Tripura High Court
Airport Authority Of India vs General on 12 September, 2019
Author: Sanjay Karol
Bench: Sanjay Karol, S Talapatra
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HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
RFA No.27/2017
1. Airport Authority of India
Rajib Gandhi Bhawan, Safdarjung, New Delhi
through the General Manager.
2. Airport Director, Agartala Airport, Agartala,
P.O. Bimanghar, P.S. Airport, West Tripura.
........... Appellants.
Vrs.
1. Sri Sanatan Das, S/o Late Naider Chand Das,
2. Sri Mohan Lal Das, S/o Late Sudhir Das,
3. Sri Tapan Sarkar, S/o Late Hari Dhan Sarkar,
4. Sri Kishore Nag, S/o Sri Umesh Nag,
5. Sri Ajit Das, S/o Late Sudhir Das,
6. Sri Biru Lal Das, S/o Late Sudhir Das,
7. Sri Santosh Das, S/o Late Sudhir Das,
8. Sri Sukumar Deb, S/o Late Sadhu Charan Deb,
9. Sri Ashish Sarkar, S/o Late Prabhat Chandra Sarkar,
10. Sri Debashish Sarkar, S/o Late Prabhat Chandra Sarkar,
11. Smt. Anjana Sarkar, W/o Late Gour Dhan Sarkar,
12. Sri Sankar Chandra Deb, S/o Late Sadhu Charan Deb,
13. Sri Satya Gopal alias Satya Ranjan Roy, S/o Late Kunja Behari Roy,
14. Sri Nani Gopal Roy, S/o Late Kunja Behari Roy,
15. Sri Dhirendra Das, S/o Late Surendra Das,
16. Smt. Laxmi Dhar, W/o Late Suddhadhan Dhar,
17. Sri Kali Charan Das, S/o Late Baishnab Chandra Das,
18. Sri Jagadish Roy, S/o Late Raj Kumar Roy,
19. Sri Prafulla Chandra Roy, S/o Late Dinabandhu Roy,
20. Smt. Usha Rani Roy, W/o Late Bipain Chandra Roy,
21. Sri Dhirendra Bhowmik, S/o Late Kshetra Mohan Bhowmik,
22. Sri Amal Das, S/o Late Nirdhan Das,
23. Sri Sadhan Biswas, S/o Late Jagabandhu Biswas,
24. Sri Matilal Bardhan, S/o Late Amar Chandra Bardhan,
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All are residents of Village - North Narayanpur, P.O. Bimanghar,
P.S. Airport, District - West Tripura.
........... Respondents.
25. The Sub-Divisional Magistrate, Sadar, Agartala, P.O. Agartala,
P.S. West Agartala, District - West Tripura.
26. District Magistrate & Collector, P.O. Agartala, P.S. West
Agartala, West Tripura, Agartala.
27. The State of Tripura, represented by the Secretary, Revenue
Department, Government of Tripura, P.O. Kunjaban, P.S.
Capital Complex, Agartala, District - West Tripura.
........... Pro-Respondents.
_B_E_F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL
THE HON'BLE MR. JUSTICE S TALAPATRA
For Appellant(s) : Mr. Sankar Kr. Deb, Sr. Advocate,
Mr. P K Pal, Advocate.
For Respondents : Mr. A K Bhowmik, Sr. Advocate,
Mr. Karnajit De, Addl. Govt. Advocate,
Mr. R Datta, Advocate.
Date of hearing : 31st July, 2019.
Date of Judgment : 12th September, 2019.
Whether fit for reporting : Yes No
√ ×
JUDGMENT
( Sanjay Karol, C.J. ) In the instant appeal preferred under Section 9C of the Aircraft Act, 1934 (hereinafter referred to as the 'Aircraft Act'), the Airport Authority of India(hereinafter referred to as the 'Authority') lays challenge to the award dated 28th March, 2016 passed by Mr. Suresh Chandra, sole Arbitrator, Joint Secretary & Legal Advisor, Government of India, Ministry of Law & Justice, New Delhi in awarding certain amount of compensation in favour of the claimants.
Page - 3 of 15 [2] The brief background leading to the filing of the instant appeal being that:
Land owners of certain lands situate in Village -
Narayanpur abutting and adjoining the Airport at Agartala, State of Tripura, were asked to prune/downsize the trees/vegetative growth over their respective lands. The said land owners laid challenge to such notice dated 23rd September, 2009 by way of writ petition, [WP(C) No.307/2009 titled as Sonatan Das and Ors. Vrs. The Airport Authority of India and Ors.] which was disposed of vide order dated 15th September, 2010 in the following terms :
"Heard Mr. A K Bhowmick, learned senior counsel, for the petitioners. Also heard Mr. Adhikary, learned Advocate General, Tripura, appearing for the respondent Nos.3 to 5 and Mr. S Deb, learned senior counsel for the respondent Nos.1 & 2.
The petitioners have filed the present petition with the following prayer :
"It is, therefore, humbly prayed that Your Lordships would graciously be pleased to issue Rule upon the Respondents to show cause as to why the Respondents should not transmit all records relating to the case of the petitioners:
And As to why a Writ in the nature of certiorari should not be issued quashing the notices issued by the Respondents No.3 vide No.2986-3036/ F.No.4(88)SDM/SDR/REV/A-1/09 dated 23rd September, 09 directing the petitioners to downsize and prune the standing trees above 7½ feet within 7 days;
And As to why a writ in the nature of mandamus should not be issued directing the Respondents Page - 4 of 15 either to acquire the lands of the petitioners lying within 70 meters from the boundary of Agartala Airport under the provisions of Land Acquisition Act or to make inventory of the trees required to be cut down through a joint survey recording description and size of the trees, to assess compensation for the same and to pay compensation for the loss and damage before cutting the trees of the petitioners;
And As to why a writ in the nature of prohibition should not be issued directing the Respondents not to give effect the notices dated 23rd September, 2009 issued by the Respondent No.3 before preparation of inventory of the trees required to be cut down through a joint survey recording the description and size of the trees and assessment of compensation and payment thereof to the petitioners."
Learned senior counsel for the petitioners, at the outset, submits that though the petitioners have challenged the notice dated 23rd September, 2009 issued by Sub-Divisional Magistrate, Sadar, Agartala requiring the petitioners to cut down their trees up-to the level of eight-and-one-half feet and prayed for compensation, they have no objection if the writ petition is disposed of with a direction to prepare an inventory in their presence and in presence of representatives of Airport Authority of India and Sub- Divisional Magistrate, Sadar, Agartala (SDM), and if step for assessment of compensation under Section 9(B) of the Aircraft Act, 1934 is taken.
Learned senior counsel for the respondent Airports Authority submits that while the Authority is not averse to the idea of preparing inventory in presence of the representatives of the petitioners, Airport Authority of India and Sub-Divisional Magistrate, Sadar, Agartala (SDM), they are not agreeable to the claim of the petitioners that they are entitled to compensation under Section 9(B) of the Act.
Page - 5 of 15 Learned Advocate General* Tripura, submits that the State is agreeable to making an inventory in presence of the petitioners, representatives of the Airports Authority of India and the Sub-Divisional Magistrate, Sadar, Agartala, but the question of entitlement of compensation to the petitioners is to be decided by the authority under Section 9(B) of the Act.
Since the preparation of inventory in presence of the representatives of the petitioners, Airports Authority of India and the Sub-Divisional Magistrate is agreed upon by learned counsel for the parties to the present proceeding and as submitted by learned counsel for the petitioners that they do not press the prayer for setting aside the notice dated 23rd September, 2009, the present writ petition is disposed of with the following directions:
(i) The petitioners, from 18th September 2010, would start cutting down the required trees in presence of representatives of the Airport Authority of India and the Sub-Divisional Magistrate, Sadar, Agartala;
(ii) An inventory relating to trees cut on each day shall be prepared, which shall be signed by the parties concerned, that is, the representatives of the petitioners concerned, the Airport Authority of India and Sub-Divisional Magistrate, Sadar, Agartala.
(iii) The said process is to be completed with the outer limit of 6 days from 18th September 2010.
(iv) The question of entitlement and assessment of compensation shall be decided by arbitrator to be appointed by Government of India in the Ministry of Civil Aviation as required under Section 9(B) of the Aircraft Act, 1934, in view of the dispute relating to the entitlement and payment of compensation. The arbitrator shall go into the question of entitlement of compensation by the petitioners and pass Page - 6 of 15 necessary awards thereafter. The appointment of arbitrator shall be made within 45 days from today by the appropriate authority of the Government of India.
This order is passed in presence of Mr. A Lodh, learned Addl. Solicitor General of India.
The writ petition is accordingly disposed of. No costs. It is needless to say that interim order, if any, passed earlier stands vacated, in terms of this order.
A copy of this order be furnished to learned Asstt. SGI for onward transmission to the Ministry of Civil Aviation, Government of India, for compliance.
A copy of this order shall also be furnished to learned counsel for the parties."
( Emphasis supplied ).
* Here we clarify that when this order was passed Mr. Nisith Adhikary was the Advocate General, Tripura, representing the State-respondents.
[3] Undisputedly, thereafter all consequential action was taken and eventually the issue of compensation adjudicated by the sole Arbitrator in terms of the award subject matter of challenge in the present appeal.
[4] Noticeably, pursuant to order referred to(supra) an inventory was prepared, termed as the Joint Inventory Report (JIR), with the concurrence and in the presence of all concerned. Significantly, there was never any dispute with regard to its existence or correctness of its contents. Also such a plea cannot be allowed to be taken in the present appeal for none laid challenge thereto. The only contention being that it was neither Page - 7 of 15 placed on the record nor prayed in accordance with law. Well we are not able to accept such a submission on behalf of an instrumentality of a State who is duty bound to pay compensation which is just & fair. The Arbitrator noticed its existence and rightly considered the same.
[5] Simply while not fully accepting the claims set up by the claimants, the Arbitrator has awarded certain reduced amounts as compensation with respect to the trees(number wise and category wise). The amount claimed and the sum awarded with respect to each one of the claimants is indicated in a tabulated form herein below:
Sl Claimants Trees/plant as Amount Awarded No per JIR. claimed amount
1. Sri Sanatan Das (Claimant No.1) 145 ₹14,49,873 ₹11,24,857 and Sri Dhirendra Ch. Das trees/plants (Claimant No.15).
2. Sri Mohanlal Das (Claimant 450 bamboos, ₹7,34,545 ₹4,58,745 No.2), Sri Ajit Das (Claimant 50 other trees No.5), Sri Birulal Das(Claimant & No.6) and Sri Santosh Das 3 coconut (Claimant No.7). trees.
3. Sri Tapan Sarkar (Claimant 151 trees ₹15,44,683 ₹11,24,877 No.3), Sri Ashish Sarkar, & (Claimant No.9), Sri Debashish 1012 bamboos.
Sarkar (Claimant No.10) and Smt. Anjana Sarkar (Claimant No.11).
4. Sri Kishore Nag (Claimant No.4). 1220 bamboo, ₹6,56,721 ₹4,47,521 125 betel nut & 46 other trees.
5. Sri Sukumar Deb (Claimant 280 betel nut, ₹14,02,679 ₹8,42,279 No.8) 14 coconut & 200 bamboos.
6. Sri Sankar Chandra Deb 7 trees ₹1,44,092 ₹87,692 (Claimant No.12) & 41 betel nut.
7. Sri Satya Gopal Roy (Claimant 34 betel nut, ₹21,20,025 ₹14,53,325 No.13 and Sri Nani Gopal Roy 340 bamboos (Claimant No.14). & 49 trees.
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8. Smt. Laxmi Dhar (Claimant 93 trees ₹7,24,150 ₹5,50,950 No.16). 400 bamboos 30 betel nut 2 Coconut.
9. Sri Kalicharan Das (Claimant 34 trees ₹4,42,650 ₹2,37,853 No.17).
10. Sri Jagadish Roy (Claimant 3 trees. ₹84,355 ₹54,355 No.18).
11. Sri Prafulla Chandra Roy 7 fruit bearing ₹1,61,871 ₹1,42,882 (Claimant No.19). trees & 3 non-fruit bearing.
12. Smt. Usha Rani Roy (Claimant 6 trees. ₹22,556 ₹16, 056 No.20).
13. Sri Dhirendra Bhowmik 70 trees ₹6,78,911 ₹4,01,711 (Claimant No.21). & 100 bamboos.
14. Sri Amal Das (Claimant No.22). 450 bamboos ₹3,67,227 ₹2,28,027 32 trees.
15. Sri Sadhan Biswas (Claimant 69 trees, ₹5,48,002 ₹4,32,402 No.23). 3 betel nut 1 coconut.
16. Sri Suman Bardhan(Claimant 4 trees. ₹92,863 ₹66,653 No.24).
[6] Section 9A of the Aircraft Act empowers the Central Government to restrict the height of a building/structure or any tree planted over any land within the radius of 20 kilometres from the aerodrome reference point; direct owner of such building/structure/plant to demolish the structure or cut the tree up to a specified height; issue directions for ensuring that the plant does not exceed the specified height. By virtue of sub- section (4) of the said Section, every person, which in the instant case would be the claimants/land owners, are bound to comply with such directions.
Page - 9 of 15 [7] Sub-section 9B of the Aircraft Act, prescribes various modes for determination of such compensation which is fair and reasonable, payable to the claimants. Arbitration is one such prescribed mode and the factors to be counted for determination of such compensation being the damage sustained by the person to be compensated "in his earnings"; diminution of market value of the land; damage sustained by the person as a result of cutting or reducing the height of the building/structure or the plant; and/or dislocation, as a result of such action. [8] Significantly, by virtue of sub-section (g) of Section 9B, provisions of Arbitration Act, 1940 (1940 Act) are not made applicable to the Aircraft Act. The Arbitrator has been conferred certain powers of civil court insofar as summoning or production of documents. The appeals assailing the award, as already noticed (supra), are preferred under Section 9C. Thus, careful reading of Sections 9A, 9B, 9C and 9D reveals that the Aircraft Act is a self- contained code in itself and the appeal is to be heard and decided on the parameters set out therein.
[9] It is in this backdrop, we are not in agreement with the submission made by Mr. Sankar Kr. Deb, learned senior counsel for the appellant that award passed by Arbitrator is mandatorily assailable and required to be adjudicated on the grounds specified under Section 34 of the Arbitration and Conciliation Act, 1996 (hereafter referred to as 'the Arbitration Act').
Page - 10 of 15 [10] We may observe that by virtue of the Aircraft Act, the 1940 Act stands repealed but the Arbitration Act does not provide anything which makes its provisions also applicable to the proceedings initiated under the Aircraft Act. [11] Hence we refrain from viewing the correctness of the award on the grounds set up under the provisions of the Arbitration & Conciliation Act, as interpreted by the Apex Court in Union of India v. A L Rallia Ram, AIT 1963 SC 1685 (3 Judge Bench); Renusagar Power Co. Ltd. and Ors. Vs General Electric Co. Ltd., 1994 Supp(1) SCC 644 (3 Judge Bench); Continental Construction Co. Ltd. Vs. State of Madhya Pradesh, (1988) 3 SCC 82 (2 Judge Bench); Oil & Natural Gas Corporation Ltd. Vs. Saw Pipes Ltd., (2003) 5SCC 705(2 Judge Bench); McDermott International INC Vs. Burn Standard Co. Ltd. and Ors.,(2006) 11 SCC 181 (2 Judge Bench); Oil and Natural Gas Corporation Ltd. Vs. Western Geco International Ltd., (2014) 9 SCC 263 (3 Judge Bench) and Associate Builders Vs. Delhi Development Authority,(2015)3 SCC 49 (2 Judge Bench). [12] Nonetheless award stands viewed and tested even on the said grounds of existence and soundness of reasoning; against public policy; contrary to statutory provisions of law understood by the courts.
Page - 11 of 15 [13] What necessitated the authorities in asking the claimants to downsize the structures/vegetative growth vide notice dated 23rd September, 2009 was the safety of the aircraft flying over the land. Undisputedly, in terms of direction issued by this Court, claimants subjected and complied with the same. In adjudicating the claims, the Arbitrator, based on the pleadings of the parties framed the following issues :
"(A) Whether the claimants/respondents were rightly arrayed.
(B) Whether trees of the description were cut.
(C) Whether claimants had ownership/any compensation have made to claimants.
(D) Whether the inventories were made.
(E) Whether claimants entitle for compensation.
(F) Quantum, if any."
[14] While answering issue Nos.B, C and D, the Arbitrator observed as under :
"Sri Sirshendu Debbarma, Deputy Collector and Magistrate, Mohanpur Revenue Circle on
17.9.2014submitted an inventory relating to cutting/pruning of trees fallen outside of the boundary wall of Agartala Airport. An inspection was also made on 30.7.2012 by arbitrator when both parties were present and the fact of cutting of trees was corroborated. Thus, the trees of the description is mentioned in the report are accepted and respondents could not rebut with presumption and hence the issue is decided in affirmative and in favour of the claimants."
(Emphasis supplied).
Page - 12 of 15 [15] There is nothing on record prompting us to differ with such findings. In fact parties were ad idem about the preparation and contents of the joint inventory report. It is in this backdrop, the Arbitrator while answering issue No.F quantified the compensation with respect to each one of the claimants, factoring the grounds specified in sub-section (g) of Section 9B of the Aircraft Act.
[16] It is a matter of record that vide Notification, SO No.938 dated 5th January, 1988, under Section 9A of the Aircraft Act, the authority had issued the following directions :
"i. No building or structure shall be constructed or erected, or no tree shall be planted on any land within the limits specified in Annexure I to this notification in respect of Civil and Military Aerodromes existing as listed in Annexure III to this notification, aerodromes to be constructed or developed and notified by the Competent authority in future where there is any building, structure or tree on such land, the owner or the person having control of such building, structure or tree shall demolish such building or structure or, as the case may be, cut such tree, forthwith but not later than a period of one month from the date of publication of this notification in the Official Gazette, ii. No building or structure higher than the height specified in Annexure II to this notification shall be constructed or erected, or no tree which is likely to grow or ordinarily grows higher than the height specified in the said Annexure II, shall be planted on any land within a radius of twenty kilometers from the aerodrome reference point (ARP) of the aerodromes listed in Annexure III to this notification excluding the land covered by Annexure I to this notification or Page - 13 of 15 aerodromes which would be constructed or developed and notified by the competent authority from time to time, where the height of any building or structure or tree on such land is higher than the height specified in the said Annexure II, the owner or the person having control of such building structure, or tree shall forthwith but not later than a period of one month from the date of publication of this notification in the Official Gazette, reduce the height thereof so as not to exceed the specified height."
[17] It is also a matter of record that vide Gazettte Notification dated 17th February, 1988 issued under Section 9A of the Aircraft Act, as applicable to Agartala, the authorities had restricted elevation of any structure up to a height of 14 meters (47').
[18] Inviting attention of these two notifications Mr. Deb, learned senior counsel, has made two submissions; (a) earlier claimants already stood compensated for the trees grown over their lands which were felled/height reduced and (b) claimants allowed the trees to grow beyond the permissible height and as such, would not be entitled to get compensation for the same. [19] Well there is nothing on record to establish that such compensation was paid to the claimants with respect to the very same land or the trees. Also there is nothing on record to indicate that post 5th January, 1988 notification, claimants planted fresh trees or allowed the trees to grow beyond the prescribed limit. According to the claimants, the trees were in existence much prior Page - 14 of 15 to the issuance of notifications and the respondent-authority issued notice dated 23rd September, 2009, only when they noticed issues of safety in carrying out flying operations. [20] The Arbitrator does record that some of the trees are more than 80 years of age. Also it stood observed that the Director of the Airport Authority, Agartala, had indicated payment of reasonable compensation for the damage which the land owners may sustain in undertaking exercise of pruning the trees. Noticeably, other land owners, or may be the instant claimants having other lands where such operations took place already stand compensated, but certainly not with regard to the trees in question.
[21] As such, we see no reason as to why the instant claimants be not reasonably compensated, more so, when they have been agitating their grievances before different forums since the year 2009.
[22] We do not find the exercise carried out by the Arbitrator, in determining the compensation to be illegal, unreasonable or without any reason. Also beyond the material placed on record or unknown to the parties. The JIR has been made basis, contents whereof was never in dispute. By virtue of the Act and directions issued by this Court in Sonatan Das (supra), the appellant was duty bound to pay compensation to the land owners, for receipt thereof, is not only a statutory but Page - 15 of 15 constitutional right. As such, each one of the claimants depending upon the number of trees, its growth, quality and quantity have been awarded compensation as per the determined market value. There is evidence supporting the amount as determined by the Arbitrator to be just and reasonable.
For all the aforesaid reasons, the appeal being devoid of merits stands dismissed. No order as to costs. Pending application(s), if any, also stands disposed of.
(S TALAPATRA),J (SANJAY KAROL),CJ. Sukhendu