Allahabad High Court
Ram Awadh vs Competent Authority/Spl. Land ... on 16 April, 2019
Equivalent citations: AIR 2019 (NOC) 620 (ALU), AIRONLINE 2019 ALL 567, 2019 (4) ALJ 31, (2019) 2 ALL WC 2016, (2019) 4 ADJ 794 (ALL)
Bench: Devendra Kumar Arora, Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR RESERVED Case :- LAND ACQUISITION No. - 9689 of 2019 Petitioner :- Ram Awadh Respondent :- Competent Authority/Spl. Land Acquisition Officer,Bbk. & Anr Counsel for Petitioner :- Vijay Kumar Tewari,Avanish Tewari Counsel for Respondent :- C.S.C.,Samidha Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Manish Mathur,J.
(Delivered by Hon'ble Manish Mathur, J.) (1) Heard Mr. Vijay Kumar Tewari, learned Counsel for the petitioner, learned State Counsel appearing on behalf of opposite parties No.1 and Ms. Samidha, learned Counsel appearing on behalf of opposite parties No.2.
(2) The petitioner has approached this Court under Article 226 of the Constitution of India with the following reliefs :
"I. To issue writ, order or direction in the form of mandamus whereby directing the opposite party No.2 to deposit the enhanced amount of the compensation along with 9% interest from the date of the possession, as declared by the Learned District Magistrate, Barabanki/Arbitrator in his arbitral award dated 18.09.2015 in the account of the Opposite Party No.1 and further to direct the Opposite Party No.1 to disburse this amount in the account of the petitioner, immediately, as soon as, the money is deposited by the Opposite Party No.2.
II. That this Hon'ble Court may pass any other order which deem fit and proper in favour of the petitioner."
(3) Shorn off unnecessary details the facts of the case are as under :
The land of about 11.496 Hectare in Malinpur Village, Pargana Suryapur, Tehsil Ramsanehighat, Barabanki was sought to be acquired by the Central Government for widening National Highway No.28 from Lucknow to Uttar Pradesh/Bihar Border, by a notification issued under Section 3-A(1) of the National Highways Act, 1956 (hereinafter referred to as "Act"), published in the gazette on 1.6.2005. After holding an enquiry under Section 3-C(2) of the Act, a declaration under Section 3-D(1) of the Act was published on 18.10.2005. Thereafter, a notice under Section 3-G(3) of the Act was issued in two daily newspapers, namely, Dainik Jagran on 19.11.2005 and Nispaksh Sahara Times on 21.11.2005 inviting claims from persons interested in the land, for determining the compensation payable.
(4) According to the petitioner, on coming to know the acquisition proceedings, the aggrieved persons have filed their objections, which was scrutinized by the competent authority and after scrutinizing the objections, an award was declared by the competent authority/Special Land Acquisition Officer, Barabanki on 31.8.2006, by which, compensation @ Rs.4.20 per sq. ft. was determined by the respondent No.1-Competent Authority/Special Land Acquisition Officer, Barabanki.
(5) It has been pleaded that in pursuance to the aforesaid award dated 31.8.2006, though the petitioner got the basic compensation as awarded by the competent authority in respect of his land, bearing Khasra No. 277, 179, 182, 183 and 184, situated at Village Malinpur, Pargana-Suryapur, Tehsil Ram Sanehi Ghat and District Barabanki but as adequate/just compensation was not awarded, the petitioner has filed the arbitration petition, bearing No. 426/170 (14-15) (computerized case No. D-20150412001272) against the award dated 31.8.2006 before the District Magistrate, Barabanki (Arbitrator as appointed under Section 3G (5) of the Act), seeking enhancement in the rate of compensation as awarded to him vide award dated 31.8.2006.
(6) According to the petitioner, the District Magistrate, Barabanki/Arbitraror, after going through the record and perusing the written arguments, has passed an order dated 18.9.2015, whereby the rate of compensation was enhanced from Rs. 4.20 per sq. ft. to Rs. 52/- per sq. ft. along with 9% interest from the date of possession. Against the arbitral award dated 18.9.2015, the respondent No.2-National Highway Authority of India has filed an appeal under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "1996 Act") before the District Judge, Barabanki, which was registered as Case No. 315 of 2015.
(7) Submission of the learned Counsel for the petitioner is that in the appeal preferred by the respondent No.2, there is no stay order till date but no amount of enhanced rate of compensation as awarded by the Arbitrator vide arbitral award dated 18.9.2015 has been paid to the petitioner. On enquiry, it has been informed by the respondent No.1 that enhanced rate of compensation has not been deposited by the respondent No.2. In these backgrounds, the petitioner is constrained to approach this Court by means of the present writ petition.
(8) Learned Counsel for the petitioner has contended that in such cases, the Central Government has notified rules known as the "National Highways (Manner of depositing the amount by the Central Government with the competent authority for acquisition of land) Rules, 1998" (hereinafter referred to as "the Rules of 1998"), which statutorily requires the National Highways Authority to deposit the enhanced amount of compensation within seven days of determination made by the Arbitrator with the competent authority. His submission is that inspite of the aforesaid statutory provisions and inspite of an award having been passed by the Arbitrator in favour of the petitioner, the respondent National Highway Authority has not disbursed the amount awarded to the petitioner who is still awaiting the amount inspite of the fact that his lands have been taken away by the authorities for the purposes of widening of the Highways and construction thereon has also been made by them. In such circumstances, the respondent authorities be directed to immediately disburse the amount of compensation to the petitioner.
(9) Per contra, learned Counsel for the respondents has submitted that the Rules of 1998, regarding disbursement of the amount relied upon by the petitioner has been repealed and superseded by notification dated 18.1.2019 published in the Gazette of India (Extraordinary) and new rules, namely, "the National Highways (Manner of depositing the amount by the Central Government; making requisite funds available to the competent authority for acquisition of land) Rules, 2019" (hereinafter referred to as "the Rules of 2019"), have been notified, which being procedural are applicable to all cases including that of the petitioner. It is submitted that as per the said procedure notified under the Rules for disbursement of the amount, the National Highway Authority of India or the acquiring authority is required to deposit the amount enhanced by the Arbitrator within 30 days of communication of the award unless such award has been further challenged by either of the aggrieved parties.
(10) Learned Counsel for the respondents has further submitted that as per the provisions of Rules 3 (I) (b) and 3(iv) of the Rules of 2019, the competent authority is, in turn, enjoined with the duty to disburse the compensation amount to the landowners or the persons interested therein preferably by electronically crediting the said amount into their respective bank accounts. It is submitted that in such circumstances and in view of the provisions of the Rules of 2019, as the National Highways Authority of India has taken up proceedings under Sections 33 and 34 of Act, 1996, therefore, the petitioner is not entitled for the relief as sought for.
(11) Lastly, learned Counsel for the respondents has submitted that in view of the provisions of Section 3G (6) of the Act of 1956, the provisions of the 1996 Act have also been made applicable, the appropriate remedy available to the petitioner for recovering the amount is to initiate proceedings for execution as prescribed and provided under the provisions of the 1996 Act and in such circumstances, as statutory efficacious remedy is available to the petitioner, the instant petition be dismissed.
(12) We have heard learned Counsel for the parties and gone through the record.
(13) The 1956 Act is enacted specifically for the purpose of acquisition of land for National Highways and for declaration of certain highways as National Highways. Section 3A of the 1956 Act gives power to the Central Government to acquire land for public purpose by complying with the procedure prescribed therein. Determination of the amount of compensation payable for the land acquired is dealt with under Section 3G of the 1956 Act. Section 3G (1) of 1956 Act provides that where any land is acquired, an amount which shall be determined by an order of the competent authority, shall be paid. Section 3G (5) states that if the amount determined by the competent authority under sub-section (1) is not acceptable 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 Government. Section 3G (6) provides that subject to the provisions of that Act, the provisions of the 1996 Act shall apply to every arbitration under the 1956 Act. Sub-section (7) of Section 3G of the 1956 Act provides for the matters that shall be taken into account by the competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5). The provisions contained in the 1956 Act constitute a complete scheme for acquisition of land for the purpose of national highways.
(14) In the instant case, there is no dispute to the fact that the land of the petitioner was acquired under 1956 Act for the purpose of widening of National Highway 28, from Lucknow to Uttar Pradesh/Bihar Border. The competent authority fixed the amount of compensation for land payable to the petitioner. The petitioner had recoursed to arbitration proceedings as provided under the 1956 Act. The Arbitrator enhanced the amount of compensation payable to the petitioner. The respondent No.2 challenged the arbitral award passed by the arbitrator by filing applications before the District Court under Section 34(1) of the 1996 Act but as even though there is no interim order in favour of the respondents in the proceeding initiated by the respondent No.2 under Section 34 (1) of the 1996 Act, no compensation as awarded by the Arbitrator has been granted to the petitioner, which compelled the petitioner to knock the door of this Court.
(15) It is admitted by the petitioner that National Highway Authority of India has challenged the order of District Magistrate, Barabanki/Arbitrator under Section- 34 of the 1996 Act. Section 3 of 2019 Rules deals with the manner in making requisite funds available to the competent authority. The relevant portion of Section 3 of 2019 Rules is quoted hereinbelow:-
"3 The manner of making requisite funds available to the competent authority shall be as follows:-
(i) Subject to provisions of the Act, the executing agency authorised by the Central Government in this behalf, shall open and maintain an account with one or more Scheduled Commercial Banks for remittance of the amount for land acquisition across the country, with arrangements for access to such account by the competent authority for specific jurisdiction as per authorisation of limits by the executing agency. The Executing Agency shall, on the demand raised by the competent authority before announcement of the award, issue requisite authorisation limits in favour of the competent authority for withdrawal of amount from such account as per requirements from time to time for disbursement to the landowners or persons interested therein through an electronic banking mechanism as per extant Reserve Bank of India regulations and the said authorisation limits, revolving in nature, shall entitle the competent authority to withdraw money from such account as per requirements, without any further reference to the land acquiring agency, for disbursement to the landowners or persons interested therein, as follows:-
(a) The amount determined under Section 3(G) of the Act within fifteen days of the raising of demand by the competent authority, and
(b) Where the amount determined by the Arbitrator under Sub-Section (7) of Section 3G of the Act is in excess of the amount determined by the competent authority, the excess amount, together with interest, if any, awarded by the Arbitrator, within 30 days of the communication of Arbitrator's award, unless such Award has been further challenged by either of the aggrieved parties."
(16) The above Section 3 (b) creates a rider on payment of enhanced compensation and interest subject to decision of application under Section 34 of the 1996 Act, therefore, unless and until the proceedings of Section 34 of 1996 Act is decided by the competent Court, the enhanced amount of compensation and interest cannot be paid to the petitioner.
(17) Apart from above, Section 36 (1) (as amended by Act No. 3 of 2016) contains the following provisions:
"[36. Enforcement- (1) Where the time for making an application to set aside the arbitral award under section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court."
(18) The above amended provisions also creates a bar on enforcement of award subject to proceedings of Section 34 of the Act.
(19) In view of the above, the present petition being misconceived is liable to be dismissed, which is, accordingly, dismissed.
Order Date : 16 April, 2019
Ajit/- [Manish Mathur, J.] [D.K. Arora, J.]