Delhi High Court
Smt. Manju Arora vs Union Of India And Ors. on 14 August, 2020
Equivalent citations: AIRONLINE 2020 DEL 1152
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
$~VC-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 14th August,2020
+ W.P. (C) 1179/2019
MANJU ARORA .....Petitioner
Through: Mr. Rajesh Yadav, Advocate
versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Ripudaman Bhardwaj, CGSC
for R-1/UOI.
Ms. Padma Priya & Mr. Dhruv
Nayar, Advocates for R-2/NHAI.
Mr. Yeeshu Jain & Ms. Jyoti
Tyagi, Advocates for R-
3/CALA/LAC.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
W.P. (C) 1179/2019, C.M. Appl. No.13801/2020 (for ad-interim ex-
parte stay/direction)
1. This petition was filed with the following prayers: -
"(a) issue a writ of certiorari or any other appropriate
writ order or direction in the nature thereof, thereby
quashing the determination of the amount payable as
compensation (award) bearing No.02/2018/NHAI,
passed by the Respondent No.3, the Competent Authority
for Land Acquisition (CALA), dated 18.12.2018, under
W.P. (C) 1179/2019 Page 1 of 8
Section 3G(1) of the National Highways Act, 1956, in
respect of land of the Petitioner bearing Survey/Khasra
No.424/1, measuring 2107 square meters (area in
hectare being 0.2107), Village Rangpuri, Tehsil Vasant
Vihar, New Delhi;
(b) issue a writ of mandamus or any other appropriate
writ, order or direction in the nature thereof, thereby
directing the Respondent No.3, the Competent Authority
for Land Acquisition (CALA) to conduct a fresh
determination of amount payable as compensation and
pass a fresh award under Section 3G(1) of the NH Act,
treating the land of the Petitioner bearing
Survey/Khasra No.424/1, measuring 2107 square meters
(area in hectare being 0.2107), Village Rangpuri, Tehsil
Vasant Vihar, New Delhi, as 'urban land' and its user as
'commercial/residential';
(c) issue a writ of certiorari or any other appropriate
writ, order or direction in the nature thereof, thereby
quashing the appointment of District Magistrate, District
New Delhi, by the Central Government, as an Arbitrator
under Section 3 G(5) of the NH Act."
2. The petition came up first before this Court on 4 th February, 2019,
by order of which date, the further proceedings before the Arbitrator
appointed under Section 3G(5) of the National Highways Act,1956 were
stayed and which order was made absolute on 19th February, 2020 and is
continuing till now.
3. The petition was adjourned from time to time and the pleadings
have been completed.
4. On 1stJuly, 2020, CM Appln.13801/2020 of the petitioner for
interim relief, seeking to restrain the respondents from taking over
possession of the land in occupation of the petitioner and with respect
whereto acquisition proceedings under the National Highways Act had
W.P. (C) 1179/2019 Page 2 of 8
been undertaken,came up before this Court, when noticing that the
challenge in the petition was only qua quantum of compensation and not
to acquisition, orders were passed for delivery of possession and we are
today informed that the possession of the land stands delivered. By the
same order of 1st July, 2020, the petition was posted for hearing for today,
as already scheduled,via virtual hearing.
5. The counsel for the petitioner, at the outset, has contended that
another petition namely, W.P. (C) 9372/2018 titled Moti Lal Bothra
(HUF) Through: Karta Shri Moti Lal Bothra v. Office Of The
Competent Authority (Land Acquisition) Under The National Highways
Act, 1956 & Ors.,also challenging the appointment of the District
Magistrate as the Arbitrator, under Section 3G(5) of the National
Highways Act,was also scheduled to be listed for today, but has not been
listed for hearing, in the absence of anorder thereinfor virtual hearing. It
is contended that the petitionerin that writ petition has filed certain replies
received to the queries under the Right to Information Act, 2005 and
which helpthe case of the petitioner herein also and the present petition be
also thus ordered to be taken up on whichever date W.P. (C) 9372/2018
stands adjourned, as per the general notification during the pandemic in
this regard.
6. The counsel for the respondent No.2 National Highways Authority
of India (NHAI) has opposed the request of adjournment contending that
the arbitration proceedings are held up. It is further stated that the
question of the challenge to the District Magistrate acting as Arbitrator
under Section 3G(5) of the National Highways Act has already been
negated in Anubhav Chand Kathuria v. Union of India, 2019 SCC
W.P. (C) 1179/2019 Page 3 of 8
OnLine Del 7307 (DB),in which also the counsel for the petitioner herein
was the counsel for the petitioners and the said judgment has attained
finality.It is thus contended that as far as the prayer in the present petition
challenging the nomination by the Central Government of the District
Magistrate, to actas Arbitrator is concerned, in view of the judgment in
Anubhav Kathuriasupra, does not survive.
7. We have in the circumstances proceeded to hear the counsel for the
petitioners.
8. The counsel for the petitioner has contended that the land of the
petitioner with respect whereto notification under Section 3A of the
National Highways Actwas issued, was being used by the petitioner for
operatinga petrol pump, after obtaining permissions from all the
authorities concerned and was thus being put to commercial use; however
in Section 3A notification, the same was described as agricultural. It is
further contended that the petitioner preferred W.P.(C)6117/2018
impugning the Section 3A notification interalia on the said ground and
which writ petitionwas disposed of vide order dated 30 thMay, 2018,
Annexure P-3to this petition, with a direction that notwithstanding the
description of the subject land as agricultural in the notification dated 12th
January, 2018, the petitioner will be at liberty to contend that because the
subject land was used for commercial purposes, the compensation, if any
payable to her, should be the same that ought to be paid qua a commercial
property. It is argued that notwithstanding the said direction, the
respondent No. 3 Competent Authority for Land Acquisition (CALA)
under the National Highways Act, while passing Section 3G notification
(award), has not correctly dealt with the said objection of the petitioner
W.P. (C) 1179/2019 Page 4 of 8
and Section 3G notification (award), to the extent holding that the land
remained agricultural notwithstandingbeing put to use as a petrol pump,
is erroneous and liable to be set aside with a direction to the respondent
No. 3 CALA to re-determine the compensation, treating the land as
commercial.
9. We have enquired from the counsel for the petitioner, whether not
it is open to the petitioner to raise the said question before the Arbitrator
under Section 3G(5) of the National Highways Act.
10. The counsel for the petitioner states that though it is so open to the
petitioner, but since the arbitration under Section 3G(5) is subject to the
provisions of the Arbitration and Conciliation Act, 1996 and the remedy
against the Award in the said arbitration, under Section 34 of the
Arbitration Act is of limited scope, it is not an equally efficacious remedy
and is not an alternative remedy owing whereto,this Court should refuse
to exercise the writ jurisdiction. Attention is invited by the counsel for the
petitioner to Sudesh Solanki Vs. Delhi Development Authority2012 SCC
OnLine Del 5999 (DB);Gur Pratap Singh Vs. Union of India 2004 (111)
DLT 25; Lt. Governor of Delhi Vs. Gurpratap Singh 2004 (113) DLT
690 (DB); Sanraj Farms Private Limited Vs. Charan Singh &
Another2019 SCC OnLine Del 10741; Hari Chand Vs. Union of
India(2001) 91 DLT 602 (DB); Delhi Development Authority Vs. Land
Acquisition Collector & Others, 2006 SCC Online Del 443; and
Competent Authority Vs. Barangore Jute Factory and Others, (2005) 13
SCC 477, toshow that Section 3G notification (award),in computing the
compensation, treating the land as agricultural, is contrary to the direction
in the order dated 30th May, 2018 in W.P.(C)6117/2018earlier filed by the
W.P. (C) 1179/2019 Page 5 of 8
petitioner.
11. However, once we have shown our disinclination to entertain the
challenge to the Section 3G determination in the writ jurisdiction owing
to the remedy of arbitration available,the counsel for the
petitioner,drawing attention to paragraphs20, 23 and 28ofAnubhav
Kathuriasupra,where the counsels for NHAI and CALA had conceded
that the powers of the Arbitrator are the same as of the CALA and all
questions, as urged before CALA, can also be urged before the Arbitrator,
has not pressed the said aspect further. For this reason, we do not deem it
apposite to detail the arguments of the counsel for the petitioner before us
in this regard or to deal with the same.
12. As aforesaid, the challenge to the District Magistrate as Arbitrator,
has already been negated.
13. The counsel for the respondent No. 2NHAI, in addition to
Anubhav Kathuriasupra has also drawn attention to Vishwasrao
Dattatray Kachare Vs. Union of India 2017 SCC OnLine Bom 451,
Surendra Kumar Chhabda Vs. State of Chattisgarh
MANU/CG/0693/2017 andNational Highways Authority of India Vs.
Sayedabad Tea Company Ltd. & Ors., 2019 SCC Online SC 1102,to
contend that therein also,the Courts have held that since the appointment
of Arbitrator under Section 3G(5) of the National Highways Act is by
Central Government and not by NHAI, which has acquired the land, the
appointment of Arbitrator by the Central Government is not bad under the
Arbitration and Conciliation Act and merely because the District
Magistrate has been appointed as the Arbitrator, there is no
presumptionthatwould be biased in favour of NHAI.
W.P. (C) 1179/2019 Page 6 of 8
14. We thus dispose of this petition, declining the reliefs claimed in
prayer paragraphs in terms of Anubhav Kathuriasupra and by clarifying
that the disposal of this petition and the description of the land as
agricultural in Sections 3A, 3D and 3G notifications, would not come in
the way of the petitioner contending in the arbitration proceedings under
Section 3G(5) of the National Highways Act, that the land is commercial
and that the petitioner is entitled to compensation at commercial and not
agricultural rates, and by reiterating the statements of the counsels for the
NHAI and CALAas contended inAnubhav Kathuriasupra,that they
would not object to such claim of the petitioner on the ground of
Arbitrator not having the jurisdiction to go into the said question.
15. The counsel for the petitioner has also stated that the husband of
the petitioner is a '1971 War Veteran' and is not being released the
compensation already deposited, for frivolous reasons and is being
harassed.
16. Ms. Jyoti Tyagi, Advocate for the respondent No. 3 CALA to
ensure that the compensation already deposited is released to the
petitioner without any further delay. The counsel for the petitioner, if
faces any difficulty, may contact Ms.Jyoti TyagiAdvocate in this regard.
17. At this stage, Ms.Jyoti Tyagi Advocate states that the
compensation has not been released because a claim therefor has also
been made by Indian Oil Corporation and the respondent No. 3 CALA
has sought clarification from the respondent No. 2 NHAI, which has not
been received as yet.
18. Ms.Padma Priya Advocate for the respondent No. 2 NHAI to also
ensure that the decision, if any on the clarification sought, if not already
W.P. (C) 1179/2019 Page 7 of 8
furnished, is furnished at the earliest.
19. The petition is disposed of.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J. AUGUST 14, 2020/ck/s W.P. (C) 1179/2019 Page 8 of 8