Shiv Shyam vs Competent Authority/Spl. Land ...
2019 Latest Caselaw 2923 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

							         AFR
 
Reserved on 04.04.2019
 
							       Delivered on 15.04.2019
 
Case :- LAND ACQUISITION No. - 9292 of 2019
 
Petitioner :- Shiv Shyam
 
Respondent :- Competent Authority/Spl. Land Acquisition Officer,Barabanki
 
Counsel for Petitioner :- Vijay Kumar Tewari,Avanish Tewari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Narendra Kumar Johari,J.

(Delivered by Hon'ble N.K. Johari, J.)

(1) Notice on behalf of opposite party has been accepted by learned Chief Standing Counsel.

(2) Heard Sri Vijay Kumar Tewari, learned counsel for the petitioner and learned Standing Counsel.

(3) The petitioner has approached this Court seeking a writ of Mandamus directing the opposite party to disburse the amount as deposited by the National Highway Authority of India dated 21.01.2019 in the account of the petitioner immediately (as provided under the provisions of the National Highways Act, 1956).

(4) According to the petitioner, he is a poor farmer of Village- Dharauli, Pargana- Suryapur, Tehsil- Ram Sanehi Ghat, District- Barabanki. His land bearing Khasra No. 590, area 0.1300 Hectare was required by the National Highway Authority of India for widening National Highway No. 28. For this purpose, a notification under Section- 3A and 3D of the National Highways Act, 1956 (hereinafter referred to as "1956 Act") was issued on 01.06.2005 and 21.10.2005 respectively. Thereafter, the Competent Authority/Special Land Acquisition Officer, Barabanki declared the award dated 10.11.2016 in respect of the petitioner's land, whereby the compensation was determined at the rate of Rs. 7.14 per square feet.

(5) It has been stated by the petitioner that in pursuance to the award dated 10.11.2016, though he got the amount of basic compensation but being dissatisfied with the quantum of compensation as awarded by the opposite party, he preferred an arbitration petition, bearing Case No. 282/185 (14 - 15) (Computerized Case No. D-20150412001672), challenging the award dated 10.11.2006 before the District Magistrate, Barabanki/Arbitrator under Section- 3G (5) of the 1956 Act, seeking an enhancement in the rate of compensation as declared by the opposite party. Thereafter, the Arbitrator, after due consideration, passed the award dated 30.12.2015, whereby the rate of compenation was enhanced from Rs.7.14 per sq. ft. to Rs.32.52 per sq. ft. along with 9% interest from the date of possession of the land in question.

(6) According to the petitioner, against the arbitral award dated 30.12.2015, the National Highway Authority of India has filed an appeal under Section- 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as "1996 Act") before the District Judge, Barabanki, which was registered as Case No. 116/2016.

(7) Submission of the learned Counsel for the petitioner is that in the appeal preferred by the opposite party, there is no stay order till date but amount of enhanced compensation as awarded by the Arbitrator vide arbitral award dated 30.12.2015 has not been paid to the petitioner. His submission is that earlier, writ petition No. 30916 of 2018 (L/A) was filed with a prayer to direct the National Highway Authority of India to deposit the enhanced amount of compensation along with 9% interest from the date of possession in terms of the arbitral award dated 30.12.2015. A Co-ordinate Bench of this Court, vide order dated 25.10.2018, disposed of the writ petition on the assurance of the learned Counsel for the National Highway Authority of India that the amount will be deposited before the competent authority within two weeks but the petitioner ought to have moved an application before the appellate Court itself in the appeal filed against the arbitral award by the National Highway Authority.

(8) Learned Counsel for the petitioner has contended that the National Highway Authority of India has deposited the enhanced amount of compensation as assured by them in the joint account of opposite party on 21.01.2019 and provided the information as well as the answer of questions raised by the petitioner under Right to Information Act but the amount was not allowed to be disbursed to the petitioner, therefore, the petitioner has filed writ petition No. 4149 of 2019 (L/A), which was dismissed as not pressed with liberty to the petitioner to file fresh petition as and when the cause of action arose, vide judgment and order dated 13.2.2019.

(9) Learned Counsel for the petitioner has submitted that in such cases, the Central Government has notified rules known as the "National Highways (Manner of depositing the amount by the Central Government with the competent authority for acquisition of land) Rules, 1998" (hereinafter referred to as "the Rules of 1998"), which statutorily requires the National Highways Authority to deposit the enhanced amount of compensation within seven days of determination made by the Arbitrator with the competent authority. His submission is that inspite of the aforesaid statutory provisions and inspite of an award having been passed by the Arbitrator in favour of the petitioner, the respondent National Highway Authority has not disbursed the amount awarded to the petitioner who is still awaiting the amount inspite of the fact that his lands were taken away by the authorities for the purposes of widening of the Highways and construction thereon has also been made by them. In such circumstances, the respondent authorities be directed to immediately disburse the amount of compensation to the petitioner.

(10) Per contra, learned Counsel for the respondents has submitted that the Rules of 1998, regarding disbursement of the amount relied upon by the petitioner has been repealed and superseded by notification dated 18.1.2019 published in the Gazette of India (Extraordinary) and new rules, namely, "the National Highways (Manner of depositing the amount by the Central Government; making requisite funds available to the competent authority for acquisition of land) Rules, 2019" (hereinafter referred to as "the Rules of 2019"), have been notified, which being procedural are applicable to all cases including that of the petitioner. It is submitted that as per the said procedure notified under the Rules for disbursement of the amount, the National Highway Authority of India or the acquiring authority is required to deposit the amount enhanced by the Arbitrator within 30 days of communication of the award unless such award has been further challenged by either of the aggrieved parties.

(11) Learned Counsel for the respondents has further submitted that as per the provisions of Rules 3 (I) (b) and 3(iv) of the Rules of 2019, the competent authority is, in turn, enjoined with the duty to disburse the compensation amount to the landowners or the persons interested therein preferably by electronically crediting the said amount into their respective bank accounts. It is submitted that in such circumstances and in view of the provisions of the Rules of 2019, as the National Highways Authority of India has taken up proceedings under Sections 33 and 34 of Act, 1996, therefore, the petitioner is not entitled for the relief as sought for.

(12) Lastly, learned Counsel for the respondents has submitted that in view of the provisions of Section 3G (6) of the Act of 1956, the provisions of the 1996 Act have also been made applicable, the appropriate remedy available to the petitioner for recovering the amount is to initiate proceedings for execution as prescribed and provided under the provisions of the 1996 Act and in such circumstances, as statutory efficacious remedy is available to the petitioner, the instant petition be dismissed.

(13) We have heard learned Counsel for the parties and gone through the record.

(14) The 1956 Act is enacted specifically for the purpose of acquisition of land for National Highways and for declaration of certain highways as National Highways. Section 3A of the 1956 Act gives power to the Central Government to acquire land for public purpose by complying with the procedure prescribed therein. Determination of the amount of compensation payable for the land acquired is dealt with under Section 3G of the 1956 Act. Section 3G (1) of 1956 Act provides that where any land is acquired, an amount which shall be determined by an order of the competent authority, shall be paid. Section 3G (5) states that if the amount determined by the competent authority under sub-section (1) 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. Section 3G (6) provides that subject to the provisions of that Act, the provisions of the 1996 Act shall apply to every arbitration under the 1956 Act. Sub-section (7) of Section 3G of the 1956 Act provides for the matters that shall be taken into account by the competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5). The provisions contained in the 1956 Act constitute a complete scheme for acquisition of land for the purpose of national highways.

(15) In the instant case, there is no dispute to the fact that the land of the petitioner was acquired under 1956 Act for the purpose of widening of National Highway 28. The competent authority fixed the amount of compensation for land payable to the petitioner. The petitioner had recoursed to arbitration proceedings as provided under the 1956 Act. The Arbitrator enhanced the amount of compensation payable to the petitioner. The opposite party challenged the arbitral award passed by the arbitrator by filing application before the District Court under Section 34(1) of the 1996 Act but even though there is no interim order in favour of the opposite party in the proceeding initiated by the opposite party under Section 34 (1) of the 1996 Act, but no compensation as awarded by the Arbitrator has been granted to the petitioner, which compelled the petitioner to knock the door of this Court.

(16) It is admitted by the petitioner that National Highway Authority of India has challenged the order of District Magistrate, Barabanki/Arbitrator under Section- 34 of the 1996 Act. Section 3 of 2019 Rules deals with the manner in making requisite funds available to the competent authority. The relevant portion of Section 3 of 2019 Rules is quoted hereinbelow:-

"3 The manner of making requisite funds available to the competent authority shall be as follows:-

(i) Subject to provisions of the Act, the executing agency authorised by the Central Government in this behalf, shall open and maintain an account with one or more Scheduled Commercial Banks for remittance of the amount for land acquisition across the country, with arrangements for access to such account by the competent authority for specific jurisdiction as per authorisation of limits by the executing agency. The Executing Agency shall, on the demand raised by the competent authority before announcement of the award, issue requisite authorisation limits in favour of the competent authority for withdrawal of amount from such account as per requirements from time to time for disbursement to the landowners or persons interested therein through an electronic banking mechanism as per extant Reserve Bank of India regulations and the said authorisation limits, revolving in nature, shall entitle the competent authority to withdraw money from such account as per requirements, without any further reference to the land acquiring agency, for disbursement to the landowners or persons interested therein, as follows:-

(a) The amount determined under Section 3(G) of the Act within fifteen days of the raising of demand by the competent authority, and

(b) Where the amount determined by the Arbitrator under Sub-Section (7) of Section 3G of the Act is in excess of the amount determined by the competent authority, the excess amount, together with interest, if any, awarded by the Arbitrator, within 30 days of the communication of Arbitrator's award, unless such Award has been further challenged by either of the aggrieved parties."

(17) The above Section 3 (b) creates a rider on payment of enhanced compensation and interest subject to decision of application under Section 34 of the 1996 Act, therefore, unless and until the proceedings of Section 34 of 1996 Act is decided by the competent Court, the enhanced amount of compensation and interest cannot be paid to the petitioner.

(18) Apart from above, Section 36 (1) (as amended by Act No. 3 of 2016) contains the following provisions:

"[36. Enforcement- (1) Where the time for making an application to set aside the arbitral award under section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court."

(19) The above amended provisions also creates a bar on enforcement of award subject to proceedings of Section 34 of the Act.

(20) In view of the above, the petitioner as per prayer is not entitled to receive the enhanced amount of compensation till final disposal of proceeding under Section 34 of the Act, which is pending before the District Judged, Barabanki.

(21) The writ petition being misconceived is dismissed. Costs easy.

Order Date :- 15 April, 2019

Israr