Rajasthan High Court - Jaipur
Project Director Project Imp vs Moti Ram Jangid And Ors on 21 October, 2013
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR :: JUDGMENT :: D.B. SPECIAL APPEAL (WRIT) NO.1010/2013 with IA No.44131/2013 Project Director, Project Implementation Unit, National Highways Authority of India, Reengus, District-Sikar Vs. Moti Ram Jangid & Ors. 21.10.2013 HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY HON'BLE MR.JUSTICE BANWARI LAL SHARMA Mr.R.K.Agarwal, Senior Advocate assisted by Mr.Sandeep Pathak for the appellant. Mr.R.N.Mathur, Senior Advocate assisted by Mr.B.L.Chaudhary for the respondents.
***** In assailment is the order dated 3.9.2013 passed in S.B.Civil Writ Petition No.2477/2013, whereby in the interim, the National Highways Authority of India (for short, hereafter referred to as 'NHAI') has been directed not to create any obstruction on the way to the shops of the respondents herein and not to block the same, unless the compensation is paid to them for the acquisition of their land.
In the instant appeal preferred by the Project Director, Project Implementation Unit, National Highways Authority of India, Reengus, District Sikar, the coordinate Bench by order dated 3.10.2013, while admitting the same had, until further orders, stayed the operation of the order dated 3.9.2013. The interim application referred to hereinabove, is one laid by the respondents for vacation or modification of this interim restraint.
We have heard Mr.R.K.Agarwal, Senior Advocate assisted by Mr.Sandeep Pathak for the appellant and Mr.R.N.Mathur, Senior Advocate assisted by Mr.B.L.Chaudhary, for the respondents.
The facts in brief, limited though the scope of scrutiny in the instant appeal, are unavoidable. A proceeding for acquisition of land under the National Highways Act, 1956 (for short, hereafter referred to as 'the Act') was initiated by the NHAI vide the notification dated 11.8.2009 under Section 3A thereof for the purpose of development of four/six lanes at National Highway No.11. The land intended to be acquired included that owned by the respondents. Thereafter, objections as contemplated under Section 3C were solicited, and according to the NHAI, the respondents did not submit any such objection. Subsequent thereto, on being satisfied that the land in question was required for construction and development of the national highway, the Central Government issued notification dated 12.1.2010 under Section 3D of the Act to the effect that the same should be acquired for the aforementioned purpose. According to the NHAI, in view thereof, in terms of Section 3D(2), the land vested absolutely in the Central Government free from all encumbrances. As statutorily stipulated, the compensation for the land involved was thereafter determined by the competent authority as contemplated by Section 3G of the Act and award dated 23.3.2011 was passed, but the regional office of the NHAI partially approved the same with the observation that the amount so determined be deposited under protest. According to the appellant, it was also authorized to submit the case for arbitration under Section 3G(5) of the Act before the Arbitrator (Collector). The main reason for the reservation of the NHAI was that though according to it, the land of the respondents had been categorized as 'Barani' (Agricultural) in the revenue records as well as in the relevant notifications under Sections 3A & 3D of the Act, the same was construed to be commercial for the purpose of determination of compensation, resulting in huge variation in the amount payable.
Be that as it may, the NHAI however, deposited the amount of compensation determined by the competent authority on 2.11.2011 disclosing that the award to that effect was being challenged before the statutory arbitrator i.e.Collector, Sikar. The NHAI did eventually, challenge the said award, which according to it, is still pending adjudication, and thus, according to it, the amount of compensation payable under the Act, as on date, has not been conclusively determined. The records disclose that the respondents also had challenged the award dated 23.3.2011 of the competent authority before the statutory arbitrator, and then proceedings have eventually been disposed of on 19.11.2012 by construing their land to be commercial in nature and directing computation of compensation therefor @ Rs.31,625/- per square yard. The NHAI being aggrieved by this determination, has meanwhile filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, hereafter referred to as 'Act of 1996') in the court of District Judge, Sikar, which is still pending.
In the above factual backdrop, the respondents instituted a writ proceeding (S.B.Civil Writ Petition No.2477/2013) seeking the following relief:-
Direct the Appellant to immediately counter sign the cheque and make payment of amount compensation to the petitioners, which was awarded in lieu of acquisition of his land by the NHAI and issued by the SDO and sent for counter signature to Project Director/Officer as mentioned above, with interest;
They while narrating the relevant facts pertaining to the acquisition proceedings, did assert that in terms of the award dated 19.11.2012, meanwhile cheques for the amount of compensation computed on the basis thereof had been issued by the Land Acquisition Officer and Sub Divisional Officer, Srimadhopur (Sikar) (competent authority) twice, but the appellant therein had not countersigned the same as a joint account holder, as a result whereof, the amount involved had not been disbursed to them. They also referred to an order dated 22.5.2012 passed by this Court in S.B.Civil Writ Petition No.5872/2012 instituted by them, in which the following order had been made:-
Having heard learned counsel for the parties and perused the materials available on record of writ petitions, I would dispose of the writ petitions with the direction to the Arbitrator before whom the proceedings are pending under Section 3G (5) of the 1956 Act, at the instance of National Highway Authority to determine the amount payable to petitioners for their land acquired after hearing both the parties. The determination by the Arbitrator be made in six weeks from the date of furnishing of a certified copy of this order. It is made clear that till the amount is determined by the Arbitrator and deposited with the competent authority under Section 3H(1) of the 1956 Act and thereafter disbursed to the petitioners, the petitioners shall not be dispossessed from their land in question.
They pleaded that having regard to the scheme of the Act, it was not permissible for the NHAI to either take over the possession of their land without paying the compensation therefor as determined by the order dated 19.11.2012 of the arbitrator under Section 3G(5) of the Act. The respondents also filed an interim application to restrain the NHAI from taking possession and acquiring their land till final disposal of the writ petition. During the pendency of the writ petition, the respondents filed second interim application seeking intervention of this Court to stay further construction of the flyover and to restrain the NHAI from blocking the way to their shops, unless compensation was paid to them. They contended therein that the construction of the flyover had already been started by the NHAI obstructing the way to their shops, and that, if the interim relief, as prayed for, was not granted, the ongoing works would obstruct free movement of the customers thereto leading to detrimental consequences impacting on their means of sustenance. The NHAI also submitted its pleadings.
The learned Single Judge on 16.8.2013, on the second stay application, in the interim, directed that no construction whatsoever shall be carried out by the NHAI on the land in question by taking on record the submission made by the Project Director, Project Implementation Unit, National Highways Authority of India, Reengus, District Sikar, who was present in person in the Court, that the NHAI was ready to pay the amount to the respondents, to which they are entitled, according to it. Eventually however, the order impugned in the instant appeal was passed.
While issuing the interim directions of restraint, as referred to hereinabove, the learned Single Judge, as the order assailed would reveal, took note of the order dated 22.5.2012 rendered in S.B.Civil Writ Petition No.5872/2012, the award dated 19.11.2012 of the learned arbitrator under Section 3G(5) of the Act and also the fact that no amount of compensation had been paid by the NHAI to the respondents. The learned Single Judge was of the view that as the competent authority had, pursuant to the award dated 19.11.2012, issued cheques of the amount payable in terms thereof and had sent the same for the counter signature of the NHAI, mere pendency of its application under Section 34 of the Act of 1996 did not come in the way of disbursement of the sum involved. According to the learned Single Judge, though the land of the respondents had not been taken over by the NHAI, the ongoing works in the project had the potential of obstructing the way thereto, on which their (respondents) shops were located, and in which commercial activities were being carried on. The interim order was granted in this premise.
Mr.Mathur has urged that having regard to the scheme of the Act, more particularly, as outlined by Sections 3A, 3D, 3E, 3G & 3H, the NHAI is obliged to ensure that the amount of compensation determined is disbursed to the respondents before taking possession of their land, and thus, the interim directions contained in the order dated 3.9.2013 being wholly justified, the order dated 3.10.2013, keeping in abeyance the same, ought to be vacated. He urged that the award dated 19.11.2012 rendered by the arbitrator under Section 3G(5) having been accepted by the competent authority, any reservation of the NHAI with regard thereto is unsustainable in law and on facts. As having regard to the letter and spirit of the Act as well as the unequivocal observations of this Court, as contained in the order dated 22.5.2012, the NHAI cannot take over possession of the land of the respondents without paying the compensation therefor, it cannot be permitted to carry on with the works of the project to their (respondents) detriment and prejudice, and thus, the order dated 3.9.2013 passed by the learned Single Judge does not warrant any interference.
Mr.Agarwal, in reply, has argued that in the absence of any challenge to the acquisition proceedings and having regard to the prescriptions of Sections 3E, 3G & 3F of the Act, the reliefs sought for in the writ petition as well as in the interim applications, are wholly misconceived. He argued that as the dispute laid by the NHAI before the learned arbitrator under Section 3G(5) is still pending, and the award dated 19.11.2012 is under scrutiny under Section 34 of the Act of 1996, no amount determined thereby is payable by it. Contending that the NHAI, for the time being, does not intend to take over the possession of the land of the respondents without paying the compensation due to them in law, the learned senior counsel has urged that having regard to the nature and importance of the project underway, the interim restraint imposed by the order dated 3.9.2013 is untenable, and therefore, the operation of the order dated 3.9.2013 had been rightly stayed in the instant appeal.
Mr.Agarwal, in endorsement of his pleas, has placed reliance on the decisions of the Apex Court in National Aluminium Co.Ltd. Vs. Pressteel & Fabrications (P) Ltd. & Anr., (2004) 1 SCC 540 and National Buildings Construction Corporation Ltd. Vs. Lloyds Insulation India Ltd., (2005) 2 SCC 367.
We have considered the rival pleadings to the extent necessary alongwith the records appended thereto and have also noted the arguments advanced.
Noticeably, there is no demur vis-a-vis the validity of the acquisition proceedings as such. That in view of the order dated 22.5.2012 passed in S.B.Civil Writ Petition No.5872/2012, the respondents cannot be dispossessed from their land till the amount of compensation determined by the arbitrator is defrayed, is undeniable. A bare perusal of the order dated 19.11.2012 passed by the arbitrator under Section 3G(5) discloses that thereby the land of the respondents has been accepted to be commercial in nature and compensation has been directed to be computed @ Rs.31,625/- per square yard. It is a matter of record as well that the competent authority in terms of the said award, had issued cheque(s) for the counter signature of the concerned authority of the NHAI. The NHAI instead has filed an application under Section 34 of the Act of 1996 in the court of the learned District Judge, Sikar challenging this award. It is not disputed that the said application is pending disposal as on date.
Without commenting at this stage on the plea pertaining to the pendency of the dispute raised by the NHAI before the arbitrator under Section 3G(5) of the Act, suffice it to record that in terms of the aforementioned decisions of the Apex Court, the award dated 19.11.2012 is, for the present, inexecutable. Direction for any payment in terms of the said award, in view of Section 36 of the Act, as has been held by their Lordships in the above decisions, is impermissible during the pendency of the application under Section 34 of the Act of 1996.
Noticeably, it has been pleaded on behalf of the NHAI that it does not intend to take over possession of the land of the respondents pending the resolution of the dispute with regard to the amount of compensation actually payable to them under the Act. It is however, argued on its behalf that having regard to the project underway, the interim restraint contained in the order dated 3.9.2013 is unsustainable in public interest.
The facts, as unfolded hereinabove therefore, prima facie demonstrate that the amount determined vide award dated 19.11.2012, during the pendency of the application under Section 34 of the Act of 1996, is not disbursable. The plea of the NHAI about the pendency of its dispute before the arbitrator therefore, for the present, is not of any decisive relevance. In terms of the order dated 22.5.2012 passed in S.B.Civil Writ Petition No.5872/2012, possession of the land of the respondents cannot be taken over without payment of the compensation amount determined under the Act. Admittedly, no amount by way of compensation has yet been paid to the respondents for their land, of which they are still in occupation. It is also not disputed that the respondents have their shops thereon and are carrying on commercial activities therein. To reiterate, the NHAI do not intend to take possession of their land, for the present.
Be that as it may, having regard to the importance of the project underway, we are of the view that any interim restraint having the potential of interfering with the ongoing works pertaining thereto would not be in public interest.
This appeal is thus disposed of permitting the NHAI to continue with the execution of the project in hand without however taking over the possession of the land of the respondents without first disbursing to them the compensation payable to them under the Act.
The appeal is allowed to the above extent. The impugned order stands modified accordingly. The stay application as well as the interim application stand disposed of.
(BANWARI LAL SHARMA),J. (AMITAVA ROY),C.J. Skant/-
All the corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Shashi Kant Gaur, PAfa