Bombay High Court
Dayanand @ Jaiprakash S/O. ... vs The Secretary To The Govt. Of ... on 31 March, 2023
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6850/2022
PETITIONERS: 1. M/s Omanand Industries, Nagpur
A Registered Partnership Firm,
Through its Partner Shri Liladhar s/o
Ramjibhai Patel, R/o :- Ashirwad Palace, Near
Sule High School, Abhyankar Road, Dhantoli,
Nagpur, Tah. & Dist. Nagpur.
2. M/s Om Enterprises, [M/s Omanand
Enterprises], A Registered Partnership Firm,
Through its Partner Shri Himmatlal S/o
Ramjibhai Patel, R/o Dhantoli, Nagpur, Tah. &
Dist. Nagpur.
...VERSUS...
RESPONDENTS : 1. The Secretary to the Government of India,
Ministry of Road Transport and Highways,
Dwarka, New Delhi - 110 075.
2. The Deputy Collector (Land Acquisition -
General), Nagpur (Maharashtra) and Competent
Authority for Acquisition of Land for National
Highways, Collectorate, Nagpur.
3. The National Highways Authority of India,
through it's Project Director, National Highway
No.7, having registered office at Shubhankar
Apartment, Plot No.159, Ambazari Hill Top
Area, Ram Nagar Nagpur - 440033.
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4. The Additional Commissioner, Nagpur
Division, Nagpur and the Arbitrator under
Section 3-G(5) of the National Highways Act,
1956, C/o. Commissionerate having office
Building at Civil Lines, Nagpur 440001
WITH
WRIT PETITION NO.6837/2022
PETITIONER: Karnal Singh Gurudas Singh Saini, aged about
75 years, Occ: Business, R/o. Hanuman Nagar,
Nagpur, Tahsil & District Nagpur.
...VERSUS...
RESPONDENTS 1. The Secretary to the Government of India,
Ministry of Road Transport and Highways,
Dwarka, New Delhi - 110 075.
2. The Deputy Collector (Land Acquisition -
General), Nagpur (Maharashtra) and
Competent Authority for Acquisition of Land for
National Highways, Collectorate, Nagpur.
3. The National Highways Authority of India,
through it's Project Director, National Highway
No.7, having registered office at Shubhankar
Apartment, Plot No.159, Ambazari Hill Top
Area, Ram Nagar Nagpur - 440033.
4. The Additional Commissioner, Nagpur
Division, Nagpur and the Arbitrator under
Section 3-G(5) of the National Highways Act,
1956, C/o. Commissionerate having office
Building at Civil Lines, Nagpur 440001.
WITH
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WRIT PETITION NO.6839/2022
PETITIONER Chandrashekar Kashinath Shiralkar, aged about
75 years, Occ: Retired, R/o. Q-14, Laxmi Nagar,
Tahsil & District Nagpur.
...VERSUS...
RESPONDENTS 1. The Secretary to the Government of India,
Ministry of Road Transport and Highways,
Dwarka, New Delhi - 110 075.
2. The Deputy Collector, (Land Acquisition -
General), Nagpur (Maharashtra) and
Competent Authority for Acquisition of Land for
National Highways, Collectorate, Nagpur.
3. The National Highways Authority of India,
through it's Project Director, National Highway
No.7,having registered office at Shubhankar
Apartment, Plot No.159, Ambazari Hill Top
Area, Ram Nagar Nagpur - 440033.
4. The Additional Commissioner, Nagpur
Division, Nagpur and the Arbitrator under
Section 3-G(5) of the National Highways Act,
1956, C/o. Commissionerate having office
Building at Civil Lines, Nagpur 440001.
WITH
WRIT PETITION NO. 6847/2022
PETITIONER Yash Travels and tours Private Limited, Nagpur,
through its Chief Manager (Accountant),
Mr. Prashant Kailash Sharma, Aged about 45,
R/o. 236, Mahalaxmi Nagar, Nagpur.
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...VERSUS...
RESPONDENTS 1. The Secretary to the Government of India,
Ministry of Road Transport and Highways,
Dwarka, New Delhi - 110 075.
2. The Deputy Collector (Land Acquisition -
General), Nagpur (Maharashtra) and
Competent Authority for Acquisition of Land for
National Highways, Collectorate, Nagpur.
3. The National Highways Authority of India,
through it's Project Director, National Highway
No.7, having registered office at Shubhankar
Apartment, Plot No.159, Ambazari Hill Top
Area, Ram Nagar Nagpur - 440033.
4. The Additional Commissioner, Nagpur
Division, Nagpur and the Arbitrator under
Section 3-G(5) of the National Highways Act,
1956, C/o. Commissionerate having office
Building at Civil Lines, Nagpur 440001
WITH
WRIT PETITION NO.6822/2022
PETITIONER Dayanand @ Jaiprakash S/o. Baliram
Sahajramani, aged about 58 years, Occ:
Business, R/o. 14, Sindhu Nagar, Jaripatka,
Nagpur, Tahsil & District Nagpur.
...VERSUS...
RESPONDENTS 1. The Secretary to the Government of India,
Ministry of Road Transport and Highways,
Dwarka, New Delhi - 110 075.
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2. The Deputy Collector (Land Acquisition -
General), Nagpur (Maharashtra) and
Competent Authority for Acquisition of Land for
National Highways, Collectorate, Nagpur.
3. The National Highways Authority of India,
through it's Project Director, National Highway
No.7, having registered office at Shubhankar
Apartment, Plot No.159, Ambazari Hill Top
Area, Ram Nagar Nagpur - 440033.
4. The Additional Commissioner, Nagpur
Division, Nagpur and the Arbitrator under
Section 3-G(5) of the National Highways Act,
1956, C/o. Commissionerate having office
Building at Civil Lines, Nagpur 440001
WITH
WRIT PETITION NO.6833/2022
PETITIONER Baliram Girdharilal Sahajramani,
aged about 82 years, Occ: Business, R/o. 14,
Sindhu Nagar, Jaripatka, Nagpur, Tahsil &
District Nagpur.
...VERSUS...
RESPONDENTS 1. The Secretary to the Government of India,
Ministry of Road Transport and Highways,
Dwarka, New Delhi - 110 075.
2. The Deputy Collector (Land Acquisition -
General), Nagpur (Maharashtra) and Competent
Authority for Acquisition of Land for National
Highways, Collectorate, Nagpur.
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3. The National Highways Authority of India,
through it's Project Director, National Highway
No.7, having registered office at Shubhankar
Apartment, Plot No.159, Ambazari Hill Top
Area, Ram Nagar Nagpur - 440033.
4. The Additional Commissioner, Nagpur
Division, Nagpur and the Arbitrator under
Section 3-G(5) of the National Highways Act,
1956, C/o. Commissionerate having office
Building at Civil Lines, Nagpur 440001
WITH
WRIT PETITION NO.6829/2022
PETITIONER Late Shri Bhupinder Singh Arneja,
through his Legal Heir Dr. Sarabjeet Kaur Arneja,
aged about 55 years, Occ: Medical Practitioner,
R/o. "Gurukrupa", Gurunanakpura Nagar,
Nagpur
...VERSUS...
RESPONDENTS 1. The Secretary to the Government of India,
Ministry of Road Transport and Highways,
Dwarka, New Delhi - 110 075.
2. The Deputy Collector (Land Acquisition -
General), Nagpur (Maharashtra) and Competent
Authority for Acquisition of Land for National
Highways, Collectorate, Nagpur.
3. The National Highways Authority of India,
through it's Project Director, National Highway
No.7, having registered office at Shubhankar
Apartment, Plot No.159, Ambazari Hill Top
Area, Ram Nagar Nagpur - 440033.
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4. The Additional Commissioner, Nagpur
Division, Nagpur and the Arbitrator under
Section 3-G(5) of the National Highways Act,
1956, C/o. Commissionerate having office
Building at Civil Lines, Nagpur 440001
WITH
WRIT PETITION NO.1374/2023
PETITIONER Durgadevi Baliram Sahajramani,
aged about 80 years, Occ: Housewife, R/o. 14,
Sindhu Nagar, Jaripatka, Nagpur, Tahsil &
District Nagpur.
...VERSUS...
RESPONDENTS 1. The Secretary to the Government of India,
Ministry of Road Transport and Highways,
Dwarka, New Delhi - 110 075.
2. The Deputy Collector (Land Acquisition -
General), Nagpur (Maharashtra) and
Competent Authority for Acquisition of Land for
National Highways, Collectorate, Nagpur.
3. The National Highways Authority of India,
through it's Project Director, National Highway
No.7, having registered office at Shubhankar
Apartment, Plot No.159, Ambazari Hill Top
Area, Ram Nagar Nagpur - 440033.
4. The Additional Commissioner, Nagpur
Division, Nagpur and the Arbitrator under
Section 3-G (5) of the National Highways Act,
1956, C/o. Commissionerate having office
Building at Civil Lines, Nagpur 440001
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----------------------------------------------------------------------------------------------
Shri S.P. Bhandarkar, Advocate for the petitioners
Ms T.H.Khan, Mrs. M.A. Barabde and Mr. N.R.Patil, AGPs respondents/State
----------------------------------------------------------------------------------------------
CORAM : AVINASH G. GHAROTE, J.
Judgment reserved on : 10/03/2023
Judgment pronounced on : 31/03/2023
1] Heard Shri S.P. Bhandarkar, learned counsel for the
petitioners and Ms T.H. Khan, Mrs. M.A. Barabde and Shri N.R. Patil,
learned Assistant Government Pleaders for the respondents/State.
Rule. Rule made returnable forthwith. Heard finally with the consent
of the learned counsel for the rival parties.
2] All these petitions raise the same challenge and
therefore are being decided by this common judgment. For the sake
of brevity the facts in Writ Petition No.6850/2022 are being taken
for consideration of the challenge.
3] The petition challenges the award dated 06/09/2013
passed by the Arbitrator under Section 3-G (5) of the National
Highways Act, 1956 (for short, "the N.H. Act" hereinafter) in
Arbitration Case No.62/2012 and seeks its modification. The factual
position in the instant matter can be encapsulated as under :-
Sr. Date Event
No.
01 The petitioners claimed to be owners of Khasra
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No.52/1 admeasuring 1.00 HR held in Class-I rights
situated at Mouza Gawasi-Manapur, Tahsil Nagpur
Rural (District Nagpur), out of which it is claimed
that land admeasuring 0.40 HR stood converted into
non-agricultural use and the balance land is also
claimed to have been to non-agricultural use.
02 21/6/2010 A notification under Section 3 A (1) of the National
Highways Act was published indicating the
acquisition of the land for the purpose of widening of
the National Highway No.7 (Kamptee-Kanhan bye-
pass).
03 The claim statement was submitted by the
petitioners claiming total compensation of
Rs.82,58,23,020/-.
04 23/12/2011 Common award came to be passed in LAC NO.77/A-
65/209-2010 granting compensation at the rate of
Rs.39,00,000/- per hectare. For the 0.60 HR of land
the petitioners were granted Rs.23,40,000/- and for
the land admeasuring 0.40 HR (NA land)
compensation was granted @ Rs.2,150/- per sq.
meter, totalling Rs.86,00,000/-. The petitioners have
thus being granted a total compensation of
Rs.1,09,00000/-.
05 Being aggrieved by the award dated 23/12/2011 the
petitioners approached before the
Arbitrator/Respondent no.4 under Section 3-G (5) of
the N.H. Act for enhancement of compensation.
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06 06/09/2013 The learned Arbitrator by the award partly allowed
the claim of the petitioners for enhancement of the
compensation to Rs.13,26,37,382/- (pg.172).
07 28/08/2015 An application under Section 34 of the Arbitration
and Conciliation Act, 1996 (for short, "the A &
Act", hereinafter) filed by the respondent no.1
bearing MCA No.54/2014 came to be allowed by the
learned Principal District Judge by setting aside the
award dated 06/09/2013 passed by the Arbitrator
and restoring the award dated 23/12/2011 (pg.52)
passed by the Land Acquisition Officer (pg.249).
08 26/11/2021 In appeal under Section 37 of the A & C Act, this
Court by the judgment set aside the judgment of the
learned Principal District Judge under Section 34 of
the A and C Act and restored the award passed by
the Arbitrator dated 06/09/2013 (pg.364).
09 11/07/2022 Petition for special leave to appeal (C)
No.8136/2022 with connect petitions preferred by
the respondent no.1 were dismissed.
10. 28/07/2022 The present petitions have been filed claiming
enhancement of the compensation as awarded by the
Arbitrator under Section 3-G(5) of the N.H.Act.
4] In the above background, Shri S.P. Bhandarkar, learned
counsel for the petitioners submits, that since the petitioners were
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not satisfied with the award of the Arbitrator under Section 3-G(5)
of the N.H. Act, and as the learned Principal District Judge under
Section 34 of the A & C Act, 1996, had no power to modify the
award or to substitute a new award for further enhancement, in
place of the one passed by the Arbitrator under Section 3-G(5) of the
N.H. Act, but his powers were restricted only to set aside the award
under Section 34 of the A & C Act, as held by the Hon'ble Apex Court
in The Project Director, National Highways No.45 E and 220 National
Highways Authority of India Vs. V.M. Hakeem and another, AIR 2021
SC 3471, the petitioners were rendered remedy-less, for a claim for
further enhancement, than what was awarded by the Arbitrator. It is
contended, that since under Section 3-G(5) of the N.H. Act, a finality
was given to the award as may be passed by the Arbitrator, and the
proceedings before him were to be governed by the A & C Act, the
petitioners were deprived of any remedy to seek any redress for
further enhancement of compensation. It is, thus, contended, that in
such circumstances, it was permissible for the petitioners to invoke
the writ jurisdiction of this Court under Articles 226 and 227 of the
Constitution of India, to lay a claim for further enhancement of the
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compensation as awarded to them by the Arbitrator under
Section 3-G(5) of the N.H. Act.
4.1. Inviting my attention to the provisions of the Land
Acquisition Act, 1894 (for short, "the L.A. Act" hereinafter), it is
contended that against an award under Section 11 therein, a
reference under Section 18 of the L.A. Act is provided to the Civil
Court. The judgment under reference, is then amenable to appeal
under Section 54 to the High Court, thus affording a further remedy
to the landowners in case of non-satisfaction as to the judgment in
reference under Section 18 of which the petitioners are deprived,
under the A & C Act.
4.2. He further relies upon the scheme of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (for short, "the RFCTLARR Act"
hereinafter) to contend that the provisions of Section 74 therein,
which permits the challenge to the award as passed by the Authority
as established under Section 51 of the said Act, does not contain any
such restrictions and even a plea for enhancement of the
compensation is permissible to be entertained and decided by the
High Court.
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4.3. The learned Counsel places reliance upon the following
judgments in support of his contention.
Sr. No. Name of the parties Citations
01 PSA SICAL Terminals (P) Ltd. .Vs. Board of 2021 SCC OnLine
Trustees of V.O. Chidambranar Port Trust SC 508
Tuticorin and others.
02 Delhi Airport Metro Express Private Limited (2022) 1 SCC 131
Vs. Delhi Metro Rail Corporation Limited.
03 Vishnu Bhagwan Agrawal and another Vs. (2018) 12 SCC
National Insurance Company Limited 210
through its Regional Director.
04 Sahyadri Earthmovers Vs. L and T Finance 2011 (4) Mh.L.J.
05 Atlanta Infrastructure Limited Vs. Municipal (2018) 15 SCC
Corporation of Greater Mumbai and others. 230
06 National Highways Authority of India Vs. (2016) 12 SCC
07 Project Director, National Highways No.45E (2021) 9 SCC 1
and 220 National Highways Authority of
India Vs. M. Hakeem and another
08 Ssangyong Engineering and Construction (2019) 15 SCC
Company Limited Vs. National Highways 131
Authority of India (NHAI).
09 Associate Builders Vs. Delhi Development (2015) 3 SCC 49
Authority
5] In PSA SICAL Terminals (P) Ltd. (supra) after
considering Associate Builders and Ssangyong Engineering and
Construction Company Limited (supra) the Hon'ble Apex Court while
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considering the scope and ambit of Section 34 of the A & C Act has
held as under :-
"43. It will thus appear to be a more than settled legal
position, that in an application under Section 34, the court is
not expected to act as an appellate court and reappreciate the
evidence. The scope of interference would be limited to
grounds provided under Section 34 of the Arbitration Act. The
interference would be so warranted when the award is in
violation of "public policy of India", which has been held to
mean "the fundamental policy of Indian law". A judicial
intervention on account of interfering on the merits of the
award would not be permissible. However, the principles of
natural justice as contained in Section 18 and 34(2)(a)(iii) of
the Arbitration Act would continue to be the grounds of
challenge of an award. The ground for interference on the
basis that the award is in conflict with justice or morality is
now to be understood as a conflict with the "most basic
notions of morality or justice". It is only such arbitral awards
that shock the conscience of the court, that can be set aside on
the said ground. An award would be set aside on the ground
of patent illegality appearing on the face of the award and as
such, which goes to the roots of the matter. However, an
illegality with regard to a mere erroneous application of law
would not be a ground for interference. Equally,
reappreciation of evidence would not be permissible on the
ground of patent illegality appearing on the face of the award.
44. A decision which is perverse, though would not be a
ground for challenge under "public policy of India", would
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certainly amount to a patent illegality appearing on the face
of the award. However, a finding based on no evidence at all
or an award which ignores vital evidence in arriving at its
decision would be perverse and liable to be set aside on the
ground of patent illegality.
45. To understand the test of perversity, it will also be
appropriate to refer to paragraph 31 and 32 from the
judgment of this Court in Associate Builders (supra), which
read thus:
"31. The third juristic principle is that a decision
which is perverse or so irrational that no
reasonable person would have arrived at the same
is important and requires some degree of
explanation. It is settled law that where:
(i) a finding is based on no evidence, or
(ii) an Arbitral Tribunal takes into account
something irrelevant to the decision which it arrives
at; or
(iii) ignores vital evidence in arriving at its
decision, such decision would necessarily be
perverse.
32. A good working test of perversity is contained
in two judgments. In Excise and Taxation Officer-
cum-Assessing Authority v Gopi Nath & Sons [1992
Supp (2) SCC 312], it was held : (SCC p. 317,
para 7)
"7. ... It is, no doubt, true that if a finding of fact is
arrived at by ignoring or excluding relevant
material or by taking into consideration irrelevant
material or if the finding so outrageously defies
logic as to suffer from the vice of irrationality
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incurring the blame of being perverse, then, the
finding is rendered infirm in law."
In Kuldeep Singh v Commr. of Police [(1999) 2 SCC
10:1999 SCC (L&S) 429] it was held : (SCC p. 14,
para 10)
"10. A broad distinction has, therefore, to be
maintained between the decisions which are
perverse and those which are not. If a decision is
arrived at on no evidence or evidence which is
thoroughly unreliable and no reasonable person
would act upon it, the order would be perverse. But
if there is some evidence on record which is
acceptable and which could be relied upon,
howsoever compendious it may be, the conclusions
would not be treated as perverse and the findings
would not be interfered with."
87. As such, as held by this Court in Sangyong Engineering
and Construction Company Limited (supra), the fundamental
principle of justice has been breached, namely, that a
unilateral addition or alteration of a contract has been foisted
upon an unwilling party. This Court has further held that a
party to the Agreement cannot be made liable to perform
something for which it has not entered into a contract. In our
view, re-writing a contract for the parties would be breach of
fundamental principles of justice entitling a Court to interfere
since such case would be one which shocks the conscience of
the Court and as such, would fall in the exceptional category."
5.1. In Delhi Airport Metro Express Private Limited (supra)
the following principles have been laid down.
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"26. A cumulative reading of the UNCITRAL Model Law and
Rules, the legislative intent with which the 1996 Act is
made, Section 5 and Section 34 of the 1996 Act would make
it clear that judicial interference with the arbitral awards is
limited to the grounds in Section 34. While deciding
applications filed under Section 34 of the Act, Courts are
mandated to strictly act in accordance with and within the
confines of Section 34, refraining from appreciation or
reappreciation of matters of fact as well as law. (See
Uttarakhand Purv SainikKalyan Nigam Ltd. v. Northern Coal
Field Ltd. [Uttarakhand Purv Sainik Kalyan Nigam Ltd. v.
Northern Coal Field Ltd., (2020) 2 SCC 455 : (2020) 1 SCC
(Civ) 570], Bhaven Construction v. Sardar Sarovar Narmada
Nigam Ltd. [Bhaven Construction v. Sardar Sarovar
Narmada Nigam Ltd., (2022) 1 SCC 75] and Rashtriya Ispat
Nigam Ltd. v. Dewan Chand Ram Saran [Rashtriya Ispat
Nigam Ltd. v.Dewan Chand Ram Saran, (2012) 5 SCC
306] .)
29. Patent illegality should be illegality which goes to the
root of the matter. In other words, every error of law
committed by the Arbitral Tribunal would not fall within the
expression "patent illegality". Likewise, erroneous
application of law cannot be categorised as patent illegality.
In addition, contravention of law not linked to public policy
or public interest is beyond the scope of the expression
"patent illegality". What is prohibited is for Courts to
reappreciate evidence to conclude that the award suffers
from patent illegality appearing on the face of the award, as
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Courts do not sit in appeal against the arbitral award. The
permissible grounds for interference with a domestic award
under Section 34(2-A) on the ground of patent illegality is
when the arbitrator takes a view which is not even a possible
one, or interprets a clause in the contract in such a manner
which no fair-minded or reasonable person would, or if the
arbitrator commits an error of jurisdiction by wandering
outside the contract and dealing with matters not allotted to
them. An arbitral award stating no reasons for its findings
would make itself susceptible to challenge on this account.
The conclusions of the arbitrator which are based on no
evidence or have been arrived at by ignoring vital evidence
are perverse and can be set aside on the ground of patent
illegality. Also, consideration of documents which are not
supplied to the other party is a facet of perversity falling
within the expression "patent illegality".
30. Section 34(2)(b) refers to the other grounds on
which a court can set aside an arbitral award. If a dispute
which is not capable of settlement by arbitration is the
subject-matter of the award or if the award is in conflict
with public policy of India, the award is liable to be set
aside. Explanation (1), amended by the 2015 Amendment
Act, clarified the expression "public policy of India" and its
connotations for the purposes of reviewing arbitral awards.
It has been made clear that an award would be in conflict
with public policy of India only when it is induced or
affected by fraud or corruption or is in violation of Section
75 or Section 81 of the 1996 Act, if it is in contravention
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with the fundamental policy of Indian law or if it is in
conflict with the most basic notions of morality or justice."
5.2. Vishnu Bhagwan Agarwal (supra) is under the
Arbitration Act, 1940 and holds that under the said Act an
arbitration award is not to be lightly interfered.
5.3. Sahyadri Earthmovers (supra) is upon the procedure
which is required to be followed by the Arbitral Tribunal and the
power of the Arbitrator to determine the admissibility, relevant,
materiality and width in evidence.
5.4. Atlanta Infrastructure Limited (supra) holds that when
the award is well reasoned it ought not to be interfered with.
5.5. JSC Centrodorstroy (supra) holds that the interference
with an award by the Arbitral Tribunal is not permissible unless
Arbitrator construes contract in such a way that no fair-minded or
reasonable person would do.
5.6. M. Hakeem (supra) holds that under Section 34 of the
A & C Act the Court does not have any power to modify an award
and the power is restricted to setting aside the award.
6] It is, thus, apparent that the grounds of challenge to an
award passed by the Arbitrator under Section 3-G(5) of the N.H. Act,
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are controlled and limited by the provisions of Section 34 of the A
& C Act.
7] The contention that there is no remedy available to the
petitioners, to challenge the award of the Arbitrator, seeking further
enhancement of the compensation awarded, has to be considered in
light of the scheme of the National Highways Act, 1956 read in
consonance with the provisions of Section 34 of the A & C Act, 1996.
8] The scheme of acquisition under the National Highways
Act, relevant for our purpose, would indicate that after the
notification under Section 3-A(1) of the N.H. Act to acquire land,
the objection received under Section 3-C of the N.H. Act from any
person interested in the land, within 21 days from the date of
publication of the above notification has to be decided by the
Competent Authority, to which finality has been rendered under
Section 3-C (3) of the N.H. Act. Under Section 3-G(1) of the N.H. Act
the Competent Authority is enjoined to determine the compensation
of the land acquired. In case the compensation determined by the
Competent Authority is not acceptable, the same is susceptible to a
challenge to be laid before the Arbitrator who is then empowered to
determine the compensation under Section 3-G (5) of the N.H. Act.
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The provisions of the A & C Act have been made applicable to every
arbitration under Section 3-G (5) of the N.H. Act. Section 3-G (7)
determines the factors to be taken into consideration by the
Competent Authority or the Arbitrator while determining the
compensation. The determination of the compensation by the
Arbitrator under Section 3-G (5) of the N.H. Act is then open to
further scrutiny, by the Court under Section 34 of the A & C Act
which, in turn, is susceptible to a further challenge under Section 37
of the A & C Act, which, in turn, can be carried to the Hon'ble Apex
Court in a petition for special leave to appeal under Article 136 of
the Constitution of India.
9] It is, thus, apparent that there are as many as five
opportunities provided to the landowner whose land is acquired
under the N.H. Act, to question the grant of compensation awarded
to him. It is equally true that as the opportunities of challenge reach
the higher Courts, the scope of interference is narrowed down.
10] The National Highways Act itself, grants two
opportunities to the landowner, to place on record material
regarding the compensation claimed by him, once before the
Competent Authority under Section 3-G (1) and the second time
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before the Arbitrator under Section 3-G (5) of the N.H. Act for
enhancement. This can further be questioned under Section 34 of the
A & C Act, however, within the parameters as contained therein.
11] It is true, that the consideration under Section 34 of the
A & C Act is restricted to parameters as contained therein, however,
that is to be expected as in the hierarchy of authorities/Courts before
which claimant can get redress, the parameters, upon which redress
can be sought, are narrowed down as the hierarchy progresses
upwards.
12] Under the scheme of the Land Acquisition Act, the
award passed under Section 11 of the L.A. Act, which is susceptible
to a challenge for enhancement under Section 18 to the reference
Court, both of which are Courts of fact, a further challenge there
against being permissible under Section 54 of the said Act to the
High Court and thereafter to the Hon'ble Apex Court.
13] In the scheme under the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013, the compensation is to be determined by the Collector
under Section 23 of the said Act, against which a reference under
Section 64 to the Authority as established under Section 51 of the
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said Act is available, challenge against which is by way of an appeal
to the High Court under Section 74 thereof, which then can be
carried to the Hon'ble Apex Court by way of a special leave to appeal
under Article 136 of the Constitution of India.
14] Section 3 (which includes Section 3-A to 3-J) of the
N.H. Act, has been introduced by Act 16 of 1997, w.e.f. 24/01/1997
and provides for a complete mechanism for acquisition of land for
the purpose of creating/widening of the National Highway, including
the determination and grant of compensation for the acquisition of
land for the aforesaid purpose. The mode of conducting the
proceedings before the Arbitrator, in case the claimant is not
satisfied with the award passed by the Competent Authority, is also
governed by the provisions of Section 3-G (6) of the N.H. Act, which
applies the provisions of the A & C Act, to proceedings before the
Arbitrator. It is, thus, apparent that a remedy of approaching the
'Court', as defined in Section 2 (1) (e) of the A & C Act, has been
provided to the claimant, against the award as may be passed by the
Arbitrator under Section 3-G-(5) of the N.H. Act, which is a special
Statute, governing the acquisition of lands for the National
Highways.
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15] The Hon'ble Apex Court, while considering the scope of
Article 226 of the Constitution, vis-a-vis the remedy provided by the
statute, in United Bank of India Vs. Satyawati Tondon and others
(2010) 8 SCC 110 while considering what was held by it in its
earlier pronouncement on the point in Titaghur Paper Mills Co. Ltd.
Vs. State of Orissa [(1983) 2 SCC 433, has held as under :
"48. In Titaghur Paper Mills Co. Ltd. v. State of Orissa
[(1983) 2 SCC 433 : 1983 SCC (Tax) 131] a three-Judge
Bench considered the question whether a petition under
Article 226 of the Constitution should be entertained in a
matter involving challenge to the order of the assessment
passed by the competent authority under the Central Sales
Tax Act, 1956 and corresponding law enacted by the State
Legislature and answered the same in the negative by
making the following observations: (SCC pp. 440-41,
para 11)
"11. Under the scheme of the Act, there is a
hierarchy of authorities before which the petitioners
can get adequate redress against the wrongful acts
complained of. The petitioners have the right to
prefer an appeal before the prescribed authority
under sub-section (1) of Section 23 of the Act. If the
petitioners are dissatisfied with the decision in the
appeal, they can prefer a further appeal to the
Tribunal under sub-section (3) of Section 23 of the
Act, and then ask for a case to be stated upon a
question of law for the opinion of the High Court
under Section 24 of the Act. The Act provides for a
complete machinery to challenge an order of
assessment, and the impugned orders of assessment
can only be challenged by the mode prescribed by
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the Act and not by a petition under Article 226 of
the Constitution. It is now well recognised that
where a right or liability is created by a statute
which gives a special remedy for enforcing it, the
remedy provided by that statute only must be
availed of. This rule was stated with great clarity by
Willes, J. in Wolverhampton New Waterworks Co. v.
Hawkesford [(1859) 6 CBNS 336 : 141 ER 486] in
the following passage: (ER p. 495)
'... There are three classes of cases in which a
liability may be established founded upon a
statute. ... But there is a third class viz. where
a liability not existing at common law is
created by a statute which at the same time
gives a special and particular remedy for
enforcing it. ... The remedy provided by the
statute must be followed, and it is not
competent to the party to pursue the course
applicable to cases of the second class. The
form given by the statute must be adopted
and adhered to.'
The rule laid down in this passage was approved by the
House of Lords in Neville v. London Express Newspapers
Ltd. [1919 AC 368 : (1918-19) All ER Rep 61 (HL)] and
has been reaffirmed by the Privy Council in Attorney-
General of Trinidad and Tobago v. Gordon Grant & Co.
Ltd. [1935 AC 532 (PC)] and Secy. of State v. Mask & Co.
[(1939-40) 67 IA 222] It has also been held to be equally
applicable to enforcement of rights, and has been
followed by this Court throughout. The High Court was
therefore justified in dismissing the writ petitions in
limine."
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16] There is no doubt, a difference between the procedure
laid down in the appeals to be dealt with under the L.A. Act and the
RFCTLARR Act on the one hand and the N.H. Act on the other, all of
which relates to acquisition of land, inasmuch as the N.H. Act
applies the A & C Act to matters before the Arbitrator, because of
which the course of action to be followed in matters governed by the
N.H. Act, after the award by the Arbitrator has to be the one as
contemplated by the A & C Act. That however, is something which
cannot be avoided, for if a matter is governed by a particular statute,
then what is provided in the statute, has to be the course of action
which the matter has to follow in case a litigant desires to agitate it
further. Different ways a matter has to take while in its journey,
based upon the remedies for challenges to the higher forums the
statute provides and the parameters for such challenges. The scope
and parameters for such challenges also goes on reducing as a
higher forum is to be approached, for that is the very basis of the
hierarchical form of system without which the system may not work
at all. That too, such statute govern the same subject matter i.e.
acquisition of land in this case but provided for different ways in
which to deal with matters thereunder including the right to
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challenge in higher forums and narrowing down the parameters for
such challenges, cannot be a ground to create an additional remedy
by invoking the writ jurisdiction of this Court under Article 226 of
the Constitution.
17] Thus since the National Highways Act, is a special
statute and provides for a remedy, for such acquisition, by permitting
the filing of an application under section 34 of the A & C Act, against
the award passed by the Arbitrator under Section 3-G (5) of the N.H.
Act, that remedy, was the only course of action which could have
been availed of by the petitioners, for challenging the award by the
Arbitrator, as held in Satyawati Tondon (supra).
18] This remedy, however, has not been availed of by the
petitioners, as no application under Section 34 of the A & C Act, has
been preferred by the petitioners against the award passed by the
Arbitrator under Section 3-G-(5) of the N.H. Act. In fact it is the
respondent no.1, who has filed the application under Section 34 of
the A & C Act, before the Court as defined under section 2(1)(e) of
the A & C Act, in which the award as passed by the Arbitrator had
been set aside, which in turn had been challenged by the petitioners
by filing an appeal under Section 37 of the A & C Act before this
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Court which has been allowed restoring the award of the Arbitrator,
which judgment has been confirmed by the Hon'ble Apex Court.
Thus in so far as the petitioners are concerned the remedy as
provided under Section 34 of the A & C Act, against the award as
passed by the Arbitrator under Section 3 G-(5) of the N.H. Act, the
same has not been availed of by them at all, and therefore, the plea
that the remedy was a limited one, and the extraordinary
jurisdiction of this Court under Article 226 of the Constitution can be
invoked by them, in my considered opinion, is clearly not available
to them.
19] The absence of a remedy and the limited scope of the
remedy are two different things altogether. This is not a case of
absence of remedy as a remedy is provided as indicated above. This
is therefore a case where the limited scope of the remedy as
provided, is being pleaded, in view of what has been held by the
Hon'ble Court in M. Hakeem (supra). In this context, it is necessary
to state that it is permissible for the Legislature in its wisdom, to
narrow down the scope of a remedy, against any challenge which a
Statute may afford to a litigant. When Section 34 of the A & C Act,
provides for the setting aside of the award on any of the grounds as
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contained therein, it cannot be said that the Legislature while
framing Section 3-G-(6) of the N.H. Act, was ignorant of the nature
and scope of the grounds as provided in Section 34 of the A & C Act
and the position that limited interference was being permitted.
Rather, on the contrary, the limitation of the scope of remedy under
Section 34 of the A & C Act, is intentional, as is indicated from the
language thereof and the departure from the mode of appeals under
the L.A. Act and the RFCTLARR Act, which is further clearly
discernable from the fact that instead of making the provisions of the
L.A. Act or the RFCTLARR Act applicable to the acquisition under the
N.H. Act, a totally new procedure has been prescribed by introducing
Section 3-A to 3-J in the N.H. Act and so also by making the
provisions of the A & C Act, applicable to proceedings before the
Arbitrator and thereby limiting the remedy for challenge thereto, to
the parameters as set forth in Section 34 of the A & C Act. Thus for
laying a challenge to the award as passed by the Arbitrator under
Section 3-G (5) of the N.H. Act, it is for the petitioner to make out a
case, within the four corners of the grounds permitted in Section 34
of the A & C Act, so as to assail the award as passed by the
Arbitrator, as every challenge beyond the scope, ambit and
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parameters of Section 34 of the A & C Act, stands excluded, by
necessary implication, in view of the express language of Section 34
of the A & C Act.
20] In the instant case, it is clearly apparent that the
petitioners were satisfied with the award dated 06/09/2013 as
passed by the Arbitrator under Section 3-G (5) of the N.H. Act,
which is the reason that they had not preferred any application
under Section 34 of the N.H. Act, to the 'Court', under Section 2(1)
(e) of the A & C Act, within the time permitted. This is asserted from
the fact that the award by the Arbitrator is dated 06/09/2013,
whereas the judgment in M. Hakeem (supra) was delivered on
20/07/2021 [which was from judgment in NHAI / M. Vijayalakshmi
by the Madurai Bench of the Madras High Court, 2020 SCC OnLine
Mad 1119)] and therefore the view taken by the Hon'ble Apex Court
in M. Hakeem (supra) could never have been an impediment for the
petitioners to assail the award by the Arbitrator by taking recourse to
Section 34 of the A & C Act.
21] It is therefore clear that the present petition is merely an
attempt to invoke the extraordinary jurisdiction of this Court under
Article 226 of the Constitution, by raising a plea of availability of a
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limited remedy under the A & C Act, and opening a new front of
litigation, which is impermissible on the facts of the case and the law
as applicable thereto. I, therefore, do not see any merit in the
challenge for the reasons stated above. The writ petitions are
therefore dismissed. Rule stands discharged. No order as to costs.
(AVINASH G. GHAROTE, J.)
Wadkar/Rvjalit
