TMI Blog2019 (8) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... 965-6966 OF 2009 - - - Dated:- 27-8-2019 - JUSTICE N. V. RAMANA, JUSTICE MOHAN M. SHANTANAGOUDAR And JUSTICE AJAY RASTOGI JUDGMENT Rastogi, J. 1. The moot question which arises before us is whether the application under Section 11 of the Arbitration and Conciliation Act, 1996(hereinafter being referred to as Act 1996 ) is maintainable in view of Section 3G(5) of the National Highways Act, 1956 (hereinafter being referred to as Act 1956 ) which provides for appointment of an Arbitrator by the Central Government. 2. The relevant seminal facts are that the subject land comprised in Sayedabad Tea Estate situated at Mouza Purba Madati, J.L. No. 108, Police Station Phansidewa, Dist. Darjeeling measuring 5.08 acres was acquired by the appellant (National Highways Authority of India) in exercise of its powers under Section 3(D) of the Act 1956 vide notification dated 22nd November, 2005 under L.A.P. Case No. 4/200405 for the purpose of construction of the highways. 3. The Act, 1956 is a comprehensive code in itself and a special legislation enacted by the Parliament for acquisition and for determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings; (d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change. 3H. Deposit and payment of amount.- (1) . (2) . (3) . (4) . (5) Where the amount determined under section 3G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent, per annum on such excess amount from the date of taking possession under section 3D till the date of the actual deposit thereof. (6) 12 5. In the instant case, the respondentapplicant being dissatisfied with the award of compensation determined by the competent authority under subsection( 1) of Section 3G of the Act, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 (Annexure P12). 9. It is informed to this Court that the Arbitrator who was appointed by the Central Government under Section 3G(5) of the Act, 1956 in April, 2007 could not have proceeded after the intervention was made by the High Court of Calcutta in appointing the sole Arbitrator under Section 11(6) of the Act, 1996. That for all practical purposes, the dispute raised by the Respondent-applicant aggrieved by the compensation awarded under subsections ( 1) or (2) of Section 3G of the Act, 1956 has so far not been adjudicated because of the competence of the authority in appointing the Arbitrator remain pending decision as to whether it would be under the Act, 1956 or Act, 1996 as invoked by the High Court of Calcutta under the order impugned before us. 10. Mr. Vikas Goel, learned counsel for the appellant submits that the Act 1956 being a special enactment is a code in itself provide not only the procedure of acquisition but also the mode of determining compensation by the competent authority and any person, if aggrieved by the compensation determined under subsections( 1) or (2) of Section 3G of Act 1956 can certainly move an application for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the appellant under the Act, 1956 has forfeited its right to appoint an Arbitrator after presentation of the application under the Act, 1996 before the High Court of Calcutta and in the given circumstances, there was no legal impediment before the High Court of Calcutta in appointment of an Arbitrator invoking Section 11(6) of Act 1996 and in support of his submission placed reliance on the judgment of this Court in Deep Trading Company Vs. Indian Oil Corporation and Others 2013(4) SCC 35. 14. We have heard learned counsel for the parties and with their assistance perused the material available on record. 15. At the very outset, we may notice that the two Judge Bench of this Court in the recent judgment in General Manager (Project), National Highways and Infrastructure Development Corporation Ltd. case(supra), while dealing with the scope of subsections (5) and (6) of Section 3G of the Act 1956 with reference to Section 11 of the Act, 1996 has held that the Act 1956 being a special enactment and Section 3G in particular provides an inbuilt mechanism for appointment of an Arbitrator by the Central Government. Hence Section 11 of the Act, 1996 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is settled principles of law that when the special law sets out a self contained code, the application of general law would impliedly be excluded. In the instant case, the scheme of Act, 1956 being a special law enacted for the purpose and for appointment of an arbitrator by the Central Government under Section 3G(5) of Act, 1956 and subsection (6) of Section 3G itself clarifies that subject to the provisions of the Act 1956, the provisions of Act 1996 shall apply to every arbitration obviously to the extent where the Act 1956 is silent, the Arbitrator may take recourse in adjudicating the dispute invoking the provisions of Act, 1996 for the limited purpose. But so far as the appointment of an Arbitrator is concerned, the power being exclusively vested with the Central Government as envisaged under subsection (5) of Section 3G of Act 1956, Section 11 of the Act 1996 has no application. 20. The plea of the respondents that they have rightly taken recourse in the facts and circumstances of Section 11 of the Act, 1996 cannot be accepted for the reason that Section 3G(6) of the Act, 1956 clearly stipulates that the provisions of the Act, 1996 will apply subject to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an Arbitrator and application was submitted by the respondent applicant on 7th March, 2007 the right of appointment of an Arbitrator by the Central Government stands forfeited and has relied on the Judgment of this Court in Deep Trading Company case(supra) is of without substance for the reason that there is no statutory limitation provided under subsection (5) of Section 3G of Act 1956 for the Central Government to appoint an Arbitrator but that may not give an unguided discretion to the authority and in the absence of any statutory limitation, it must be within the reasonable time and if the Central Government fails in discharge of its statutory duty in appointing an Arbitrator on a request being made by either of the party aggrieved, it will be open to the party to invoke either the writ jurisdiction of the High Court under Article 226 of the Constitution of India or the Civil Court for the purpose. But as long as the power is exclusively vested with the Central Government for appointment of an Arbitrator under Section 3G(5) of the Act 1956, the provision of Section 11 of Act 1996 has no application. The judgment in Deep Trading Company case(supra) on which learned counsel has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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