Gujarat High Court
Girishchandra Mahendraprasad Pathak vs The Collector, Vadodara on 17 March, 2021
Author: Sonia Gokani
Bench: Sonia Gokani, Gita Gopi
C/SCA/9093/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9093 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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GIRISHCHANDRA MAHENDRAPRASAD PATHAK
Versus
THE COLLECTOR, VADODARA
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Appearance:
MR BHARAT JANI(352) for the Petitioner(s) No. 1,2,2.1,2.2,2.3,3,4,5,6,7
for the Respondent(s) No. 9
MS MD MEHTA, GOVERNMENT PLEADER(1) for the Respondent(s) No.
1,11,12,13,14
MR AB MUNSHI(1238) for the Respondent(s) No. 3,4,5,6,7,8
MR MAULIK NANAVATI, NANAVATI & CO.(7105) for the Respondent(s) No.
10
NOTICE SERVED(4) for the Respondent(s) No. 9.1,9.2,9.3,9.4,9.5,9.6,9.7
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 2
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CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 17/03/2021
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C/SCA/9093/2020 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI) Rule. Learned AGP, Ms. Mehta, waives service of rule for Respondent Nos. 1 and 11 to 14, learned Advocate, Mr. Munshi, waives for Respondent Nos. 3 to 8 and learned Advocate Mr. Nanavati, wavies for Respondent No.10.
1. The petitioner Nos. 1, 2, 6 and 7, herein, purchased an agricultural land, comprising four adjoining revenue survey numbers, situated at village Sherkhi, District and Sub-District Vadodara, bearing Survey Nos.161/1/A, 161/3, 161/2/A, 161/1/B, admeasuring total Hectare 3-36-42 sq.mts., from respondent No.8 vide registered Sale Deed dated 07.07.1995, which is registered vide Registration No, 3332/1995, On the basis of the said sale deed, the names of the petitioners No.1. 2, 6 and 7 were mutated in the revenue record vide Entry No.7220 on 10.08.1995. The said entry, later on, was confirmed in favour of the petitioners and accordingly, their names were mutated in the revenue record, and thereby, the petitioners are shown, in the revenue records, as owners, occupants and possession holders of the said land.
1.1 It appears that on the demise of petitioner No.2, the names of petitioners No.2.1 to 2.3 were entered as legal heirs of petitioner No.2 and an entry was also made accordingly. Thereafter, in the year 2011, vide entry No.10143, entry of internal family partition made in favour of petitioner Nos. 3 to 5 and the same was entered in the revenue record.
1.2 It is averred that, as stated herein above, the notification was issued in the Gazette of Government of India, Extraordinary, Part II, Page 2 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT sub-Section (ii) of Section 3 and sub-Section (I) of Section 3A of the National Highways Act, 1956 ('the NH Act', hereinafter), whereby, the Central Government declared its intention to acquire the land specified in the Schedule annexed to the said notification for the public purpose of building 6/8 lane for the purpose of maintenance, management and operation of proposed Vadodara-Mumbai Expressway in Vadodara District of State of Gujarat. Said notification was also published in 'Time of India' and 'Sandesh' dailies, Dated: 03.03.2014 under sub-Section (3) of Section 3A of the NH Act, whereupon, the objections were received and were considered, however, the same were disallowed by the Competent Authority. Thereafter, the Competent Authority submitted its report to the Central Government for Padra, Vadodara and Karjan talukas of district Vadodara. In pursuance of submission of report, under sub-Section (1) of Section 3D of the NH Act, by the Competent Authority, the Central Government, in exercise of the powers conferred by sub-Section (1) of Section 3D of the NH Act, declared its intention to acquire the land specified therein for the aforesaid purpose.
1.3 It is, further, averred by the petitioners that, thereafter, respondent No.11 issued the award qua the land acquired under section 3G and 39(11)(3) of the NH Act in Compensation Case No.13/2013, Dated: 05.09.2017 and 24.08.2018 and paid the compensation to the tune of Rs.15,10.03.950/ to petitioner No.1, who accepted the same for and on behalf of petitioners Nos.1, 2, 6 and 7. Then, the possessions of the acquired lands was given to respondent No.10.
1.4 It is the grievance on the part of the petitioners that, subsequently, Respondent No. 11 issued the show-cause notice, Dated: 24.09.2019, to the petitioners for refund of Rs.6,34,39,134/-, for the same having been wrongly paid to the petitioners, by alleging that Page 3 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT petitioners had submitted wrong documents of the ownership and occupation of the land bearing Revenue Survey No.161/2B , situated at Village: Sherkhi. The same was responded to by the petitioners by giving a detailed reply.
1.5 It is averred that Respondent No.11, then, passed the impugned order dated 22.10.2019, directing the petitioners to refund the award amount of Rs.6,.34,39,134/- in compensation case No.13/2013.
1.6 The petitioners challenged the same by way of filing SCA No.22228/2019. The petitioners also filed an application for joining party, being Civil Application No.1/2019 in SCA No. 4103/2019. It is the say of the petitioners that respondents Nos. 2 to 8 had filed SCA No.4103/2019, against the respondent authority for declaration that their land bearing Survey No.161/2/B of village Sherikhi, admeasuring 9427 sq.mtrs. of Block No.363 was acquired for the purpose of Vadodara- Mumbai express highway without the same having been notified in the official gazette, and therefore, they had sought a direction against the Respondent No.11 to hand over vacant and peaceful possession of the said land.
1.6.1 It is, further, the say of the petitioners that CA No.1/2019 for joining party filed by them in SCA No.4 1/03/2019 was ordered to be heard with the main matter, where, during the course of hearing, the Division Bench passed an order on 14.11.2019 and joined the Collector as necessary party and also directed him to conduct, a detailed inquiry, observing that the "case required thorough probe in to the manner, in which the documents were provided to NHAI by the revenue department at the time of acquisition proceedings in connection with, the determination of compensation, the production of revenue records and also the payment of compensation to the rightful persons or Page 4 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT wrongful persons. It would be profitable to reproduce the relevant observations made by the Division Bench, which read thus:
"27. At this stage, a proposal was given to the parties that the writ-petitioners of Special Civil Application No. 22228 of 2019 would refund the excess compensation as demanded in the notice, impugned in the said petition and which amount may remain with the Collector, Vadodara to be invested in the maximum interest-bearing Fixed Deposits with any Nationalized Bank and subject to final outcome of the proceedings before the Collector/Civil Court, as the case may be, the said amount along with interest would be duly paid to the party found entitled to it and declared to be so entitled. This proposal was accepted by all the parties that upon return of the said money, the matter may be remitted to the Collector, Vadodara for taking appropriate decision strictly in accordance with law as may be directed by this Court.
28.Accordingly, without going into the merits of the matter and without recording any findings on the issues involved and the submissions advanced, we dispose of both the petitions with the following directions:-
(i)The petitioners of Special Civil Application No. 22228 of 2019 would deposit the amount demanded as per the impugned notice with the Collector, Vadodara within a period of 4 weeks from today.
(ii) The Collector, Vadodara, upon receipt of the said amount would invest it in a maximum interest-bearing Fixed Deposit with any Nationalized Bank. The Page 5 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT said amount along with interest would be paid to the party which ultimately is declared successful.
(iii) The return of the said amount would be without prejudice to and subject to the rights of the petitioners of Special Civil Application No. 22228 of 2019 maintaining their claim over the said amount, subject to final outcome of the proceedings before the Collector, Vadodara.
(iv) The Collector, Vadodara will proceed to take final decision on the notices issued after receiving the reply of not only the petitioners of Special Civil Application No. 22228 of 2019 but would also give an opportunity to the petitioners of Special Civil Application No. 4103 of 2019 of filing their objections and evidences and after examining the records available with the revenue authorities. This exercise may be undertaken and concluded within 4 months.
(v)Any observations made in this order would not influence the Collector, Vadodara in taking a final decision as directed above but the same would be an independent decision based upon the material that may be placed by the parties and the revenue department.
Since the learned counsel for the applicant in Civil Application (For Joining Party) No.1 of 2019 in Special Civil Application No. 4103 of 2019 is heard, no orders are required to be passed on this application."
1.7 It would not be out of place to make a mention here that, as mentioned herein above, the petitioners of SCA No.22228 of 2019 were Page 6 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT directed to refund the excess amount of compensation to respondent No.1, as demanded by the respondent No.11 and respondent No. 1 was directed to invest the said amount in any nationalized bank, in a maximum interest bearing fixed deposit, subject to final outcome of the proceedings before the Collector or the Civil Court, as the case may be. Further, the Division Bench was also pleased to direct the collector to hear and decide the said matter within four months.
1.7.1 Thereafter, the parties were issued notices and were given due opportunity of hearing by the Collector. Respondent No.1 also perused the record of Revenue Department so also of the Office of DILR and came to the conclusion that there is a discrepancy in the record so far as the possession of the land is concerned and the dispute is in regard to the said discrepancy, i.e. the right of ownership, share, interest and the legality of the documents, which falls under the jurisdiction of the Civil court. Respondent No.1 further found that this matter cannot be decided by her, for the same being the revenue authority and she has no jurisdiction, and therefore, Respondent No.1 found it necessary that the parties to the dispute should approach the competent Civil Court for the said purpose and accordingly, in her order dated 13.04.2020, Respondent No.1 stated that she has no jurisdiction to decide the issue in regard to the right of ownership, interest and legal heir-ship and since, the same can be decided by the competent Civil Court, let the parties approach the competent Civil Court for the said purpose.
2. Being aggrieved and dissatisfied with the same, the petitioners are before this Court, challenging the order dated 13.04.2020, passed by Respondent No.1, as according to them, this is in violation of Section 3H(4) of the NH Act, which provides that, If, any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority Page 7 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.
2.1 Another grievance made on the part of the petitioners is that, though, this Court had directed Respondent No.1 to decide the matter, after thoroughly making inquiry and perusing the revenue record and if, after so doing, if, she finds that she is unable to decide the same, then the reference to the competent Civil Court ought to have been made. Respondent No.1 came to the conclusion that she has no jurisdiction and that the only option, which is available to her, is to refer the matter to the Civil Court.
2.2 In support of their submissions, the petitioners have relied on the following decisions:
(1) ''BALIRAM RAMJI DHAKMAL VS. UOI & OTHERS', 2018 SCC Online Bom. 8487;
(2) 'NARINDER SHRMA AND OTHERS VS. NATIONAL HIGHWAY AUTHORITY OF INDIA & OTHERS', 2019 SCC Online HP 962;
(3) 'ARUN S/O. TRIMBAKRAO LOKARE VS. STATE OF MAHARASHTRA', AIR 2003 SC 942;
(4) 'SRI PRADIP DEBNATH AND OTHERS VS. SMT. SHILPI DEBNATH AND OTHERS', W.A. NO. 228 OF 2019, the High Court of Tripura at Agartala, Dated: 17.02.2020;
(5) 'NANDKUMAR DWARKANATH RAJPURKAR AND ANR. VS.
ANANT RAGHUNATH CHANDE AND OTHERS', 2018 SCC Online Page 8 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT Bom. 13891;
(6) 'SHRI. RAJARAM WAMAN RANE VS. SHRI. RAMKRISHNA MAHADEV RANE', 2018 SCC Online Bom 6437;
(7) 'NANAK CHAND VS. UOI THROUGH ITS SECRETARY AND OTHERS', 2016 SCC Online ALL 3160;
(8) 'ARUN S/O. TRIMBAKRAO LOKARE VS. STATE OF MAHARASHTRA AND OTHERS', AIR 2003 SC 942;
(9) 'SWARAN SINGH VS. UOI & OTHERS', CWP No. 11431 of 2018, Dated: 29.03.2019;
3. For and on behalf of Respondent Nos. 1 and 11 to 14, learned AGP, Ms. Mehta, has urged that this is a second round of litigation between the private parties, both of whom are claiming compensation qua the land bearing Survey No. 161/2/B. She, further, urged that the directions issued by this Court in the earlier round of litigation, being Special Civil Application No. 4103 of 2019, have been duly complied with and the order passed by the Collector is in accordance with law. It was urged that, pursuant to the same, the concerned respondent was made available due opportunity of hearing to all the concerned. However, considering the records supplied for and on behalf of the concerned parties as well as the available Revenue Record, since, there is a dispute with regard to the title and ownership of the land in question and the competent authority being the Revenue Authority it would not be in a position to decide the same, and therefore, the Collector has rightly directed the parties to seek appropriate relief from the competent Civil Court. It is also urged that the amount of compensation, i.e. Rs. 6,34,39,134/-, has already been invested in the Page 9 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT fixed deposit and the same shall be paid in favour of the party, who ultimately succeeds before the Civil Court.
3.1 Thus, it is reiteratively emphasized that Section 3H(4) of the NH Act provides that, If, any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.
3.2 It is urged that, in the present case, it is not only the apportionment of the compensation but also the ownership and title of the land, which is in dispute between the parties, and therefore, the Collector has rightly relegated them to the competent Civil Court to get the appropriate relief.
4. The written-submissions have been filed for and on behalf of respondent Nos. 3 to 8, who are the main contesting parties. Learned Advocate, Mr. Munshi, representing them has urged that, since, they have not filed affidavit-in-reply, the same may be treated as the reply of those respondents.
4.1 According to these respondents, this petition is not maintainable on the sole ground that the Collector, Vadodara, against whom the reliefs have been sought, would have no jurisdiction to decide the issue of title and ownership of the land in question and the same has to be decided by the competent Civil Court.
4.2 It is, further, their say that the land in question, i.e. Survey No. 161/2/B, Block No. 23, admeasuring 9427 sq.mts., was purchased by the respondents, herein, in the year 1996 and their names were also Page 10 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT mutated in the Revenue Record. However, the Special Land Acquisition Officer, without verifying the said aspect, issued the notification under the NH Act and took over the possession of the said land, without paying any compensation to these respondents.
4.3 It is, further, their say that Section Section 3A of the NH Act, refers to the powers to acquire a land. Section 3B refers to power to enter a land for survey. Section 3C refers to hearing of objections. Section 3D refers to declaration of acquisition. Section 3E refers to powers to take possession. Section 3F refers to right to enter into a land, where, the land is vested in the Central Government. Section 3G refers to determination of the amount payable as compensation. Section 3H refers to deposit and payment of amount. Sub-section (1) of Section 3H provides that the Central Government is expected to deposit the amount of compensation determined under section 3G in respect of the land acquired for management and operation of National Highway or a part thereof. As per sub-section (2) of section 3H, the competent authority has to disburse the amount so deposited under sub-section (1) to the person or persons entitled, thereto. Sub-section (3) provides that , where, are there several persons claiming interest in the amount so deposited, the competent authority is under an obligation to determine and records his opinion as to entitlement of such person or persons to receive the said amount. Sub-section (4), then, provides that wherever, there is dispute as to apportionment of the amount or any part thereof the competent authority has to refer the dispute to the competent Civil Court of the original jurisdiction, within the limits of whose local jurisdiction the land is situated.
4.4 It is, further, their say that, In the present case, the amount is already paid by the Land Acquisition Officer to the petitioners, herein, which in the earlier round of litigation, was found Page 11 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT to have been wrongly given, and therefore, the Land Acquisition Officer called upon the present petitioners by way of the demand notice to refund the excess amount of compensation paid to them. Sub-section (4) of Section 3H provides that the dispute, as regards apportionment of the amount, will have to be decided by the Special Land Acquisition Officer and only then, he can refer a dispute for decision before the competent Civil Court of original jurisdiction. It is urged that in the present case, this is not the issue and the Collector not being the competent authority, within the meaning of the NH Act, and therefore, the order passed by the Collector, Vadodara, deserves no interference.
4.5 It is, further, their say that the only question, which is to be decided by this Court is, as to whether, the order of the Collector, Vadodara, is just and proper or not.
5. Learned Advocate, Mr. Nanavati, appearing for the National Highways Authority has vehemently urged that Section 3H of the NH Act would require the reference to be made by the competent authority, and therefore, Respondent No.1 ought to have referred this matter to the Principal Civil Court to adjudicate the disputes of ownership and title between the parties, rather than relegating the parties to approach the Civil Court, if required.
5.1 In support of his submissions, by way of purshis, learned Advocate, Mr. Nanavati, has sought to rely on the following decision to substantiate this version:
' SRI PRADIP DEBNATH AND OTHERS VS. SMT. SHILPI DEBNATH AND OTHERS', W.A. No. 228/2019, Dated:
17.02.2020;Page 12 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021
C/SCA/9093/2020 JUDGMENT
6. Learned Advocate, Mr. Munshi, representing Respondent Nos. 3 to 8 has argued along the line of written-submissions and according to him, the issue, whether, the order passed by the Collector, in any manner, deserves indulgence or not, needs to be answered in negation.
7. He also took this Court through the provisions of Section 3H(4) the NH Act, which provides that wherever, there is a dispute, as to the apportionment of the amount of compensation or any part thereof, the competent authority has to refer the dispute to the Civil Court of original jurisdiction, within whose local limits the land is situated. Since, it merely speaks that the disputes with regard to the apportionment of the amount of compensation will have to be decided by the competent authority and only thereafter, it can refer a dispute for adjudication to the Principal Civil Court or original jurisdiction, within, whose local limits the land is situated. In other words, the dispute with regard to apportionment of the amount of compensation only is required to be referred by the competent authority, whereas, in the present, the Collector is not a competent authority, as defined under the NH Act, and therefore, he could not have done the same.
8. Learned AGP, Ms. Mehta, appearing for respondent Nos. 1 & 11 to 14 has argued along the line of affidavit filed on behalf of these respondents. She maintained that Respondent No.1 rightly has referred the matter, directly, to the Civil Court, in wake of the specific provisions of Section 3H of the NH Act.
9. Having, thus, heard the learned Counsels for the parties and having perused the material on record, which has been placed before this Court, we would, firstly, need to refer to the directions issued by the Division Bench of this Court in Special Civil Application No. 4103 of 2019.Page 13 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021
C/SCA/9093/2020 JUDGMENT 9.1 We notice that the Collector, Vadodara, has proceeded, as per the directions issued by this Court and has attempted to follow the procedure and also has rightly come to the conclusion that this being a disputed question of title and ownership of the land in question, the same cannot be decided by the Revenue Authority and the same shall need to be determined by the competent Civil Court. We do not deem it appropriate to delve into the aspect, so far as the decision of referring the dispute by Respondent No.1 to the competent Civil Court is concerned.
9.2 Therefore, the only question that needs to be adjudicated is, as to whether, Respondent No.1, himself, could have referred the matter to the Civil Court or whether, the same could have been done by referring the matter to Respondent No.11 or his directing the parties to get the issue determined by the Civil Court warrants no interference.
9.3 We have taken note of the rival submissions made by the learned Advocates for the parties, and therefore, we deem it appropriate to refer to Section 3(a) of the NH Act, which defines the competent authority and reads thus:
"1[3. Definitions.--In this Act, unless the context otherwise requires,--
(a) "competent authority" means any person or authority authorised by the Central Government, by notification in the Official Gazette, to perform the functions of the competent authority for such area as may be specified in the notification;"
9.4 At this stage, reference shall also needs to be made to Section 3A of the NH Act, which speaks of acquisition of land and which runs as Page 14 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT under:
"[3A. Power to acquire land, etc.--
(1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land. (2) Every notification under sub-section (1) shall give a brief description of the land. (3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language.] 9.5 For the purpose of decision in this matter, it would be vital to refer to the provisions of Section 3H of the NH Act, which provides thus, [3H. Deposit and payment of amount.--
(1) The amount determined under section 3G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land. (2) As soon as may be after the amount has been deposited under sub-section (1), the competent authority shall on behalf of the Central Government pay the amount to the person or persons entitled thereto.
(3) Where several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them.
(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.
(5) Where the amount determined under section 3G by the arbitrator is in excess of the amount determined by the competent authority, the Page 15 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT arbitrator may award interest at nine per cent. per annum on such excess amount from the date of taking possession under section 3D till the date of the actual deposit thereof.
(6) Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub-section (5) shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority and the provisions of sub-sections (2) to (4) shall apply to such deposit.] 9.6 After once, there is determination of amount payable as compensation, as provided under Section 3G of the NH Act, the same shall be deposited by the Central Government in such a manner, as may be laid down by rules made in this behalf by the Government, with the competent authority, before taking possession of the land. Sub- Section (2) of Section 3H is clear that as soon as, may be after the amount has been deposited under sub-section (1), the competent authority shall ,on behalf of the Central Government, pay the amount to the person or persons entitled, thereto.
9.6.1 Sub-Section (3) of Section 3H provides that, if, several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons, who, in its opinion, are entitled to receive the amount payable to each of them. Sub-Section (4) of Section 3H provides that, If any, dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.
Page 16 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021C/SCA/9093/2020 JUDGMENT 9.6.2 Sub-Section (5) of Section 3H provides that, where, the amount determined under section 3G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at 9%. per annum on such excess amount from the date of taking possession under section 3D, till the date of the actual deposit , thereof. Sub-Section (6) of Section 3H, where, the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub-section (5) shall be deposited by the Central Government in such a manner, as may be laid down by rules made in this behalf by the Government, with the competent authority and the provisions of sub-sections (2) to (4) shall apply to such deposit.
9.7 It is, thus, quite clear that these provisions, essentially, speak, as to how, after once, the amount of compensation has been determined , the payment of the said amount is to be made. Once, the amount is deposited, it is the competent authority, which shall, for and on behalf of the central government, pay the amount to the person or persons entitled to receive such amount of compensation. Sub-Section (3) of Section 3H states that, if, several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons, who, in its opinion, are entitled to receive the amount payable to each of them 9.8 In other words, the entitlement of a person, who claims the amount of compensation, is to be determined by the competent authority. However, in the eventuality, where, the competent authority is unable to decide and a dispute arises, then, sub-Section (4) provides as to what should be done. If, a dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, in such a case, the competent authority is Page 17 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT required to refer the dispute for the decision to the principal Civil Court of original jurisdiction, within the limits of whose jurisdiction the land in question is situated.
9.9 To give restricted meaning to these provisions, by interpreting that only in the eventuality of the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, would not amount to doing justice to these provisions. As that would entirely leave the matter of such a dispute of ownership or title at the mercy of the parties, who would be claiming the amount of compensation. Even otherwise, sub-Section (3) and sub-Section (4) of Section 3H of the NH Act cannot be read in isolation and the same shall have to be read together to give the complete and full meaning to these provisions. Since, it is the competent authority, which has to determine, in the eventuality, of any claim to be decided amongst several persons, interested in the amount of compensation, the onus to determine the entitlement and ownership naturally would be of the authorities, which is obligated to decide apportionment and here this onus is on the competent authority and if, it is unable to determine or opine on the entitlement to receive the amount of compensation in relation to the claim made by the parties, then, the reference shall need to be made for determination to the Civil Court on its part, and therefore, sub-Section (4) of Section 3H would also govern the issue of entitlement and such issue will be determined by the Civil Court, once the reference is made by the competent authority.
10. We can also notice from the order passed by the Division Bench in Special Civil Application No. 4103 of 2019, where, the Court made it amply clear that once the Collector proceeds to take final decision, on receiving the reply from the parties and on examining the material available with the competent authority, it is required to refer the dispute Page 18 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT to the competent Civil Court under Section 3H of the NH Act.
10.1 Now, accordingly, coming to the decision of this Court in SCA No.4103 of 2019, Dated: 16.12.2019, the Division Bench, at Paragraph- 24, has noted that the submissions made by the respective parties draw out a very complex picture and would require thorough verification of records, after hearing the parties in detail, so also the calculation of the land acquired, being Block No. 363, and the compensation paid to the petitioners of Special Civil Application No. 22228 of 2019. The Division Bench, further, opined that "In our considered opinion, this can better be examined at the level of the Collector, Vadodara, by examining all the revenue records, the records of the Land Acquisition proceedings, after giving due opportunity of filing objections and hearing and also filing material documents, to the respective parties and then taking a final decision as to what course of law should be adopted. Whether it can be thrashed out by the Collector, well and good, otherwise, if it requires to be referred to the civil court under section 3H of the National Highways Act, 1956, the Collector, Vadodara, would be free to take appropriate decision."
10.1 Thus, the Division Bench directed the Collector, Vadodara, to examine all the material, including the revenue records, records of the land acquisition etc., and to take a final decision, after hearing all the concerned, as to what procedure is to be adopted. The Division Bench also granted liberty to the Collector, Vadodara, to refer the matter to the Civil Court, under Section 3H of the NH Act, if, eventually, he deems it appropriate to do so.
10.1.1 We can notice from the record that the Collector, Page 19 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT
Vadodara,-Respondent No.1, herein, has found, on verification of the record and after hearing both the sides, in detail, has found that there is a dispute with regard to the title and ownership of the land in question and the competent authority being the Revenue Authority would not be in a position to decide the same, and therefore, it has directed the parties to seek appropriate relief from the competent Civil Court. Referring to the competent authority, as defined under Section 3 of the NH Act, it provides that a "competent authority" means, any person or authority authorised by the Central Government, by notification in the Official Gazette, to perform the functions of the competent authority for such area, as may be specified in the notification.
10.1.2 In the instant case, a peculiar situation has arisen, where, the Collector, Vadodara,-Respondent No.1, herein, was directed to proceed to take a final decision on the notices issued, after receiving the reply of not only of the petitioners in Special Civil Application No. 22228 of 2019 but also objections of the petitioners in Special Civil Application No. 4103 of 2019 within the period of four months, and therefore, the direct reference to the Civil Court could have been one of the options. However, strictly and legally speaking, the same could have been alleged as an attempt to overreach the provisions of law, and therefore, the safer course on the part of Respondent No.1 would have been to refer the matter to the competent authority, with a request to refer the dispute to the principal Civil Court of original jurisdiction within the limits of whose local jurisdiction the land in question is situated.
11. Bombay High Court in 'ARUN S/O. TRIMBAKRAO LOKARE' (Supra), interpreted Section 3H of the NH Act, while considering the issue of apportionment of compensation and entitlement of petitioner, who claimed undivided share in acquired land. The Court, while Page 20 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT applying the principle of harmonious construction held that dispute as to entitlement to receive compensation is to be referred to Principal Civil Court of Original Jurisdiction and that by implication, excludes jurisdiction of the competent authority. The relevant findings and observations of the Bombay High Court runs as under:
"6] At the outset, it is necessary to mention that there is apparently no dispute about any of the facts averred in the petition. The whole controversy therefore, revolves around the interpretation and distinction between Sub-Section (3) and (4) of Section 3-H of the Act. The relevant provisions are reproduced hereinafter for ready reference :
" 3-H. Deposit and payment of amount.- (1) The amount determined under section 3-G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land.
(2) As soon as may be after the amount has
been deposited under sub-section (1), the
competent authority shall on behalf of the
Central Government pay the amount to the
person or persons entitled thereto.
(3) Where several persons claim to be
interested in the amount deposited under sub-4- section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them.
(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the Page 21 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT dispute to the decision of the principal civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated. (5) Where the amount determined under section 3-G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent per annum on such excess amount from the date of taking possession under section 3-D till the date of the actual deposit thereof. (6) Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub-
section (5) shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority and the provisions of sub-
section (2) to (4) shall apply to such deposit. "
7] The National Highways Act, 1956 is an Act to provide for the declaration of certain highways to be national highways and for matters connected therewith. By Section 2, certain highways can be declared as national highways. By Section 3, the terms "competent authority" and "land" have been defined. Section 3- A confers the power to acquire the land etc.. By Section 3-B, here is power to enter for survey, etc..
8] Then comes an important provision, namely, Section 3-C which provides for hearing of objections. Thus, any person interested in the land may object to the use of the land for the purpose or purposes mentioned in that sub-section, namely, sub-section (1) of Section 3-A. How objections have to be considered and the order to be made thereon is provided Page 22 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT by sub-section (2) of Section 3-C. Then follows the declaration of acquisition by Section 3-D and by Section 3-E the power is conferred to take possession. By Section 3-F there is a right to enter into the land where the land has vested in the Central Government.
9] A bare reading of these provisions together and harmoniously would reveal as to how a comprehensive legislation is made enabling the acquisition of land for National Highways. The object is to build, maintain, manage or operate a National Highway. When such comprehensive legislation and which is a Code by itself, is enacted, naturally it must contain provisions for determination of the amount payable as compensation. That determination takes place in terms of Section 3-G. A reading of all sub-sections of Section 3-G would reveal as to how the compensation has to be determined for the right of user or any right in the nature of an easement on any land acquired under the Act and for that an amount is paid to the owner or any other person whose right of enjoyment in such land has been affected in any manner whatsoever by reason of such acquisition. The claims from all persons interested in the land to be acquired have to be invited in terms of the public notice and thereafter, an opportunity to substantiate that claim by stating the nature of interests in such lands, has to be given. Then, there is determination of the amount by the competent authority in terms of sub- section (1) or sub-section (2) of Section 3-G. If the amount determined by the competent authority under these sub-
sections is not acceptable to either of the parties, then, the amount shall, on application by either of the parties, be determined by the Arbitrator to be appointed by the Central Government in Page 23 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT terms of sub-section (5) of Section 3- G. The factors which have to be taken into consideration for determining the amount payable are set out in sub-section (7).
10] Thereafter, follows Section 3-H which we have reproduced above. By sub-section (1) of Section 3-H, the amount determined under Section 3-G shall be deposited by the Central Government in such manner as may be laid down by Rules made in this behalf by that Government, with the competent authority before taking possession of the land. As soon as may be after the amount has been deposited under sub-section (1) of Section 3-H, the competent authority shall on behalf of the Central Government pay the amount to the person or persons entitled thereto. Where such persons claim to be interested in the amount deposited under sub-section (1) of Section 3-H, the competent authority shall determine the persons who in it's opinion are entitled to receive the amount payable to each of them. However, the enactment and which contains provisions for building and maintaining of national highways has to be so comprehensive and complete that nothing is left out of it's purview. The reason is obvious. The project of national importance and which a national highway is, should not be unnecessarily delayed.
Therefore, the object being to pay the amount determined by the competent authority or by the arbitrator before taking possession of the land, that has to be disbursed to the person or persons entitled thereto. This follows deposit of the amount with the Central Government.
Hence, sub-section (3) of Section 3-H takes care of the situation where several persons claim to be interested in the amounts deposited. In that event it is the competent authority who shall determine the persons, who in it's opinion, are entitled to receive the amount payable to Page 24 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT each of them. However, if any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, then, the competent authority shall refer the dispute to the decision of the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated.
The competent authority possesses certain powers of the Civil Court, but in the event of a dispute of the above nature, the summary power, vesting in the competent authority of rendering an opinion in terms of sub-section (3) of Section 3-H, will not serve the purpose.
The dispute being of the nature triable by the Civil Court that the law steps in to provide for that to be referred to the decision of the Principal Civil Court of original jurisdiction. The dispute regarding apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, would then have to be decided by that Court.
XXX XXX XXX 16] It is a settled principle of interpretation of statute that the provisions of any statute are to be so interpreted as to give effect to each of them to the extent possible without giving rise to any conflict or overlapping. This principle of harmonious construction needs to be applied in the matter before hand vis a vis Sub-Section (3) of Section 3-H, while interpreting Sub- Section (3). Such application would lead us to interpret these provisions in harmonious manner putting neither of them otiose. A careful reading of these provisions would reveal that when several persons are entitled to claim compensation, the competent authority has power and jurisdiction to record an opinion and determine the persons who are entitled to receive Page 25 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT share/s and only enables him to apportion the amount of compensation amongst them according to the share they are entitled to. As against this, Sub-Section (4) contemplates a situation where the dispute is raised as to the entitlement of the compensation by several persons and the jurisdiction to decide such dispute is conferred upon the Principal Civil Court of original jurisdiction. In other words, whenever there is dispute raised by any person as to the right to receive either the whole or portion of the compensation, the competent authority is obliged to refer the matter to the Principal Civil Court of original jurisdiction.
17] In view of such legal position, when Sub-Section (4) of Section 3-H specifically requires the dispute as to entitlement to receive compensation determined under Section 3-G of the Act to be referred to and decided by the Principal Civil Court of original jurisdiction, it by implication necessarily excludes jurisdiction of the competent Authority which is entitled to merely decide the point of apportionment of the compensation amongst several persons under Sub-Section (3) of Section 3-H. Such interpretation, in our view, strikes a balance between Sub- section (3) and Sub-section (4) of Section 3-H of the Act and make them operative in separate spheres. The submission of the learned Advocate for the petitioner, on these lines therefore deserves to the accepted."
11.1 In 'SRI PRADIP DEBNATH AND OTHERS' (Supra), the High Court of Tripura has discussed at length, the provisions of Section 3G of the NH Act. The relevant observations, runs as under:
"Considering the issues involved, we have Page 26 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT heard learned counsel for the parties for final disposal of the petition at this stage. Having heard the learned advocates, we are of the opinion that the issues raised by the original petitioner for apportionment of her share out of the compensation determined by the respondent No.2, could not have been taken up in a writ petition. Directions for repayment by the private respondents failing which direction to the respondent No.2 to institute recovery proceedings, consequently ought not to have been issued. This is so because the National Highways Act, 1956 under which the acquisition has been undertaken and compensation assessed and paid, contains specific provisions to deal with the situation where there is dispute inter se between the claimants. Section 3G of the National Highways Act, 1956 pertains to determination of amount payable Page 4 of 5 as compensation. After such determination is completed the compensation has to be deposited and paid as provided under Section 3H. Sub-Section (1) of Section 3H provides that the amount determined under section 3G shall be deposited by the Central Government in such manner as may be laid down by the rules with the competent authority before taking possession of the land. As per sub- Section (2) of Section 3H, as soon as may be after the amount has been deposited under sub-section (1), the competent authority would on behalf of the Central Government pay the amount to the person or persons entitled thereto. As per sub-Section (3) of Section 3H where several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them. Sub-Section (4) of Section 3H, which is of importance, reads as under:
"(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or Page 27 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated."
As per this sub-Section (4) of Section 3H thus, if any dispute arises as to the apportionment of the amount or any part thereof, out of any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the Page 5 of 5 limits of whose jurisdiction the land is situated. This provision is pari materia to Section 30 of the Land Acquisition Act, 1894. Under the circumstances, when the original petitioner had approached the competent authority staking her claim to part of the compensation assessed since the private respondents had resisted any such claim, it was the duty of the competent authority to refer the dispute to the competent civil court. He could not have taken a decision since such a dispute was not within his purview. At the same time, the High Court also should not have undertaken the task of assessing internal shares of the petitioners and the private respondents. The same had to be done by a competent civil court on a reference to be made by the authority.
The impugned Judgment of the learned Single Judge as well as the Review order are set aside. However, the order dated 01.06.2016 passed by the competent authority is also set aside. He shall, instead make a reference of the dispute to the competent civil court as provided under sub-Section (4) of Section 3H of the National Highways Act, 1956. This shall be done within a period of one month from today.
The reference court shall decide the disputes involved unmindful of any of the observations made in any of the orders passed by the High Court.
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Appeal is disposed of."
11.1 In the case of 'NANAK CHAND' (Supra), the Allahabad High Court has also endorsed this view, while interpreting Section 3H of the NH Act.
11.2 Thus, sub-Section (4) of Section 3H of the NH Act is in harmonious construction with sub-Section (3) of Section 3H of the NH Act, and therefore, the dispute with regard to the title and ownership shall need to be referred to the the principal Civil Court of original jurisdiction, within the limits of whose local jurisdiction the land in question is situated, which would decide the entitlement of compensation of several persons and the dispute with regard to the title and ownership.
11.3 Reverting to the facts of the case on hand, the present petitioners were directed to refund, as mentioned herein above, out of the total amount of compensation of Rs.15,00,00,000/-(rounded off) paid to them towards acquisition of the land for 6/8 lanning of Vadodara-Mumbai Express Highway, Rs.6,34,39,134/- and the same has already been deposited by them with the authority concerned, which, in turn, has been directed to invest the same in fixed deposit in a nationalized bank. Since, the same is to be paid in favour of either of the parties, who ultimately succeeds before the Civil Court in establishing their right of title and ownership. Further, the possession of the land in question has already been acquired by Respondent No.10 and the same continues to be with him. Here, it may be noted that being aggrieved with the order of refund passed by Respondent No.11, the petitioners preferred SCA No. 22228 of 2019 before this Court.
11.4. So far as Respondents Nos. 2 to 8 is concerned, they filed SCA Page 29 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT No.4103/2019, against the respondent authority for declaration that their land bearing Survey No.161/2/B of village Sherikhi, admeasuring 9427 sq.mtrs. of Block No.363, is acquired for the purpose of Vadodara- Mumbai express highway, without the same having been notified in the official gazette, and therefore, they had sought a direction against the Respondent No.11 to hand over vacant and peaceful possession of the said land.
11.5 In the above background, the Division Bench of this Court, without entering into the merits of the matter, vide its order, Dated :
16.12.2019, passed in SCA No. 4103 of 2019, made reference to the Collector, Vadodara,-Respondent No.1, herein, since, there is a complex and disputed question of ownership and title is involved, which would require closer examination of the material.
11.6 We find that the Collector, Vadodara, has rightly come to the conclusion that, since, the matter involves the complex and disputed question of ownership and title, it would have no jurisdiction to determine the same and instead, it shall be the principal Civil Court of the original jurisdiction, within the limits of whose local jurisdiction the land in question is situated, alone would be competent to determine the same. However, while so doing, instead of relegating the parties, directly, to the Civil Court, Respondent No.1-the Collector ought to have referred the matter to the competent authority, which, in turn, would have referred the same to the Civil Court for its decision, as to who shall be entitled to receive the amount of compensation. This petition, therefore, deserves to be allowed, partly.
12. Resultantly, this petition is PARTLY ALLOWED and while NOT UPHOLDING the decision of Respondent No.1-Collector, directing the petitioners to approach the Civil Court for decision of ownership and Page 30 of 31 Downloaded on : Sat Aug 21 13:45:46 IST 2021 C/SCA/9093/2020 JUDGMENT title, since, the parties are already before this Court, we DIRECT that let this be TREATED as a reference from the competent authority to the principal Civil Court, Vadodara, and let it DECIDE the issue of title and ownership within the period of FOUR MONTHS, from the date of receipt of a copy of this order.
12.1 Further, Respondent Nos. 2 to 8 shall be entitled to apply for REDETERMINATION / ENHANCEMENT of the amount of compensation, if, they are found ENTITLED by the Civil Court, Vadodara, to receive the amount of compensation. If, any such application, at a future date, is made by Respondent Nos. 2 to 8, the same shall be decided on its own merits, without being influenced by any of the observations made by this Court in this order.
12.2 Both the sides are expected to COOPERATE before the Civil Court, Vadodara, for early decision in the matter.
13. Rule is made absolute, accordingly. Over and above the normal mode of service, direct service through E-MAIL / FAX is also permitted.
(SONIA GOKANI, J) (GITA GOPI,J) UMESH/-
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