Himachal Pradesh High Court
Ashwani Kumar vs Special Land Acquisition Officer & Anr on 17 April, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 7779 of 2022
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Decided on: 17.04.2023
Ashwani Kumar ...Petitioner
Versus
Special Land Acquisition Officer & Anr. ...Respondents
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner : Ms. Suman Thakur, Advocate.
For the Respondents : Mr. Anup Rattan, A.G. with Mr. Y. W.
Chauhan, Sr. Addl. A.G., Mr. Ramakant
sharma, Addl. A.G., Ms. Priyanka
Chauhan and Ms. Ayushi Negi, Dy.
A.Gs., for respondent No.1-State.
Mr. K. D. Shreedhar, Sr. Advocate with
Ms. Shreya Chauhan, Advocate, for
respondent No. 2.
Tarlok Singh Chauhan, Judge (Oral)
The petitioner was owner in possession of land and building situated over Khata No. 304, Khatauni No. 333, Khasra No. 779/387/1, situated in Muhal Chamukha / 41, Tehsil Sunder Nagar, District Mandi.
2. The respondents issued Notification dated 21.04.2012 under Section 34A(1) of National Highway Act, 1956 (for short 'Act'), declaring its intention to acquire the land and building of the petitioner after following due process and an 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 19/04/2023 20:34:18 :::CIS 2 award of Rs.1,42,94,239/- came to be passed in favour of the petitioner.
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3. Aggrieved and dis-satisfied with the quantum of the award the petitioner filed a petition under Section 35 G before the learned Arbitrator being Petition No. 775/2015. The learned Arbitrator rejected the claim of the petitioner vide award dated 28.11.2017, on the ground that the petitioner had not led any evidence.
4. Thereafter, the petitioner through another counsel filed another petition, that too, again under Section 3G for enhancement of compensation being Petition No. 377 of 2018, however, the same was again dismissed by the learned Arbitrator-cum-Divisional Commissioner vide award dated 01.07.2022, and aggrieved thereby the petitioner has filed the instant petition for the grant of following reliefs:-
i) That Hon'ble Court may kindly please to quash and set aside the award dated 28.11.2017 in petition No. 775/2015.
ii) That Hon'ble Court may kindly please to quash and set aside the award dated 01.07.2022 in petition No. 377/2018.
iii) That Hon'ble Court may kindly order the respondents to grant 5 crores compensation on account of value of structure alongwith statutory benefits like 100% solatium, and interest as admissible under the Act.::: Downloaded on - 19/04/2023 20:34:18 :::CIS 3
iv) That Hon'ble Court may kindly order the respondents to pay10% deducted amount of .
compensation to the petitioner.
v) That Hon'ble Court may kindly order the respondents to pay interest @ 15% P.A. on the net enhanced compensation from the date of preliminary notice till the full realization of payment.
vi) That the record of the Arbitrator in petition No. 775/2015 and in petition No. 377/2018 may kindly be called up for the perusal of Hon'ble Court in the interest of justice and fair play.
5. The respondents have filed their replies wherein they have questioned the maintainability of this petition on the ground that Section 3(G) of the Act provides for the determination of amount payable as compensation and Section 3(G)(6) on the question of maintainability. It is further averred that since the award passed by the learned Arbitrator on 28.11.2017 has not been assailed by the petitioner either by way of objection under Section 34 of the Arbitration and Conciliation Act or an appeal under Section 37 of the Act, the instant petition would not be maintainable.
We have heard learned counsel for the parties and have gone through the records of the case.
6. Even though the petitioner would seek to justify the maintainability of the petition on the ground that availability of an alternate remedy is not an absolute bar for entertaining and ::: Downloaded on - 19/04/2023 20:34:18 :::CIS 4 maintaining the writ petition, however, the said proposition is not at all applicable in the present case.
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7. The petitioner admittedly has not assailed the award dated 28.11.2017 before the competent forum, therefore, reliance placed on the following judgments, which laid down that the availability of an alternate remedy is not an absolute bar for entertaining a writ petition, are totally misconceived.
(2005) 5 SCC 705
r to
(i) Oil & Natural Gas Corporation Ltd. vs. Saw Pipes Ltd.
(ii) Vinod Kumar vs. State of Haryana (2015) 5 SCC 138
(iii) Uttar Pradesh Power Transmission Corporation Ltd. & Anr. vs. CG Power and Industrial Solutions Ltd. & Anr (2021) 6 SCC 15
(iv) Shaku8ntalabai Derkar & anr. vs. Maroti Dewaji Wadaskar (2014) 1 SCC 602
(v) Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors. (1998) 8 SCC 1
(vi) Rashid Ahmad vs. Municipal Board Kairana AIR 1950 SC 163.
(vii) Ssangyong Engineering & Consruction Co. Ltd. vs. National Highways Authority of India (NHAI) AIR 2019 SC 5041
(viii) Civil Appeal No. 7062 of 2022, titled as Kazi Moinuddin Kazi Bashruddin & Ors. vs. The Maharashtra Tourism Development Corporation ::: Downloaded on - 19/04/2023 20:34:18 :::CIS 5
8. Admittedly, the earlier award passed on 28.11.2017 .
in Petition No. 775 of 2015 has attained finality as no objections under Section 34 of the Arbitration and Conciliation Act or an appeal under Section 37 of the Act was filed by the petitioner.
The learned Arbitrator, therefore, had no jurisdiction or authority to entertain much less decide the second application filed by the petitioner under Section 3(G) of the Act being Petition No. 377 of 2018. r
9. The matter, which has attained finality between the parties cannot be reopened for adjudication even by the High Court in exercise of its writ jurisdiction.
10. In view of the aforesaid discussion and for the reasons stated above, the instant petition is clearly misconceived and the same is accordingly dismissed, leaving the parties to bear their own costs.
Pending application(s), if any), stands disposed of.
(Tarlok Singh Chauhan)
Judge
(Virender Singh)
17th April, 2023 Judge
(sanjeev)
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