Page No.# 1/12 GAHC030001182025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Arb.A./1/2025 The National Highways and Infrastructure Development Corporation Limited (NHIDCL) and Anr. Ministry of Road Transport and Highways, Government of India, represented by Managing Director, having its Corporate Office at 3rd Floor, PTI Building, 4 Parliament Street, New Delhi, Pin - 110001 2: The General Manager (P) NHIDC VERSUS Sh. K. Lianhlira and Anr. R/o Zaingawn Veng, Khawzawl, Mizoram 2:The Deputy Commissioner-cum- Competent Authority for Land Acquisition (CALA Advocate for the Petitioner : Mr T Lalzekima Advocate for the Respondent : Mr. Lalbiakkima for R1 BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA JUDGMENT / ORDER 07.08.2026 Heard Mr. T. Lalzekima, learned counsel for the appellants. Also heard Mr. Lalbiakkima, learned counsel for respondent No. 1 and Ms. Lalnunhlui, learned Government Advocate for the respondent No. 2. 2. By way of the present appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act), the appellant has put to challenge the Arbitral Award dated 15.03.2024 passed in Arbitration Case No. Page No.# 2/12 NH-06/KZL/22/ARB/2023 and the impugned Order dated 02.12.2024 passed by the Court of the Additional District & Session Judge, Champhai in Arbitration Case No. 4/2024. 3. The matter pertains to acquisition of land for the purpose of widening and broadening of NH-06 upgradation of 2-lane with paved shoulders of Dulte- Champhai Road (International Corridor) of NH-06 from Design Chainage km 54.400 to km 111.580 (Package-I, II & III) in the State of Mizoram under Bharatmala Pariyojna on EPC mode. 4. For the purpose of payment of compensation, the respondent No. 2 had issued an Award for payment compensation for the acquired lands under Section 3G and 3H of the National Highways Act, 1956 (hereinafter referred to as the 1956 Act) vide letter No. C.18019/3/2021-DC(KZL) dated 03.09.2021. 5. The respondent No. 1, who was the owner of land covered by Village Council (VC) House Pass No. 6/2014, who is shown at Sl. No. 43 and Sl. No. 137 of the list of land owners, whose lands had been acquired, was given compensation amounting to Rs. 12,72,480/- for crop value, on the basis of the survey made by the Surveyor on 23.03.2021. However, on a re-assessment made by the Surveyor on 14.10.2021 on the basis of the Deputy Commissioner's order, the Surveyor has awarded Rs. 68,26,353/-. Rs. 52,71,353/- for damage to crops / trees of the respondent No. 1 and Rs.15,55,000/- in respect of the assets of the respondent No.1. 6. The learned counsel for the appellants submits that when the original compensation amount payable to the appellant for crops was quantified at Rs.12,72,480/-, the increase in the compensation payable to the appellants by Page No.# 3/12 the subsequent Survey done on 14.10.2021, amounting to Rs. 68,26,353/- was unreasonable. As such, the appellants should have been given an opportunity to cross-examine the Surveyor with regard to the increase in the compensation amount. 7. On the other hand, the learned counsel for the respondent No. 1has pointed out that the National Highways & Infrastructure Development Corporation Limited (NHIDCL) had no objection to the payment of compensation to the respondent No. 1, in terms of the re-assessment done on 14.10.2021, which is reflected in paragraph 9 of the Arbitral Award dated 15.03.2024.He further submits that the appellants in paragraph 13 of their appeal filed under Section 34 of the Arbitration and Conciliation Act, 1996 had stated that the appellants had no grievance against the respondent No. 2 (CALA). Thus, when the appellants had stated that they had no grievance against the respondent No. 2 in their application filed under Section 34 of the Arbitration and Conciliation Act, 1996, there cannot be any objection against the re-assessment made on 14.10.2021, in relation to the revised compensation amount payable to the respondent No. 1. 8. I have heard the learned counsels for the parties. 9. The facts of the case is that on account of the appellants acquiring lands for the purpose of widening and broadening NH-06, the land of the respondent No. 1 had also been acquired. In this respect, the Surveyor, who had to assess the compensation payable to the land owners, visited the land of the respondent No. 1 on 16.03.2021. However, as the assessment could not be completed on 16.03.2021, the second assessment was made by the same Surveyor on 23.03.2021, wherein the value for payment of compensation was Page No.# 4/12 assessed at Rs. 12,72,480/-. On 03.09.2021, the respondent No. 2 issued an order for award of compensation under Section 3G of the National Highways Act, 1956, wherein the respondent no.1 was to be paid Rs. 12,72,480/-. On 22.09.2021, the respondent No. 2 issued the compensation release order and payment was made. On 14.10.2021, a third assessment of the land of the respondent No. 1 was made on the order of the Deputy Commissioner, Khawzawl, wherein the compensation payable was calculated at Rs. 52,71,353/- for crops and trees and Rs. 15,55,000/- in respect of the other assets of the respondent No. 1, thereby totaling Rs. 68,26,353/-. 10. As the compensation as per the third assessment made on 14.10.2021 was not being paid to the respondent No. 1, the respondent No. 1 filed an application under section 3G(5) of the 1956 Act for placing the matter before the Arbitrator, for release of the asset value as per the assessment made on 14.10.2021. The said application was registered as Arbitration Case No. NH- 06/KZL/22/ARB/2023.Notice was issued by the learned Arbitrator on 29.08.2022, wherein the concerned Surveyor and Engineer who did the assessment were also informed to be present on the date of hearing. Hearing was conducted by the learned Arbitrator on 05.09.2023 and the Arbitral Award was issued on 15.03.2024. 11. The learned Arbitrator in his Arbitral Award thereafter directed payment of compensation by the appellants to the respondent No. 1, in terms of the third assessment made by the Surveyor. 12. Being aggrieved by the Arbitral Award dated 15.03.2024, the appellants approached the Court of the District & Sessions Judge, Champhai vide Arbitration Application No. 4/2024, stating that while the respondent No. 2 had Page No.# 5/12 acted upon the report of the Surveyor, made on 14.10.2021 (3rd Assessment), no evidence had been taken by the learned Arbitrator, which was in conflict with Public Policy of India and contrary to law. 13. The learned Addl. District & Sessions Judge, Champhai thereafter dismissed the Arbitration Application No. 4/2024, by holding that there had been no objection by the representative and the Engineer concerned representing the NHIDCL, while the Arbitration case was being heard. It thereafter relied upon the decision of the Supreme Court in the case of Inder Sain Mittal Vs. Housing Board Haryana & Others Civil Appeal No. 1398-99-2022 arising out of SLP(C) Nos. 18937-18938/2000, wherein it was stated as follows:- “By their conduct by participating in the arbitration proceedings without any protest the parties would be deemed to have waived their right to challenge validity of the proceedings and the awards”. 14. The learned Addl. District & Sessions Judge, Champhai thus held that the appellants no longer had the right to challenge the validity of the proceedings of the arbitration and the impugned Arbitral Award. 15. The impugned Judgment & Order dated 02.12.2024 passed in Arbitration Application No. 4/2024 is reproduced herein below as follows:- “O R D E R This is an application u/s 34 of the Arbitration and Conciliation Act, 1996 r/w 3G (6) of the National Highway Act, 1956 filed by UOI and NHIDCL for setting aside and quashing the arbitral award dated 15.03.24 passed in Arbitration Case No. NH-06/KZL/22/ARB-2023. Connected CMA No. 29 of 2024 has been disposed whereby operation of above said Arbitral Award has also been stayed until disposal of this petition. Page No.# 6/12 W/O has been filed and the case record pertaining to the instant impugned Award has also been received from the arbitrator concerned namely Dr. Lairozama, IAS the appointed arbitrator for NH-06 (Dulte - Charnphai road), Land Acquisition-MORTH (Govt. of India). Hearing was conducted on 29.11.2024 and order passed today. Before entering into the merit of the case as submitted by the Ld. Counsel of the respondent No. 1 it is found that the Impugned Award dated 15.03.2024 at para 9 has dearly mentioned that representative and engineer concerned in respect of NHIDCL has no objection while this Arbitration case was heard. Hence, as was held in by the Supreme Court of India in InderSain Mittal - Appellant Versus Housing Board Haryana & Ors Respondents Civil Appeal No. 1398-99-2022 Arising out of SLP (C) Nos. 18937-18938 of 2000 decided on 21.2.2022 that "By their conduct by participating in the arbitration proceedings without any protest the parties would be deemed to have waived their right to challenge validity of the proceedings and the awards", it is clear that the appellant hereof no longer have the right to challenge the validity of the proceedings and the impugned award hereof. In view of the above, it is clear that there is no further scope for entering into the merit of this case rendering the instant appeal liable to be dismissed at the threshold. Accordingly, without further ado, being left with no other alternative, it is the considered opinion of this court to pass the following order: 1. This appeal is hereby dismissed. 2. Parties shall bear their own cost. Give copy to all concerned. Given under my hand and seal of this Court on this the 2nd day of December, 2024. Sd/-VINCENT LALROKIMA Addi. District & Sessions Judge Champhai Judicial District Champhai, Mizoram.” Page No.# 7/12 16. As can be seen from the pleadings of the parties and the annexure therein, the arbitrator had heard the parties in Arbitration Case No. NH- 06/KZL/22/ARB/2023 on 05.09.2023, wherein the appellants, the respondent Nos. 1 and 2 were represented.The Surveyor who had made the subsequent report on 14.10.2021 was not present on the said date. This is clear from para 3 of the Arbitral Award. 17. The above facts makes it clear that the Surveyor could not have been examined with regard to his report made on 14.10.2021. One issue to be decided is whether the appellants had objected to the surveyor's report dated 14.10.2021. In this regard, the counsel for the respondent no. 1 has taken a stand that the appellants had not objected to the third assessment made by the Surveyor, by referring to para 5 & 9 of the Arbitral Award. Para 5 and para 9 of the Arbitral Award are reproduced below as follows:- “5. CALA has no objection on the grievance of the Authorized representative of the applicant. He said that Shri. K Lianhlira's land has been assessed on 23.03.2021. He was given compensation for assets value with solatium amounting to Rs. 12,72,480/- at SI. 43-LHS and SI.137-RHS of 3G Estimate. He further stated that as said by the A/R of applicant the first assessment conducted by the surveyor on 16.03.2021 was not included in 3G Estimate due to absence of signature of land owner. Reassessment for the said portion has been conducted on 14.10.2021 assessment copy of which was issued to the Applicant as applied by him under RTI Act. As reassessment was conducted or not yet assessed, CALA's opinion is to give compensation to the applicant. Page No.# 8/12 Representatives of NHIDCL also not object the Complaint. 9. The matter and report of CALA Khawzawl is examined carefully. The only benefit that entitled by the applicant is the assets value such as asset value of crops damaged and property damaged as per re-assessment done on 14.10.2021 as CALA fulfilled the provisions contained in Section 28 and Section 29 of the RFCTLARR Act, 2013. Representative and Engineer concerned in respect of NHIDCL has no objection while this Arbitration Case was heard.” 18. Para 5 and 9 of the Arbitral Award shows that the appellants had not objected to the surveyor's report dated 14.10.2021.Thus, when there was no objection to the Arbitral Award made by the appellants, in terms of the third assessment made on 14.10.2021, there cannot be any objection to the appeal against the said Arbitral Award either under Section 34 of the Act or under Section 37 of the Act. 19. On the question whether the road had been constructed by the appellants prior to 14.10.2021 or after 14.10.2021, it has been stated at the Bar that the road was constructed after 14/10/2021, i.e. after the 3rd assessment was made. 20. As can be seen from the records, and especially Paragraph 9 of the Arbitral Award, where the appellants have apparently not objected to the entitlement of compensation payable to the respondent no.1 in regard to his value of crops and property, made in terms of the assessment on 14.10.2021. 21. The fact that the Surveyor who had made the third assessment on Page No.# 9/12 14.10.2021 and had raised the compensation payable to the respondent no.1, from Rs.12,72,480/- to Rs.68,26,353/-, had not been examined as a witness is an admitted fact. However, the appellants have not objected to the payment of compensation on the basis of the third assessment made by the Surveyor on 14.10.2021, as has been spelt out in Paragraph 9 of the Arbitral Award. 22. Though in the normal course, the evidence of the Surveyor should have been taken by the learned Arbitrator with regard to the correctness of the contents of the third assessment made on 14.10.2021, the same has not been done by the learned Arbitrator. Instead, it has acted upon the said assessment which had not been objected to by the appellants. This Court finds that when the issue before the Arbitrator was with regard to non-payment of the compensation as per the assessment made on 14.10.2021, the basic principles of justice would have required the Arbitrator to have examined the Surveyor, to prove the correctness of the assessment made on 14.10.2021, which in turn would require giving an opportunity to the appellants to cross-examine the said Surveyor. 23. The question in this case is whether the Arbitral Award is hit by any of the grounds mentioned in Section 34 and whether the non-examination of the Surveyor, who made the assessment on 14.10.2021 was a patent illegality appearing on the face of the Award. 24. In the case of Ssangyong Engineering and Construction Company Limited vs. National Highways Authority of India (NHAI), reported in (2019) 15 SCC 131, the Supreme Court has held that a public policy of India is now constricted to mean firstly, that a domestic Award is contrary to some Page No.# 10/12 fundamental policy of Indian law or secondly, that such Award is against basic notions of justice or morality. Further, there was an additional ground made available under Section 34(20-A), wherein it held that there must be patent illegality appearing on the face of the Award, which refers to such illegality as goes to the root of the matter, but which does not amount to mere erroneous application of the law. Secondly, re-appreciation of evidence, which is what an Appellate Court is permitted to do, cannot be permitted under the ground of patent illegality appearing on the face of the Award. It further held that Para 42.1 of Associate Builders v. DDA, reported in (2015) 3 SCC 49 held that a mere contravention of the substantive law of India, by itself, was no longer a ground available on the face of the Award to set aside an Arbitral Award. Para 42.2 of Associate Builders (Supra) would however remain, if an Arbitrator gives no reason for an Award and contravenes Section 31(3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the Award. 25. Section 19 of the 1996 Act provides that the Arbitral Tribunal shall not be bound by the CPC or the Indian Evidence Act and that the parties were free to agree on the procedure to be followed by Arbitral Tribunal in conducting its proceedings. Failure to make any agreement would allow the Arbitral Tribunal to conduct the proceedings in the manner it considers appropriate and included the power to determine the admissibility, relevance, materiality and weight of any evidence. 26. In the present case, though the evidence of the Surveyor has not been taken during the arbitral proceedings with respect to the assessment made on 14.10.2021, the appellants have made no objection to payment of the compensation amount on the basis of the assessment made by the Surveyor on Page No.# 11/12 14.10.2021. 27. Be that as it may, the primary issue is whether the 3rd assessment could have been made by the Surveyor on 14.10.2021 on the directions of the respondent no.2, who became functus officio, after compensation had been paid in terms of the 2nd assessment made on 23.03.2021. There is nothing in the 1956 Act to show that the respondent no.1 could have given a direction for having a 3rd assessment made, after the Award had been pronounced on the basis of the 2nd assessment and payment made on the same. 28. In view of the above facts, it is clear that there was no question of payment of compensation by the learned Arbitrator in terms of the 3rd assessment made on 14.10.2021, in the absence of any evidence of the Surveyor having been made, which could have proved the validity and contents of the 3rd assessment report, justifying the enhanced compensation assessed by the Surveyor. 29. In view of the above reasons, this Court is of the view that the matter would have to be remanded back to the learned Arbitrator, to examine the Surveyor with regard to the correctness of the 3rd assessment made on 14.10.2021. The appellants should also be given an opportunity to not only cross-examine the said Surveyor, but should also be given an opportunity to submit a written statement in the arbitral proceedings. 30. Accordingly, in view of the reasons stated above, the Arbitral Award dated 15.03.2024 passed in Arbitration Case No. NH-06/KZL/22/ARB/2023 and the Page No.# 12/12 impugned Order dated 02.12.2024 passed by the Court of the Additional District & Session Judge, Champhai in Arbitration Case No. 4/2024 are hereby set aside. 31. The appeal is accordingly allowed. JUDGE Comparing Assistant