1 2025:CGHC:1218 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ARBA No. 60 of 2019 1 - Shant Kumar Jaiswal (since dead) Through Lrs :- (i) Smt. Ambika Devi W/o Late Shant Kumar Jaiswal Aged About 72 Years R/o Village Sarwani, Tah. Kharsia Distt Raigarh Chhattisgarh (ii) Yashwant Kumar Jaiswal S/o Late Shant Kumar Jaiswal Aged About 47 Years R/o Village Sarwani Tah. Kharsia Distt. Raigarh Chhattisgarh (iii) Jitesh Kumar Jaiswal S/o Late Shant Kumar Jaiswal Aged About 40 Years R/o Village Sarwani Tah. Kharsia Distt. Raigarh Chhattisgarh (iv) Pushpendra Kumar Jaiswal S/o Late Shant Kumar Jaiswal Aged About 44 Years R/o Village Sarwani Tah. Kharsia Distt. Raigarh Chhattisgarh (v) Kamal Kishore Jaiswal S/o Late Shant Kumar Jaiswal Aged About 43 Years R/o Village Sarwani Tah. Kharsia Distt. Raigarh Chhattisgarh (vi) Jitendra Kumar Jaiswal S/o Late Shant Kumar Jaiswal Aged About 40 Years R/o Village Sarwani Tah. Kharsia Distt. Raigarh Chhattisgarh --- Appellants versus 1 - Indian National Highway Authority By Chief Engineer, P W D, National Highway, Raipur, District - Raipur Chhattisgarh. 2 - The Sub Divisional Officer ( Revenue ) Cum Land Acquisition Officer, Kharsia, District Raigarh Chhattisgarh. Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.01.09 10:39:13 +0530 2 3 - The Additional Commissioner / Arbitrator Bilaspur Division, Bilaspur, District Bilaspur Chhattisgarh. --- Respondents ____________________________________________________________ For Appellants : Mr. M.K. Sinha, Advocate For Respondents No. 1 : Mr. Sharad Mishra, Advocate on behalf of Mr. Ramakant Mishra, Dy.S.G. For Respondent No.2/State : Mr. Santosh Kumar Soni, Govt. Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 03/01/2025 1. Appellants have filed this appeal under Section 37 of Arbitration and Conciliation Act, 1996 (In short ‘the Act, 1996’), questioning the legality and sustainability of the order dated 18.10.2019, passed by the learned District Judge, Raigarh in MJC Civil No. 64 of 2018, whereby the application filed under Section 34 of the Act, 1996 by respondent No.1 was allowed. 2. Facts of the case in nutshell are that respondent No.1 made a requisition before respondent No.2 for acquiring the land situated at village Sarwani, Tahsil – Kharsiya, District – Raigarh for widening of National Highway No.49 (old 200) in between Bilaspur Urdawan section. Respondent No.2 initiated the land acquisition proceeding on 22.07.2015 and after completion of acquisition proceeding, award was passed on 27.09.2016, wherein an amount of Rs.4,91,104/- was awarded in favour of Shant Kumar Jaiswal, the original land owner. Aggrieved with the amount of compensation awarded in favour of the land owner, he preferred an application before the Arbitrator under Section 3G (5) of the National Highways Act, 1956 (In short ‘the Act, 3 1956’) read with Section 23 of the Act, 1996 seeking enhancement of the amount of compensation. The Commissioner-cum-Arbitrator has allowed the application and enhanced the amount of compensation vide its order dated 07.02.2018. The order passed by the Commissioner-cum-Arbitrator, Bilaspur, Division – Bilaspur was put to challenge under Section 34 of the Act, 1996 before the District Judge, Raigarh, which was allowed by the impugned order on the ground that provisions under Section 34 (2) of the Act, 1996 was not followed by the Arbitrator. It is this order of the District Judge passed under Section 34 of the Act, 1996 is under challenge in this appeal. 3. Learned counsel for appellants would submit that learned District Judge has allowed the application under Section 34 of the Act, 1996 on the ground that respondent No.1 herein has not been granted opportunity of hearing, which appears to be erroneous as the notice has been issued to respondent No.1 and he has also submitted his reply to the application filed under Section 23 of the Act, 1996 read with Section 3G (5) of the Act, 1956, hence, the finding recorded by the learned District Judge is erroneous. There was no ground available for allowing the application under Section 34 of the Act, 1996. In alternate, he submits that if this Court comes to the conclusion that the order passed by the District Judge is in accordance with the law, then the Commissioner-cum-Arbitrator be directed to conclude the proceedings at the earliest within specified time. 4. Learned counsel for respondent No.1 vehemently opposes the submission of learned counsel for appellants and would submit that learned District Judge in its order has discussed the entire 4 proceedings followed by Commissioner-Arbitrator and has rightly recorded a finding that the procedure as prescribed under the Act, 1996 has not been followed, therefore, the award passed by the Arbitrator has rightly been interfered with and set-aside under the provisions of Section 34 of the Act, 1996. The impugned order passed by the learned District Judge is based on proper appreciation of proceedings drawn by the Commissioner-Arbitrator, hence, it does not call for any interference. 5. Learned State counsel would support the impugned order passed by the learned District Judge under Section 34 of the Act, 1996. 6. I have heard learned counsel for parties and also perused the record of the learned District Judge in the proceedings under Section 34 of the Act, 1996 as also the record of Additional Commissioner-cum- Arbitrator, Bilaspur, Division Bilaspur under Section 3G5 of the Act, 1956 read with Section 23 of the Act, 1996. 7. Perusal of the impugned order passed by learned District Judge under Section 34 of the Act, 1996 would show that learned District Judge has allowed the application and set-aside the award recording a finding that the Arbitrator has not followed the due procedure as provided under the Act, 1996 in conducting the arbitral proceedings, proper opportunity of hearing was not provided to the respondent No.1 herein and applicant before the learned District Judge, the report as called for by the Arbitrator from the Patwari has not been provided to respondent No.1 and was not provided opportunity of being heard on the said report, which was one of the consideration for enhancement of the amount of compensation by the Arbitrator. 5 8. Before proceeding further with the case I find it appropriate to glance the proceedings as provided under the Act, 1996 to be followed during the arbitral proceedings. 9. Chapter-V of the Act, 1996 deals with conduct of arbitral proceedings. Section 18 provides for equal treatment of parties. Section 19 deals with determination of rules of procedure, which are extracted below for ready reference :- “18. Equal treatment of parties.—The parties shall be treated with equality and each party shall be given a full opportunity to present his case. 19. Determination of rules of procedure.—(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872). (2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings. (3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate. (4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence.” 10. Perusal of provision under Section 19 would show that Arbitral Tribunal has to decide the procedure to be followed while conducting the arbitral proceedings with agreement of parties and if the parties failed to record their agreement then the Arbitral Tribunal may conduct the proceeding in the manner it considers appropriate. 6 11. Perusal of the record of Arbitral Tribunal would show that no such proceeding has been recorded for determining rules of procedure. It would also show that report has been called from the Land Acquisition Officer and the Land Acquisition Officer thereafter called the report from the Patwari and submitted before the Arbitral Tribunal. It is the contention of learned counsel for respondent No.1 before learned District Judge in the proceedings under Section 34 of the Act 1996 that the said report was not provided and he was not being heard on the said report, therefore, the Arbitrator erred in not granting him proper opportunity of hearing on the said report, which was made basis for enhancement of the amount of compensation. Section 18 envisages that party shall be treated with equality and each party shall be given full opportunity to present his case. 12. Section 23 of the Act, 1996 provides for submission of statement of claim and defence. Section 24 provides for hearings and written proceedings. Section 24 (3) provides that all statements, documents or other information supplied to, or applications made to the arbitral tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties. From the proceedings of Arbitral Tribunal it is not reflected that report called by the Arbitrator from SDO which was submitted by Patwari and relied upon in making decision is communicated to the respondent No.1 i.e. National Highway for whom the land was acquired and who has to deposit the amount of compensation to be paid to the land owners/ oustees. 7 13. Application for setting-aside the arbitral award is envisaged under Chapter-VII of the Act, 1996. The interference of the Court to the arbitral award is on limited grounds as provided therein. Under Section 34 (2) (a) (iii) of the Act, 1996, it is provided that arbitral award may be set-aside by the Court if the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case. 14. The case before the learned District Judge in the proceedings under Section 34 of the Act, 1996, of respondent No.1 was that, he was not given proper opportunity to present his case as the entire documents and the report which was called for was not supplied and was not being heard on the said report. In the aforementioned facts of the case, the case of respondent No.1 before the District Judge in proceedings under Section 34 of the Act, 1996 was in fact covered under Section 34 (2) (a) (iii) of the Act, 1996. 15. Learned counsel for appellants before this Court only submitted that the respondent No.1 was given proper opportunity of hearing and respondent No.1 has also submitted reply to the statement of claim. The said submission only would not satisfy the requirements of provisions under the Act of 1996, in particular it does not fulfill the requirement under Section 24 of the Act, 1996 wherein it also envisages that all statements, documents or other documents or other information supplied to, or applications made to the arbitral tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.. 8 16. Learned counsel for appellant failed to point out that report called from Patwari was communicated to respondent No.1 herein and it is also not reflecting from the proceedings. 17. For the forgoing discussions, I do not find any illegality or infirmity in the impugned order passed by the learned District Judge on an application under Section 34 of the Act, 1996. 18. The matter is remitted back to the Arbitrator for deciding the application submitted by applicant therein seeking enhancement of the amount of compensation giving proper opportunity of hearing as provided under the Act, 1996 read with the provisions under the Act, 1956 to both the sides. The Arbitrator shall conclude the proceedings within period of six months from the date of receipt of record. 19. Records of the Arbitrator and the Court of District Judge, Raigarh be sent back forthwith. Sd/- (Parth Prateem Sahu) Judge Balram