Karnataka High Court
Sri P Nagaraju vs The Deputy Commissioner on 28 November, 2024
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NC: 2024:KHC:48844
WP No. 10335 of 2024
C/W WP No. 10467 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO.10335 OF 2024 (LA-RES)
C/W
WRIT PETITION NO.10467 OF 2024 (LA-RES)
IN WP No. 10335/2024
BETWEEN:
SRI. P. NAGARAJU
S/O LATE PUTTASWAMAIAH
AGED ABOUT 54 YEARS,
R/O MAYAGANAHALLI VILLAGE,
KASABA HOBLI, RAMANAGARA TALUK,
RAMANAGARA DISTRICT -562159.
...PETITIONER
Digitally signed by (BY SRI. M.R. RAJAGOPAL, SENIOR ADVOCATE FOR
SHARMA ANAND
CHAYA SRI.H.N. BASAVARAJU, ADVOCATE)
Location: High
Court of Karnataka
AND:
1. THE DEPUTY COMMISSIONER
AND LEARNED ARBITRATOR
OF NH-275, RAMANAGAR TALUK
RAMANAGAR DISTRICT -562159.
2. THE PROJECT DIRECTOR
NATIONAL HIGHWAY AUTHORITY OF INDIA
REPRESENTED BY ITS
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NC: 2024:KHC:48844
WP No. 10335 of 2024
C/W WP No. 10467 of 2024
GENERAL MANAGER (TECH)
PROJECT DIRECTOR
PROJECT IMPLEMENTATION UNIT
BASAVARAJAPURA,
RAMADEVARA PADA,
RAMANAGARA-562128.
3. SPECIAL LAND ACQUISITION OFFICER
AND COMPETENT AUTHORITY NH-275 BANGALORE
MYSORE DIVISION,
KANDAYA BHAVANA
GROUND FLOOR
RAMANAGARA-562159.
...RESPONDENTS
(BY SMT. RASHMI M. RAO, HCGP FOR R1 AND R3;
SMT. SRUTI CHAGANTI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER PASSED BY THE FIRST RESPONDENT
DEPUTY COMMISSIONER AND ARBITRATOR UNDER THE
NATIONAL HIGHWAYS ACT, 1956, RAMANAGARA DIST.
RAMANAGARA IN NO. LAQ(A)/NH-275/CR/68/2022-23 DATED
25/01/2024 AS PER ANNEXURE-F; AND ETC.
IN WP NO. 10467/2024
BETWEEN:
1. SRI. P. NAGARAJU
S/O LATE PUTTASWAMAIAH
AGED ABOUT 61 YEARS,
RESIDENT OF MAYAGANAHALLI VILLAGE,
KASABA HOBLI
RAMANAGARA TALUK,
RAMANAGARA DISTRICT.
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NC: 2024:KHC:48844
WP No. 10335 of 2024
C/W WP No. 10467 of 2024
...PETITIONER
(BY SRI. M.R. RAJAGOPAL, SENIOR ADVOCATE FOR
SRI. H.N. BASAVARAJU, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER AND LEARNED
ARBITRATOR OF NH-275
RAMANAGAR TALUK,
RAMANAGAR DISTRICT .
2. THE PROJECT DIRECTOR
NATIONAL HIGHWAY AUTHORITY OF INDIA
REPRESENTED BY ITS
GENERAL MANAGER (TECH)
PROJECT DIRECTOR
PROJECT IMPLEMENTATION
UNIT BASAVARAJAPURA,
RAMADEVARA PADA
RAMANAGARA - 562128.
3. SPECIAL LAND ACQUISITION OFFICER
AND COMPETENT AUTHORITY
NH-275, BANGALORE MYSORE DIVISION,
KANDAYA BHAVANA, GROUND FLOOR,
RAMANAGARA - 562159.
...RESPONDENTS
(BY SMT. RASHMI M. RAO, HCGP FOR R1 & R3;
SMT. SRUTI CHAGANTI, ADVOCATE FOR R2 )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER PASSED BY THE RESPONDENT NO.1
DEPUTY COMMISSIONER AND ARBITRATOR UNDER THE
NATIONAL HIGHWAYS ACT, 1956 RAMANAGARA DISTRICT,
RAMANAGARA IN NO. LAQ(A) NH-275/CR/93/2021-22
DATED 25.01.2024 AS PER ANNEXURE-F AND IN NO.
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WP No. 10335 of 2024
C/W WP No. 10467 of 2024
LAQ(A) NH-275/CR/94/2021-22 DATED 25.01.2024 AS PER
ANNEXURE-F1; AND ETC.
THESE PETITIONS, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL ORDER
In these writ petitions, the petitioner is assailing the orders dated 25.01.2024 (Annexure-F and F1) passed by the respondent No.1.
2. Relevant facts for the adjudication of the case as averred in the writ petitions are that, the petitioner claims to be owner of land in question and same was notified for acquisition for the purpose of drawing Mysore Bangalore National Highway by the National Highway Authority of India (NHAI) under the National Highway Act, 1956 (hereinafter referred to as Act). The respondent No.3 has passed award dated 04.12.2019 (Annexure-A) determining the compensation to be payable to the petitioner. It is the grievance of the petitioner that, the award passed by the respondent -5- NC: 2024:KHC:48844 WP No. 10335 of 2024 C/W WP No. 10467 of 2024 No.3, was meager and without considering the fertility of land in question as the land in question is located in City Green Residential Zone and as such, the petitioner has approached respondent No.1 by filing appeal under Section 3G (7) of the National Highway Act, 1956. The respondent No.1, being an Appellate Authority, after considering the material on record by order dated 25.01.2024 produced at Annexures-F and F1, set aside the award made by the respondent No.3 and remanded the matter to the respondent No.3 for fresh consideration. Feeling aggrieved by the same, the petitioner has presented this writ petition.
3. I have heard Sri M.R.Rajgopal, learned Senior Counsel appearing on behalf of Sri. H.N.Basavaraju, for the petitioner; Smt. Rashmi M. Rao, learned High Court Government Pleader appearing for the respondent-State and Smt. Sruti Chaganti, learned counsel appearing for the respondent No.2.
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4. Sri. M.R.Rajagopal, learned Senior Counsel appearing for the petitioner contended that the respondent No.1 being Appellate Authority has no jurisdiction to remand the matter to the respondent No.3 for fresh consideration and it is the duty of the respondent No.1 to complete the proceedings and take decision in the matter as it has no jurisdiction to remand the matter. In this regard, he refers to the judgment of this Court in the case of Assistant Commissioner and Land Acquisition Officer, Puttur vs. Karmin @ Lucy Pudthedo and Another reported in ILR 2001 KAR 3762. Learned Senior Counsel appearing for the petitioner places reliance on the judgment of the High Court of Madhya Pradesh in WP No.23917 of 2021 disposed of on 03.01.2022 in the case of Kanchan Bai (D) through her legal representatives and Others vs. Competent Authority and Others and in the case of Anoop Agarwal vs. State of Madhya Pradesh And Others in WP No.9395 of 2019 disposed of on -7- NC: 2024:KHC:48844 WP No. 10335 of 2024 C/W WP No. 10467 of 2024 06.11.2020 and argued that the Arbitrator has no jurisdiction to remand the matter to the competent authority for re-determination of compensation and accordingly, sought for interference of this Court.
5. Per contra, Smt. Sruti Chaganti, learned counsel appearing for the respondent-National Highway Authority of India sought to justify the impugned order passed by the respondent No.1 and contended that the petitioner is having an efficacious remedy to challenge the impugned award under Section 34 of the Arbitration and Conciliation Act, 1996 and without exhausting the said remedy, these writ petitions are not maintainable before this Court. It is also submitted by Smt. Sruti Chaganti, learned counsel that the respondent No.2 that, after considering the material on record, so also the judgment of Hon'ble Supreme Court in the case of National Highway Authority of Inida VS. P. Nagaraju @ Cheluvaiah and Another reported in 2022 SCC OnLine SC 864 and contended that the -8- NC: 2024:KHC:48844 WP No. 10335 of 2024 C/W WP No. 10467 of 2024 respondent No.1 taking into account the observation made by Hon'ble Supreme Court, remanded the matter to the original authority and therefore, no fault be found with the impugned order passed by the respondent No.1. Accordingly, sought for dismissal of the writ petitions.
6. In the light of the submission made by the learned counsel appearing for the parties, it is not in dispute that the land belonging to the petitioner has been acquired by the respondent-authorities as per Section 3-A of the National Highway Act, 1956. Award came to be passed by the respondent No.3 as per Annexure-A to the writ petition, determining the compensation to be payable to petitioner. Feeling aggrieved by the award made by the respondent No.3- Special Land Acquisition Officer, the petitioner has preferred the appeal under Section 3G (7) of the Act. The respondent No.1 being an Appellate Authority, allowed the appeals in part, filed for seeking -9- NC: 2024:KHC:48844 WP No. 10335 of 2024 C/W WP No. 10467 of 2024 enhancement of the compensation as per impugned order dated 25.01.2024 (Annexures-F and F1) and set aside the award made by the respondent No.3 and directed the respondent No.3 -Special Land Acquisition Officer to consider the matter afresh. It is relevant to cite the judgment of the Hon'ble Supreme Court in the case of Chimanlal Hargovinddas vs. Land Acquisition Officer, Poona reported in AIR 1988 SC 1652, wherein it is held that, it is the duty of the original authority to decide the matter on merits by determining the compensation to be payable to the claimants. The said aspect of the matter was considered by this Court in the case of Karmin (supra) and paragraph 7 of the judgment reads as under:
"7. In the case of CHIMANLAL HARGOVINDDAS vs. LAND ACQUISITION OFFICER, POONA, the Apex Court has enumerated various aspects pertaining to the determination of market value by the Reference Court. Some of them which are material for the present purpose are as follows:-
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NC: 2024:KHC:48844 WP No. 10335 of 2024 C/W WP No. 10467 of 2024 "(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court.
(2) So also the Award of the Land Acquisition officer is not to be treated as a Judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely, an offer made by the Court unless produced and proved before it. It is not the function of the Court to sit in appeal against the Award, approve or disapprove its reasoning or correct its error or affirm, modify or reserve the conclusion reached by the Land Acquisition Officer as if it were an appellate Court.
(3) The Court has to treat the reference as an original proceedings before it and determine the market value afresh on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who was to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. the materials produced and proved by
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NC: 2024:KHC:48844 WP No. 10335 of 2024 C/W WP No. 10467 of 2024 the other side can also be taken into account for this purpose.
(5) The market value of the land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act (dates of Notifications under Section 6 and 9 are irrelevant.) (6) The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) as if the value is hypothetical purchaser willing to purchase land form the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price. (7) In doing so by the intances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value. (8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of Acquisition of land)"
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7. At this stage, it is pertinent to mention the judgment of Division Bench of Madhya Pradesh High Court in the case of Anoop Agarwal (supra). Paragraph 2 of the judgment reads as under:
"2. The issue as to whether it is within the competence of the Arbitrator under Section 3(G)(5) of 1956 Act, to set aside the Award and remanded the matter to the competent authority for its reconsideration, is no more res integra. A co-ordinate Bench of this Court in Writ Petition No.18374/2014 (Santosh Soni vs National Highway Authority) and in connected batch of writ petitions decided on 23.01.2015, relying on earlier decision in Writ Petition No.5883/2011 (Radheshyam vs National Highway Authority) decided on 11.10.2011, has held:
"Section 3(G)(5) of the National Highways Act reads as under: "3G(5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) 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."
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NC: 2024:KHC:48844 WP No. 10335 of 2024 C/W WP No. 10467 of 2024 A perusal of the aforesaid goes to show that if the amount determined by the competent authority under sub- section (1) or sub-section (2) of Section 3G 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. The words 'to be determined by the Arbitrator' has been subject matter of interpretation and in W.P. No.5883/2011 after considering the same on 11.10.2011, it has been held by a Coordinate Bench of this Court as under:
"A reading of the aforesaid provisions indicates that sub section (6) which applied the provision of the Arbitration and Conciliation Act, 1996 is subject to the other provisions, including Section 3(G)(5) of the 1956 Act. Sub-section (5) of Section 3G provides expressly that the Arbitrator, appointed by the Central Government which in the present case is the Revenue Commissioner, Gwalior Division has to determine the amount.
The grievance of the petitioner is that the Commissioner instead of determining the amount as contemplated by Section 3G(5) of the National High Way Act, 1956 has
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NC: 2024:KHC:48844 WP No. 10335 of 2024 C/W WP No. 10467 of 2024 remanded the matter to the competent authority."
It has been held by the Coordinate Bench after holding so that under Section 3(G)(5) the Arbitrator has no power to remand the matter back to the competent authority for re-determination. Instead he has to himself determine the amount of compensation to be paid on the basis of material available on record.
In doing so, there is no reason to take a different view as already held by a Coordinate Bench in W.P. No.5883/2011.
Keeping in view the aforesaid, this petition is allowed. The order impugned is quashed and the matter is remanded back to the Commissioner to determine the compensation in accordance to law"
8. It is also relevant to cite the judgment in the case of Kanchan Bai (supra), wherein at paragraphs 2 and 3 reads as under;
"2.WP-23917-2021 T h is sole issue involved in this writ petition has already been considered by the Division Bench of this Court in various cases and it has been held that the Arbitrator appointed under Section 3G(5) of the National Highways Act, 1956 is
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NC: 2024:KHC:48844 WP No. 10335 of 2024 C/W WP No. 10467 of 2024 required to assess the compensation after examining the material available on record, he has no power to remand the matter to the SDO for re-assessment. One of the orders passed by the principal seat in W.P. No.20028/2021 (Krishna Kumar Dubey V/s State of M.P. and others) decided on 05.10.2021 is reproduced below:-
"This writ petition has been filed challenging the order of the Commissioner, Jabalpur Division, Jabalpur dated 1.3.2017 (Annexure P/4). The Commissioner was approached by the petitioner under Section 3G(5) of the National Highways Act, 1956 for arbitration of dispute as according to his perception the amount of compensation awarded to him was wholly inadequate. The Commissioner by the aforesaid order has recorded the argument of the petitioner that the competent authority ie. SDO has not determined the compensation regarding Khasra No.67 area measuring 0.02 hectare of village Bilha and three Pacca shops and therefore, remitted the matter to the SDO with a direction to make fresh assessment for payment of compensation to the petitioner.
Learned counsel for the petitioner has cited the judgment passed by the Coordinate Bench of this Court in Writ Petition No.9395/2019 titled as Anoop Agrawal Vs. State of M.P. & others dated 6.11.2020.
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NC: 2024:KHC:48844 WP No. 10335 of 2024 C/W WP No. 10467 of 2024 In that case also the Commissioner, Sagar Division, Sagar in purported exercise of the power under Section 3G(5) of the Act, while setting aside the award passed by the competent authority h a s remanded the matter to him for fresh determination of compensation. This Court relying on the judgment of the Coordinate Bench in Writ Petition No.18374/2014 (Santosh Soni Vs. National Highway Authority) and connected writ petitions decided on 23.1.2015 and earlier decision in Writ Petition No.5883/2011 (Radheshyam Vs. National Highway Authority) decided on 11.10.2011 held that reading of sub-section (6) of Section 3G of the Act, which has applied the
3. WP-23917-2021 provisions of the Arbitration and Conciliation Act, 1996, shows that it is subject to the other provisions including Section 3G(5). Sub-section (5) of Section 3G provides that the Arbitrator appointed by the Central Government, which in the present case is the Revenue Commissioner, has to determine the amount. This has to be done by the Commissioner himself and that he has no power to remand the matter back for re-determination of the compensation.
On the basis of the aforesaid judgment, several other identical writ petitions have been allowed i.e. Writ Petition Nos. 18374/2014, 18379/2014,
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NC: 2024:KHC:48844 WP No. 10335 of 2024 C/W WP No. 10467 of 2024 18380/2014, 18383/2014, 18396/2014, 18397/2014, W.P. No.18398/2014, W.P. No.18405/2014 and 18406/2014 vide order dated 23.1.2015, W.P.No.No.2521/2017 vide order dated 22.2.2017 and W.P.Nos.9920/2017, 9921/2017, 9922/2017, 9924/2017, 9926/2017, 9928/2017 and 9929/2017 vide order dated 26.7.2017. In view of above, the present writ petition is allowed. The impugned order is set aside and the matter is restored back to the file of the Commissioner, Jabalpur Division, Jabalpur to decide the same in accordance with law within a period of four months."
9. In view of the declaration of law made by the Hon'ble Supreme Court and the judgment of the Mandya Pradesh High Court referred to above, the respondent No.1 ought to have decided the petition filed under Section 3G(7) of the Act, being a original authority or an equivalent to consider the petition under Section 18 of the Land Acquisition Act, as a reference Court, is duty bound to determine the compensation and has no authority under law to remand the matter to the respondent No.3-Speical Land Acquisition Officer to pass
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NC: 2024:KHC:48844 WP No. 10335 of 2024 C/W WP No. 10467 of 2024 fresh award in the matter. In this regard, I find force in the submission made by the learned Senior counsel appearing for the petitioner and accordingly, the writ petitions are required to be allowed. Hence, I pass the following:
ORDER
i) The Writ petitions are allowed;
ii) Impugned order dated 25.01.2024 passed by the respondent No.1 vide Annexure-F and F1, respectively in both the writ petitions are hereby quashed and the matter is remitted to the respondent No.1 to pass appropriate orders by deciding the case on merits so as to determine the compensation to be payable to the petitioner herein.
iii) In order to avoid further delay in the matter, the petitioner is directed to appear before the respondent No.1 on 16.12.2024 at
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NC: 2024:KHC:48844 WP No. 10335 of 2024 C/W WP No. 10467 of 2024 3.00 pm without waiting for further notice in this regard. On their appearance, the respondent No.1 is directed to conclude the proceedings within an outer limit of six months from the appearance of the parties.
Sd/-
(E.S.INDIRESH) JUDGE SB List No.: 1 Sl No.: 65