PRAKASH CHAND PRADHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The Petitioner calls into question the appointment of the Secretary-cum-Relief Commissioner, Land Revenue and Disaster Management Department, Government of Sikkim, as an Arbitrator, on 08.07.2016 by Respondent No.1, prior to the Petitioner's application, dated 30.05.2018, seeking such appointment. Maintaining that the appointment is bereft of the eligibility criteria laid down in Section 12 read with the Fifth, Sixth and Seventh Schedules of the Arbitration and Conciliation Act of 1996, as amended in 2015, (hereinafter the "Act of 1996"), with no communication of such appointment being made to the Petitioner, he seeks rescission of the Order supra and issuance of a Writ of Mandamus or any other applicable Writ, directing the Respondent No.1 to appoint a new sole Arbitrator in conformity with the requisite legal provisions.

(2.) To comprehend the matter, we may briefly advert to the facts as put forth by the Petitioner. Land belonging to the Petitioner on a stretch from kilometre 51.870 to kilometre 53.900 on the National Highway, Rangpo Sub Division, was acquired by the Ministry of Road Transport and Highways, Government of India, in the year 2016, under the National Highways Act, 1956, for widening of the "National Highway 10." This intention was notified in the Gazette of India on 13.04.2016 and on receipt of the Report of the Competent Authority, a Declaration under Section 3D(1) of the National Highways Act, 1956, (hereinafter the "N.H. Act"), was notified on 09.07.2016. After such Declaration, the Petitioner submitted details to the designated Competent Authority about the reasonableness of the price, based inter alia on sale of land in the proximity, in the preceding years. The Competent Authority, Respondent No.2, however, ignoring the Petitioner's submissions, served a cheque of Rs.10,92,04,010/- (Rupees ten crores, ninety two lakhs, four thousand and ten) only, to the Petitioner, drawn on the AXIS Bank, Tadong Branch, Gangtok, Sikkim, as compensation. Although the cheque was received by him on 13.01.2017, under protest and without prejudice to his legal rights, nevertheless, aggrieved with the compensation, the Petitioner moved the Respondent No.1 through the Respondent No.2 on 17.01.2017, for appointment of an Arbitrator for determination of fair compensation, under Section 3G(5) of the N.H. Act. When no communication of appointment of Arbitrator for over ninety days was received, the Petitioner filed a Petition under Section 11(4), (5) and (6) of the Act of 1996, before this Court on 24.04.2017, being Arbitration P. No. 01 of 2017, for appointment of an Arbitrator. During the Court proceedings, the Respondent No.1 for the first time, informed this Court that the Secretary-cumRelief Commissioner, Land Revenue and Disaster Management Department, Government of Sikkim, (hereinafter "Secretary, LR&DM Department"), was appointed as an Arbitrator by the Respondent No.1 on 08.07.2016. This appointment was made prior to the date of Declaration and Notification, issued by the Respondent No.1, dated 09.07.2016, for acquisition of the land. Vide its Judgment dated 05.07.2017, this Court appointed an Arbitrator, as prayed. Aggrieved by the Judgment, the General Manager (Projects), National Highways and Infrastructure Development Corporation Limited (hereinafter "NHIDCL") (the Respondent No.2 in the Arbitration P. No. 01 of 2017), was before the Hon'ble Supreme Court, who, by its Order dated 16.05.2018, set aside the Order of this Court with the observation that, an application under Section 11 of the Act of 1996, for appointment of an Arbitrator to determine fair compensation does not apply under the N.H. Act. It was further held that if a demand is made for appointment of an Arbitrator and the Central Government does not appoint an Arbitrator within a reasonable time, the remedy thereof is by way of a Writ Petition or a Suit. Pursuant to the Order dated 16.05.2018 (supra), the Petitioner, vide his letter dated 30.05.2018, requested the Central Government to appoint an Arbitrator in terms of Section 3G(5) of the N.H. Act, in place of the Secretary, LR&DM Department, whose appointment did not meet the requirements of the Act of 1996, as the Arbitrator is required to be impartial and independent of the Central or State Government and the land owner. Hence, the prayers as detailed hereinabove.

(3.) Vide Interlocutory Application (I.A.) No.1 of 2019, the Petitioner placed on record a copy of the letter addressed to him by the Respondent No.1, dated 05.09.2018 as also a copy of the Petitioner's related response, dated 02.01.2019. In the said application, the fact of submission of letter dated 30.05.2018, was reiterated. It was averred in response thereto, that the Respondent No.1 issued letter dated 05.09.2018 to the Petitioner, erroneously conveying that the Hon'ble Supreme Court in its Order dated 16.05.2018 has upheld and allowed continuation of the appointment of the Secretary, LR&DM Department as the Arbitrator under Section 3G(5) of the N.H. Act, by the Central Government. In reply, the Petitioner on 02.01.2019, pointed out that no such opinion had been expressed by the Hon'ble Supreme Court in its Order.