THE PROJECT DIRECTOR, NATIONAL HIGHWAYS NO. 45 E AND 220 NATIONAL HIGHWAYS AUTHORITY OF INDIA versus M. HAKEEM & ANR. on 20 July 2021

[2021] 5 S.C.R.

ATHE PROJECT DIRECTOR, NATIONAL HIGHWAYS NO. 45 EAND 220 NATIONAL HIGHWAYS AUTHORITY OF INDIA

v.

M. HAKEEM & ANR.

B(Civil Appeal No. 2756 of 2021)

JULY 20, 2021

[R. F. NARIMAN AND B. R. GAVAI, JJ.]

Arbitration and Conciliation Act, 1996: s.34 – Modificationof award by court, permissibility – Held: Power of a court underCs.34 of the Act, 1996 to “set aside” an award of an arbitrator wouldnot include the power to modify such an award – To state that thejudicial trend appears to favour an interpretation that would readinto s.34 a power to modify, revise or vary the award would be toignore the previous law contained in the 1940 Act; as also to ignoreDthe fact that the 1996 Act was enacted based on the UNCITRALModel Law on International Commercial Arbitration, 1985 makesit clear that, given the limited judicial interference on extremelylimited grounds not dealing with the merits of an award, the ‘limitedremedy’ under s.34 is co-terminus with the ‘limited right’, namely,either to set aside an award or remand the matter under theEcircumstances mentioned in s.34 of the Arbitration Act, 1996 –National Highway Authority of India Act, 1956.

National Highway Authority of India Act, 1956: ss.3G, 3H –The object of the NH Amendment Act, 1997 is to expedite the processof acquisition – This has been achieved by cutting down the periodFfor hearing of objections from 30 days under s.5A of the LandAcquisition Act to 21 days under s.3C of the National HighwaysAct – Further, unlike the Land Acquisition Act, the moment anotification under s.3D(2) of the National Highways Act (equivalentto s.6 Land Acquisition Act) is made, the land vests absolutely in theGCentral Government free from all encumbrances – Thereafter, whereland has vested in the Central Government and the amountdetermined by the competent authority under s.3G as compensationhas been deposited by the Central Government in accordance withs.3H(1), the competent authority may then direct that possession betaken within 60 days of service of notice by it. Also, injunctionsH

against highway projects have now become impossible to obtain inview of s.20A of the Specific Relief Act, which has been introducedw.e.f. 01.10.2018 – Land Acquisition Act, 1894 – ss.5A, 6.

Land Acquisition: Differential compensation – Held: Cannotbe awarded on the ground that a different public purpose is soughtto be achieved.

Dismissing the appeals, the Court

HELD: 1. As per NHAI Act, the competent authority, asdefined, in Section 3 (a) is to first determine an amount which ispayable by way of compensation for compulsory acquisition ofland. Under Section 3G(5), if the amount determined by the saidauthority is not acceptable to either of the parties, the amountshall, on application by either of the parties, be determined by anarbitrator to be appointed by the Central Government. The‘competent authority’ is a person or authority authorised by theCentral Government by notification to determine the amount ofcompensation. In the present case, a notification designating aSpecial District Revenue Officer as the competent authority hasbeen made. The amount determined by the aforesaid authorityhas then to be sent to an arbitrator, on application by either ofthe parties. The said arbitration is not a consensual process withboth parties having a hand in appointing the arbitrator. As a matterof fact, the land owner has no say in the appointment of thearbitrator, who is to be appointed only by the acquiring authority,that is the Central Government. [Para 12][382-C-F]

2. Section 34 provides only for setting aside awards on verylimited grounds, such grounds being contained in sub-sections(2) and (3) of Section 34. Secondly, as the marginal note of Section34 indicates, “recourse” to a court against an arbitral award maybe made onlyby an application for setting aside such award inaccordance with sub-sections (2) and (3). “Recourse” is definedby P Ramanatha Aiyar’s Advanced Law Lexicon (3[rd] Edition) asthe enforcement or method of enforcing a right. Where the rightis itself truncated, enforcement of such truncated right can alsobe only limited in nature.What is clear from a reading of the saidprovisions is that, given the limited grounds of challenge under AB

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Asub-sections (2) and (3), an application can only be made to setaside an award. This becomes even clearer from sub-section (4)under which, on receipt of an application under sub-section (1) ofSection 34, the court may adjourn the Section 34 proceedingsand give the arbitral tribunal an opportunity to resume the arbitralproceedings or take such action as will eliminate the grounds forBsetting aside the arbitral award. It is the opinion of the arbitraltribunal which counts in order to eliminate the grounds for settingaside the award, which may be indicated by the court hearing theSection 34 application. [Para 14][383-C-F]

3. The statutory scheme under Section 34 of the ArbitrationCAct, 1996 is in keeping with the UNCITRAL Model Law and thelegislative policy of minimal judicial interference in arbitral awards.By way of contrast, under Sections 15 and 16 of the ArbitrationAct, 1940, the court is given the power to modify or correct anaward in the circumstances mentioned in Section 15, apart from Da power to remit the award under Section 16. [Paras 17 and18][384-G-H; 385-A]

4. It is settled law that a Section 34 proceeding does notcontain any challenge on the merits of the award. [Para 21][386-D]

EMMTC Ltd. v. Vedanta Ltd., (2019) 4 SCC 163 : [2019]3 SCR 1023 – relied on.

Numaligarh Refinery Ltd. v. Daelim Industrial Co. Ltd.(2007) 8 SCC 466 : [2007] 9 SCR 724; DDA v. R.S.Sharma and Co. (2008) 13 SCC 80 : [2008]F12 SCR 785; Royal Education Society v. LIS (India)Construction Co. (P) Ltd. (2009) 2 SCC 261; DakshinHaryana Bijli Vitran Nigam Ltd. v. NavigantTechnologies Pvt. Ltd. 2021 SCC OnLine SC 157 –held inapplicable.

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Gayatri Balaswamy v. ISG Novasoft Technologies Ltd.,2014 SCC OnLine Mad 6568; Ssangyong Engg. &Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131 :[2019] 7 SCR 522; Renusagar Power Co. Ltd. v.General Electric Co., 1994 Supp (1) SCC 644 : [1993]3 Suppl. SCR 22; Maharashtra State Electricity H

Distribution Co. Ltd. v. Datar Switchgear Ltd., (2018)3 SCC 133 : [2018] 1 SCR 733; McDermottInternational Inc. v. Burn Standard Co. Ltd., (2006) 11SCC 181 : [2006] 2 Suppl. SCR 409; Kinnari Mullickv. Ghanshyam Das Damani (2018) 11 SCC 328; DynaTechnologies (P) Ltd. v. Crompton Greaves Ltd. (2019)20 SCC 1; Cybernetics Network Pvt. Ltd. v. BisquareTechnologies Pvt. Ltd. 2012 SCC OnLine Del 1155;Nussli Switzerland Ltd. v. Organizing CommitteeCommonwealth Games 2014 SCC OnLine Del 4834;Puri Construction P. Ltd. v. Larsen and Toubro Ltd.,2015 SCC OnLine Del 9126; Gautam Constructionsand Fisheries Ltd. v. National Bank for Agriculture &Rural Development (2000) 6 SCC 519; Tata Hydro-Electric Power Supply Co. Ltd. v. Union of India (2003)4 SCC 172; Hindustan Zinc Ltd. v. Friends CoalCarbonisation, (2006) 4 SCC 445; Krishna BhagyaJala Nigam Ltd. v. G. Harischandra Reddy, (2007) 2SCC 720 : [2007] 1 SCR 698; Central WarehousingCorpn. v. A.S.A. Transport, 2007 SCC OnLine Mad972; ISG Novasoft Technologies Limited v. GayatriBalasamy 2019 SCC OnLine Mad 15819 – referredto.

5. To state that the judicial trend appears to favour aninterpretation that would read into Section 34 a power to modify,revise or vary the award would be to ignore the previous lawcontained in the 1940 Act; as also to ignore the fact that the 1996Act was enacted based on the UNCITRAL Model Law onInternational Commercial Arbitration, 1985 which, as has beenpointed out in Redfern and Hunter on International Arbitration,makes it clear that, given the limited judicial interference onextremely limited grounds not dealing with the merits of an award,the ‘limited remedy’ under Section 34 is co-terminus with the‘limited right’, namely, either to set aside an award or remandthe matter under the circumstances mentioned in Section 34 ofthe Arbitration Act, 1996. [Para 40][399-D-F]

6. Coming to the submission in support of the impugnedjudgment that the fact that the Central Government appoints an A

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Aarbitrator and the arbitration would therefore not be consensual,resulting in a government servant rubber stamping an award whichthen cannot be challenged on its merits, cannot possibly lead tothe conclusion that, therefore, a challenge on merits must beprovided driving a coach and four through Section 34 of theArbitration Act, 1996. [Para 42][400-C-D]B

Jaishri Laxmanrao Patil v. Chief Minister 2021 SCCOnLine SC 362; Rameshwar Prasad (VI) v. Union ofIndia (2006) 2 SCC 1 : [2006] 1 SCR 562; Eera v.State (NCT of Delhi) (2017) 15 SCC 133 : [2017] 7SCR 924 – referred to.C

M’Culloch v. State of Maryland 17 US 316 (1819) –referred to.

7. In interpreting a statutory provision, a Judge must puthimself in the shoes of Parliament and then ask whetherDParliament intended this result. Parliament very clearly intendedthat no power of modification of an award exists in Section 34 ofthe Arbitration Act, 1996. [Para 46][402-A-B]

8. In several cases, the NHAI has not filed appeals even inmatters which are similar i.e., arising from the same Section 3AENotification, as a result of which certain land owners have gotaway with enhanced compensation given to them by the DistrictCourt. Also, the arbitrator has awarded compensation on acompletely perverse basis i.e., by taking into account ‘guidelinevalue’ which is relevant only for stamp duty purposes, and nottaking into account sale deeds which would have reflected theFproper market value of the land. Given the fact that the awards inall these cases are therefore perverse, the District Judge rightlyinterfered with the same. [Para 47][402-C-E]

Union of India v. Tarsem Singh (2019) 9 SCC 304:[ 2019] 13 SCR 49 – referred to.

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9. The object of the NH Amendment Act, 1997 is to expeditethe process of acquisition. This has been achieved by cuttingdown the period for hearing of objections from 30 days underSection 5A of the Land Acquisition Act to 21 days under Section H

3C of the National Highways Act. Further, unlike the LandAcquisition Act, the moment a notification under Section 3D(2)of the National Highways Act (equivalent to Section 6 LandAcquisition Act) is made, the land vests absolutely in the CentralGovernment free from all encumbrances. Thereafter, where landhas vested in the Central Government and the amount determinedby the competent authority under Section 3G as compensationhas been deposited by the Central Government in accordancewith Section 3H(1), the competent authority may then direct thatpossession be taken within 60 days of service of notice by it.Also, injunctions against highway projects have now becomeimpossible to obtain in view of Section 20A of the Specific ReliefAct, which has been introduced w.e.f. 01.10.2018. [Paras 50,51][403-G-H; 404-A-B]

10. There can be no doubt that differential compensationcannot be awarded on the ground that a different public purposeis sought to be achieved. Also, the legislature cannot say that,however laudable the public purpose and however important it isto expedite the process of land acquisition, differentialcompensation is to be paid depending upon the public purposeinvolved or the statute involved. [Para 54][405-D-E]

11. Take the case of a single owner of land who has twoparcels of land adjacent to each other. One parcel of land abutsthe national highway, whereas the other parcel of land is at somedistance from the national highway. Can it be said that the landwhich abuts the national highway, and which is acquired underthe National Highways Act, will yield a compensation much lesserthan the adjacent land which is acquired under the LandAcquisition Act only because in the former case, an award is by agovernment servant which cannot be challenged on merits, asopposed to an award made under Part III of the Land AcquisitionAct by the reference Court with two appeals in which the meritsof the award can be gone into? There can be no doubt thatdiscrimination would be writ large in such cases. [Para 55][405-E-G]

Taherakhatoon v. Salambin Mohammad (1999) 2 SCC635 : [1999] 1 SCR 901 – referred to.

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A12. Given the fact that in several similar cases, the NHAIhas allowed similarly situated persons to receive compensationat a much higher rate than awarded, and given the law laid downin Nagpur Improvement Trust, exercise of jurisdiction underArticle 136 is declined in favour of the appellants on the facts ofthese cases. Also, given the fact that most of the awards in theseBcases were made 7-10 years ago, it would not, at this distance intime, be fair to send back these cases for a de novo start beforethe very arbitrator or some other arbitrator not consensuallyappointed, but appointed by the Central Government. [Para58][407-E-F]C

Nagpur Improvement Trust v. Vithal Rao (1973) 1 SCC500 : [1973] 3 SCR 39 – relied on.

THE PROJECT DIRECTOR, NATIONAL HIGHWAYS NO. 45 EAND 220 NHAI v. M. HAKEEM

[1973] 3 SCR 39relied onPara 56A[1999] 1 SCR 901referred toPara 57

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2756of 2021.

From the Judgment and Order dated 13.02.2020 of the High Courtof Madurai Bench of Madras in C.M.A. (MD) No.760 of 2018.

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Civil Appeal Nos.2797, 2757, 2758, 2759, 2760, 2761, 2762, 2763,2764, 2765, 2766, 2767, 2768, 2769, 2770, 2771, 2772, 2773, 2774, 2775,2776, 2777, 2778, 2779, 2780, 2781, 2782, 2783, 2784, 2785, 2786, 2787,2788, 2789, 2790, 2791, 2792, 2793, 2794, 2795, 2796, 2798, 2799, 2800,2801, 2802, 2803, 2804, 2805, 2806 and 2807 of 2021.

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Tushar Mehta, SG, Vikramjit Banerjee, ASG, P. V. Yogeswaran,Su. Srinivasan, Ashish Kumar Upadhyay, Rajat Nair, Kanu Agrawal, Y.Lokesh, Ms. V. Keerthana, Anubhav Chaturvedi, Advs. for the Appellant.

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R. Balasubramanian, Sr. Adv., V. Balaji, Chandrashekhar, C.Kannan, Ms. Neha Singh, Rakesh K. Sharma, K.V. Jagdishvaran, Ms.G. Indira, Advs. for the Respondents.

The Judgment of the Court was delivered by E

R. F. NARIMAN, J.

1. Applications for substitution are allowed. Leave granted.

2. The appeals in the present case raise an interesting question oflaw – as to whether the power of a court under Section 34 of theArbitration and Conciliation Act, 1996 [“Arbitration Act”] to “set aside”an award of an arbitrator would include the power to modify such anaward. A Division Bench of the Madras High Court has disposed of alarge number of appeals filed under Section 37 of the said Act layingdown as a matter of law that, at least insofar as arbitral awards madeunder the National Highways Act, 1956 [“National Highways Act”],Section 34 of the Arbitration Act must be so read as to permit modificationof an arbitral award made under the National Highways Act so as toenhance compensation awarded by a learned Arbitrator.

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3. The facts in all these appeals concern notifications issued underthe provisions of the National Highways Act and awards passed H

Athereunder. These notifications are all of the years 2009 onwards andconsist of awards that have been made by the competent authority underthe Act, who is a Special District Revenue Officer. In all these cases,awards were made based on the ‘guideline value’ of the lands in questionand not on the basis of sale deeds of similar lands. The result is, in allthese cases, that abysmally low amounts were granted by the competentBauthority. As an example, in SLP (Civil) No.13020 of 2020, amountsranging from Rs.46.55 to 83.15 per square meter were awarded. In thearbitral award made by the District Collector in all these cases, being anappointee of the Government, no infirmity was found in the aforesaidaward, as a result of which the same amount of compensation wasCgiven to all the claimants. In Section 34 petitions that were filed beforethe District and Sessions Judge, these amounts were enhanced to Rs.645per square meter and the award of the Collector was therefore modifiedby the District Court in exercise of jurisdiction under Section 34 ArbitrationAct to reflect these figures. In the appeal filed to the Division Bench, the aforesaid modification was upheld, with there being a remand orderDto fix compensation for certain trees and crops.

4. Shri Tushar Mehta, learned Solicitor General of India, has takenus through the scheme of the National Highways Act, and has arguedthat since it was necessary to speed up the acquisition process for avery important public purpose, that is construction of national highways,Ethe National Highways Act was amended in 1997 by the NationalHighway Laws (Amendment) Act, 1997 [“NH Amendment Act”], toinclude Sections 3 to 3J under which, notifications were issued underSections 3A to 3D. Before vesting takes place of the land acquiredunder Section 3E, compensation is determined under Section 3G of theFAct, which is an amount determined by the competent authority who isset up under Section 3(a) of the Act. Unlike the Land Acquisition Act,1984 [“Land Acquisition Act”], if the amount determined by thecompetent authority is not acceptable to either the National HighwaysAuthority of India [“NHAI”] or the land-owner, on application by either of the parties, the amount of compensation will be determined by anGarbitrator who is appointed only by the Central Government. Then, subjectto the provisions of the National Highways Act, the provisions of theArbitration Act apply. The competent authority and the arbitrator, whiledetermining the amount of compensation, must take into account, underSection 3G(7), the market value of the land on the date of publication ofHthe notification under Section 3A, damage sustained and various other

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factors mentioned in the sub-section. Importantly, under Section 3J, theLand Acquisition Act does not apply to such acquisitions. The learnedSolicitor General argued that, given the object sought to be achieved bythe Act, a speedy procedure was provided by which a challenge to thearbitrator’s award is then made only under Section 34 of the ArbitrationAct, which, as has been held by a catena of judgments, is not a challengeon the merits of the award. The court’s limited power under the saidSection is wholly unlike the power of an appellate court under the LandAcquisition Act, and hence such power is only limited to either settingaside the award or remitting the award to the arbitrator under Section34(4) so as to eliminate any ground of challenge under Section 34. Heargued that this was in contrast to the Arbitration Act, 1940 whichcontained a specific provision to remit an award under Section 15, andfurther argued that the Arbitration Act, 1996, being based on theUNCITRAL Model Law on International Commercial Arbitration, 1985,has specifically restricted the grounds of challenge and the consequentremedy, which is only to set aside or remit in limited circumstances. Heargued, based on a reading of Section 34 itself as well as a number ofjudgments of this Court and High Courts that this well settled positioncannot possibly be given a go-by when it comes to arbitration under theNational Highways Act, in which either party can ask for the appointmentof an arbitrator who is then appointed not by the parties, but by theCentral Government. He attacked the Division Bench judgment, arguingthat the fact that either party could approach the Central Government toappoint an arbitrator, unlike the Land Acquisition Act, and that it is theCentral Government who appoints the arbitrator, the arbitration thus notbeing consensual in nature, would make no difference to the interpretationof Section 34 of the Arbitration Act in its application to the NationalHighways Act. He therefore argued that the impugned judgment waswrong on law and equally wrong in following an earlier Single Judgejudgment of the Madras High Court in which it was held, in a situationnot under the National Highways Act but under the Arbitration Act itself(arising from a consensual arbitration), that the court, under Section 34,can modify the arbitral award. He attacked the learned Single Judge’sjudgment in Gayatri Balaswamy v. ISG Novasoft Technologies Ltd.,2014 SCC OnLine Mad 6568 arguing that once the Supreme Courthad laid down as a matter of law that no modification of an award ispossible, it was not open to a single judge to differ from such view. Healso argued that under Section 34, post setting aside of an award, a fresh A

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Aarbitration could ensue as a matter of law, and it was not open to hisclient or anybody to thwart a fresh arbitration in case an award is setaside under Section 34.

5. Col. R. Balasubramanian, learned senior advocate appearingon behalf of the respondent in SLP (Civil) No. 12987 of 2020, raised byBway of a preliminary point, that in at least three cases arising out of thesame notification for the same village and the same purpose as in hiscase, the NHAI had deposited the compensation before the learnedcourt concerned and the same was received by the claimants. Thejudgment of the learned District Judge was thus complied with. He alsopointed out that in two other cases being, AROP No. 9,10,11 of 2014 andCCMA No.650 to 680 of 2013, the NHAI had deposited the entire awardamount with the accrued interest before the District Judge in accordancewith the District Judge’s judgment, no appeal being filed therefrom. Hetherefore argued that the NHAI being ‘State’ under Article 12 of theConstitution of India, cannot pick and choose as to when it will file appealsDagainst certain District Judge judgments and not against others. On thisground alone, according to the learned senior advocate, all these appealsought to be dismissed. On merits, he pointed out the facts of his caseand the fact that an abysmally low sum had been given as compensationwhich was then raised by the District Judge, having regard to the relevantsale deeds in the vicinity. He then copiously read from the learned SingleEJudge’s judgment of the Madras High Court in Gayatri Balaswamy’scase and supported this line of reasoning. He also supported the impugnedjudgment to argue that even if the learned Single Judge in GayatriBalaswamy had not laid down the law correctly so far as matters arisingunder the Arbitration Act are concerned, yet the impugned judgment Fcorrectly makes the distinction between consensual arbitration and anarbitrator appointed by the Central Government, who is none other thansome government servant who merely rubber stamps awards that arepassed by yet another government servant. He argued that if Section 34were to be construed in the manner suggested by the learned Solicitor General, then for a very grievous wrong there would be no remedy as allGthat the District Judge could then do in the Section 34 jurisdiction is toset aside the award, resulting in a fresh arbitration before either the self-same bureaucrat or another bureaucrat appointed by the CentralGovernment. This being the case, these appeals even on merits ought tobe dismissed.H

6. Having heard learned counsel appearing on both sides, it isimportant to first set out the relevant sections under the NationalHighways Act. As has been argued by the learned Solicitor General, theNational Highways Act was amended in 1997. Para 2 of the Statementof Objects and Reasons for this amendment is set out hereunder: - “STATEMENT OF OBJECTS AND REASONS

One of the impediments in the speedy implementation of highwaysprojects has been inordinate delay in the acquisition of land. Inorder to expedite the process of land acquisition, it is proposedthat once the Central Government declares that the land is requiredfor public purposes for development of a highway, that land willvest in the Government and only the amount by way ofcompensation is to be paid and any dispute relating to compensationwill be subject to adjudication through the process of arbitration.”

7. The “competent authority” under the National Highways Actis defined in Section 3(a) as follows:

3. Definitions. — In this Act, unless the context otherwiserequires, —

(a) “competent authority” means any person or authority authorisedby the Central Government, by notification in the Official Gazette,to perform the functions of the competent authority for such areaas may be specified in the notification;

8. Section 3A of the Act states: -

—3A. Power to acquire land, etc.

(1) Where the Central Government is satisfied that for a publicpurpose any land is required for the building, maintenance,management or operation of a national highway or part thereof, itmay, by notification in the Official Gazette, declare its intention toacquire such land.

(2) Every notification under sub-section (1) shall give a briefdescription of the land.

(3) The competent authority shall cause the substance of thenotification to be published in two local newspapers, one of whichwill be in a vernacular language.

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A9. After objections are then heard under Section 3C, the requisitedeclaration is made under Section 3D which reads as follows: - 3D. Declaration of acquisition. —

(1) Where no objection under sub-section (1) of section 3C hasbeen made to the competent authority within the period specifiedBtherein or where the competent authority has disallowed theobjection under subsection (2) of that section, the competentauthority shall, as soon as may be, submit a report accordingly tothe Central Government and on receipt of such report, the CentralGovernment shall declare, by notification in the Official Gazette,Cthat the land should be acquired for the purpose or purposesmentioned in sub-section (1) of section 3A.

(2) On the publication of the declaration under sub-section (1),the land shall vest absolutely in the Central Government free fromall encumbrances.

D(3) Where in respect of any land, a notification has been publishedunder sub-section (1) of section 3A for its acquisition but nodeclaration under sub-section (1) has been published within aperiod of one year from the date of publication of that notification,the said notification shall cease to have any effect:

EProvided that in computing the said period of one year, the periodor periods during which any action or proceedings to be taken inpursuance of the notification issued under sub-section (1) of section3A is stayed by an order of a court shall be excluded.

(4) A declaration made by the Central Government under sub-Fsection (1) shall not be called in question in any court or by anyother authority.

10. Section 3G with which we are directly concerned and whichspeaks of the determination of an amount payable as compensation readsas follows: -G3G. Determination of amount payable as compensation.

(1) Where any land is acquired under this Act, there shall be paidan amount which shall be determined by an order of the competentauthority.

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(2) Where the right of user or any right in the nature of an easementon, any land is acquired under this Act, there shall be paid anamount to the owner and any other person whose right ofenjoyment in that land has been affected in any mannerwhatsoever by reason of such acquisition an amount calculatedat ten per cent, of the amount determined under sub-section (1),for that land.

(3) Before proceeding to determine the amount under sub-section(1) or sub-section (2), the competent authority shall give a publicnotice published in two local newspapers, one of which will be ina vernacular language inviting claims from all persons interestedin the land to be acquired.

(4) Such notice shall state the particulars of the land and shallrequire all persons interested in such land to appear in person orby an agent or by a legal practitioner referred to in sub-section (2)of section 3C, before the competent authority, at a time and placeand to state the nature of their respective interest in such land.

(5) If the amount determined by the competent authority undersub-section (1) or sub-section (2) is not acceptable to either ofthe parties, the amount shall, on an application by either of theparties, be determined by the arbitrator to be appointed by theCentral Government—

(6) Subject to the provisions of this Act, the provisions of theArbitration and Conciliation Act, 1996 (26 of 1996) shall apply toevery arbitration under this Act.

(7) The competent authority or the arbitrator while determiningthe amount under sub-section (1) or sub-section (5), as the casemay be, shall take into consideration—

(a) the market value of the land on the date of publication ofthe notification under section 3A; (b) the damage, if any, sustained by the person interested atthe time of taking possession of the land, by reason of thesevering of such land from other land;

(c) the damage, if any, sustained by the person interested atthe time of taking possession of the land, by reason of the A

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Aacquisition injuriously affecting his other immovable propertyin any manner, or his earnings; (d) if, in consequences of the acquisition of the land, the personinterested is compelled to change his residence or place ofbusiness, the reasonable expenses, if any, incidental to suchBchange.

11. Section 3J then states:

3J. Land Acquisition Act 1 of 1894 not to apply. —

Nothing in the Land Acquisition Act, 1894 shall apply to anacquisition under this Act.

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12. It will be seen that the competent authority, as defined, is tofirst determine an amount which is payable by way of compensation forcompulsory acquisition of land. Under Section 3G(5), if the amountdetermined by the said authority is not acceptable to either of the parties,Dthe amount shall, on application by either of the parties, be determinedby an arbitrator to be appointed by the Central Government. What is ofimportance is that the ‘competent authority’ is a person or authorityauthorised by the Central Government by notification to determine theamount of compensation. In the present case, a notification designatinga Special District Revenue Officer as the competent authority has beenEmade. The amount determined by the aforesaid authority has then to besent to an arbitrator, on application by either of the parties. What isimportant to remember is that the aforesaid arbitration is not a consensualprocess with both parties having a hand in appointing the arbitrator. As amatter of fact, the land owner has no say in the appointment of theFarbitrator, who is to be appointed only by the acquiring authority, that isthe Central Government.

13. Section 34 of the Arbitration Act, 1996 occurs in Chapter VIIunder the title “Recourse against arbitral award”. We are directlyconcerned with sub-sections (1) and (4) of Section 34 which are set outhereunder.G

34. Application for setting aside arbitral award. —

(1) Recourse to a Court against an arbitral award may be madeonly by an application for setting aside such award in accordancewith sub-section (2) and sub-section (3).

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(4) On receipt of an application under sub-section (1), the Courtmay, where it is appropriate and it is so requested by a party,adjourn the proceedings for a period of time determined by it inorder to give the arbitral tribunal an opportunity to resume thearbitral proceedings or to take such other action as in the opinionof arbitral tribunal will eliminate the grounds for setting aside thearbitral award.

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14. What is important to note is that, far from Section 34 being inthe nature of an appellate provision, it provides only for setting asideawards on very limited grounds, such grounds being contained in sub-sections (2) and (3) of Section 34. Secondly, as the marginal note ofSection 34 indicates, “recourse” to a court against an arbitral awardmay be made only by an application for setting asidesuch award inaccordance with sub-sections (2) and (3). “Recourse” is defined by PRamanatha Aiyar’s Advanced Law Lexicon (3[rd] Edition) as theenforcement or method of enforcing a right. Where the right is itselftruncated, enforcement of such truncated right can also be only limitedin nature.What is clear from a reading of the said provisions is that,given the limited grounds of challenge under sub-sections (2) and (3), anapplication can only be made to set aside an award. This becomes evenclearer when we see sub-section (4) under which, on receipt of anapplication under sub-section (1) of Section 34, the court may adjournthe Section 34 proceedings and give the arbitral tribunal an opportunityto resume the arbitral proceedings or take such action as will eliminatethe grounds for setting aside the arbitral award. Here again, it is importantto note that it is the opinion of the arbitral tribunal which counts in orderto eliminate the grounds for setting aside the award, which may beindicated by the court hearing the Section 34 application.

15. It is important to remember that Section 34 is modelled on theUNCITRAL Model Law on International Commercial Arbitration, 1985,under which no power to modify an award is given to a court hearing achallenge to an award. The relevant portion of the Model Law reads asfollows:

Article 34. Application for setting aside as exclusiverecourse against arbitral award A

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A(1) Recourse to a court against an arbitral award may be madeonly by an application for setting aside in accordance withparagraphs (2) and (2) of this article.

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(4) The court, when asked to set aside an award, may, whereBappropriate and so requested by a party, suspend the setting asideproceedings for a period of time determined by it in order to givethe arbitral tribunal an opportunity to resume the arbitralproceedings or to take such other action as in the arbitral tribunal’sopinion will eliminate the grounds for setting aside.C16. Redfern and Hunter on International Arbitration (6[th]edition), states that the Model Law does not permit modification of anaward by the reviewing court (at page 570) as follows:

“10.06 The purpose of challenging an award before a nationalcourt at the seat of arbitration is to have that court declare all, orDpart, of the award null and void. If an award is set aside or annulledby the relevant court, it will usually be treated as invalid, andaccordingly unenforceable, not only by the courts of the seat ofarbitration, but also by national courts elsewhere. This is because,under both the New York Convention and the Model Law, aEcompetent court may refuse to grant recognition and enforcementof an award that has been set aside by a court of the seat ofarbitration. It is important to note that, following completeannulment, the claimant can recommence proceedings becausethe award simply does not exist-that is, the status quo ante isrestored. The reviewing court cannot alter the terms of an awardFnor can it decide the dispute based on its own vision of the merits.Unless the reviewing court has a power to remit the fault to theoriginal tribunal, any new submission of the dispute to arbitrationafter annulment has to be undertaken by commencement of anew arbitration with a new arbitral tribunal.”

G17. The statutory scheme under Section 34 of the Arbitration Act,1996 is in keeping with the UNCITRAL Model Law and the legislativepolicy of minimal judicial interference in arbitral awards.

18. By way of contrast, under Sections 15 and 16 of the ArbitrationAct, 1940, the court is given the power to modify or correct an award in H

the circumstances mentioned in Section 15, apart from a power to remitthe award under Section 16 as follows: -

15. Power of Court to modify award.

The Court may by order modify or correct an award- (a)where it appears that a part of, the award is upon a matter notreferred to arbitration and such part can be separated from theother part and does not affect the decision on the matter referred;or (b)where the award is imperfect in form, or contains any obviouserror which can be amended without affecting such decision; or

(c) where the award contains a clerical mistake or an error arisingfrom an accidental slip or omission.

16. Power to remit award.

(1) The Court may from time to time remit the award or anymatter referred to arbitration to the arbitrators or umpire forreconsideration upon such terms as it thinks fit- (a)where- the award has left undetermined any of the mattersreferred to arbitration, or where it determines any matter notreferred to arbitration and such matter cannot be separatedwithout affecting the determination of the matters referred; or (b)where the award is so indefinite as to be incapable ofexecution; or

(c) where an objection to the legality of the award is apparentupon the face of it.,

(2) Where an award is remitted under sub- section (1) the Courtshall fix the time within which the arbitrator or umpire shall submithis decision to the Court: Provided that any time so fixed may beextended by subsequent order of the Court.

(3) An award remitted under sub- section (1) shall become voidon the failure of the arbitrator or umpire to reconsider it and submithis decision within the time fixed.

19. As a result therefore, a judgment in terms of the award isgiven under Section 17 of the 1940 Act which reads as follows: - A

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A17. Judgment in terms of award.

Where the Court sees no cause to remit the award or any of thematters referred to arbitration for reconsideration or to set asidethe award, the Court shall, after the time for making an applicationto set aside the award has expired, or such application havingBbeen made, after refusing it, proceed to pronounce judgmentaccording to the award, and upon the judgment so pronounced adecree shall follow and no appeal shall lie from such decree excepton the ground that it is in excess of, or not otherwise in accordancewith, the award.

C20. Thus, under the scheme of the old Act, an award may beremitted, modified or otherwise set aside given the grounds contained inSection 30 of the 1940 Act, which are broader than the grounds containedin Section 34 of the 1996 Act.

21. It is settled law that a Section 34 proceeding does not containDany challenge on the merits of the award. This has been decided inMMTC Ltd. v. Vedanta Ltd., (2019) 4 SCC 163, at 167 as follows: -

14. As far as interference with an order made under Section 34,as per Section 37, is concerned, it cannot be disputed that suchinterference under Section 37 cannot travel beyond the restrictionsElaid down under Section 34. In other words, the court cannotundertake an independent assessment of the merits of the award,and must only ascertain that the exercise of power by the courtunder Section 34 has not exceeded the scope of the provision.Thus, it is evident that in case an arbitral award has been confirmedby the court under Section 34 and by the court in an appeal underFSection 37, this Court must be extremely cautious and slow todisturb such concurrent findings.

22. Likewise, in Ssangyong Engg. & Construction Co. Ltd. v.NHAI, (2019) 15 SCC 131, this Court under the caption “Section34(2)(a) does not entail a challenge to an arbitral award on merits”Greferred to this Court’s judgment in Renusagar Power Co. Ltd. v.General Electric Co., 1994 Supp (1) SCC 644, the Convention onthe Recognition and Enforcement of Foreign Arbitral Awards, 1958 [the“New York Convention”] and various other authorities to concludethat there could be no challenge on merits under the grounds mentionedin Section 34 - (see paras 34 to 48). This Court also held, in MaharashtraH

State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd.,(2018) 3 SCC 133 (at 170), that the court hearing a Section 34 petitiondoes not sit in appeal (see para 51).

23. As a matter of fact, the point raised in the appeals standsconcluded in McDermott International Inc. v. Burn Standard Co.Ltd., (2006) 11 SCC 181, where this Court held: -

51. After the 1996 Act came into force, under Section 16 of theAct the party questioning the jurisdiction of the arbitrator has anobligation to raise the said question before the arbitrator. Such aquestion of jurisdiction could be raised if it is beyond the scope ofhis authority. It was required to be raised during arbitrationproceedings or soon after initiation thereof. The jurisdictionalquestion is required to be determined as a preliminary ground. Adecision taken thereupon by the arbitrator would be the subject-matter of challenge under Section 34 of the Act. In the event thearbitrator opined that he had no jurisdiction in relation thereto anappeal thereagainst was provided for under Section 37 of the Act.

52. The 1996 Act makes provision for the supervisory role ofcourts, for the review of the arbitral award only to ensure fairness.Intervention of the court is envisaged in few circumstances only,like, in case of fraud or bias by the arbitrators, violation of naturaljustice, etc. The court cannot correct errors of the arbitrators. Itcan only quash the award leaving the parties free to begin thearbitration again if it is desired. So, the scheme of the provisionaims at keeping the supervisory role of the court at minimum leveland this can be justified as parties to the agreement make aconscious decision to exclude the court’s jurisdiction by opting forarbitration as they prefer the expediency and finality offered by it.

24. This statement of the law was followed in Kinnari Mullick v.Ghanshyam Das Damani, (2018) 11 SCC 328 at page 334 (see para15).

25. Also, in Dyna Technologies (P) Ltd. v. Crompton GreavesLtd., (2019) 20 SCC 1, this Court held: -

36. At this juncture it must be noted that the legislative intentionof providing Section 34(4) in the Arbitration Act was to make the A

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Aaward enforceable, after giving an opportunity to the Tribunal toundo the curable defects. This provision cannot be brushed asideand the High Court could not have proceeded further to determinethe issue on merits.

37. In case of absence of reasoning the utility has been providedBunder Section 34(4) of the Arbitration Act to cure such defects.When there is complete perversity in the reasoning then only itcan be challenged under the provisions of Section 34 of theArbitration Act. The power vested under Section 34(4) of theArbitration Act to cure defects can be utilised in cases where thearbitral award does not provide any reasoning or if the award hasCsome gap in the reasoning or otherwise and that can be cured soas to avoid a challenge based on the aforesaid curable defectsunder Section 34 of the Arbitration Act. However, in this casesuch remand to the Tribunal would not be beneficial as this casehas taken more than 25 years for its adjudication. It is in this stateDof affairs that we lament that the purpose of arbitration as aneffective and expeditious forum itself stands effaced.

26. Some of the judgments of the High Courts are also instructive.A learned Single Judge of the Delhi High Court in Cybernetics NetworkPvt. Ltd. v. Bisquare Technologies Pvt. Ltd., 2012 SCC OnLineEDel 1155, held:

47. The next question that arises is whether the above claims asmentioned in para 44 that have been erroneously rejected by thelearned Arbitrator can be allowed by this Court in exercise of itspowers under Section 34(4) of the Act?

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48. Under Section 34(4) of the Act, the Court while deciding achallenge to an arbitral award, can either “adjourn the proceedingsfor a period of time determined by it in order to give the arbitraltribunal an opportunity to resume the arbitral proceedings or totake such other action as in the opinion of the arbitral tribunal willGeliminate the grounds for setting aside the arbitral award”. Thisnecessarily envisages the Court having to remit the matter to theArbitral Tribunal. This is subject to the Court finding it appropriateto do so and a party requesting it to do so.

49. In Union of India v. Arctic India 2007 (4) Arb LR 524 (Bom),a learned Single Judge of the Bombay High Court opined that theH

Court can modify the Award even if there is no express provisionin the Act permitting it. The Court followed the decision of theSupreme Court in Krishna Bhagya Jala NigamLtd. v. Harischandra Reddy (2007) 2 SCC 720. A similar viewhas been taken by a learned Single Judge of this Court in Unionof India v. Modern Laminators2008 (3) Arb LR 489 (Del). Therethe question was whether in light of the arbitrator having failed todecide the counter claim of the respondent in that case the Courtcould itself decide the counter claim. After discussing the caselaw, the Court concluded that it could modify the award but onlyto a limited extent. It held (Arb LR p. 496):

“Such modification of award will be a species of ‘setting aside’only and would be ‘setting aside to a limited extent’. However,if the courts were to find that they cannot within the confinesof interference permissible or on the material before thearbitrator are unable to modify and if the same would includefurther fact finding or adjudication of intricate questions of lawthe parties ought to be left to the forum of their choice i.e. tobe relegated under Section 34(4) of the Act to further arbitrationor other civil remedies.”

50. However, none of the above decisions categorically hold thatwhere certain claims have been erroneously rejected by theArbitrator, the Court can in exercise of its powers under Section34(4) of the Act itself decide those claims. The Allahabad HighCourt has in Managing Director v. Asha Talwar2009 (5) ALJ397, held that while exercising the powers to set aside an Awardunder Section 34 of the Act the Court does not have the jurisdictionto grant the original relief which was prayed for before theArbitrator. The Allahabad High Court referred to the decision ofthe Supreme Court in McDermott International Inc. v. BurnStandard Co. Ltd.(2006) 11 SCC 181, where it was observed(SCC @ p. 208):

51. The view of the Allahabad High Court in ManagingDirector v. Asha Talwar appears to be consistent with the schemeof the Act, and in particular Section 34 thereof which is a departurefrom the scheme of Section 16 of the 1940 Act which perhaps AB

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Agave the Court a wider amplitude of powers. Under Section 34(2)of the Act, the Court is empowered to set aside an arbitral awardon the grounds specified therein. The remand to the Arbitratorunder Section 34(4) is to a limited extent of requiring the ArbitralTribunal “to eliminate the grounds for setting aside the arbitralaward”. There is no specific power granted to the Court to itselfBallow the claims originally made before the Arbitral Tribunal whereit finds the Arbitral Tribunal erred in rejecting such claims. If sucha power is recognised as falling within the ambit of Section 34(4)of the Act, then the Court will be acting no different from anappellate court which would be contrary to the legislative intentCbehind Section 34 of the Act. Accordingly, this Court declines toitself decide the claims of CNPL that have been wrongly rejectedby the learned Arbitrator.

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27. The Delhi High Court in Nussli Switzerland Ltd. v.Organizing Committee Commonwealth Games, 2014 SCC OnLineDDel 4834, held: -

34. A party like the Organizing Committee which has its claimsrejected, except a part, but which subsumes into the larger amountawarded in favour of the opposite party, even if succeeds in theobjections to the award would at best have the award set asideEfor the reason the Arbitration and Conciliation Act, 1996 as distinctfrom the power of the Court under the Arbitration Act, 1940, doesnot empower the Court to modify an award. If a claim which hasbeen rejected by an Arbitral Tribunal is found to be faulty, theCourt seized of the objections under Section 34 of the Arbitrationand Conciliation Act, 1996 has to set aside the award and leaveFthe matter at that. It would be open to the party concerned tocommence fresh proceedings (including arbitration) and for thisview one may for purposes of convenience refer to sub-Section(4) of Section 43 of the Arbitration and Conciliation Act, 1996. Itreads: - G“43. Limitations-

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(4) Where the Court orders that an arbitral award be set aside,the period between the commencement of the arbitration andthe date of the order of the Court shall be excluded in computingthe time prescribed by the Limitation Act, 1963, for thecommencement of the proceedings (including arbitration) withrespect to the dispute so submitted.”

28. An instructive judgment of the Delhi High Court in PuriConstruction P. Ltd. v. Larsen and Toubro Ltd., 2015 SCC OnLineDel 9126 deals with the authorities of the Madras and Calcutta HighCourts on the one hand and the other High Courts dealing with thisproblem as follows: -

115. In these circumstances, this Court holds that the reliefs grantedby the Tribunal cannot be sustained and are hereby set aside. Thequestion that follows is whether this Court, exercising jurisdictionunder Section 37 read with Section 34 of the Act, can modify,vary or remit the award. At the outset, it is noticed that there aredivergent views on this issue. Here, the Court notices a somewhatdivergent approach of various High Courts. The case law isdiscussed in the following part of the judgment.

Authorities in Favour of the Power to Modify, Vary or Remitthe award

116. A learned Single Judge of this Court in BhasinAssociates v. NBCC, (2005) ILR 2 Delhi 88 held that “the powerto set aside an award when exercised by the Court would leave avacuum if the said power was not understood to include the powerto remand the matter back to the arbitrator”. This view wassubsequently adopted in Single Bench decisions in Union ofIndia v. Modern Laminators Ltd., 2008 (3) ARB LR 489 (Delhi) (inthe context of modification of the award), IFFCO Tokio GeneralInsurance Co. Ltd. v. Indo Rama Synthetics Ltd. (decided on20.01.2015) and Canara Bank v. Bharat Sanchar NigamLtd. (decided on 26.03.2015). In Modern Laminators, the Courtrelied upon the Supreme Court’s decision in Numaligarh RefineryLtd. v. Daelim Industrial Company Ltd., (2007) 8 SCC 466, notingthat the Court therein had modified the award in terms of itsfindings; and the decision in Krishna Bhagya Jala Nigam Ltd. v. G.Harischandra Reddy, AIR 2007 SC 817, where the interest rate A

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awarded by the arbitrator was modified. The learned Single Judgein Canara Bank relied upon a decision of a Single Judge of theMadras High Court in Gayatri Balaswamy v. ISG NovasoftTechnologies Ltd., (2015) 1 MLJ 5. The Court in GayatriBalaswamy examined the issue in significant [sic] and held asfollows:

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“Therefore, in my considered view, the expression ‘recourseto a Court against an arbitral award’ appearing in Section 34(1)cannot be construed to mean only a right to seek the settingaside of an award. Recourse against an arbitral award couldbe either for setting aside or for modifying or for enhancing orfor varying or for revising an award. The expression ‘applicationfor setting aside such an award’ appearing in Section 34(2)and (3) merely prescribes the form, in which, a person canseek recourse against an arbitral award. The form, in whichan application has to be made, cannot curtail the substantialright conferred by the statute. In other words, the right to haverecourse to a Court, is a substantial right and that right is notliable to be curtailed, by the form in which the right has to beenforced or exercised. Hence, in my considered view, thepower under Section 34(1) includes, within its ambit, the powerto modify, vary or revise.”

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The same view had been adopted earlier by Single Bench decisionsof the Bombay High Court in Axios Navigation Co. Ltd. v. IndianOil Corporation Limited, 2012 (114) BOM LR 392and Angerlehner Structurals and Civil EngineeringCo. v. Municipal Corporation of Greater Mumbai, 2013 (7)FBom CR 83 and a Division Bench of the Calcutta High Courtin West Bengal Electronics Industries DevelopmentCorporation Ltd. v. Snehasis Bhowmick (in A.P.O. No. 240 of2012).

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118. This Court is inclined to follow the decisions in CentralWarehousing Corporation, Delhi Development Authority, StateTrading Corporation of India Ltd., Bharti Cellular Limited, Cybernetics H

Network Pvt. Ltd. and Asha Talwar. The guiding principle on thisissue was laid down by the Supreme Court in McDermottInternational Inc. (supra), where the Court held:

“The 1996 Act makes provision for the supervisory role ofcourts, for the review of the arbitral award only to ensurefairness. Intervention of the court is envisaged in fewcircumstances only, like, in case of fraud or bias by thearbitrators, violation of natural justice, etc. The court cannotcorrect errors of the arbitrators. It can only quash the awardleaving the parties free to begin the arbitration again if it isdesired. So, scheme of the provision aims at keeping thesupervisory role of the court at minimum level and this can bejustified as parties to the agreement make a conscious decisionto exclude the court’s jurisdiction by opting for arbitration asthey prefer the expediency and finality offered by it.”

Although the Madras High Court in Gayatri Balaswamy (supra)appropriately noted that these observations in McDermottInternational Inc. were not in the context of the specific issuebeing dealt herewith, this Court is of the opinion that it isdeterminative of the Court’s approach in an enquiry under Section34 of the Act. Indeed, a Court, while modifying or varying theaward would be doing nothing else but “correct[ing] the errors ofthe arbitrators”. This is expressly against the dictat of McDermottInternational Inc. Further, if the power to remit the matter to thearbitrator is read into Section 34, it would render inexplicable thedeliberate omission by Parliament of a provision analogous toSection 16 of the Arbitration Act, 1940 in the present Act. Section16 of the 1940 Act specifically armed courts with the power toremit the matter to arbitration. Noticeably, the scope of remissionunder the present Act is confined to that prescribed in sub-section(4) of Section 34. Besides the Division Bench rulings of this Courtin Delhi Development Authority, State Trading Corporation of IndiaLtd., this was also noted by a Full Bench of the Bombay HighCourt in R.S. Jiwani v. Ircon International Ltd., 2010 (1) Bom CR529, where the Court held:

“An award can only be set aside under the provisions of Section34 as there is no other provision except Section 33 which permitsthe arbitral tribunal to correct or interpret the award or pass A

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SUPREME COURT REPORTS

Aadditional award, that too, on limited grounds stated in Section33… It is also true that there are no parimateria provisions likeSections 15 and 16 of the Act of 1940 in the 1996 Act but stillthe provisions of Section 34 read together, sufficiently indicatevesting of vast powers in the court to set aside an award andeven to adjourn a matter and such acts and deeds by the ArbitralBTribunal at the instance of the party which would help inremoving the grounds of attack for setting aside the arbitralaward.”

On the other hand, the Calcutta High Court in SnehasisBhowmick did not analyse this distinction, or the specificCobservations of the Supreme Court in McDermott InternationalInc. quoted above. Further, the decisions in NumaligarhRefinery and Harishchandra Reddy (supra) did not discuss theCourt’s power to modify, vary or remit the award under Section34 of the Act. Therefore, in light of the dictum in McDermottDInternational Inc. and the difference in provisions of the 1940 Actand the present Act, this Court holds that the power to modify,vary or remit the award does not exist under Section 34 of theAct.

29. Thus, there can be no doubt that given the law laid down byEthis Court, Section 34 of the Arbitration Act, 1996 cannot be held toinclude within it a power to modify an award. The sheet anchor of theargument of the respondents is the judgment of the learned Single Judgein Gayatri Balaswamy (supra). This matter arose out of a claim fordamages by an employee on account of sexual harassment at theworkplace. The learned Single Judge referred to the power to modify orFcorrect an award under Section 15 of the Arbitration Act, 1940 in para29 of the judgment. Thereafter, a number of judgments of this Courtwere referred to in which awards were modified by this Court,presumably under the powers of this Court under Article 142 of theConstitution of India. In para 34, the learned Single Judge referred toGpara 52 in McDermott’s case (supra) and then concluded that since theobservations made in the said para were not given in answer to a pointedquestion as to whether the court had the power under Section 34 tomodify or vary an award, this judgment cannot be said to have settledthe answer to the question raised finally.

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30. The first judgment of this Court referred to by the learnedSingle Judge is the judgment in Gautam Constructions and FisheriesLtd. v. National Bank for Agriculture & Rural Development, (2000)6 SCC 519. The learned Single Judge correctly pointed out that thisjudgment was under the Arbitration Act, 1940. In para 31, the learnedSingle Judge then went on to state that modifications were made in theaward by the Supreme Court outside the provisions of Section 15 of theArbitration Act, 1940 and that, therefore, the Supreme Court took thepower of the Court to modify an Award for granted. The comment madein para 31 does not appear to be justified. Obviously, the power usedwas the power to do complete justice between the parties, which is apower relatable to the Constitution vested only in the Supreme Court ofIndia as a final court of last resort under Article 142 of the Constitutionof India.

31. The next judgment referred to in para 32 is the judgment inTata Hydro-Electric Power Supply Co. Ltd. v. Union of India, (2003)4 SCC 172. In para 21, this Court modified the award qua interest,granting interest at the same rate but with reference to a different periodfrom that stated in the award. There is no doubt that the award was infact “modified” by the Supreme Court – again referable to Article 142of the Constitution of India.

32. Likew ise, in Hindustan Zinc Ltd. v. Friends CoalCarbonisation, (2006) 4 SCC 445, the learned Single Judge correctlyobserved that the Supreme Court did not specifically address the issueas to whether the court has the power under Section 34 to modify theAward. In stating that the Supreme Court affixed a seal of approval onthe decision of the trial court modifying the award would not be whollycorrect. In para 12 only one ground was argued in the appeal, whichground found favour with this Court. In any case, a modification of anaward upheld on facts without any discussion on the law does not carrythe matter very much further.

33. In Krishna Bhagya Jala Nigam Ltd. v. G. HarischandraReddy, (2007) 2 SCC 720, a judgment of this Court referred to in para36, this Court reduced the rate of interest for the pre-arbitration period,pendente lite and future interest. It also referred to a suggestion that acertain amount be reduced from the awarded amount from Rs.1.47crores to Rs.1 crore, which the learned counsel for the respondent thereinfairly accepted. Obviously, these orders were also made under Article A

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A142 of the Constitution of India and do not carry the matter very muchfurther. From these judgments, to deduce, in para 39, that the judicialtrend appears to favour an interpretation which would read into Section34 a power to modify, revise or vary an award is wholly incorrect. Theobservation found in McDermott’s decision clearly bound the learnedSingle Judge and any decision to the contrary would be incorrect.B

34. At this juncture, it is important to point out that an earlierDivision Bench of the Madras High Court reported in CentralWarehousing Corpn. v. A.S.A. Transport,2007 SCC OnLine Mad972 had specifically considered the judgment of this Court in McDermott(supra) and held: -C

18. Though we are not in a position to concur with the reasoningof the learned single Judge, we are in complete agreement withthe ultimate order of the learned single Judge in setting aside theaward. However, the further direction given by the learned singleJudge directing the appellant to appoint an arbitrator at ChennaiDand for conducting the arbitration are to be set aside as it cannotbe given as an order of the Court. Useful reference can be had tothe judgment of the Supreme Court in the case of McdermottInternational Inc. v. Burn Standard co. Ltd., (2006) 11 SCC181, wherein it was held that the 1996 Act makes provisions forEsupervisory role of courts, for the review of the arbitral awardonly to ensure fairness. Intervention of the court is envisaged infew circumstances only, like, in case of fraud or bias by thearbitrators, violation of natural justice, etc. It can only quash theaward leaving the parties free to begin the arbitration again if it isdesired. Hence, in an application taken out under section 34 ofFthe Act, the Court can set aside the award leaving the parties freeto begin the arbitration again if it is desired. 19. Therefore, theorder of the learned single judge setting aside the award isconfirmed for the reasons given by us. However, the otherobservations of the learned single Judge are set aside. The issueGis left open to the parties to proceed further. The appeal is disposedof in the above terms. However, there is no order as to costs. Theconnected miscellaneous petition is closed.

35. This judgment was not cited before the learned Single Judge,being a binding Division Bench judgment, which specifically decided,Hfollowing McDermott’s case (supra), that the power of modification is not available under Section 34 of the Arbitration Act, 1996. Even otherwisetherefore, the learned Single Judge’s judgment was rendered perincuriam.

36. However, a later Division Bench of the High Court of Madrasvide judgment dated August 8[th], 2019 reported in ISG NovasoftTechnologies Limited v. Gayatri Balasamy,2019 SCC OnLine Mad15819 agreed with the learned Single Judge, without adverting to theearlier Division Bench judgment of the same court, as follows:

41. It is no doubt true that the legislators did not intend to use theword “modify” anywhere in Section 34 of the Act but what wascontemplated is only to “set aside” an award passed by theArbitrator if it falls within the realm of Section 34 of the Act. It istrite that an arbitrator being a Judge chosen by the parties, hisdecision would ordinarily be final unless one or the other conditionscontained in Section 34 of the Act is satisfied for the purpose ofsetting aside his award. The Court’s jurisdiction in this behalf is tosee whether the arbitrator has exceed his jurisdiction or not andtherefore, the scope of judicial review of the arbitral award is anarrow one.

42. In order to arrive at a conclusion as to whether the Court, inexercise of power under Section 34 of the Act is entitled to modifyor vary the award passed by the Arbitrator, the learned singleJudge relied on several decisions. In para No. 30 of the orderpassed by the learned single Judge, reliance was placed on thedecision of the Honourable Supreme court in Gautam Constructionsand Fisheries Limited v. National Bank for Agriculture and RuralDevelopment reported in (2000) 6 SCC 519. In that case, a singleJudge of this Court upheld the claim for award of Rs. 400/- persquare feet which was modified by the Division Bench of thisCourt and reduced it to Rs. 150/-. When the matter reached theHonourable Supreme Court, the rate was modified further to Rs.250/- per square feet. By placing reliance on this decision, thelearned single Judge held that the Court exercising jurisdictionunder Section 34 of the Act has power to modify or vary theaward passed by the Arbitrator. Similarly, reference was made inpara No. 32 of the order of the learned single Judge to the decisionof the Honourable Supreme Court in Tata Hydero Electric PowerSupply Co. Ltd. v. Union of India, (2003) 4 SCC 172 in which also A

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Athe Honourable Supreme Court, while reversing the judgment ofthe High Court, interfered with the award passed by the arbitratorin so far as it relates to payment of interest. For the very sameproposition that the Court is empowered to modify or vary theaward passed by the arbitrator, reliance was placed on the decisionof the Honourable Supreme Court in Hindustan Zinc Limited v.BFriends Coal Carbonisation, (2006) 4 SCC 445 to drive home thepoint that the Court has power under Section 34 to modify theaward passed by the Arbitrator. We are also in entire agreementwith the reasoning of the learned single Judge that merely becausethe word “modify” or “vary” is not indicated in Section 34 of theCAct, it will not take away the jurisdiction of the Court exercisingunder jurisdiction Section 34 of the Act to interfere with the awardpassed by an arbitrator partially. If such a power is not vestedwith the Court, it will only lead to multiplicity of proceedings, whichis not intended by the legislature while framing Section 34 of theAct. A reasonable interpretation to Section 34 would only lead toDan irresistible conclusion that the Court can modify or vary theaward of the arbitrator if it is contrary to the material evidenceadduced by the parties. Even otherwise, as contemplated underSection 34(2)(v)(b)(ii) of the Act, when the award passed by theArbitrator is in conflict with the public policy in our Country, reversalEor modification of such award passed by the arbitrator is wellwithin the provisions contained under Section 34 of the Act itself.In the present case, as rightly observed by the learned single Judge,the non-constitution of a committee as per the direction of theHonourable Supreme Court in Vishaka case is to be regarded asa statutory violation and contravention of public policy prevailingFin India and therefore, the appellant is entitled for a just and faircompensation.

37. This judgement suffers from the same infirmities as the learnedSingle Judge’s judgement which it affirms.

G38. Col. Balasubramanian also referred to three other judgmentsto buttress the very same submission, namely, Numaligarh RefineryLtd. v. Daelim Industrial Co. Ltd., (2007) 8 SCC 466; DDA v. R.S.Sharma and Co., (2008) 13 SCC 80 and Royal Education Societyv. LIS (India) Construction Co. (P) Ltd., (2009) 2 SCC 261. Each ofthese judgments also does not carry the matter further in that, ordersH

that are passed under Article 142 of the Constitution do not constitutethe ratio decidendi of a judgment. Admittedly, there was no discussionon whether, as a matter of law, a power to vary an award can be foundin Section 34 of the Arbitration, 1996.

39. As has been pointed out by us hereinabove, McDermott (supra)has been followed by this Court in Kinnari Mullick (supra). Also, inDakshin Haryana Bijli Vitran Nigam Ltd. v. Navigant TechnologiesPvt. Ltd., 2021 SCC OnLine SC 157, a recent judgment of this Courtalso followed McDermott (supra) stating that there is no power to modifyan arbitral award under Section 34 as follows: - (f) In law, where the Court sets aside the award passed by themajority members of the tribunal, the underlying disputes wouldrequire to be decided afresh in an appropriate proceeding.

Under Section 34 of the Arbitration Act, the Court may eitherdismiss the objections filed, and uphold the award, or set aside theaward if the grounds contained in sub-sections (2) and (2A) aremade out. There is no power to modify an arbitral award.

40. It can therefore be said that this question has now been settledfinally by at least 3 decisions of this Court. Even otherwise, to state thatthe judicial trend appears to favour an interpretation that would read intoSection 34 a power to modify, revise or vary the award would be toignore the previous law contained in the 1940 Act; as also to ignore thefact that the 1996 Act was enacted based on the UNCITRAL ModelLaw on International Commercial Arbitration, 1985 which, as has beenpointed out in Redfern and Hunter on International Arbitration, makesit clear that, given the limited judicial interference on extremely limitedgrounds not dealing with the merits of an award, the ‘limited remedy’under Section 34 is co-terminus with the ‘limited right’, namely, either toset aside an award or remand the matter under the circumstancesmentioned in Section 34 of the Arbitration Act, 1996.

41. A look at the Arbitration Acts of England, the United States,Canada, Australia and Singapore also lead to the same conclusion. Ineach of those legislative measures, there are express provisions whichpermit the varying of an award, unlike Section 34 of the present Act. Inpara 51, the learned Single Judge then refers to recourse to a courtagainst an arbitral award, and argues that a statute cannot be interpretedin such manner as to make the remedy worse than the disease. As has A

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Abeen pointed out by us, the “disease” can only be cured in very limitedcircumstances thus limiting the remedy as well. Also, to assimilate theSection 34 jurisdiction with the revisional jurisdiction under Section 115of the Code of Civil Procedure, 1908 [the “CPC”], is again fallacious.Section 115 of the CPC expressly sets out the three grounds on which arevision may be entertained and then states that the High Court mayBmake ‘such order as it thinks fit’. These latter words are missing inSection 34, given the legislative scheme of the Arbitration Act, 1996. Forall the aforesaid reasons, with great respect to the learned Single Judge,it is not correct in law and therefore stands overruled.

42. Coming to the submission in support of the impugned judgmentCthat the fact that the Central Government appoints an arbitrator and thearbitration would therefore not be consensual, resulting in a governmentservant rubber stamping an award which then cannot be challenged onits merits, cannot possibly lead to the conclusion that, therefore, achallenge on merits must be provided driving a coach and four throughDSection 34 of the Arbitration Act, 1996. The impugned judgment is alsoincorrect on this score.

43. Col. Balasubramanian, however referred to a passage inJaishri Laxmanrao Patil v. Chief Minister, 2021 SCC OnLine SC362 (at paras 412 to 415). He argued that ‘purposive construction’Ereferred to by Bennion in his classic on Statutory Interpretation mustbe applied by us on the facts of this case as in legislations dealing withland acquisition, a pragmatic view is required to be taken and the lawmust be interpreted purposefully and realistically so that the benefitreaches the masses. We may only add that the judgment cited by Col.Balasubramanian is a judgment dealing with a constitutional provision –FArticle 342A of the Constitution. We must never forget the famousstatement of Chief Justice Marshall in M’Culloch v. State of Maryland,17 US 316 (1819) that “it is a constitution we are expounding” – andthe Constitution is a living document governing the lives of millions ofpeople, which is required to be interpreted in a flexible evolutionary mannerGto provide for the demands and compulsions of changing times and needs.

44. The distinction between constitutional and statutoryinterpretation was felicitously put by Justice Aharon Barak, President ofthe Supreme Court of Israel thus:

“The task of expounding a Constitution is crucially different fromHthat of construing a statute. A statute defines present rights and

obligations. It is easily enacted and as easily repealed. AConstitution, by contrast, is drafted with an eye to the future. Itsfunction is to provide a continuing framework for the legitimateexercise of governmental power and, when joined by a Bill orCharter of Rights, for the unremitting protection of individual rightsand liberties. Once enacted, its provisions cannot easily be repealedor amended. It must, therefore, be capable of growth anddevelopment over time to meet new social, political and historicalrealities often unimagined by its framers. The judiciary is theguardian of the Constitution and must, in interpreting its provisions,bear these considerations in mind.”

This quote has been cited in Rameshwar Prasad (VI) v. Unionof India, (2006) 2 SCC 1 (at pages 91,92).

45. “Purposive construction” of statutes, relevant in the presentcontext, is referred to in a recent concurring judgment by Nariman, J. inEera v. State (NCT of Delhi), (2017) 15 SCC 133, as the theory of“creative interpretation”. However, even “creative interpretation” hasits limits, which have been laid down in the aforesaid judgment as follows:-

139. A reading of the Act as a whole in the light of the Statementof Objects and Reasons thus makes it clear that the intention ofthe legislator was to focus on children, as commonly understoodi.e. persons who are physically under the age of 18 years. Thegolden rule in determining whether the judiciary has crossed theLakshman Rekha in the guise of interpreting a statute is reallywhether a Judge has only ironed out the creases that he found ina statute in the light of its object, or whether he has altered thematerial of which the Act is woven. In short, the difference is thewell-known philosophical difference between “is” and “ought”.Does the Judge put himself in the place of the legislator and askhimself whether the legislator intended a certain result, or does hestate that this must have been the intent of the legislator and infusewhat he thinks should have been done had he been the legislator.If the latter, it is clear that the Judge then would add somethingmore than what there is in the statute by way of a supposed intentionof the legislator and would go beyond creative interpretation oflegislation to legislating itself. It is at this point that the Judge crossesthe Lakshman Rekha and becomes a legislator, stating what thelaw ought to be instead of what the law is.

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A46. Quite obviously if one were to include the power to modify anaward in Section 34, one would be crossing the Lakshman Rekha anddoing what, according to the justice of a case, ought to be done. Ininterpreting a statutory provision, a Judge must put himself in the shoesof Parliament and then ask whether Parliament intended this result.Parliament very clearly intended that no power of modification of anBaward exists in Section 34 of the Arbitration Act, 1996. It is only forParliament to amend the aforesaid provision in the light of the experienceof the courts in the working of the Arbitration Act, 1996, and bring it inline with other legislations the world over.

47. However, this does not end the matter, as has rightly beenCpointed out by Col. Balasubramanian, learned senior advocate appearingon behalf of the respondent. In several cases, the NHAI has not filedappeals even in matters which are similar i.e., arising from the sameSection 3A Notification, as a result of which certain land owners havegot away with enhanced compensation given to them by the DistrictDCourt. Also, we cannot shut our eyes to the fact the arbitrator hasawarded compensation on a completely perverse basis i.e., by takinginto account ‘guideline value’ which is relevant only for stamp dutypurposes, and not taking into account sale deeds which would havereflected the proper market value of the land. Given the fact that theawards in all these cases are therefore perverse, the District Judge rightlyEinterfered with the same.

48. There is no doubt that, as argued by Col. Balasubramanian,the arbitral award in these cases is given by a government servantappointed by the Central Government, the result being the rubber stampingof compensation awarded on a completely perverse basis. Given theFfact that, in these petitions at least, the constitutional validity of the NHAmendment Act, 1997 has not been challenged, we must proceed onthe basis that grave injustice would be done if we were to interfere onfacts, set aside the awards and remand the matter to the very governmentservant who took into account depressed land values which were relevantfor purposes of stamp duty only. It may be mentioned at this junctureGthat a limited challenge was made to Section 3J of the National HighwaysAct when it excluded the provisions of the Land Acquisition Act in thecontext of solatium and interest not being granted under the NationalHighways Act. Thus, in Union of India v. Tarsem Singh, (2019) 9SCC 304, this Court dealt with a batch of appeals in which the questionHwas set out thus: -

1. … A batch of appeals before us by the Union of India questionthe view of the Punjab and Haryana High Court which is that thenon-grant of solatium and interest to lands acquired under theNational Highways Act, which is available if lands are acquiredunder the Land Acquisition Act, is bad in law, and consequentlythat Section 3-J of the National Highways Act, 1956 be struckdown as being violative of Article 14 of the Constitution of Indiato this extent.

49. This question was then answered stating:

52. There is no doubt that the learned Solicitor General, in theaforesaid two orders, has conceded the issue raised in these cases.This assumes importance in view of the plea of Shri Divan thatthe impugned judgments should be set aside on the ground thatwhen the arbitral awards did not provide for solatium or interest,no Section 34 petition having been filed by the landowners on thisscore, the Division Bench judgments that are impugned before usought not to have allowed solatium and/or interest. Ordinarily, wewould have acceded to this plea, but given the fact that theGovernment itself is of the view that solatium and interest shouldbe granted even in cases that arise between 1997 and 2015, in theinterest of justice we decline to interfere with such orders, givenour discretionary jurisdiction under Article 136 of the Constitutionof India. We therefore declare that the provisions of the LandAcquisition Act relating to solatium and interest contained inSections 23(1-A) and (2) and interest payable in terms of Section28 proviso will apply to acquisitions made under the NationalHighways Act. Consequently, the provision of Section 3-J is, tothis extent, violative of Article 14 of the Constitution of India and,therefore, declared to be unconstitutional. Accordingly, appealarising out of SLP (C) No. 9599 of 2019 is dismissed.

50. As has been stated by us, the object of the NH AmendmentAct, 1997 is to expedite the process of acquisition. This has been achievedby cutting down the period for hearing of objections from 30 days underSection 5A of the Land Acquisition Act to 21 days under Section 3C ofthe National Highways Act. Further, unlike the Land Acquisition Act,the moment a notification under Section 3D(2) of the National HighwaysAct (equivalent to Section 6 Land Acquisition Act) is made, the landvests absolutely in the Central Government free from all encumbrances.

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AThereafter, where land has vested in the Central Government and theamount determined by the competent authority under Section 3G ascompensation has been deposited by the Central Government inaccordance with Section 3H(1), the competent authority may then directthat possession be taken within 60 days of service of notice by it.

B51. Also, injunctions against highway projects have now becomeimpossible to obtain in view of Section 20A of the Specific Relief Act,which has been introduced w.e.f. 01.10.2018. The said provision readsas follows:

20A. Special provisions for contract relating toCinfrastructure project. —

(1) No injunction shall be granted by a court in a suit under thisAct involving a contract relating to an infrastructure projectspecified in the Schedule, where granting injunction would causeimpediment or delay in the progress or completion of suchDinfrastructure project.

Explanation. —For the purposes of this section, section 20B andclause (ha) of section 41, the expression “infrastructure project”means the category of projects and infrastructure Sub-Sectorsspecified in the Schedule.

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(2) The Central Government may, depending upon the requirementfor development of infrastructure projects, and if it considersnecessary or expedient to do so, by notification in the OfficialGazette, amend the Schedule relating to any Category of projectsor Infrastructure Sub-Sectors.

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F(3) Every notification issued under this Act by the CentralGovernment shall be laid, as soon as may be after it is issued,before each House of Parliament, while it is in session, for a totalperiod of thirty days which may be comprised in one session or intwo or more successive sessions, and if, before the expiry of thesession immediately following the session or the successiveGsessions aforesaid, both Houses agree in making any modificationin the notification or both Houses agree that the notification shouldnot be made, the notification shall thereafter have effect only insuch modified form or be of no effect, as the case may be; so,however, that any such modification or annulment shall be without H

prejudice to the validity of anything previously done under thatnotification.

52. Under the Schedule, Category No. 1 deals with ‘Transport’and under ‘Infrastructure Sub-Sectors’ listed in this category, clause (a)reads ‘Road and Bridges’.

53. It can be seen from the aforesaid provisions that the speedingup of acquisition of land needed for national highways has been achieved.The challenge process to an award passed will, of necessity, take itsown time, both under Section 3G of this Act as well as under the provisionsof the Land Acquisition Act. This being the case, it is a little difficult toappreciate as to why the wholesome regime of appeals under the LandAcquisition Act has been replaced by a regime in which an award passedby an Arbitrator, who is not consensually appointed but appointed by theCentral Government, can only be challenged not on merits, but on thelimited grounds contained in Section 34 of the Arbitration Act, 1996.

54. There can be no doubt that differential compensation cannotbe awarded on the ground that a different public purpose is sought to beachieved. Also, the legislature cannot say that, however laudable thepublic purpose and however important it is to expedite the process ofland acquisition, differential compensation is to be paid depending uponthe public purpose involved or the statute involved.

55. Take the case of a single owner of land who has two parcelsof land adjacent to each other. One parcel of land abuts the nationalhighway, whereas the other parcel of land is at some distance from thenational highway. Can it be said that the land which abuts the nationalhighway, and which is acquired under the National Highways Act, willyield a compensation much lesser than the adjacent land which is acquiredunder the Land Acquisition Act only because in the former case, anaward is by a government servant which cannot be challenged on merits,as opposed to an award made under Part III of the Land Acquisition Actby the reference Court with two appeals in which the merits of theaward can be gone into? There can be no doubt that discrimination wouldbe writ large in such cases.

56. As a matter of fact, 7 learned Judges of this Court in NagpurImprovement Trust v. Vithal Rao, (1973) 1 SCC 500 held as follows:-

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that the classification in order to be reasonable must satisfy twotests: (i) the classification must be founded on intelligible differentiaand (ii) the differentia must have a rational relation with the objectsought to be achieved by the legislation in question. In thisconnection it must be borne in mind that the object itself should belawful. The object itself cannot be discriminatory, for otherwise,for instance, if the object is to discriminate against one section ofthe minority the discrimination cannot be justified on the groundthat there is a reasonable classification because it has rationalrelation to the object sought to be achieved.

27. What can be reasonable classification for the purpose ofdetermining compensation if the object of the legislation is tocompulsorily acquire land for public purposes?

28. It would not be disputed that different principles ofcompensation cannot be formulated for lands acquired on the basisthat the owner is old or young, healthy or ill, tall or short, or whetherthe owner has inherited the property or built it with his own efforts,or whether the owner is politician or an advocate. Why is this sortof classification not sustainable? Because the object being tocompulsorily acquire for a public purpose, the object is equallyachieved whether the land belongs to one type of owner or anothertype.

29. Can classification be made on the basis of the public purposefor the purpose of compensation for which land is acquired? Inother words can the Legislature lay down different principles ofcompensation for lands acquired say for a hospital or a school ora Government building? Can the Legislature say that for a hospitalland will be acquired at 50% of the market value, for a school at60% of the value and for a Government building at 70% of themarket value? All three objects are public purposes and as far asthe owner is concerned it does not matter to him whether it is onepublic purpose or the other. Article 14 confers an individual rightand in order to justify a classification there should be somethingwhich justifies a different treatment to this individual right. It seemsto us that ordinarily a classification based on the public purpose isnot permissible under Article 14 for the purpose of determiningcompensation. The position is different when the owner of theland himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixingcompensation. Can classification be made on the basis of theauthority acquiring the land? In other words can different principlesof compensation be laid if the land is acquired for or by anImprovement Trust or Municipal Corporation or the Government?It seems to us that the answer is in the negative because as far asthe owner is concerned it does not matter to him whether the landis acquired by one authority or the other.

30. It is equally immaterial whether it is one Acquisition Act oranother Acquisition Act under which the land is acquired. If theexistence of two Acts could enable the State to give one ownerdifferent treatment from another equally situated the owner whois discriminated against, can claim the protection of Article 14.

57. Given the fact that the NH Amendment Act, 1997 has notbeen challenged before us, we refrain from saying anything more. Sufficeit to say that, as has been held in Taherakhatoon v. SalambinMohammad, (1999) 2 SCC 635 (at para 20), even after we declarethe law and set aside the High Court judgment on law, we need notinterfere with the judgment on facts, if the justice of the case does notrequire interference under Article 136 of the Constitution of India.

58. Given the fact that in several similar cases, the NHAI hasallowed similarly situated persons to receive compensation at a muchhigher rate than awarded, and given the law laid down in NagpurImprovement Trust (supra), we decline to exercise our jurisdiction underArticle 136 in favour of the appellants on the facts of these cases. Also,given the fact that most of the awards in these cases were made 7-10years ago, it would not, at this distance in time, be fair to send back thesecases for a de novo start before the very arbitrator or some otherarbitrator not consensually appointed, but appointed by the CentralGovernment. The appeals are, therefore, dismissed on facts with noorder as to costs.

Devika Gujral

Appeals dismissed.

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