Analysis Of The Conflict Between Lex Specialis And Lex Generalis From The Perspective Of Nhai v. Sayedabad Tea Company (2019)

• Published date: 08 December 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: S&A Law Offices
• Author: Rituparna Chand

INTRODUCTION

It has been observed from the current projections that the Highway construction industry shall be registering a tremendous growth of 133% by 2025 which is considered to be higher than any country in the world.¹ Even though the National Highways are growing at a tremendous pace, but the question arises if the landowners are presented with a just and fair platform to raise their grievance with respect to the compensation.²

The National Highway Act, 1956 ((hereinafter 'NH act') is a complete code in itself as far as the acquisition of land, disbursement of compensation and settlement of disputes are concerned. According to the NH act, after the land is acquired under the NH Act, the compensation is paid to the landowners as decided by the competent authority authorised by the Central Government.³

In a situation where the landowners are not satisfied with the amount given to them, then they are vested with the right to invoke arbitration can be under Section 3G(5) of the NH act (although, the right is applicable to both the parties) but the power of appointment of the arbitrator rests with the Central Government without any say of the landowners.⁴ Keeping in mind the central legislation of the Arbitration & Conciliation Act, 1996 which as a blanket rule applies to all disputes arising out of an agreement, the issue arises pertaining to the resolution of the land disputes under the application of Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter 'A&C Act') if the same is maintainable under Section 3G (5) of the NH act, 1956 which provides for the appointment of an arbitrator by the Central Government.

This article shall be addressing the existing ambiguity created by the Supreme Court with respect to the appointment of the arbitrator pertaining to the provisions mentioned under the NH Act and A&C Act. It shall be further resolving the dispute between Lex Specialis and Lex Generalis by discussing the apt suggestions addressing the practical implications involved in the judgement of National Highway Authority of India v. Sayedabad Tea Company and Co.

CASE ANALYSIS OF THE NHAI V. SAYEDABAD TEA COMPANY⁵

I. Brief Facts of the Case

NHAI acquired a tea estate in 2007 under Section 3(D) of the NH Act. Sayedabad Tea company, dissatisfied with the compensation given to them, filed an application for the appointment of the arbitrator under Section 3G (5) of the NH Act. As the Central Government failed to respond within 30 days not abiding with the prescribed timeframe, the tea company moved an application under A&C Act. During the pendency of the Section 11 application before the Hon'ble Calcutta High court, the Central Government appointed an arbitrator.

II. Decision of the High Court and Supreme Court

The Hon'ble High Court dismissed the...