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TMI Blog2022 (7) TMI 1413X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the Arbitration and Conciliation Act. 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. In the arbitration proceedings relating to NH Act, the parties ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a likelihood of manipulation with escalated price being dishonestly indicated in the subsequent transactions - In circumstances where a document which is proximal to the date of acquisition is not available, it would be open to rely on a document which is much prior in point of time and if the time gap is more, determination could be made by providing for reasonable escalation depending on the area wherein the acquired property is situate and nature of property. Similarly, in a circumstance where no document which is prior to the date of the acquisition notification is available and the exemplars are subsequent to the date of acquisition notification, the value therein could be noted and reasonable de-escalation be considered to determine the appropriate value. Needless to mention that no strait-jacket formula can be applicable to all cases with arithmetical precision in the matter of determination of compensation. In the instant case it is no doubt true that the notification issued by the Department of Stamps and Registration on 07.11.2014 is prior to the acquisition notification dated 01.02.2016. It is also to be noted that there was a time gap of more than one year betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon by the learned Arbitrator nor has the learned Arbitrator indicated sufficient reasons which to that extent would indicate patent illegality in the award passed by the learned Arbitrator being contrary to Section28(2) and 31(3) of Act, 1996. That being the fact situation and also the position of law being clear that it would not be open for the court in the proceedings under Section 34 or in the appeal under Section 37 to modify the award, the appropriate course to be adopted in such event is to set aside the award and remit the matter to the learned Arbitrator in terms of Section 34(4) to keep in view these aspects of the matter and even if the notification dated 28.03.2016 relied upon is justified since we have indicated that the same could be relied upon, the further aspects with regard to the appropriate market value fixed under the said notification for the lands which is the subject matter of the acquisition or comparable lands is to be made based on appropriate evidence available before it and on assigning reasons for the conclusion to be reached by the learned Arbitrator. C.A. No.4681/2022 @ SLP(C)No.2503/2022 Whether the course adopted by the learned Arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20762/2021, C.A. No.4680/2022 @ SLP(C)No.19729/2021, C.A. No.4681/2022 @ SLP(C)No.2503/2022 INDIRA BANERJEE AND A.S. BOPANNA JJ. For the Petitioner : Ms. Madhavi Divan, ASG Mr. Abhishek Thakur, Adv., Mr. Pradeep Kumar Mathur, AOR, Mr. Chiranjeev Johri, Adv., Ms. Vidushi Jain, Adv., Mr. Santosh Kumar - I, AOR, Mr. Daksh Arora, Adv. For the Respondent : Mr. K. Parameshwar, Adv., Ms. Sregurupriya, Adv., Mr. Prasad Hegde, Adv., Mr. Nishanth Patil, AOR, Ms. Malvika Kala, Adv., Mr. S. Nagamuthu, Sr. Adv., Mr. Naresh Kaushik, Adv.,. Mr. Anand Singh, Adv., Ms. Lalitha Kaushik, Adv., Mr. Manoj Joshi, Adv., Mr. Yogesh Yadav, Adv., Ms. Elaisha Asher, Adv., Ms. Akshata Singh, Adv., Mr. Vardhman Kaushik , AOR, Mr. B.P. Ravi, Adv., Mr. Dhruv Joshi, Adv.,. Mr. Prafful Saini, Adv., Mr. Nishant Gautam, Adv., Mr. B. Purushottama Reddy, Adv. JUDGMENT A.S. Bopanna,J. 1. Leave granted. 2. The appellant National Highways Authority of India ( NHAI for short) is before this Court in these appeals assailing the judgment dated 26.07.2021 by the Division Bench, High Court of Karnataka, Bengaluru in MFA No.2037/2021 (AA) and connected matters. The appeals filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notified for acquisition under the preliminary notification dated 01.02.2016 and 02.02.2016. The said acquisition was a part of the process for formation of the Bengaluru-Mysore (NH-275) Highway. The final notification was issued on 23.09.2016 and 04.10.2016. The SLAO on initiating the process for passing the award, on consideration of the material available before him, had passed the award dated 10.03.2017 and 04.01.2017 determining the compensation at Rs.2026/-and Rs.17200/- per sq. mtr respectively. The SLAO keeping in view the provisions contained under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ( RFCTLARR Act, 2013 for short), took note of the sale exemplars which were available before him but ultimately took note of the value provided under the notification dated 07.11.2014 issued by the Department of Stamps and Registration for the purpose of registration of the sale transactions, to award compensation. 5. The claimants being dissatisfied with the determination of the compensation awarded by SLAO, filed their respective petitions before the learned Arbitrator in terms of the provisions contained under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... line value which was fixed under a subsequent notification dated 28.03.2016. The further grievance is that even under the said notification dated 28.03.2016 the guideline value in respect of the lands which are situated in the village which was the subject matter of acquisition is fixed at about Rs.8000/- per sq. mtr but the learned Arbitrator has without basis adopted the guideline value of Rs.15,400/- per sq. mtr. which was the guideline value for a different specified land. In that view, it was contended that the SLAO on the other hand had taken into consideration the sale value for which the transactions had taken place. In the said process, since the guideline value fixed under the notification dated 07.11.2014, prior to the date of preliminary notification for acquisition dated 01.02.2016 was fixed and considering the fact that Section 26 of RFCTLARR Act, 2013 provides for awarding the higher of the value, the SLAO had adopted the guideline value of Rs.2026/- per sq. mtr in respect of lands in survey nos.92/1, 90/2A of Mayaganahalli and survey no.35/3 and 37/1 of Madapura while the properties in survey no.42/1 of Mayaganahalli was awarded Rs.7833/- and the property in survey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , under the guideline value notification dated 28.03.2016 the market value for Zunadu is Rs.15,400/- per sq. mtr. In that light, taking note of the fact that the notification dated 28.03.2016 contained reference to a notification dated 14.09.2015 proposing the registration value which was earlier to the acquisition notification was of the opinion that reckoning of the value specified in the notification dated 28.03.2016 by the learned Arbitrator, which was upheld in the suit under Section 34 of the Act, 1996 is justified. Similar consideration is made in respect of the extent of land situate in the remaining survey numbers which have reference to the acquisition process. The issue relating to industrial land is referred separately here below. The market value determined at Rs.15,400/- per sq. mtr in respect of all the lands has accordingly been upheld by the High Court. In that view, the High Court was of the opinion that in the limited scope available in an appeal under Section 37 of Act, 1996 an examination beyond the scope provided under Section 34 of Act, 1996 is not to be undertaken and has indicated that if a plausible view is taken by the learned Arbitrator, it should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loser as provided in Section 3G(7)(a) of the NH Act can only be the basis. In that view, it is contended that the parameters contained in Section 28 of RFCTLARR Act, 2013 cannot be taken into consideration. The contention in that regard is that while determining the market value, the definite parameters as contained in Section 3G(7)(a) of NH Act alone would be applicable and in view of the provisions contained in Section 3J of NH Act the provisions of the Land Acquisition Act shall not be made applicable. It is therefore contended that by invoking Section 28 of RFCTLARR Act, 2013 the seventh factor stated therein, namely, the ground relating to the fixation of the market value based on equity, justice and benefit to the affected families cannot be a criteria to determine the market value. To press home the point, the learned Additional Solicitor General has referred to a comparative statement between the two provisions under the said two enactments which is taken note as hereunder: Section 28 of the LA Act, 2013 Section 3G (7) (a) of the NH Act 28. Parameters to be considered by Collector in determination of award.- In d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penses, if any, incidental to such change. 13. It is contended that the applicability of the provisions of the RFCTLARR Act, 2013 is limited to the provision contained in Section 26 thereof for determination of the market value by the Collector which provides the basic factors to be taken into consideration in view of notification dated 28.08.2015 and the Act cannot be made applicable beyond the same. 14. The contention on behalf of the claimants is that the determination of the compensation requires all factors to be taken into consideration for fixing the fair and just compensation and as such the parameters contained in Section 28 RFCTLARR Act, 2013 are also applicable since the NH Act finds a place in the Fourth Schedule to RFCTLARR Act, 2013. 15. On this aspect, it would be appropriate to take note of the decision rendered by this Court in Union of India vs. Tarsem Singh, (2019) 9 SCC 304 relied on by both sides, wherein it has been held as hereunder: 51. We were also referred to an order in Sunita Mehra v. Union of India, in which this Court held: 5. The only point agitated before us by the learned Solicitor General is that in para 23 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the aforesaid two orders, has conceded the issue raised in these cases. This assumes importance in view of the plea of Shri Divan that the impugned judgments should be set aside on the ground that when the arbitral awards did not provide for solatium or interest, no Section 34 petition having been filed by the landowners on this score, the Division Bench judgments that are impugned before us ought not to have allowed solatium and/or interest. Ordinarily, we would have acceded to this plea, but given the fact that the Government itself is of the view that solatium and interest should be granted even in cases that arise between 1997 and 2015, in the interest of justice we decline to interfere with such orders, given our discretionary jurisdiction under Article 136 of the Constitution of India. We therefore declare that the provisions of the Land Acquisition Act relating to solatium and interest contained in Sections 23(1-A) and (2) and interest payable in terms of Section 28 proviso will apply to acquisitions made under the National Highways Act. Consequently, the provision of Section 3-J is, to this extent, violative of Article 14 of the Constitution of India and, therefore, de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rimination in determination of compensation under different enactments though in that case the issue was limited to solatium and interest. The said paras read as hereunder:- 29. Both, P. Vajravelu Mudaliar and Nagpur Improvement Trust clinch the issue in favour of the Respondents, as has been correctly held by the Punjab and Haryana High Court in Golden Iron and Steel Forging. First and foremost, it is important to note that, as has been seen hereinabove, the object of the 1997 Amendment was to speed up the process of acquiring lands for National Highways. This object has been achieved in the manner set out hereinabove. It will be noticed that the awarding of solatium and interest has nothing to do with achieving this object, as it is nobody s case that land acquisition for the purpose of national highways slows down as a result of award of solatium and interest. Thus, a classification made between different sets of landowners whose lands happen to be acquired for the purpose of National Highways and landowners whose lands are acquired for other public purposes has no rational relation to the object sought to be achieved by the Amendment Act, i.e. speedy acquisition of lands f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2013 including the seventh factor will also be applicable in appropriate cases for the determination of the market value as fair compensation for the acquired land. When land is acquired from a citizen, Articles 300A and 31A of the Constitution will have to be borne in mind since the deprivation of property should be with authority of law, after being duly compensated. Such law should provide for adequately compensating the land loser keeping in view the market value. Though each enactment may have a different procedure prescribed for the process of acquisition depending on the urgency, the method of determining the compensation cannot be different as the market value of the land and the hardship faced due to deprivation of the property would be the same irrespective of the Act under which it is acquired or the purpose for which it is acquired. In that light, if Section 28 of RFCTLARR Act, 2013 is held not applicable in view of Section 3J of NH Act, the same will be violative of Article 14 of the Constitution. In that circumstance, the observation in Tarsem Singh (supra) that Section 3J of NH Act is unconstitutional to that extent though declared so while on the aspect of sola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute (1) Where the place of arbitration is situated in India,- (a) In an arbitration other than an international commercial arbitration, the Arbitral Tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India; 42.2. (b) A contravention of the Arbitration Act itself would be regarded as a patent illegality for example if an arbitrator gives no reasons for an award in contravention of Section 31(3) of the Act, such award will be liable to be set aside. 42.3 (c) Equally, the third sub-head of patent illegality is really a contravention of Section 28(3) of the Arbitration Act, which reads as under: 28. Rules applicable to substance of dispute- (1)- (2) * * * (3) In all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction. This last contravention must be understood with a caveat. An Arbitral Tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r construes the contract in a manner that no fair-minded or reasonable person would; in short, that the arbitrator s view is not even a possible view to take. Also, if the arbitrator wanders outside the contract and deals with matters not allotted to him, he commits an error of jurisdiction. This ground of challenge will now fall within the new ground added under Section 34 (2-A). 41. What is important to note is that a decision which is perverse, as understood in paras 31 and 32 of Associate Builders {Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], while no longer being a ground for challenge under public policy of India , would certainly amount to a patent illegality appearing on the face of the award. Thus, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality. Additionally, a finding based on documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties, and therefore, would also have to be char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt illegality has also relied on the decision in the case of NHAI vs. M. Hakeem Anr. (2021) 9 SCC 1 and in Ssangyong Engineering Construction Co. Ltd., V/ s. NHAI (2019) 15 SCC 131 holding that the patent illegality appearing on the face of the award goes to the root of the matter. It is contended that if an Arbitrator gives no reasons for an award and contravenes Section 31(3) of Act 1996, the same would amount to patent illegality on the face of the award. In that light, it is contended that in the instant case there is no reason whatsoever given by the Arbitrator to rely upon the guideline value fixed in respect of another property for which value is indicated in a different serial number, instead of relying on the value for the same survey number. Without indicating reasons to draw a comparison with the land under acquisition, the same is applied though value of the very same lands containing same survey number was provided for in the same notification. Further, no opportunity was given to rebut the same. 21. On the aspect relating to the scope of examination of an award within the limited power to interfere provided under Section 34 of Act 1996, the learned senior couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i). Under Section 18, each party is to be given a full opportunity to present its case. Under Section 24(3), all statements, documents, or other information supplied by one party to the Arbitral Tribunal shall be communicated to the other party, and any expert report or document on which the Arbitral Tribunal relies in making its decision shall be communicated to the parties. Section 26 is an important pointer to the fact that when an expert's report is relied upon by an Arbitral Tribunal, the said report, and all documents, goods, or other property in the possession of the expert, with which he was provided in order to prepare his report, must first be made available to any party who requests for these things. Secondly, once the report is arrived at, if requested, parties have to be given an opportunity to put questions to him and to present their own expert witnesses in order to testify on the points at issue. 52. Under the rubric of a party being otherwise unable to present its case, the standard textbooks on the subject have stated that where materials are taken behind the back of the parties by the Tribunal, on which the parties have had no opportunity to comment, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in perspective is the decision referred to in the case of NHAI vs. Sayedabad Tea Company Ltd. (2020) 15 SCC 16. In the said case, this Court while examining the question as to whether the land loser can seek the appointment of an Arbitrator in terms of Section 11 of Act, 1996, it was noted that such power would not be available in view of the provisions contained in Section 3G(5) of NH Act since Arbitrator is to be appointed by the Central Government to discharge its functions as per the provisions of the Arbitration and Conciliation Act. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thrust on the land loser should not be an impediment and limited interference should not be a reason to deny the just and fair compensation. In such cases while examining the award in the limited scope under Section 34 of Act, 1996, the Court is required to take note as to whether the evidence available on record has been adverted to and has been taken note by the Arbitrator in determining the just compensation failing which it will fall foul of Section 31(3) and amount to patent illegality. 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 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soning for the conclusions reached by the Tribunal, the Court needs to have regard to the documents submitted by the parties and the contentions raised before the Tribunal so that awards with inadequate reasons are not set aside in casual and cavalier manner. On the other hand, ordinarily unintelligible awards are to be set aside, subject to party autonomy to do away with the reasoned award. Therefore, the courts are required to be careful while distinguishing between inadequacy of reasons in an award and unintelligible awards. 36. At this juncture it must be noted that the legislative intention of providing Section 34(4) in the Arbitration Act was to make the award enforceable, after giving an opportunity to the Tribunal to undo the curable defects. This provision cannot be brushed aside and the High Court could not have proceeded further to determine the issue on merits. 37. In case of absence of reasoning the utility has been provided under Section 34(4) of the Arbitration Act to cure such defects. When there is complete perversity in the reasoning then only it can be challenged under the provisions of Section 34 of the Arbitration Act. The power vested under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither to set aside an award or remand the matter under the circumstances mentioned in Section 34 of the Arbitration Act, 1996. 27. In the above backdrop, the contention relating to patent illegality in an award in terms of Section 34(2A) of Act 1996 as put forth by the learned Additional Solicitor General needs consideration. On such consideration, only if the award passed in the instant case falls foul of any such requirement so as to bring it within the power of review under Section 34 of Act 1996, the interference would be warranted. As noted, strong reliance is placed by the learned Additional Solicitor General to the decision in the case of State of Chhattisgarh (supra) to contend with regard to the different facets of patent illegality in an award including violation of requirement under Section 28(2) and 31(3) of Act 1996. 28. In order to demonstrate that the award passed in the instant case suffers from such patent illegality, the learned Additional Solicitor General has contended that the compensation determined by the SLAO is not just an offer as was the case under the Land Acquisition Act in view of the provision contained in Section 3G (5) of NH Act. In that r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion the mere provision as contemplated under Section 3G(5) of NH Act providing for either of the parties to assail the determination made by the SLAO by itself does not provide a better status to the award passed by the SLAO. Even the award passed by the SLAO under the provisions of NH Act would still continue to remain as an offer of compensation by the Acquiring Authority to the land loser and the materials relied on by the SLAO even if discussed in detail does not provide the status of a judicially considered order so as to interfere with the same only if error is pointed out. It is not necessary to critically examine the award made by SLAO before considering enhancement. Notwithstanding the documents relied upon by the SLAO it would still be open for the learned Arbitrator to rely upon any additional material that may be brought before the learned Arbitrator not necessarily to point out an error in the consideration made by SLAO but such material could be considered despite the consideration made by the SLAO if such material aids in deciding just and fair compensation. Though, as contended by the learned Additional Solicitor General it is seen that in Tarsem Singh (supra) it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not made with reference to any provision of the Act. In contrast, a reference to Section 26(1)(a) of the RFCTLARR Act, 2013 indicates that the statutory provision itself provides for the market value specified in the Indian Stamp Act, 1899 for the registration of sale deeds or agreement to sell, in the area where the land is situated to be adopted by the Collector for assessing and determining the market value of the acquired land. In view of the said provision, it is open for the SLAO as well as the learned Arbitrator to rely upon the guideline and if the value provided therein is higher than the value of the property indicated from the other documents, it would be open to place reliance on the guideline issued for the purpose of the registration under the Stamp Act to determine the market value to be tendered as compensation for acquisition. 32. In that view, the question that would arise for consideration in the case on hand is as to whether the award passed by the learned Arbitrator would stand vitiated merely because the guideline dated 28.03.2016 which is marginally subsequent in point of time is reckoned, when the acquisition notification under Section 3A of NH Act was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been converted for purposes other than agriculture. The SLAO had therefore taken into consideration the registration value which had been fixed in respect of the agricultural property. In that light, firstly it would have been open for the learned Arbitrator to take note of the value fixed for the commercial/industrial lands under that notification itself and provide certain amount of escalation. 34. Notwithstanding such option of providing escalation to the already existing guideline value being available to the learned Arbitrator, what cannot be lost sight in the instant case is that, as evident from the notification dated 28.03.2016 the process for redetermining the guideline value had commenced through the notification bearing No.CBC-25/2014-15 dated 14.09.2015 and proceedings of the committee were also held during 2015-2016 which ultimately led to the notification dated 28.03.2016. Further, though the preliminary notification for acquisition was issued on 01.02.2016, the final notification under Section 3D of NH Act was issued on 23.09.2016. During the intervening period the guideline value notification dated 28.03.2016, the process for which had commenced through the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o amount to patent illegality being contrary to Section 31(3) of Act, 1996. 37. To consider this aspect of the matter what is necessary to be taken note is that the SLAO had determined the compensation by taking note of the market value assigned to agricultural property under the notification dated 07.11.2014. The claimants were before the learned Arbitrator in terms of Section 3G(5) of the NH Act, a copy of which is available at Annexure-P6 to the appeal papers. The grievance essentially put forth in the claim petition is that the preliminary notification is dated 01.02.2016 and the notice of award for fixing the amount of compensation for the acquired land has been issued on 03.07.2017. In that light, it was contended that the market value of the non-agricultural lands adjoining the Bengaluru Mysuru National Highway such as the one owned by the claimant has increased considerably after the acquisition of the schedule land and accordingly the Registration Department has revised the guideline value. However, there is no reference to any specific notification relating to the guideline value much less the notification dated 28.03.2016. Further, there is no other indication to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.06.1992 of the Sub-Divisional Officer, Ramanagara Sub-Division, proper price has to be fixed by considering the lands in question as residential lands. This procedure has not been adopted. Further, by revising the market price, the Stamps and Registration Department has issued a Notification dated 28.03.2016 in respect of the lands belonging to City Greens situated in the Sy.Nos. coming under the said Mayaganahalli village wherein, the price of converted sites/sites of layouts approved by competent authority, has been fixed at Rs.15,400/- per Sq.Mtr. That their lands are more developed than the lands of Green City and has hence prayed for grant of compensation at a higher rate than the same. On perusal of the said Notification of the Stamps and Registration Department, it is seen that the price of the applicant s converted lands situated in the survey numbers of Mayaganahalli village is fixed at Rs.8,000/- per Sq. Mtr. and the price of the converted lands of Green City in the same village has been fixed at Rs.15,400/- per Sq. Mtr. Section 26 of the said Act clearly defines the procedure for fixing the market price. Even then, it could be seen that the applicant has not been given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the lands in question despite noting the guideline value notified for the same survey number would indicate that the said exercise has been undertaken without sufficient opportunity to NHAI. Further, appropriate reasons have not been indicated by the learned Arbitrator to arrive at the conclusion to uniformly adopt the value of Rs.15,400/- per sq.mtr fixed in respect of lands in a layout which was separately indicated in the notification. As stated above, if there is evidence brought on record in the manner known to law with opportunity to the opposite side, it certainly would be open for the learned Arbitrator to adopt the said value. However, from the pleading in the claim petition and from the portion extracted from the award which is the only basis for the ultimate order made by the learned Arbitrator, it would indicate that the NHAI did not have sufficient opportunity before the learned Arbitrator to controvert the material sought to be relied upon by the learned Arbitrator nor has the learned Arbitrator indicated sufficient reasons which to that extent would indicate patent illegality in the award passed by the learned Arbitrator being contrary to Section28(2) and 31(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation herein is only as to whether the course adopted by the learned Arbitrator to apply the subsequent notification dated 05.12.2018 issued by the Department of Stamps and Registration to reckon the special instructions contained in that notification so as to enhance the market value by 50% of the guidance value which is provided in the notification dated 27.10.2014 and thus arrive at the market value of Rs.25,800/- per sq. mtr. with the aid of two different guideline value notifications is justified. 44. The learned Additional Solicitor General has highlighted this aspect of the matter as patent illegality in passing the award in this case. It is contended that the learned Arbitrator has chosen to apply the Notification dated 05.12.2018 to consider enhancement by 50% for industrial land since it was not specifically provided for in the guideline, by relying on the special instruction in guideline of 2018. In such event, the guideline value which was much lesser in the notification of 2018 itself should have been taken into consideration. It is pointed out that the guideline value for residential land in the 2018 Notification works out to Rs.11,900/- per sq. mtr. If 50% of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on the guideline value Notification dated 27.10.2014. But for determining the market value, the special instructions in the notification dated 05.12.2018 is relied upon. Such procedure adopted is not justified and amounts to material irregularity on the face of the award. The learned counsel for the claimant contended that the learned Arbitrator though relied on 2018 notification, the Special Instruction No.3 in the 2014 notification also provides for adding 50% of the rates applicable if the acquired land is adjoining the National Highway. 48. Firstly, when we are of the opinion that the learned Arbitrator has committed patent illegality in applying two different notifications in determining the market value, keeping in view the scope available under Section 34 of Act, 1996 it would not be open for this Court to substitute our view to that of the learned Arbitrator and modify the award. Further, the learned Additional Solicitor General sought to refer to Special Instruction No.6 in the notification of 2014 to arrive at the market value even if it is accepted that the value of industrial land is not indicated in the notification. These are aspects to which the learned Arb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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