Shekh Iqbal Shekh Usman vs The National Highway Authority Of ...
2017 Latest Caselaw 549 Bom

                                      1        WP Nos. 8168/2016 & Anr.

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                       WRIT PETITION NO.8168 OF 2016 

  Mr. Shekh Shakil Shekh Lukman
  Age: Major, occ. Agril.
  R/o Songir, Tq. And Dist.Dhule.                 - PETITIONER

        VERSUS

  1)       The National Highway Authority
           of India, Through its Project
           Director, ASB-83 Sector 4/B,
           Ashwin Nagar, CIDCO, Nashik.

  2)       The Competent Authority and
           Special Land Acquisition Officer 
           No.2, National Highway Project,
           Dhule, Office of District
           Collector,  Dhule. Tq. And
           District Dhule.                  -  RESPONDENTS

                                    WITH

                       WRIT PETITION NO. 8169 OF 2016


  Mr. Shekh Iqbal Shekh Usman
  Age: Major, occ. Agril.
  R/o Songir, Tq. And Dist.Dhule.                 - PETITIONER

        VERSUS

  1)       The National Highway Authority
           of India, Through its Project
           Director, ASB-83 Sector 4/B,
           Ashwin Nagar, CIDCO, Nashik.

  2)       The Competent Authority and
           Special Land Acquisition Officer 
           No.2, National Highway Project,
           Dhule, Office of District
           Collector,  Dhule. Tq. And
           District Dhule.                  -  RESPONDENTS

                                   
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                                          2         WP Nos. 8168/2016 & Anr.

  Mr.VB Patil & SP Tiwari, Advocates for Petitioner/s
  Mr.MV Kini & DS Manorkar, Advocates for Resp.No.2.
                                      -----
                   CORAM : T.V.NALAWADE &
                          SANGITRAO S.PATIL,JJ.

DATE : 7 th

MARCH,2017.

ORAL JUDGMENT (PER:- T.V.NALAWADE,J.)

1) Rule. Rule made returnable forthwith. By

consent, heard both sides for final disposal.

2) Since the issue raised in both these

petitions is identical, they are being disposed of by

this common judgment.

3) Both the petitions are filed for giving

directions to the respondents to act in accordance

with the provisions of The National Highway Act, 1956

(for short, the Act) and the Rules framed there under

in 1998 and pay the compensation in respect of the

lands acquired.

4) The lands belonging to the petitioners were

acquired for Four-lane of National Highway No.3. It

is the grievance of the petitioners that the

acquiring body has not deposited the amount of

compensation in accordance with the Act before the

Competent Authority and due to that, the Competent

Authority has not made payment of compensation to the

petitioners. The learned Counsel for acquiring body

submitted that as proceeding under Section 34 of

Arbitration Act, 1996 is filed, there is automatic

stay to the Award.

5) Learned Counsel for the petitioners took

this court to the provision of Section 3-G(6) of the

National Highways Act, 1956, which reads as under, -

"3-G. Determination of amount payable as compensation, -

(6) Subject to provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act."

6) The learned counsel then placed reliance on

the observations made by this Court, though for

interim relief, in order dated 23.2.2015 passed in

Writ Petition No.9862/2013 (Manoj Kautik Patil Vs.

The National Highway Authority and Anr.), wherein

this Court has observed that the provisions of

Arbitration and Conciliation Act, 1996 are subject to

the National Highways Act, 1956 and the Rules framed

there under and, therefore, the provisions of The

National Highways Act need to be complied with by the

acquiring body.

7) It appears that the aforesaid order was

challenged in the Supreme Court by filing Special

Leave to Appeal (Civil) Nos.25686-25697/2015, wherein

the Apex court refused leave and the Special Leave

Petitions were dismissed by order dated 14.9.2015.

8) On the other hand, learned Counsel for the

respondent, placed reliance on the order dated

21.1.2016 made by the other Division Bench of this

Court in Writ Petition No.10962/2015 (Mansingh

Raghunath Deshmukh Vs. The Competent Authority and

Special Land Acquisition Officer and Ors.) with

connected matters, and submitted that, in the similar

circumstances, the present respondents were directed

to deposit the amount in the District Court, where

the proceeding, under Section 34 of the Arbitration

and Conciliation Act, was filed by respondent.

. The learned counsel further submitted that

in the present matters also, Award of the Arbitration

Tribunal is challenged by the respondents by filing

the proceeding under section 34 of the Arbitration

Act and, therefore, if at all direction is given, the

amount can be directed to be deposited in the

District Court and further orders can be made by the

District Court in the proceeding filed under Section

34 of the Act.

9) This Court has already referred the relevant

provision and has also made mention about the order

made by other Division Bench of this Court in Writ

Petition No.9862/2013, the order which is not

disturbed by the Apex Court. In view of the

aforesaid specific provision, i.e. Section 3-G(6) of

the National Highways Act, this Court holds that the

respondents need to comply with the provision of the

special enactment.

. The Rules framed under the National Highways

Act prescribe the specific period of seven days from

the date of delivery of the Award and the amount of

compensation needs to be deposited with the Competent

Authority.

. Section 3-H(2) of the Act shows that the

competent authority is expected to release the amount

in favour of the claimant from whom the land is

acquired. Due to this specific provision, there can

be no doubt about the right of the claimant to get

the amount though the acquiring body can approach the

court by filing the proceeding under Section 34 of

the Arbitration Act. In proceeding filed under

Section 34 of the Act, if the acquiring body

succeeds, then the acquiring body can take necessary

steps for recovery of amount already paid on the

basis of such decision. However, the acquiring body

will have to follow the procedure laid down in the

special enactment.

10) In view of the apprehension expressed by the

learned counsel for the acquiring body, this Court is

hereby directing the petitioners to give personal

undertaking in respect of 50% amount and bank

guarantee in respect of the remaining amount, so that

the disbursement of the amount is made subject to the

decision of the proceedings filed under Section 34 of

the Act.

11) In view of the other submission, the

competent authority is not expected to release the

amount unless it confirms that the possession of the

land is taken by the acquiring body. The amount to

be deposited by the acquiring body before the

competent authority within one month from today.

12) In the result, both the writ petitions are

allowed and Rule made absolute in aforesaid terms.

                                        
                              
        (SANGITRAO S.PATIL)      (T.V.NALAWADE)
              JUDGE                   JUDGE
                                
                            

  bdv/