Karnataka High Court
Nagaraja S vs National Highways Authority Of India on 16 March, 2016
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16th DAY OF MARCH 2016
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No.3025 OF 2016 (LA-RES)
BETWEEN :
Nagaraja.S,
Aged 52 years,
#604, Dr.Rajkumar road
(near IDBI Bank), 2nd Block,
Rajajinagar,
Bengaluru - 560 010. ... Petitioner
(By Sri S.Nagaraja, Party-in-person)
AND:
1. National Highways Authority of India,
(Tumkur - Harihar Section,
K.M.75 to K.M.282),
Aeroplane building,
V P Badavane,
Chitradurga - 577 501.
Represented by the
Special land Acquisition Officer.
2. Project Director,
NHAI-4 (Tumkur-Harihar Section,
K.M.75 to K.M.282),
Project implementation unit,
Near JMIT, NH-4 (201 KM),
Chitradurga - 577 502.
3. Deputy Commissioner and Arbitrator,
Office of the District Magistrate,
2
Deputy Commissioner & Arbitrator,
Tumakuru - 572 101. ...Respondents
(By Smt.Shilpa Shah, Advocate for R1 and R2;
Sri Laxminarayan, AGA for R3)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to direct the R1 authority to acquire
the schedule land bearing sy.no.184, Oorukere, Tumkur,
Karnataka to an extent 0-09 guntas (9801 Sq.Ft.) which is
subjected to acquisition by the respondent authority (NHAI) for
development of NH-4 in accordance with law and pay the
compensation amount of Rs.3,92,04,000/- (Three crore ninety
two lakhs four thousand only) inclusive of all the damages for
use and occupation and other reliefs to the petitioner within
fifteen days and or alternatively and etc.
This writ petition, coming on for preliminary hearing in 'B'
group, this day, the Court made the following:
ORDER
Heard the petitioner party-in-person and the learned counsel for the Highways Authority of India.
2. The background to the present petition is as follows:
A preliminary notification under Section 3A of the National Highways Act, 1956 (Hereinafter referred to as the 'Highways Act' for brevity) was issued on 03.11.2000 and a final notification under Section 3D(1)(2) of the Highways Act was issued on 11.09.2001. The petitioner's land to the extent of 6 guntas was notified under the above-said notifications. An award 3 was passed in respect of an extent of 2497.75 sq.ft. on 21.05.2002 and yet another award dated 14.02.2005 for the remaining extent of 4036.25 sq.ft. was passed and the total compensation of Rs.2,36,857/- was paid. Tax was Deducted at Source. Thereafter, the petitioner being aggrieved by the quantum of compensation, had sought reference to Arbitration under Section 3G(5) of the Highways Act. The arbitrator has passed an award dated 28.07.2010 enhancing the compensation for the total extent of 6214.25 sq. ft. from Rs.36.25 to Rs.54.40 per sq.ft. Thereafter, the petitioner is said to have filed a writ petition in W.P.No.40924/2010 with the grievance that one additional gunta of land was used without any notification for acquisition and therefore sought appropriate directions from this Court. That petition was disposed of on 27.01.2011 directing the respondents to consider the petitioner's case. Then the petitioner had received the compensation as per award dated 28.07.2010 passed by the arbitrator.
3. The petitioner being aggrieved by the non-consideration of his representation pursuant to the directions issued by this Court in W.P.No.40924/2010, had preferred yet another writ petition in W.P.No.33021/2011, seeking that the additional one 4 gunta of land having been utilized, compensation be paid for that. As per the report of the Court Commissioner, the said writ petition was disposed of on 13.02.2012 holding that if the petitioner is ready to execute a sale deed the respondent Authority shall proceeded to acquire the other portion and pay the consideration accordingly, which was not complied with. Since there is a delay in implementation of the order, the petitioner initiated contempt proceedings. Thereafter respondents did initiate further action to acquire the lands by fresh acquisition proceedings. It is in that manner that the preliminary notification dated 17.08.2012 was issued in respect of one gunta of land which had been utilized by the respondents. The petitioner had filed objections to the same and orders were passed rejecting the objections. The petitioner had filed yet another writ petition in W.P.No.49425/2012 seeking that the illegal acquisition proceedings be dropped and pay compensation, damages for such utilization of the land. That petition was disposed of with a direction to expedite the acquisition proceedings. That was carried in appeal to a Division Bench which was dismissed. The final notification dated 09.07.2013 was passed acquiring the land to an extent of 101 5 sq. mtr, equivalent to one gunta, and an award was passed, compensation was awarded in a sum of Rs.68,470/- at the rate of Rs.250/- per sq.ft. and further awarded damages for the use and occupation, for the period the land had been utilized. The petitioner then filed a civil suit in O.S.No.188/2013 seeking injunction. The suit was dismissed as withdrawn on 20.12.2013. The petitioner filed W.P.No.54376/2013 challenging the award, which was disposed of, holding that the right remedy to the petitioner was to file a claim before the arbitrator and the petitioner having raised the claim before the arbitrator an award was passed on 04.02.2015, enhancing the compensation from Rs.250/- per sq.ft. to Rs.300/- per sq.ft. The petitioner not being satisfied with the award had challenged the same by way of a writ petition before this Court in W.P.No.6289/2015, seeking directions to the authority to acquire the land and pay compensation and taking cue from the observations of this court that the petitioner's remedy was before the District and Sessions Judge, by filing an appropriate petition under Section 34 of the Arbitration and Conciliation Act, 1996 (Hereinafter referred to as the 'Arbitration Act' for brevity) the petitioner had preferred such a case in A.C.No.1/2015 before the Court of the Principal District 6 Judge, Tumakuru. The said case has been dismissed by the District Court as not maintainable following the decision of a Division Bench of this Court in the case of H.M.SHANKARAMURTHY vs. NATIONAL HIGHWAYS AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, CHITRADURGA reported in 2010 (3) KCCR 2014, wherein the Division Bench has held that a provision for setting aside an award, contending that the award is not sustainable in law or on any one of the grounds indicated in Section 34 of the Act can never be construed as a provision enabling a landowner seeking enhancement of the compensation amount as determined by the Arbitrator. It was held that the District Court had rightly rejected the application under Section 34 of the Arbitration and Conciliation Act, 1996. The application itself was not tenable. The appeal was also equally not tenable and even otherwise, without any merit. It is on that footing that the arbitration case instituted by the petitioner had been rejected.
4. As seen from the language of Section 34 of the Arbitration Act that a person aggrieved by an arbitral award may make an application for setting aside such an award and it could 7 be set aside by the Court namely, the District Court, only on certain limited grounds.
5. The petitioner could not be said to have been aggrieved by the arbitration award for if he was dissatisfied with the compensation that was awarded it would not enable the petitioner to have recourse to Section 34 of the Arbitration Act which does not contemplate any such relief being granted. The award could at best be set aside and nothing more. Therefore the Division Bench having held that a landowner could not seek enhancement of the amount, has gone unnoticed by this Court while observing that the petitioner's remedy was before the District Court as held by this Court in the order dated 22.12.2015 (Annexure-AD). The petitioner was mislead by such an observation. It is for the petitioner to seek a review of the order made by this Court. Hence, the present petition is not maintainable, since it seeks to question the rejection of his application under Section 34 of the Arbitration Act, if the law does not contemplate any remedy for a person such as the petitioner who is dissatisfied with the amount of compensation awarded then the petitioner may explore the possibility of approaching this Court under Article 226 of the Constitution of 8 India. In any event, this petition cannot be converted as one challenging the quantum of compensation that is awarded to him since that was already under challenge in the earlier writ petition in W.P.No.6289/2015.
6. The petitioner is therefore left to his remedy. This petition is disposed of.
Sd/-
JUDGE Cm/-