Himachal Pradesh High Court
Mohan Lal Benal vs National Highway Authority Of India & ... on 13 August, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CWP No. 1841 of 2016
.
Reserved on 2.8.219
Date of decision: 13.8.2019
Mohan Lal Benal ....Petitioner.
Versus
National Highway Authority of India & others
...Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the petitioner: Mr. Sudhir Thakur, Sr. Advocate
with Mr. Anirudh Sharma,
Advocate, for the petitioner.
For the respondents: Mr. K.D. Shreedhar, Sr.
Advocate with Ms. Shreya
Chauhan, Advocate, for
respondents No. 1 and 2.
Mr. Hemant Vaid Addl. A.G. with
Mr. Y.S. Thakur & Mr. Vikrant
Chandel Dy. A.Gs. for
respondent No.3.
Mr. V. B. Verma, CGC, for
respondent No.4.
1
Whether reporters of the local papers may be allowed to see the judgment?
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-2-
Sureshwar Thakur, Judge:
Through the instant writ petition, the, writ .
petitioner espouses, for, rendition qua him, the hereinafter extracted reliefs: "i) That the respondent No.3 may kindly be directed to entertain petition under Section 64 of the Right to Fair compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013and further respondent No.3 may kindly be directed to refer the same petition to the competent authority for redetermination of the compensation amount with respect to the acquired land belonging to the petitioner.
ii) That in addition to the other prayers inserted the petitioner prays that in case the Hon'ble Court comes to the conclusion that the redetermination of the compensation amount is only to be done by the Arbitrator appointed under the national Highway Act, 1956 in that eventuality respondents may kindly be directed to redetermine the amount of compensation by ::: Downloaded on - 29/09/2019 02:03:32 :::HCHP -3- invoking the provisions of right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, .
2013 as such respondents may kindly be directed by issuance of the appropriate direction in this regard".
2. Initially, visavis, the acquired land, of, the petitioner, an award, borne in Annexure P4, stood rendered, hence on 21.4.2014, and, the afore award, wherethrough, compensation amount borne in a sum of Rs. 9,34,31,552/stands passed, under Section (1), of, Section 3 (g), of, the National Highways Act, 1956.
However, subsequently, through, Annexure P2, pronounced, on 31.3.2016, upon, recoursings being made, visavis, the mandate of Section 1 (3) (g), of, the National Highways Act, 1956, read with Section 23, of, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, hence, the compensation amount previously determined, visavis, the ::: Downloaded on - 29/09/2019 02:03:32 :::HCHP -4- acquired lands of the petitioner, rather begetting diminution. The petitioner being aggrieved, therefrom, .
hence constituted, a, Land Reference Petition, borne in Annexure P2, and, cast under the provisions of Section 64, of the Right, to, Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, wherethrough, a challenge, was, cast against the award, pronounced, on 31.3.2016. Since the petitioner espouses, for, the hereinabove extracted relief, and, when he, in the Land Reference Petition, cast, under the provisions of Section 64, of, the Right to Fair Compensation, and, Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, seeks enhancement, of, the compensation amount, as, determined, under, the award pronounced, on 31.3.2016, and, has not therein, reared, any challenge, qua, the award made prior thereto, on 21.4.2014, and, as embodied in Annexure P4, nor canvasses therein qua, it, rather ::: Downloaded on - 29/09/2019 02:03:32 :::HCHP -5- comprising, the, apt enforceable award, thereupon the petitioner is estopped, to, contend (i) that the .
compensation amount determined, under, the award, pronounced, on 31.3.2016, is, legally infirm nor can he contend, that, the Land Acquisition Collector concerned, who pronounced it, lacking the apt jurisdictional empowerment(s).
3. Even otherwise, the, Fourth Schedule, borne in the Right to Fair compensation and Transparency in Land Acquisition, rehabilitation and resettlement Act, 2013, commences, with the heading, 'list of enactments regulating land acquisition and rehabilitation and resettlement," wherein, one, amongst the specific enactments, as, enumerated therein, is, the National Highways Act, 1956, (i) thereupon, when undisputedly, the, acquisition of the petitioner's land, is, made, for, constructing thereon, a, national highway, and, whereto which acquisition, the apposite mandate, borne in, the, ::: Downloaded on - 29/09/2019 02:03:32 :::HCHP -6- National Highways Act, 1956, is, applicable, (ii) thereupon in consonance, with, the occurrence, of, National Highways .
Act, in, the Fourth Schedule, of, the Right to Fair compensation and Transparency in Land Acquisition, rehabilitation and resettlement Act, 2013, rather make the provisions of the latter Act, to be, obviously applicable thereto, for, determining the compensation amount, for, acquisitions, made, under, the National Highways Act, 1956.
4. Be that as it may, even if the Fourth Schedule borne, in, the Right to Fair compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, mentions therein, the, statutes, wheretowhich, its mandate, is, applicable, and, whereamongst, apposite enactments, The National Highways Act, 1956, is, also enumerated therein (i) nonetheless, all the provisions, borne in the Right to Fair Compensation and Transparency in Land Acquisition, ::: Downloaded on - 29/09/2019 02:03:32 :::HCHP -7- Rehabilitation and Resettlement Act, 2013, would not, hence ipso facto be applicable, visavis, acquisition of .
landmade through recoursing, the, mandate, of, the National Highways Act, 1956, (ii) and, the reason(s) wherefrom the afore inference is sparked, is, embodied, in, subsection (1) of, Section 105, hence carrying a specific, and, explicit mandate, wherethrough, are rendered inapplicable all, the, provisions of the afore Act, qua acquisition made under the National Highways Act, and, also likewise, qua all enactments relating to land acquisition, as, specified, in, the, Fourth Schedule, (iii) reitretedly rendering all, the, land acquisition enactments wheretowhich, the, provisions of, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, are applicable, rather being forbidden, to, rely, upon the, requisite provisions thereof, (iv) however, given the existence of sub section (3), in Section 105, in the Right to Fair ::: Downloaded on - 29/09/2019 02:03:32 :::HCHP -8- compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and, with the .
latter subsection relaxing, and, diluting the rigors of sub section (v) thereof, and, also operating, as, an exception thereto, and, when, a, reading, of, its phraseology, unfolds qua, it, making, a, trite and candid postulation, qua, only visavis, the manner(s), of, determination, of, compensation, and, rehabilitation, and, resettlement, the, apposite therewith provisions, as, stand engrafted therein, rather comprising, the, recoursable thereof provisions, (vi) and, when thereafter there, is, no mandate hence embodied in subsection (3), of, Section 105, qua, except, the, afore explicit limited manner, of, application(s), of, the mandate of the Right, to, Fair compensation and Transparency in Land Acquisition, Rehabilitation, and, resettlement Act, 2013, pointedly, visavis, the acquisitions made, for, construction, of, National Highways, through invocation, of, the provisions borne in ::: Downloaded on - 29/09/2019 02:03:32 :::HCHP -9- The National Highways Act, 1956, (vii) and emphatically qua, after, the initial determination of compensation, by .
the collector concerned, under, Section 3 (g) of the National Highways Act, 1956, hence, the aggrieved therefrom, being leveraged, to, recourse the mandate, of, Section 64, as, embodied in, the, Right to Fair compensation and Transparency, and, Land Acquisition, rehabilitation and resettlement Act, 2013, (vi) nor when, visavis, an, aggrieved from the award initially rendered by the Land Acquisition Collector concerned, the, remedy contemplated, in, sub Section 5, of, Section 3 (g), of, the National Highways Act 1956, nor hence stands unenforceable, nor stands ousted, (vi) rather when subsection 5 of section 3
(g), of, the National Highways Act, 1956, makes, a, specific statutory contemplation, visavis, an, aggrieved, from, the award initially rendered, by, the learned Land Acquisition Collector, rather being empowered, to, make a challenge thereto, through recoursing the mandate thereof, (viii) and, ::: Downloaded on - 29/09/2019 02:03:32 :::HCHP -10- the afore special remed(ies), as, constituted, visavis, the aggrieved, from, an award, initially rendered, by the Land .
Acquisition Collector, under, Section 3 (g) of The National Highways Act, 1956, are, the only recoursable remedies.
Nowat with the Right to Fair Compensation, and, Transparency in Land Acquisition, rehabilitation, and, resettlement Act, 2013, statutorily hence excepting, the, afore statutorily limited manner of application, of, its provisions, visavis, determination, of, amount, of, compensation, qua, acquisitions, of, land, made, through recoursing, the, mandate, of, of section 3 (g), of, the National Highways Act, 1956, does not either expand or adds, the requisite application thereof, (ix) hence the sway, of, the, limitation cast, in subsection 3 of Section 105 of the Right, to, Fair compensation and Transparency in Land Acquisition, rehabilitation, and, resettlement Act, 2013, when is, confined, only, visavis, the apposite thereto provisions, borne in Section 24, of, Right to Fair ::: Downloaded on - 29/09/2019 02:03:32 :::HCHP -11- compensation and Transparency in Land Acquisition, rehabilitation and resettlement Act, 2013, (x) and, is also .
confined, to, the stage, of, an award initially made by, the, Land Acquisition Collector, hence, its sway is to be revered, and, the thereafter further grievance, of, the landlord, vis avis, insufficiency thereof, is rather reddressable, through recoursing the statutory hierarchy, as, enumerated, in, sub section 5, of, Section 3 (g).
r In aftermath the afore specific mandate, is, to be revered, and, the afore specific mandate obviously cannot, be supplanted, visavis, the mandate, enshrined in Section 64, of, The Right to Fair Compensation, and, Transparency in Land Acquisition, Rehabilitation, and, Resettlement Act, 2013, for, it being either recoursed or leveraged qua the land owner, (i) unless, a specific provision, is/was, embodied, in, the afore Act, hence making the provisions of Section 64 also applicable thereon, visavis, proceedings initially drawn, and, concluded, under, the apposite provisions, of, the ::: Downloaded on - 29/09/2019 02:03:32 :::HCHP -12- National Highways Act, specific provisions whereof, is, amiss.
.
5. Since as is evident, on a, reading of the reply to the writ petition, filed by the contesting respondent, qua, the authorities concerned, upon being aggrieved, from, a, pronouncement, occurring, in Annexure P4, it making, a, motion under subsection 5, of, the Right to Fair Compensation and Transparency in Land Acquisition, rehabilitation and resettlement Act, 2013, before the learned Arbitrator, (i) hence when the afore constitutes the apt remedy, thereupon, it is, permissible for the petitioner, to, make an address before the learned Arbitrator, visa vis, the deficiency or insufficiency, of, compensation amount determined, through Annexure P2, (ii) and, it is also permissible for the petitioner, to, make a espousal, qua the relevant principles of law or the relevant statutory parameters, coming, to be ignored by the authority, hence rendering Annexure P2. Moreover, the petition cast under ::: Downloaded on - 29/09/2019 02:03:32 :::HCHP -13- Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, rehabilitation and .
resettlement Act, 2013, be treated, as, a reference, to, the arbitrator, under subsection (5), of, Section 5 of the National Highways Act, and, it shall be, in accordance with law, decided alongwith, the, reference, already made, to, the arbitrator, by the authority concerned.
6. In view of the above observations, the writ petition stands disposed, of, and obviously, the afore reliefs, espoused by the petitioner are not grantable to the writ petitioner. All pending applications, also stand disposed of.
(Sureshwar Thakur) 13 August, 2019 th Judge (kck) ::: Downloaded on - 29/09/2019 02:03:32 :::HCHP