WP(C) 4036/2009 BEFORE THE HON’BLE MR. JUSTICE BP KATAKEY Heard Mr. Bora, learned counsel for the petitioner, Mr. Handique, learned State counsel appearing for the respondent Nos. 1, 2 and 3 and Ms P Das, learned CGC a ppearing for respondent No. 5. None appears for respondent No. 4. The petitioner, by the present petition, has challenged the order dated 11.5.200 9 passed by the Commissioner, North Assam Division, Tezpur who is the arbitrator appointed under the provision of the National Highways Act, 1956. The Commissio ner by the said order has rejected the petition filed by the petitioner for enha ncement of the compensation awarded by the competent authority, on the basis of the report submitted by the Deputy Commissioner, Morigaon dated 16.2.2009. The learned counsel for the petitioner submits that though the petitioner being not satisfied with the award passed by the competent authority, filed the applic ation before the arbitrator for enhancement of the compensation awarded, the sai d application has been rejected by the arbitrator without hearing the petitioner and without considering the documents filed by him and solely on the basis of t he report submitted by the Deputy Commissioner, Morigaon dated 16.2.2009. The le arned counsel, therefore, submits that the impugned order needs to be interfered with and the matter may be remitted to the arbitrator for a fresh decision in a ccordance with the provision of the National Highways Act, 1956. Mr. Handique, learned State counsel appearing for the respondent No. 2 placing r eliance on the affidavit-in-opposition filed on behalf of the respondent No. 2 n amely the Commissioner, North Assam Division, who is the arbitrator appointed un der the provision of the said Act, has submitted that the application of the pet itioner has been rejected on the basis of the report of the Deputy Commissioner, who is the competent authority, dated 16.2.2009. The learned State counsel furt her submits that it is apparent from the said affidavit as well as the impugned order that the materials placed before the arbitrator were not considered and th e petitioner was not heard. The learned CGC appearing for the respondent No. 5 submits that the arbitrator h as rejected the petition filed by the petitioner for enhancement of the compensa tion awarded by the competent authority keeping in view the facts and circumstan ces as narrated by the Deputy Commissioner in the communication dated 16.2.2009 and as the petitioner is not entitled to enhancement of the compensation awarded . It appears from the materials made available that the land measuring 1 bigha 4 k athas 5 lechas covered by Dag No. 403 along with the building standing thereon w as acquired under the provision of the National Highways Act, 1956 and the petit ioner has been awarded in all Rs. 18,96,987/- as compensation by the competent a uthority for the said land, building and the standing trees which amount was rec eived by the petitioner on 30.1.2009, on protest. The petitioner being not satis fied with the amount of compensation so determined by the competent authority fi led an application for enhancement of the same before the arbitrator namely; the Commissioner, North Assam Division, as required under Sub Section 5 of Section 3 G of the said Act. The arbitrator, thereafter, called for a report from the co mpetent authority who passed the award vide communication dated 19.1.2009. The D eputy Commissioner, Morigaon on 16.2.2009 submitted the report before the Commis sioner on the basis of which the Commissioner, North Assam Division vide order d ated 11.5.2009 has dismissed the application filed by the petitioner seeking enh ancement of the amount of compensation awarded. The impugned order dated 11.5.20 09 does not reveal furnishing copy of the aforesaid report dated 16.2.2009 to th e petitioner or hearing the petitioner as well as consideration of the petitione r’s case for enhancement. The affidavit filed by the respondent No. 2 is also si lent on hearing the petitioner and supply of the copy of the said report. The re spondent No. 2 in fact in the affidavit-in-opposition has admitted that the appl ication filed by the petitioner has been dismissed solely on the basis of the De puty Commissioner’s report dated 16.2.2009. Sub Section (5) of Section 3G of the Act provides that if the amount determined by the competent authority under Sub Section (1) or Sub Section (2) is not accep table to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Gov t. It is not in dispute that the Commissioner, North Assam Division, Tezpur has bee n appointed as arbitrator for that purpose under the Act. Sub Section (6) of Section 3G of the Act provides that subject to the provision of the Act, the provisions of the Arbitration and Conciliation Act, 1996 shall a pply to every arbitration under the Act. Sub Section (7) of Section 3G requires the competent authority or the arbitrator to take into consideration the market value of the land on the date of publicat ion of the notification under Section 3A; the damage, if any, sustained by the p erson interested at the time of taking possession of the land by reasons of seve ring of such land from other land; the damage, if any, sustained by the person i nterested at the time of taking possession of the land, by reason of acquisition injuriously affecting other immovable property in any manner or his earnings an d if in consequences of the acquisition of the land, the person interested is co mpelled to change his residence or place of business, the reasonable expenses, i f any, incidental to such change, while determining the amount of compensation t o be paid. In the instant case, it appears from the impugned order dated 11.5.2009 passed b y the Commissioner, North Assam Division, Tezpur that the application filed by t he petitioner has been rejected solely on the basis of the report dated 16.2.200 9 submitted by the Deputy Commissioner without serving a copy of the same on the petitioner and without hearing him. That being the position the impugned order dated 11.5.2009 passed by the Commiss ioner, North Assam Division, Tezpur is set aside. The matter is remitted to the arbitrator namely the Commissioner, North Assam Division, Tezpur for deciding th e application filed by the petitioner afresh giving opportunity to the parties t o produce evidence in support of the respective claims. The petitioner shall submit the certified copy of the order passed today before the Commissioner, who shall fix the date convenient to him for adjudication of t he said application with due notices to all concerned. The writ petition is accordingly allowed to the extent indicated above. No cost.