFCTLARR Act, 2013,
the concept of just compensation for the
acquired land should be kept in view while
taking note of the award considering the
sufficiency of the reasons given in the
6 INDIAN LAW REPORTS ALLAHABAD SERIES
award for the ultimate conclusion. In such
event an error if found, though it would not
be possible for the Court entertaining the
petition under Section 34 or for the
appellate court under Section 37 of Act
1996 to modify the award and alter the
compensation as it was open to the court in
the reference proceedings under Section 18
of the old Land Acquisition Act or an
appeal under Section 54 of that act, it
should certainly be open to the court
exercising power under Section 34 of Act,
1996 to set aside the award by indicating
reasons and remitting the matter to the
Arbitrator to reconsider the same in
accordance with law. The said exercise can
be undertaken to the limited extent without
entering into merits where it is seen that the
Arbitrator has on the face of the award not
appropriately considered the material on
record or has not recorded reasons for
placing reliance on materials available on
record in the background of requirement
under RFCTLARR Act, 2013."

47. Under the scheme of the 1996
Act it would not be permissible to modify
the award passed by the learned Arbitrator
to enhance or reduce the compensation
based on the material available on record in
proceeding emanating from Section 34 of
Act, 1996. The option would be to set aside
the award and remand the matter. In this
regard it would be apposite to take note of
the observation in M. Hakeem (supra), as
hereunder:-

"42. It can therefore be said that
this question has now been settled finally
by at least 3 decisions of this Court. Even
otherwise, to state that the judicial trend
appears to favour an interpretation that
would read into Section 34 a power to
modify, revise or vary the award would be
to ignore the previous law contained in the
1940 Act; as also to ignore the fact that the
1996 Act was enacted based on the
UNCITRAL Model Law on International
Commercial Arbitration, 1985 which, as
has been pointed out in Redfern and Hunter
on International Arbitration, makes it clear
that, given the limited judicial interference
on extremely limited grounds not dealing
with the merits of an award, the "limited
remedy" under Section 34 is coterminous
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."

7. After laying down the aforesaid
proposition
of
law,
the
arbitration
proceedings
were
remanded
to
the
arbitrator with the following directions:

"84.2.
The
arbitration
proceedings bearing Case Nos.:

LAQ(A)/NH-275/CR/137/201718,

LAQ(A)/NH-275/CR/134/201718,

LAQ(A)/NH-275/CR/135/201718,

LAQ(A)/NH-275/CR/132/201718,

LAQ(A)/NH-275/CR/139/201718,

LAQ(A)/NH-275/CR/41/2019-20

are remanded to the Deputy
Commissioner and Arbitrator, NH-275,
Ramanagar District, Ramanagar and Case
No.LAQ/ARB/BNG/NH-275/CR-02/
2/
2018-19
is
remanded
to
Deputy
Commissioner and Arbitrator, Bangalore
Rural District."

8. The judgement of the Supreme
Court in Kinnari Mullick (supra) relied
upon by the appeal is not applicable to this
case. Kinnari Mullick (supra) arose out of
a private contract between the parties. In
the instant case as in P. Nagaraju alias
11 All. Pushkar Singh Chandel & Ors. Vs. State of U.P. & Ors.
7
Cheluvaiah (supra) there exists a statutory
arbitrator. Private contracts between parties
which contemplate the appointment of an
arbitrator and the cases where the statutory
arbitrators are appointed under the statute
fall in two separate classes.

9. Thus the judgement rendered in
Kinnari
Mullick
(supra)
being
distinguishable is of no avail to the
appellant. Further, the said judgement had
been considered by the Hon'ble Supreme
Court in P. Nagaraju alias Cheluvaiah
(supra) while rendering its judgement in
the aforesaid case.

10.
The
arbitration
appeal
is
dismissed.
----------
(2024) 11 ILRA 7
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.11.2024

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ A No. 5232 of 2024
with other connected cases

Pushkar Singh Chandel & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Amit Mishra, Dileep Kumar Mishra

Counsel for the Respondents:
C.S.C., Abhinav Singh, Pradeep Tiwari,
Prashant Kumar Singh, Ran Vijay Singh,
Ravi Prakash Yadav, Rishabh Tripathi

A. Civil Law - Transfer of teachers
employed in Basic Schools - Constitution
of India, Article 14 - Intelligible differentia
- Transfer/adjustment of teachers to
maintain Pupil-Teacher Ratio - Right of
Children
to
Free
and
Compulsory
Education Act, 2009, Sections 19 and 25 -
U.P. Basic Education Act, 1972 - U.P. Basic
Education (Teachers) Service Rules, 1981,
Rule 21 - Legality of Clauses 3, 7, 8, & 9 of
Government Order dated 26.06.2024 and
Circular dated 28.06.2024 - Proceedings
initiated for fulfilment of the pupil-teacher
ratio. Clause 7 of the Government Order
provides that shifting of teachers would
be affected by transferring teachers under
the principle of "last come, first go",
whereby the junior-most teacher would be
shifted
out
first.
Held
:
Impugned
Government Order does not indicate any
reasoning as to why the principle of "last
in, first out" is required to be followed for
transfer/adjustment of teachers."Last in,
first out" does not have any rational nexus
with the object sought to be achieved by
the Act of 2009. There is no provision in
the
Act
of
2009
or
rules
framed
thereunder for transfer/adjustment to be
made
in
keeping
with
the
norms
prescribed under Schedule by transferring
the
junior-most
teacher
of
a
school/district.
If
the
procedure
prescribed under the impugned clauses is
kept intact, the real purpose or effect of
such a condition would entail frequent
transfer of junior teachers while keeping
intact the posting of senior teachers for all
times to come, since a teacher after
transfer and joining in another district
would ipso facto remain a junior. By
introducing
such
a
concept,
a
classification has been made pertaining to
those teachers who have been posted in a
particular school longer than others who
have been posted there subsequently. For
such
a
classification,
no
intelligible
differentia has been indicated either in the
Government Order, the Circular, or even in
the counter affidavit filed by the opposite
parties - Court held the classification to
be discriminatory and failing the test of
reasonable classification in the context of
Article 14 of the Constitution of India.
B. U.P. Basic Education (Teachers) Service
Rules, 1981, Rules 5 & 8 - Legality of
Clause 3 of Government Order dated
26.06.2024 - Clause 3 of the Government