Karnataka High Court
Allabhaksha S/O. Late Hussain Sab vs The Competent Authority on 7 September, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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W.P. No. 104314 of 2023
C/W W.P. NO. 104409 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 07TH DAY OF SEPTEMBER 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 104314 OF 2023
C/W WRIT PETITION NO. 104409 OF 2023 (LA-RES)
IN W.P. NO. 104314 OF 2023:
BETWEEN:
ALLABHAKSHA S/O LATE HUSSAIN SAB,
AGE. 58 YEARS, OCC. AGRICULTURE,
R/O 29TH WARD, 3RD MAIN NEAR,
100 BED HOSPITAL ROAD,
M.J. NAGAR, HOSAPETE,
VIJAYANAGR DISTRICT.
... PETITIONER
(BY SMT. ARCHANA A. MAGADUM, ADVOCATE)
AND:
1. THE COMPETENT AUTHORITY,
SPECIAL LAND ACQUISITION OFFICER,
NATIONAL HIGHWAYS AUTHORITY OF INIDA,
Digitally
signed by
VISHAL
VIDYANAGAR 5TH CROSS, 4TH MAIN ROAD,
NINGAPPA
VISHAL
NINGAPPA PATTIHAL
PATTIHAL Date:
OPPOSITE GANGAMATA TEMPLE,
2023.10.04
17:31:22
+0530
BALLARI-583104.
2. NATIONAL HIGHWAY AUTHORITY OF INDIA,
BY ITS PROJECT DIRECTOR,
C-10, "SHREE NILAYAM",
1ST MAIN, 2ND CROSS, VIVEKANANDA NAGAR,
BEHIND R.T.O. OFFICE, HOSAPETE-583201.
... RESPONDENTS
(BY SRI. BIDAN, SR. COUNSEL FOR SRI. SHIVASAI M. PATIL, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICELS 226 AND 227
OF THE CONSTITION OF INDIA, PRAYING TO ISSUE A WRIT OF
MANDAMUS DIRECTING THE RESPONDENTS TO RELEASE AND PAY
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W.P. No. 104314 of 2023
C/W W.P. NO. 104409 of 2023
ENTIRE AMOUNT OF COMPENSATION ALONG WITH STATUTORY
BENEFITS AND INTEREST TO THE PETITIONER AS PER THE AWARD
PASSED BY THE ARBITRATOR DATED. 11/08/2022 VIDE ANNEXURE-
B BEARING NO. LAQ-ARB/109/777/2013-14 & ETC.
IN W.P. NO. 104409 OF 2023:
BETWEEN:
1. ASHA RANI D/O RAMJILAL,
AGE. 60 YEARS, OCC. HOUSEHOLD,
R/O. "RAMESHWARI KUNJ", 4TH CROSS,
PATEL NAGAR,HOSPET-683201,
VIJAYANAGAR.
2. USHA RANI D/O RAMJILAL,
AGE. 64 YEARS, OCC. SERVICE,
R/O. "RAMESHWARI KUNJ", 4TH CROSS,
PATEL NAGAR, HOSPET-583201,
VIJAYANAGAR.
3. RASHMI RANI D/O RAMJILAL,
AGE. 57 YEARS, OCC. HOUSEHOLD,
R/O. "RAMESHWARI KUNJ", 4TH CROSS,
PATEL NAGAR, HOSPET-583201,
VIJAYANAGAR.
... PETITIONERS
(BY SMT. ARCHANA A. MAGADUM, ADVOCATE)
AND:
1. THE COMPETENT AUTHORITY,
SPECIAL LAND ACQUISITION OFFICER,
NATIONAL HIGHWAYS AUTHORITY OF INDIA,
NOW AT: VIDYANAGAR 5TH CROSS, 4TH MAIN ROAD,
OPPOSITE GANGAMATA TEMPLE, BALLARI-583104.
2. NATIONAL HIGHWAY AUTHORITY OF INDIA,
BY ITS PROJECT DIRECTOR, C-10, "SHREE NILAYAM",
1ST MAIN, 2ND CROSS, VIVEKANANDA NAGAR,
BEHIND R.T.O. OFFICE,HOSAPETE-583201.
... RESPONDENTS
(BY SRI. BIDAN, SR. COUNSEL FOR
SRI. SHIVASAI M. PATIL, ADVOCATE)
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W.P. No. 104314 of 2023
C/W W.P. NO. 104409 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICELS 226 AND 227
OF THE CONSTITION OF INDIA, PRAYING TO ISSUE A WRIT OF
MANDAMUS DIRECTING THE RESPONDENTS TO RELEASE AND PAY
ENTIRE AMOUNT OF COMPENSATION ALONG WITH INTEREST TO
THE PETITIONERS AS PER THE AWARDS PASSED BY THE
ARBITRATOR DATED 11/08/2022 VIDE
I) ANNEXURE-B BEARING NO.REV/LAQ/ARB/109(904)/2013-14 DTD
11/08/2022, II) ANNEXURE-B1 BEARING
NO.REV/LAQ/ARB/109(581)/2013-14 DTD 11/08/2022
III) ANNEXURE-B2 BEARING NO.REV/LAQ/ARB/109(905)/2013-14
DTD 11/08/2022, IV) ANNEXURE-B3 BEARING
NO.REV/LAQ/ARB/109(579)/2013-14 DTD 11/08/2022 AND ETC.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED ON
01.09.2023 AND COMING ON FOR PRONOUNCEMENT, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court seeking a direction by issuance of a writ in the nature of mandamus to release and pay the entire amount of compensation along with statutory benefits and interest to the petitioners in terms of the award of the Arbitrator inter alia.
2. Facts, in brief, germane are as follows:-
Writ Petition No.104314 of 2023-
(a) The petitioner is the owner of land bearing Sy.No.63/A2 measuring 0.82 acres (1983 sq.mts.) situated at Jambunathanahalli Village, Hosapete Taluk. The 1st respondent/ National Highways Authority of India ('NHAI' for -4- W.P. No. 104314 of 2023 C/W W.P. NO. 104409 of 2023 short) acquires the land of the petitioner for the purpose of widening and formation of 4 lane road of NH-63 from Hospet of Bellary passing through Andra Pradesh and Karnataka borders.
Acquisition was complete and a final notification was issued. The Special Land Acquisition Officer passed an award on 20-11- 2016 fixing the market value of the property at Rs.1900/- per sq. meter. The petitioner then seeks enhancement of compensation on the ground that he had no agricultural potential (NA potential) and the Arbitrator/Deputy Commissioner, Bellary enhances the compensation from Rs.1900/- per sq. meter to Rs.7941/- per sq. meter in terms of his award dated 11-08-2022. The award was called in question by the 1st respondent by filing an appeal before the concerned Court invoking Section 34(2) of the Arbitration and Conciliation Act, 1996 ('the Act' for short). The petitioner also files an appeal before the very Court seeking enhancement of compensation along with other benefits. Both these appeals are numbered as A.A. No.17 of 2022 and A.A.No. 9 of 2022. No stay is granted in favour of the NHAI which leads the petitioner to file an execution petition seeking execution of the award in Execution case No.20 of 2023. The petitioner has thus lost complete rights over the land that he was in possession of -5- W.P. No. 104314 of 2023 C/W W.P. NO. 104409 of 2023 pursuant to acquisition and is paid only at the rate fixed by the Special Land Acquisition Officer of the respondent on the ground that the NHAI is neither depositing the amount nor paying the amount. Therefore, the petitioner is knocking at the doors of this Court in the subject petition seeking a direction for deposit of the entire amount and payment of the same to the hands of the petitioner.
Writ Petition No.104409 of 2023:
(b) The petitioners in the subject petition are owners of the following lands in Kariganur Village of Hosapete Taluk which are proposed to be acquired by the 1st respondent/NHAI for the purpose of widening of road:
(a) R.S.No.183/3 measuring 344 sq.mtrs. & R.S.No. 183/3B measuring 3624 sq.mtrs. from the 1st petitioner.
(b) R.S.No.183/4 measuring 579 sq.mtrs. out of 3 acres and Sy.No.183/4B measuring 3699 sq.mtrs.
out of 3 acres from the 2nd petitioner
(c) R.S.No.183/2B measuring 7782 sq. mtrs. out of 4 acres from the 3rd petitioner.
-6-W.P. No. 104314 of 2023
C/W W.P. NO. 104409 of 2023 The Land Acquisition Officer of the 1st respondent fixed the market value of lands of the petitioners at Rs.66/- per sq. mtrs. The petitioners then approach the Arbitrator/the Deputy Commissioner for enhancement of compensation. The Deputy Commissioner enhances it to Rs.750/- per sq. mtrs. and Rs.296/- for lands which did not have NA potential. Being aggrieved by the enhancement of compensation, the NHAI filed appeal before the learned Sessions Judge invoking Section 34(2) of the Act. The petitioners also have filed execution petitions which are pending consideration at the hands of the executing Court. Therefore, the NHAI seeks to set aside the enhancement of compensation awarded and the petitioners seek to execute the award of the Arbitrator. There is no interim order granted before the concerned Court against the order passed by the Arbitrator.
3. Heard Smt. Archana A.Magadum, learned counsel appearing for the petitioners in both the petitions and Sri Bidan, learned senior counsel representing the respondents.
4. The learned counsel appearing for the petitioners would seek to contend that the High Court of Bombay in -7- W.P. No. 104314 of 2023 C/W W.P. NO. 104409 of 2023 identical circumstances had directed payment of 50% of the amount of compensation awarded unconditionally to the land losers and 50% to be deposited before the executing Court. This judgment is affirmed by the Apex Court and, therefore, she would contend that the fact situation in the case at hand is identical to what the Bombay High Court had decided and what the Apex Court has affirmed. She would seek a similar direction to be rendered in the present cases as well.
5. Per contra the learned senior counsel appearing for the NHAI would submit that appeals are filed under Section 34(2) of the Act before the learned Sessions Judge and until appeals are decided the enhanced compensation amount cannot be paid to the petitioners as ultimately recovering the amount in the event, they are not entitled would pose a great difficulty. He would seek to place reliance upon subsequent judgment of the Apex Court in the case of NATIONAL HIGHWAYS AUTHORITY OF INDIA v. SHEETAL JAIDEV VADE1.
1 2022 SCC OnLine SC 1070 -8- W.P. No. 104314 of 2023 C/W W.P. NO. 104409 of 2023
6. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
7. The afore-narrated facts are not in dispute. The issue lies in a narrow compass. The prayers in the petitions are as follows:
Writ Petition No.104314 of 2023:
Wherefore, it is most respectfully prayed that this Hon'ble Court be pleased to:
i) Issue a writ of mandamus directing the respondents to release and pay entire amount of compensation along with statutory benefits and interest to the petitioner as per the award passed by the Arbitrator dated 11-08-2022 vide Annexure-B bearing No.LAQ-ARB/109/777/2013-14.
ii) Pending disposal of the present writ petition the respondents be directed to deposit entire amount of compensation along with statutory benefits and interest to the petitioner as per the awards passed by the Arbitrator dated 11-08-2022 vide Annexure-
B bearing No.LAQ-ARB/109/777/2013-14.
iii) Issue such other orders or directions as this Hon'ble Court deems fit in the interest of justice and equity. Writ Petition No.104409 of 2023:
Wherefore, it is most respectfully prayed that this Hon'ble Court be pleased to:-9- W.P. No. 104314 of 2023
C/W W.P. NO. 104409 of 2023 (A) Issue a writ of mandamus directing the respondents to release and pay entire amount of compensation along with interest to the petitioners as per the awards passed by the Arbitrator dated 11-08-2022 vide
(i) Annexure-B bearing No.REV/LAQ/ARB/109(904)/ 2013-14 dated 11-08-2022
(ii) Annexure-B1 bearing No.REV/LAQ/ARB/109 (581)/2013-14 dated 11-08-2022
(iii) Annexure-B2 bearing No.REV/LAQ/ARB/109 (905)/2013-14 dated 11-08-2022
(iv) Annexure-B3 bearing No.REV/LAQ/ARB/109 (579)/2013-14 dated 11-08-2022 (B) Pending disposal of the present writ petition the respondents be directed to deposit entire amount of compensation along with interest to the petitioners as per the awards passed by the Arbitrator dated 11-08-2022 vide
(i) Annexure-B bearing No.REV/LAQ/ARB/109 (904)/2013-14.
(ii) Annexure-B1 bearing No.REV/LAQ/ARB/109 (581)/2013-14.
(iii) Annexure-B2 bearing No.REV/LAQ/ARB/109 (905)/2013-14.
(iv) Annexure-B3 bearing No.REV/LAQ/ARB/109 (579)/2013-14.
(C) Issue such other orders or directions as this Hon'ble Court deems fit in the interest of justice and equity."
8. In both the writ petitions this Court on 20th July 2023 has passed the following order:
- 10 -W.P. No. 104314 of 2023
C/W W.P. NO. 104409 of 2023 "Heard learned counsel for the petitioner.
Issue emergent notice to respondents.
Learned counsel Sri Shivaraj Balloli is in the panel of respondents is directed to take notice for respondents. Registry to show his name in the cause list.
The respondents shall deposit 50% of the compensation amount awarded by the Arbitrator with interest and other statutory benefits before the Executing Court within a period of two weeks from today."
The coordinate Bench had directed the respondent to deposit 50% of compensation amount awarded by the Arbitrator with interest and other statutory benefits within two weeks from 20thJuly 2023. Even to this date when the matters were reserved for orders, the said direction has remained on paper.
Whether the submission of the learned counsel for the petitioners is tenable or otherwise requires to be considered.
The issue need not detain this Court or delve deep in the matter. The Division Bench of the High Court of Bombay in batch of petitions concerning acquisition of land and payment of compensation in SARASWATIBAI CHANDRAKANT SHINDE v. THE ADDITIONAL COLLECTOR AND OTHERS2 has held as follows:2
2022 SCC OnLine Bom 10517
- 11 -W.P. No. 104314 of 2023
C/W W.P. NO. 104409 of 2023
1. In all these petitions preferred by identically placed petitioners, prayer clauses C and D are put forth as under:--
"C) To direct the respondents to release and pay entire amount of compensation along with interest to the petitioner as per the awards passed by the Arbitrator dated 31.03.2021 (Exhibit A of this petition) and for that purpose issue necessary order.
D) Pending hearing and final disposal of the present writ petition the respondents be directed to deposit entire amount of compensation along with interest to the petitioner as per the awards passed by the Arbitrator dated 31.03.2021 & 29.06.2021 respectively (Exhibit A of this petition)."
2. The learned counsel appearing for respondent No. 2/acquiring body submits that these petitioners have subsequently instituted the execution proceedings being Regular Darkhast Nos. 46/2022, 47/2022, 48/2022, KR- 770/2022 and KR-771/2022.
3. After this matter was heard for sometime, the learned advocate for respondent No. 2 submits that if this Court is inclined to pass an order that respondent No. 2 should deposit some amounts of compensation and these petitions are being disposed off, the amounts could be deposited before the Executing Court.
4. There is no dispute that there is an arbitration award. The Special Land Acquisition Officer (SLAO) had granted compensation at the rate of Rs. 2068/- per square meter. The arbitration award brought down the amount to Rs. 1964/- per square meter. Both the parties have preferred the appeals under Section 34. However, there is no stay granted by the Court thereby, staying the arbitration award.
5. It is well settled and, in fact, a creation of the statute that the land cannot be acquired and put to use for the purpose of a project until the compensation
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W.P. No. 104314 of 2023C/W W.P. NO. 104409 of 2023 amount is paid. The SLAO has delivered the award. Since 2018, these petitioners have lost possession of their lands. Not a penny has been paid to them.
6. In view of the above, these Writ Petitions are disposed off with the direction that respondent No. 2/acquiring body shall deposit the amounts as per the Arbitrator's award, before the Executing Court. The learned counsel for respondent No. 2 submits that at least eight weeks may be granted. As such, the said amount shall be deposited on or before 30.06.2022 before the Executing Court.
7. It goes without saying that, as these petitioners have lost their lands and do not have any right to enter their lands, much less cultivate the same, they would be at liberty to withdraw the said amounts from the Executing Court subject to such conditions as the Executing Court would deem fit and proper to impose and in the light of various orders passed by this Court which would be cited by the petitioners before the Executing Court."
9. This was carried in appeal by the NHAI to the Apex Court. The Apex Court without disturbing the findings of the High Court of Bombay (supra) disposed of the S.L.P by the following order:
"Heard Ms. Aishwarya Bhati, learned ASG appearing on behalf of the petitioner and Mr. Ravindra Keshavrao Adsure, learned counsel who has appeared on caveat on behalf of the respondent No.1.
The controversy pertains to the non-deposit of compensation amount awarded for the land, which the petitioner-National Highways Authority of India (NHAI) had acquired and taken possession way back in the year 2016.
- 13 -W.P. No. 104314 of 2023
C/W W.P. NO. 104409 of 2023 It appears that, being aggrieved by the Arbitral Award passed by the Ld. Arbitrator cum-Commissioner, the NHAI has filed petitions under Section 34 of the Arbitration and Conciliation Act, 1996, which are still pending without any interim stay.
Meanwhile, the land owners have filed execution petitions but no amount has been deposited with the Executing Court.
It is in these circumstances, that the High Court has intervened vide its impugned order dated 28-04- 2022, directing the NHAI to deposit the amount as per the Arbitrator's Award before the Executing Court on or before 30-06-2022.
Having heard learned counsel for the parties, we deem it appropriate to dispose of the present proceedings with the following directions:
i. The NHAI shall deposit 50% of the compensation account as awarded by the Arbitral Court, with the Executing Court within a period of four weeks. The said amount shall be released to the land owners unconditionally.
ii. The learned District Court, before whom the proceedings under Section 34 of the Arbitration Act are pending, shall make an endeavour to decide such proceedings within a period of six months.
iii. The balance amount of compensation as per the Award to be passed under Section 34 of the Arbitration Act, shall be deposited by the NHAI with the Executing Court within four weeks after such determination. The said amount shall also be released by the Executing Court in favour of the landowners subject to the rights and remedies available, to the parties.
With these observations and directions, the Special Leave petition is disposed of.
- 14 -W.P. No. 104314 of 2023
C/W W.P. NO. 104409 of 2023 The impugned order passed by the High Court of Bombay dated 28-04-2022 stands modified in the above terms."
The Apex Court directed that NHAI should deposit 50% of the compensation amount as awarded by the Arbitrator with the Executing Court and the said amount to be released to the land owners unconditionally. Subsequent to the aforesaid judgement of the Bombay High Court as affirmed by the Apex Court, the Apex Court again the case of National Highways Authority of India v. Sheetal Jaidev Vade (supra) has held as follows:
"10. At the outset, it is required to be noted that the private respondents herein - original writ petitioners filed the writ petition before the High Court and prayed for the following reliefs in exercise of powers under Article 226 of the Constitution of India:
"(a) This Writ Petition may kindly be allowed.
(b) That, by way of writ of mandamus of the direction like in nature the respondents No. 1 and 2 may kindly be directed to deposit the amount with respondent No. 3 in pursuance of the award dated 12.06.2018 vide No. 2016/LA/NH-351/CR-01 passed by the respondent No. 3 forthwith.
(c) That, by way of writ of mandamus of the directions like in nature the respondent No. 3 may kindly be directed to make the payment to petitioners forthwith after the respondents No. 1 and 2 deposit the amount."
11. Therefore, reliefs which have been sought by the private respondents herein - original writ petitioners
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W.P. No. 104314 of 2023C/W W.P. NO. 104409 of 2023 were in the nature of execution of the award passed by the learned Arbitral Tribunal/Court.
12. Apart from the fact that the award dated 12.06.2018 has been challenged by the NHAI by initiating proceedings under Section 34 of the Arbitration Act which are reported to be pending, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India seeking the reliefs to execute the award passed by the learned Arbitral Tribunal/Court, when the award passed by the learned Arbitral Tribunal/Court is to be executed by initiating an execution proceeding before the concerned Executing Court. But, by passing the impugned order/directions the High Court has virtually converted itself into Executing Court. Therefore, once the original writ petitioner was having an efficacious, alternative remedy to execute the award passed by the learned Arbitral Tribunal/Court, by initiating an appropriate execution proceeding before the competent Executing Court, the High Court ought to have relegated the original writ petitioners to avail the said remedy instead of entertaining the writ petition under Article 226 of the Constitution of India which was filed to execute the award passed by the Arbitral Tribunal/Court. If the High Courts convert itself to the Executing Court and entertain the writ petitions under Article 226 of the Constitution of India to execute the award passed by the Arbitral Tribunal/Court, the High Courts would be flooded with the writ petitions to execute awards passed by the learned Arbitrator/Arbitral Tribunal/Arbitral Court.
13. We disapprove the entertaining of such writ petitions under Article 226 of the Constitution of India to execute the award passed by the learned Arbitral Tribunal/Court, without relegating the judgment creditor in whose favour the award is passed to file an execution proceeding before the competent Executing Court.
14. In view of the above discussion, we would have set aside the impugned judgment and order passed by the High Court on the aforesaid ground alone. However, taking into consideration the similar order passed by this Court in the case of Saraswatibai Chandrakant
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W.P. No. 104314 of 2023C/W W.P. NO. 104409 of 2023 Shinde (supra), we deem it appropriate to dispose of the present proceedings/appeal with the following directions:
(i) The NHAI shall deposit 50 per cent of the compensation amount, as awarded by the Arbitral Court, with the Executing Court within a period of four weeks. The said amount shall be released to the land owners unconditionally.
(ii) The learned District Court, before whom the proceedings under Section-34 of the Arbitration Act are pending, shall make an endeavour to decide such proceedings within a period of six months from the next date of hearing before the said court.
(iii) The balance amount of compensation as per the Award to be passed under Section 34 of the Arbitration Act, shall be deposited by the NHAI with the Executing Court within four weeks after such determination. The said amount shall also be released by the Executing Court in favour of the land owners subject to the rights and remedies available to the parties in law.
15. With these observations and directions, the Appeal is disposed of."
10. Though the Apex Court observes that the High Court cannot be converted to Executing Court which exercises its jurisdiction under Article 226 of the Constitution as such cases would be flooded before the constitutional Court, nevertheless noticing the similar order passed in Saraswatibai Chandrakant Shinde (supra) the same order is passed by the Apex Court. Therefore, the finding rendered by the Bombay High Court as affirmed in Saraswatibai Chandrakant
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W.P. No. 104314 of 2023C/W W.P. NO. 104409 of 2023 Shinde's case is also followed in Sheetal Jaidev Vade (supra). Hence, the petitioners would become entitled to the relief that is sought for qua the deposit of 50% of the amount awarded. It also needs to be observed that the direction of this Court directing deposit of 50% of the amount is not complied with even as on date. Looking at the aforesaid factors that the petitioners have not received the enhanced compensation as is directed by the Arbitrator, I deem it appropriate to grant the relief to the petitioners as granted by the Apex Court in Sheetal Jaidev Vade (supra).
11. For the aforesaid reasons, I pass the following:
ORDER (1) Writ Petitions are allowed.
(2) The NHAI shall deposit 50 per cent of the compensation amount, as awarded by the Arbitral Court, with the Executing Court within a period of four weeks. The said amount shall be released to the land owners unconditionally.
(3) The learned District Court, before whom the proceedings under Section-34 of the Arbitration Act are pending, shall make an endeavour to decide
- 18 -W.P. No. 104314 of 2023
C/W W.P. NO. 104409 of 2023 such proceedings within a period of six months from the next date of hearing before the said court. (4) The balance amount of compensation as per the Award to be passed under Section 34 of the Arbitration Act, shall be deposited by the NHAI with the Executing Court within four weeks after such determination. The said amount shall also be released by the Executing Court in favour of the land owners subject to the rights and remedies available to the parties in law.
(5) While releasing 50% of the amount to the land owners, the amount that is already received by them shall be set off.
Sd/-
JUDGE kmv Ct:Bck