Allahabad High Court
Kailash Bhushan And 3 Others vs Union Of India And 3 Others on 13 July, 2020
Bench: Bala Krishna Narayana, Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 4 Case :- WRIT - C No. - 11205 of 2020 Petitioner :- Kailash Bhushan And 3 Others Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Sheo Shankar Tripathi,Adya Prasad Tewari Counsel for Respondent :- A.S.G.I.,C.S.C. Hon'ble Bala Krishna Narayana,J.
Hon'ble Ravi Nath Tilhari,J.
Heard Shri Sheo Shankar Tripathi, learned counsel for the petitioners, Shri R.K. Jaiswal, learned counsel for the respondent no. 1, Shri Ashok Kumar Pandey, learned counsel for the respondent no. 2 and learned Standing Counsel for the State respondent.
With the consent of learned counsel for the parties, we proceed to dispose of this petition finally at this stage.
The petitioners have filed the present writ petition with the following reliefs:-
"(i) issue a writ, order or direction in the nature of mandamus commanding the respondent no. 4, the Arbitrator National Highways No. 233 Azamgarh/The District Magistrate, Azamgarh to conclude and decided the Arbitration Case No. 535 of 2017 Kailash Bhushan and others vs. General Manager National Highways Authority Varanasi and others under Section 3G (5) National Highway Act, 1956 as early as possible within the time frame.
(ii) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.
(iii) award the cost of the writ petition in favour of the petitioners."
Learned counsel for the petitioners has submitted that the petitioners were Bhoomidhar with transferable rights over plot nos. 211, 427, 428, 432, 436 and 435/612 total area 5718 sq.meter situated at Village-Amauda Mohiuddinpur, Tappa and Pargana-Fariha, Tehsil-Nizamabad, District-Azamgarh in which the petitioners share is 1/16 i.e. 953 sq.meter. The said land was acquired for the purposes of construction of National Highway No. 233 Indo Nepal Border, Varanasi for Four Lane Broadening in District Azamgarh by notification dated 22.12.2012 under Section 3 A (1) of the National Highway Act published in the newspaper on 15.02.2013. Thereafter award was passed on 15.07.2015 at the rate of Rs. 21,00/- per sq.meters.
Learned counsel for the petitioners has submitted that the petitioners land which has been acquired is of residential and commercial utility and situated adjoining to the National Highway. The award given by the competent authority is at much lower rate than the circle rate fixed by the Collector which was notified at the rate of Rs. 2500/- per sq.meter.
The petitioners filed an application before the Arbitrator, National Highway No. 233 Azamgarh under Section 3G(5) of the National Highways Act, 1956 on 13.06.2017 against the award dated 15.07.2015 which was registered as Arbitration Case No. 535 of 2017, which is pending before the arbitrator and has yet not been decided.
Learned counsel for the respondents have no objection to the prayer made by the petitioners for expeditious disposal of the Arbitration Case No. 535 of 2017 but they have submitted that as per the petitioners' application/objection under Section 3G(5) of the National Highways Act, 1956 contained in Annexure No. 4, the petitioners have received the amount of compensation as determined by the competent authority and as such the petitioners have accepted the award as determined by the competent authority and the remedy under Section 3G(5) of the National Highway Act, 1956 is not available to them. Learned counsel for the respondents have further submitted that in the application/objection the petitioners have also claimed interest at the rate of 9% for the first year and at the rate of 15 % for the subsequent years over the awarded amount as determined by the competent authority. The arbitrator under Section 3G(5) of the National Highway Act, 1956 has no jurisdiction to award interest on the amount awarded by the competent authority.
Learned counsel for the respondents submits these objections of the respondents be also considered by the arbitrator.
We have considered the submissions advanced by the learned counsel for the petitioners as well as the counsel for the respondents and have also perused the material on record.
It is relevant to reproduce Sections 3G and Section 3H of the National Highways Act, 1956 which reads as follows:
"Section 3G [3G. Determination of amount payable as compensation.?
(1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.
(2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent. of the amount determined under sub-section (1), for that land.
(3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired.
(4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land.
(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.
(6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.
(7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration?
(a) the market value of the land on the date of publication of the notification under section 3A;
(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;
(c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;
(d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.]"
"Section 3H 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 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.]"
A bare reading of Section 3G(5) of the National Highways Act, 1956, shows that if the amount determined by the competent authority under 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 arbitrator to be appointed by the Central Government.
Thus, if the amount determined by the competent authority is not acceptable to either of the parties, the party to whom the award is not acceptable, shall approach the appointed Arbitrator under sub section (5) of Section 3G and the said Arbitrator shall determine the amount of compensation, taking into consideration the provisions of sub section (7).
Sub Section (6) of Section 3G provides that subject to the provisions of the National Highways Act, 1956, the provisions of the Arbitration and Conciliation Act, 1996, shall apply to every arbitration under the National Highways Act, 1956.
The contention of the respondents that since, the petitioners had accepted the award of the competent authority in as much as they received the compensation as determined by the competent authority, before filing of the application under Sub Section (5) before the arbitrator, their application is not maintainable, shall be duly considered & decided by the arbitrator.
Section 29A of the Arbitration and Conciliation Act 1996 provides as follows:-
"29A.Time limit for arbitral award.?
(1) The award shall be made within a period of twelve months from the date the arbitral tribunal enters upon the reference. Explanation.?For the purpose of this sub-section, an arbitral tribunal shall be deemed to have entered upon the reference on the date on which the arbitrator or all the arbitrators, as the case may be, have received notice, in writing, of their appointment.
(2) If the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree.
(3) The parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months.
(4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period: Provided that while extending the period under this sub-section, if the Court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent. for each month of such delay.
(5) The extension of period referred to in sub-section (4) may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the Court.
(6) While extending the period referred to in sub-section (4), it shall be open to the Court to substitute one or all of the arbitrators and if one or all of the arbitrators are substituted, the arbitral proceedings shall continue from the stage already reached and on the basis of the evidence and material already on record, and the arbitrator(s) appointed under this section shall be deemed to have received the said evidence and material.
(7) In the event of arbitrator(s) being appointed under this section, the arbitral tribunal thus reconstituted shall be deemed to be in continuation of the previously appointed arbitral tribunal.
(8) It shall be open to the Court to impose actual or exemplary costs upon any of the parties under this section.
(9) An application filed under sub-section (5) shall be disposed of by the Court as expeditiously as possible and endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party."
Thus, as per sub Section (1) of Section 29A of the Arbitration and Conciliation Act 1996, the award shall be made within a period of 12 months from the date the arbitral tribunal enters upon the reference and for the purpose of sub Section (1) an arbitral tribunal shall be deemed to have entered upon reference on the date of which the arbitrator or all the arbitrators, as the case may be have received notice in writing on their appointment. Under the National Highways Act, 1956 there are arbitrators appointed by the Central Government. The petitioners have filed their application under sub Section (5) of Section 3G of the National Highways Act, 1956 on 13.06.2017. More than a period of one year has already lapsed and the arbitration case is yet to be decided by the arbitrator.
So far as the petitioners' claim of interest on the amount of award as determined by the competent authority is concerned, the same shall be considered by the arbitrator in the light of the objections raised by the respondents that no such interest can be awarded on the amount determined by the competent authority by the arbitrator, as the same is not within the jurisdiction of arbitrator and this grievance of the petitioners falls outside the scope of Section 3G(5) of the National Highways Act, 1956. This contention shall be examined by arbitrator.
We therefore, without entering into the merits of the controversy as regards grant of compensation to the petitioners' over and above the award awarded by the competent authority and the interest, direct the appointed arbitrator, respondent no. 4, to decide the arbitration case no. 535 of 2017 expeditiously and preferably within a period of six months from the date of production of certified copy of this order before the arbitrator, after affording opportunity of hearing to all concerned and strictly in accordance with law, and with respect to an area of 953 sq.mt. only of the petitioners' acquired land.
The writ petition is disposed of with the aforesaid observations and directions. We make it clear that we have not adjudicated upon the merits of the case.
Order Date :- 13.7.2020 sweta ( Ravi Nath Tilhari,J.) (Bala Krishna Narayana,J.)