Bombay High Court
Anant Shankarrao Korke vs The State Of Maharashtra And Others on 6 March, 2025
2025:BHC-AUG:6564-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7336 OF 2018
Anant Shankarrrao Korke
Died Through L.Rs.
1. Mohini Anant Korke, Age 50 years,
2. Rahul Anant Korke, Age 26 years,
3. Ashwini Anant Korke, Age 28 years,
All Occu. Agricultur, R/o. Salwade,
Taluka and District Dhule .. Petitioners
Versus
1. The State of Maharashtra
Through Collector, Dhule
2. The National Highway Authority of India
B-23,Near Kamgar Chowk, N-4, CIDCO,
Aurangabad
3. The Competent Authority
(Land Acquisition) N.H.211 &
Deputy Collector, Land Acquisition No.1,
Dhule
4. The District Superintending Agriculture
Officer, Dhule .. Respondents
...
WITH
WRIT PETITION NO. 7338 OF 2018
1. Babulal Paulad Vanjari
2. Bansi Paulad Vanjari,
Died, through L.Rs.
2A Bebabai Bansi Chavhan (Vanjari)
Age 45 years,
2B. Ramrao Bansi Chavan (Vanjari)
Age 26 years,
2C. Bhimrao Bansi Chavhan (Vanjari)
Age 20 yars,
2D. Arunabai Machindra Jadhav
Age 30 years,
All Occu. Agriculture, R/o. Tarwade,
Taluka and District Dhule
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Versus
1. The State of Maharashtra
Through Collector, Dhule
2. The National Highway Authority of India
B-23,Near Kamgar Chowk, N-4, CIDCO,
Aurangabad
3. The Competent Authority
(Land Acquisition) N.H.211 &
Deputy Collector, Land Acquisition No.1,
Dhule
4. The District Superintending Agriculture
Officer, Dhule .. Respondents
...
WITH
WRIT PETITION NO. 8883 OF 2018
Gorakh Digambar Pagare
Age Major, Occu. Agri.,
R/o. Vinchur, Taluka and District Dhule .. Petitioner
Versus
1. The State of Maharashtra
Through Collector, Dhule
2. The National Highway Authority of India
B-23,Near Kamgar Chowk, N-4, CIDCO,
Aurangabad
3. The Competent Authority
(Land Acquisition) N.H.211 &
Deputy Collector, Land Acquisition No.1,
Dhule
4. The District Superintending Agriculture
Officer, Dhule .. Respondents
...
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WITH
WRIT PETITION NO. 7339 OF 2018
Pravin Sudam Patil
Age Major, Occu. Agri.,
R/o. Junawanee, Taluka and District Dhule .. Petitioner
Versus
1. The State of Maharashtra
Through Collector, Dhule
2. The National Highway Authority of India
B-23,Near Kamgar Chowk, N-4, CIDCO,
Aurangabad
3. The Competent Authority
(Land Acquisition) N.H.211 &
Deputy Collector, Land Acquisition No.1,
Dhule
4. The District Superintending Agriculture
Officer, Dhule .. Respondents
...
WITH
WRIT PETITION NO. 8931 OF 2018
1. Sunita Digambar Desale,
2. Revaji Tarachand Patil
Both Age Major, Occu. Agri.,
R/o. Vinchur, Taluka and District Dhule .. Petitioners
Versus
1. The State of Maharashtra
Through Collector, Dhule
2. The National Highway Authority of India
B-23,Near Kamgar Chowk, N-4, CIDCO,
Aurangabad
3. The Competent Authority
(Land Acquisition) N.H.211 &
Deputy Collector, Land Acquisition No.1,
Dhule
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4. The District Superintending Agriculture
Officer, Dhule .. Respondents
...
WITH
WRIT PETITION NO. 10945 OF 2021
National Highways Authority of India
Project Implementation Unit,
Nashik, Through its Project Director
Ravindra Suhasrao Ingole, Age 40 years,
"Mansaram Nagar", Circuit House,
Sakri Road, Dhule - 424 002 .. Petitioners
Versus
1. The Competent Authority Land Acquisition
NH-211 And Deputy Collector Land Acquisition
No.1, Dhule
2. Anant s/o. Shankarrao Korke, Age Major,
Occu. Agriculturist, R/o. Salwade,
Taluka and District Dhule .. Respondents
...
WITH
WRIT PETITION NO. 11181 OF 2021
National Highways Authority of India
Project Implementation Unit,
Nashik, Through its Project Director
Ravindra Suhasrao Ingole, Age 40 years,
"Mansaram Nagar", Circuit House,
Sakri Road, Dhule - 424 002 .. Petitioners
Versus
1. The Competent Authority Land Acquisition
NH-211 And Deputy Collector Land Acquisition
No.1, Dhule
2. Babulal Poulad Vanjari,
3. Bansi Paulad Vanjari,
4. Anil Paulad Vanjari,
R.No.2 to 4 Age Major, Occu.Agri.,
R/o. Tarvade, Taluka and District Dhule .. Respondents
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Mr. Ajeet B. Kale, Advocate along with Ms. Sakshi Kali, Advocate for
Petitioners in Writ Petitions No.7336, 7338, 7339, 8883 and 8931
of 2018;
Mr. Deepak S. Manorkar, Advocate for Petitioner in Writ Petitions
No.10945 and 11181 of 2021;
Mr. D. R. Korade, A.G.P. for Respondents/State;
Mr. A. G. Talhar, Advocate, Mr. Suresh W. Mundhe, Advocate and
Mr. D. S. Manorkar, Advocate for Respondent/National Highways
Authority
CORAM : S. G. MEHARE &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 11.02.2025
PRONOUNCED ON : 06.03.2025
JUDGMENT (PER: S. G. MEHARE, J.)
1. Rule. Rule made returnable forthwith. Heard finally with
consent of respective learned counsel for the parties.
2. The writ petitions are based upon identical facts and
evidence, hence, taken up together for common decision.
3. Writ Petition No.10945 and 11181 of 2020 filed by petitioner
- National Highways Authority of India (NHAI) has impugned
corrigendum dated 21.03.2017 which is claimed to be
supplementary award / corrigendum dated 22.05.2017.
4. By these writ petitions under Article 226 of the Constitution
of India, the petitioners are seeking directions against respondents
to include the plants in the Award No.3 of 2013 passed by
respondent No.2.
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5. The case of petitioners, in brief, is that their lands were
acquired for National Highway No.211. Accordingly, Award was
declared in 2017. Respondent No.2 noticed that there was a
difference in number of plants standing in the fields of the farmers
in the joint measurement prepared by respondent No.3. Therefore,
respondent No.2 directed respondent No.3 by letter dated
11.01.2016 not to value the plants on the basis of joint
measurement prepared by respondent No.3. The office of
respondent No.3 drew a fresh panchnama in the presence of
representatives of Revenue Office, Land Acquisition Office and
farmers of the fields. Respondent No.3 forwarded a fresh
panchnama in respect of plants of respondent No.2 on 10.08.2016.
Respondent No.3 did not determine the value of plants as per the
panchnama dated 10.08.2016. Despite the valuation report
submitted by respondent No.3, those plants were not considered
and included in the award. The petitioners are entitled to
compensation for those plants.
6. Respondent No.2, by way of affidavit-in-reply, opposed the
contentions of the petitioners. The Central Government has issued
notification under Section 3A of the National Highways Act, 1956
(for short, "NH Act") and appointed respondent No.3 as Competent
Authority, Land Acquisition. The Central Government has
expressed its intention to acquire the lands in the villages
mentioned in the notification. The joint measurement was carried
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out pursuant to the gazette notification under Section 3(A). In the
joint measurement report, no plants were mentioned in the
disputed fields owned by the petitioners. Then the compensation
proceeding was initiated under Section 3(G) of the N.H.Act. The
petitioners have raised objection before the competent authority
on 30.07-2014. However, it does not refer to non-inclusion of
Pomegranate plants in the fields under acquisition or in the award.
During the initial joint measurement and spot panchnama, there
were no plants as such in the land of the petitioners. Therefore,
the award was declared. Once the award is declared, respondent
No.3 competent authority becomes functus officio. The notice of
joint measurement on the basis of which the plants were included
in for valuation, nor it received any corrected award including or
adding it for determination of amount for the entire properties
under acquisition. In a nut-shell, the contesting respondent has a
case that when the initial joint measurement was carried out no
plants as claimed by the petitioners were planted. Valuation done
by respondent No.3 was subsequent to the award passed.
Therefore, the petitioners do not deserve for compensation as
prayed for.
7. The petitioners have also filed rejoinder to the affidavit-in-
reply of respondent No.2. By way of re-joinder, the petitioners
have explained that Pomegranate plants were reflected in
measurement report dated 28.08.2013 (R-1). Again the spot visit
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was made on 11.12.2015 and plants were found at that time.
Another inquiry was made on 11.07.2017, that time also plants
were found standing in the field.
8. Mr. A. B. Kale, the learned counsel for the petitioners has
vehemently argued that Pomegranate plants were standing in the
field when the joint measurement was done in the presence of
concerned authorities. Respondent No.3 had addressed a letter to
respondent No.4 for submitting valuation report of the fruit plants.
Accordingly, a report was submitted on 12.05.2017. It is evident
from this report that fruit bearing plants were standing. He has
reiterated his arguments as per his pleadings. The first joint
measurement was done on 28.03.2013, second was done on
11.12.2015 and third was done on 11.12.2017. All these
measurements were carried out at the instance of respondent
No.3. The facts are within the knowledge of respondent concerned
that the fruit bearing plants were planted in the field and were
noticed at the time of joint measurement. Hence, the competent
authority cannot deny the compensation and in such a situation,
they should have pass the supplementary or additional award. He
relied on the certain case laws, those would be considered in due
course.
9. The learned counsel for contesting respondent would submit
that no plants were found at the time of first joint measurement.
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The reply of the Competent Authority, Land Acquisition disclosed
that since there were no fruit bearing plants, the award was
correctly passed. The entry of plants was added in the joint
measurement report subsequently. The competent authority had
called the authenticated joint measurement report vide letter
dated 10.06.2009 and in that report the fruit bearing plants were
not mentioned as claimed by the petitioners, since there were no
fruit bearing plants in the field when the last joint measurement
was done. There is a great possibility of creating the evidence by
planting the fruit bearing plants only with an ill-motive to get more
compensation. If the petitioners were not satisfied with the award,
they should have approached the Arbitrator under Section 3-G(7)
of the N.H.Act. Same parameters for the determination of the
price apply to the competent authority and arbitrator.
10. Mr. Talhar, learned counsel for the competent authority
adopted the arguments of the contesting respondent No.2. He
referred to paragraph No.16 and 19 of the case of Sau.
Sangeeeta Natwarlal Karwa and another vs. State of
Maharashtra and others, Writ Petition No.5327 of 2022,
dated 28.02.2023 (Bombay High Court), in which it has been
held that Section 3(A) of the NH Act does not permit the
Competent Authority to make any correction or for that matter to
pass any order in the nature of correction of an award or an
amended award. Once the award is passed by the Competent
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Authority, the Competent Authority loses any authority to tinker
with it in any manner whatsoever. Referring to the case of
Bhupendarsingh vs. Competent Authority and Others, AIR
Bombay R 645, it has been argued that the supplementary award
is thus without jurisdiction of the Competent Authority. Section 33
of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (for short,
"Act of 2013") does not apply to the acquisition proceeding under
the N.H.Act.
11. In reply, the learned counsel for the petitioners would submit
that if the issue raised before the Court can be decided by the
Arbitrator, liberty may be granted to the petitioners to approach
the Arbitrator. However, the experience is that the Arbitrator does
not decide the dispute like in this case. Therefore, this Court is the
only Competent Authority to resolve the matter.
12. Where the Central Government is satisfied that the land is
required for the public purpose, it is to be acquired with such
intention. To acquire the land, it may by notification in the Official
Gazette, declare its intention to acquire such land, as per Section
3-A(1) of the NH Act. Section 3B of the NH Act empowers the
Central Government or any persons authorized by the Central
Government to make inspection, survey, measurement, valuation
or enquiry, etc. Section 3-C of the NH Act provides for hearing the
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objections. The party interested in the land has a right to object to
the use of his land for the purpose or purposes mentioned in Sub-
section (1) of Section 3-A. Such objection is made to the
competent authority in writing and setting out the grounds thereof
and the competent authority shall give the objector an opportunity
of being heard, either in person or by a legal practitioner, and the
competent authority should pass an order either allowing or
disallowing the objections and after making such further inquiry, if
any. Thereafter, the Central Government, on receiving report from
the competent authority, shall declare by notification in the official
gazette that the land should be acquired for the purpose or for the
purposes mentioned in Section 3-A. On the publication of
declaration of acquisition under sub-section (1) of Setion 3-D, the
land shall vest absolutely in the Central Government free from all
encumbrances.
13. In the case at hand, case revolves around the dispute about
the existence 950 pomegranate plants seen planted in the fields of
the petitioners. First award was passed on 08.08.2016. The said
award includes the nature of objection raised by the respective
land owners. It shows that the petitioners were represented by
Adv. Sanjay Shimpi. It does not reflect that the objection was
raised that fruit bearing plants as mentioned above were found
during the measurement. The objection was raised that the non-
agricultural potentiality of the land should be considered and rate
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as per non-agricultural land be granted and owners should be
given the employment in the Government department and as per
the new Act, 2013, four times compensation be granted to them.
This objection was taken on 30.07.2014.
14. It seems that the petitioners did not dispute the first
measurement of year 2013. However, petitions are silent about
the dates of the measurement. It is just an application-cum-
representation presuming that everybody knows the facts of the
case and there is no dispute at all. The record also reveals that a
supplementary award was passed in 2017. The record further
reveals that first award was passed on 08.08.2016 and
supplementary award was passed in 2017. The joint measurement
of 2013 shows no fruit bearing plants existing in the field of the
petitioners. The objection of existence of fruit bearing plants
seems to have been raised after the first award was passed.
However, it seems from the record that 950 pomegranate plants
were seen added in the joint measurement (R-3). To rebut this
entry, contesting respondent No.2 filed on record the certified
copy showing that at the initial measurement there were no such
plants found existing in the field of the petitioners. We find
substance in the submission of the contesting respondent that the
evidence of plants in the field of the petitioners was possibly
created subsequently and in any case it came across that such
plants are planted subsequent to the measurement. We could
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understand if the petitioners raised objection first time when they
raised objection before competent authority through their counsel,
their silence corroborates contention of the respondents that there
were no pomegranate plants in the field when the first joint
measurement was done. Therefore, the activities of the
competent authority calling report from respondent No.4 are
apparently after the award was passed and raises suspicion.
Normally, once the measurement is done, unless there are serious
deficiencies another joint measurement is avoided. The purpose
of the joint measurement before the notification is to identify the
exact position of the land proposed to be acquired. The
measurement after measurement should not be a routine practice.
The law has taken care if any mistake has happened and
something is not mentioned in the first joint measurement, the
persons interested have right to register the objection immediately
and those objections are heard and to be decided by the
competent authority. This precaution, the law has taken, only with
a view to avoid mischief to be played with the Government and
extracting unnecessarily heavy amount for the acquisition of the
land. At the cost of repetition, we again observe that the
petitioners through counsel had raised objection but did not
whisper a single word about the plants. It is said that the silence
speaks a lot. Therefore, the case laws relied upon by the
petitioners would not assist them.
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15. The next legal question that has been raised is, can a
supplementary award be passed. A serious objection has been
raised that once an award is passed, competent authority has no
authority to pass additional or supplementary award. To bolster
his argument, the learned counsel for the contesting respondent
has rightly relied upon the case of Bhupendrasingh (supra).
16. The Bombay High Court at Principal Seat has referred to
above judgment in the case of Sau. Sangeeta (supra). It has
been observed in paragraph No.16 that Section 3(G)(5) of the
National Highways Act clearly indicates that the complete
mechanism is provided under Section 3(G) of the NH Act including
the remedy for redressal of the grievance arising out of an award
and the amount determined by the Competent Authority under
Section 3(G)(1) and (2) by filing an application before the learned
Arbitrator to be appointed by the Central Government. It has been
further observed in paragraph No.17 that this Court, in case of
Bhupendrasingh (supra) held that the provisions of Section 33 of
the Act of 2013 are not available to the Competent Authority
constituted under Section 3(A) of the N.H.Act in the process of
acquisition of the land under the N.H.Act and thus it is
impermissible for the Competent Authority to make any correction
or to pass any order in the nature of correction of an award or an
amended award. Once the award has been passed by the
Competent Authority, the Competent Authority loses any authority
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to tinker with it in any manner whatsoever. Further, it has been
observed in paragraph No.18 that in the absence of any
provisions, it cannot be held that the Competent Authority under
N.H.Act would have any power or authority either to correct the
award for any reason whatsoever or for that matter, to pass an
additional award or to review the same. The supplementary award
is thus totally without jurisdiction and deserves to be quashed and
set aside.
17. To counter above arguments, the learned counsel for the
petitioners relied on the case of Hemant Brijraj Lalwani vs. The
Government of India, Writ Petition No.15562 of 2019, in
which the Co-ordinate Bench held/observed that when admittedly,
as mentioned in the award, the compensation for a particular Gat
Number was not determined, the Competent Authority can be
directed to pass a suitable supplementary award to that extent
which will not run afoul to the decision in the matter of
Bhupendersingh (supra). The facts of that case and the facts of
the case at hand are altogether different.
18. The petitioners, in the first award at no point of time, raised
objection that the pomegranate plants were not recorded in the
joint measurement. Hence, we find substance in the submission of
contesting respondent that the supplementary award including
fruit bearing plants by the Competent Authority is without
jurisdiction.
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19. The learned counsel for the petitioners has raised another
question that since the petitioners have no other remedy, such
matters can only be determined under the writ jurisdiction. He
would submit that jurisdiction of the Arbitrator under Section 3-
G(5) of the N.H.Act is very limited. The Arbitrator cannot travel
beyond calculation, mistake or incorrect determination of the
amount.
20. To bolster his arguments, he relied on the case of Rajiv
Memorial Academy Welfare Society vs. Union of India and
others, WRIT - C No.8247 of 2018, dated 05.03.2018, in
which the petitioner had sought to quash the award of the
Arbitrator passed under Section 3-G(5) of the N.H.Act, for the
reason that the Arbitrator had remanded the matter to the
Competent Authority for a fresh determination. Picking
observations from the case that the Arbitrator has to determine
the amount and would not be justified in remitting the matter to
the Competent Authority, the learned counsel for the petitioners
interpreted the said section that the Arbitrator has no power other
than determination of the valuation. He also relied on the case of
Bhartiya Rashtriya Rajmarg Pradhikaran vs. Rajesh
Kaushik and others, Appeal under Section 37 of the
Arbitration and Conciliation Act 1996 No. 36 of 2020, dated
12.01.2021, wherein again the matter was remitted to the
Competent Authority. Hence, it was held that remitting the matter
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is without jurisdiction. In that context, the view of Rajiv Memorial
Academy Welfare Society (supra) was reiterated. The issue in
both the matters was the power of Arbitrator to remit the matter.
In case of Bhartiya Rashtriya Rajmarg Pradhikaran (supra)
paragraph Nos.11 and 12 were referred to, which read thus;
"11. Irrespective of the fate of the arbitration
proceedings, the order of the competent authority would
not merge in the award rather it would continue to exist,
though its enforceability (as to quantum of compensation
payable), may, in given facts be eclipsed by the arbitral
award. It is so because, the terms of reference arise from
the plain language of section 3-G (5) of the Highways Act.
That provision of law and command the arbitrator to
himself determine the just amount of compensation.
12. Thus, in no event, the arbitrator may set aside the
order passed by the competent authority and he may
never remit the matter to the original / competent
authority to pass a fresh order. Typically, that power is a
power of Court or Tribunal sitting in appeal or revision that
too, if specifically granted by statute, and not implied. ...
......"
21. Both cases were revolving around the issue to remit the
matter to the Competent Authority. Hence, we are of the opinion
that the case law would also not help the petitioners.
22. Section 3G-(5) and (6) of the N.H. Act reads thus;
"3-G (5) If the amount determined by the competent
authority under sub-section (1) or sub-section (2) 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.
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(6) Subject to the provisions of this Act, the provisions of
the Arbitration and Conciliation Act, 1996 (26 of 1996) shall
apply to every arbitration under this Act."
23. If the dispute arise on the determination of the amount by
competent authority, either of the parties have the rights to file an
application before the Arbitrator. On the basis of material placed
before the Arbitrator, he has to determine the just compensation.
Reading Sub-sections (5) and (6) of Section 3-G of the N.H.Act, we
do not find any limit to the Arbitrator only to determine the
compensation based on the documents / material placed by the
competent authority. Hence, we do not agreeable to Mr. A. B. Kale,
learned counsel for the petitioners that since the jurisdiction of the
Arbitrator is restricted / limited to determination of the amount,
the writ jurisdiction is the only remedy.
24. After hearing the arguments of the respective counsel and
on going through the record we find that many disputed questions
on facts have been raised. For that purpose, both parties have to
lead evidence to establish the facts. The provisions of Arbitration
Act 1996 are applicable to such application filed under sub-section
(5) of Section 3-G of the N.H.Act is a complete code to determine
the dispute. Hence, we do not find substance in the arguments of
Mr. A. B. Kale, learned counsel for the petitioners.
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25. For the above reasons, we dismiss the Writ Petitions
No.7336, 7338, 7339, 8931 and 8883 of 2018 without affecting the
right of the petitioners as is available under the law. Rule stands
discharged.
26. Writ Petition No.10945 and 11181 of 2021 stand allowed by
declaring that the competent authority has no power to pass
impugned corrigendum dated 21.03.2017 and supplementary
award 22.05.2017; hence, the same stand quashed and set aside.
27. Rule made absolute in Writ Petition No.10945 and 11181 of
2021.
28. No order as to the costs.
[ SHAILESH P. BRAHME ] [ S. G. MEHARE ]
JUDGE JUDGE
rrd
