Sandeep Agarwalla vs Union Of India And 5 Ors
2021 Latest Caselaw 1307 Gua

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GAHC010279312019




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/8635/2019

         SANDEEP AGARWALLA
         S/O- LT TOLARAM AGARWALLA R/O- ROYAL RESIDENCY, SIKARIA
         COMPOUND, GHY KAMRUP (M), (ASSAM)



         VERSUS

         UNION OF INDIA AND 5 ORS.
         TO BE REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF ROAD
         TRANSPORT AND HIGHWAY

         2:THE NATIONAL HIGHWAYS AUTHORITY OF INDIA
          REP. BY ITS CHAIRMAN HAVING ITS H.Q. AT SECTOR 10
          DWARKA
          NEW DELHI
          PIN- 110075
          NEW DELHI

         3:THE NATIONAL HIGHWAYS AUTHORITY OF INDIA
          REGIONAL OFFICE AT GUWAHATI NEDFI HOUSE
          4TH FLOOR
          G.S.ROAD
          DISPUR
          GHY-06
         ASSAM
          REP. BY ITS PROJECT DIRECTOR

         4:THE NATIONAL HIGHWAYS AND INFRASTRUCTURE DEVELOPMENT
         CORPORATION (NHIDCL)
          PTI BUILDING
          4 PARLIAMENT STREET
          SANSADMARG AREA
          NEW DELHI- 110001
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            5:THE DY. COMMISSIONER
             SIVASAGAR
             DIST- SIVASAGAR
            ASSAM

            6:THE ADDL. DY. COMMISSIONER
             (REVENUE) LAND ACQUISITION
             SIVASAGAR
             DIST- SIVASAGAR
            ASSAM (COMPETENT AUTHORITY UNDER THE NATIONAL HIGHWAYS
            ACT
             1956

Advocate for the Petitioner   : MR. S J SARMAH

Advocate for the Respondent : ASSTT.S.G.I.




                                    BEFORE
                   HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                             ORDER

Date : 05.04.2021

The petitioner has claimed to be a joint owner of two plots of land i.e. (1) plot no. 1 admeasuring 0.013 hectare, covered by Dag no. 4 and Periodic Patta no. 425, and (2) plot no. 2 admeasuring 0.008 hectare, covered by Dag no. 5 and Periodic Patta no. 427. Both the plots of land are located in Phukanphadia Village, Mauza - Mourabazar, District - Sivasagar. By a notification dated 13.04.2016, the Ministry of Road Transport and Highways declared its intention to acquire a number of plots of land from Kilometer 487.000 to Kilometer 538.000 for the purpose of building (widening/four-laning etc.), maintenance, management and operation of National Highway No. 37. The Competent Authority appointed under Section 3(a) of the National Highways Act, 1956 ('the N.H. Act', for short) for such acquisition is the Additional Deputy Commissioner (Land Acquisition), Sivasagar, Assam. Amongst the land sought to be acquired were the plots of land belonging to the petitioner as a joint owner.

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2. The Additional Deputy Commissioner (Land Acquisition), Sivasagar, Assam as the Competent Authority under the N.H. Act assessed the compensation amounts which had to be paid to the petitioner and the other joint owner for the said two plots of land by way of an estimate prepared in connection with L.A. Case no. SVR/4 Lane/1/2016 (Annexure-2). In the said estimate, the amounts of compensation for plot no. 1 and plot no. 2 were indicated. When the said assessed compensation amounts were not released in favour of the petitioner, the petitioner approached the respondent no. 5 i.e. the Deputy Commissioner, Sivasagar by way of a representation dated 06.10.2016 seeking early disbursement of his share of compensation for the acquired plots of land. The Deputy Commissioner, Sivasagar tried to re- assess and re-visit the compensation amounts payable to the persons including the petitioner, whose lands had been acquired.

3. Aggrieved thereby, the petitioner approached this Court earlier by way of a writ petition, W.P.(C) no. 3832/2017. This Court after hearing the parties, had disposed of the writ petition by a judgment and order dated 29.11.2018 holding that the Additional Deputy Commissioner (Land Acquisition), Sivasagar, Assam was designated as the Competent Authority by the notification dated 13.04.2016 and the Deputy Commissioner, Sivasagar had no competence to order re-valuation on the purported ground of over-valuation of the structures standing in the acquired lands. It was held that the direction of the Deputy Commissioner, Sivasagar for re-valuation of the structures was not sustainable in the eye of law and the said order would not create any impediment in the release of the land compensation amounts to the petitioner as no power or authority was given to the Deputy Commissioner, Sivasagar under the provisions of the N.H. Act. The writ petition was allowed with the direction to the Competent authority i.e. the Additional Deputy Commissioner (Land Acquisition), Sivasagar to release the compensation amounts to the petitioner in respect of his share for the afore-mentioned plot no. 1 and plot no. 2 within 8 (eight) weeks.

4. Heard Mr. S.J. Sarmah, learned counsel for the petitioner; Mr. C. Baruah, leaned Standing Counsel, NHIDCL for the respondent nos. 2, 3 and 4; Mr. G. Pegu, learned Junior Government Advocate, Assam for the respondent nos. 5 and 6 and Mr. R.K. Dev Choudhury, learned Central Government Counsel.

5. Mr. Sarmah has submitted that this writ petition under Article 226 of the Constitution Page No.# 4/7

of India has preferred seeking a direction to the respondent authorities to pay an appropriate higher amount of compensation in respect of the plot no. 2 admeasuring 0.008 hectare which had already been acquired pursuant to the notification dated 13.04.2016. The ground for seeking higher compensation, according to the learned counsel for the petitioner, is that the petitioner, upon enquiry, had come to know that the compensation amount for the said plot no. 2 had been assessed by the competent authority by categorizing the class of the land of plot no. 2 as 'agriculture land'. The learned counsel for the petitioner, by referring to the Jamabandi of surveyed villages in respect of the said plot no. 2, has submitted that the plot no. 2 is also falls under 'business class' category like the plot no. 1. In such view of the matter, the assessment for land compensation for plot no. 2 ought to have been made by treating plot no. 2 as 'business class' instead 'agricultural class' and as a result, the petitioner has been deprived from receiving due and adequate compensation amount in respect of plot no. 2.

6. Mr. Baruah, learned Standing Counsel for the respondent no. 4 has submitted that the claim made by the petitioner in this writ petition has not been urged during the previous round of litigation. The writ petition, W.P.(C) no. 3832/2017 was disposed of on 29.11.2018 but as regards the claim made in this writ petition regarding the class of land of plot no. 2 was not pleaded in the earlier writ petition and was also not urged when the writ petition was heard. He has, however, submitted that even if it is assumed that the plot no. 2 belongs to the category of 'business class' and the compensation amount was assessed by treating as 'agricultural class' the petitioner is not remediless in view of the provisions contained in sub- section (5) of Section 3G of the N.H. Act.

7. Mr. Choudhury, learned ASGI appearing for the respondent no. 1 has submitted that during the earlier round of litigation, this Court while disposing of the writ petition, in paragraph 14, had clarified that the said judgment and order dated 29.11.2018 shall not be a bar for the parties to seek recourse to the provision contained in sub-section (5) of Section 3G of the N.H. Act. He has further submitted that the Arbitrator to be appointed by the Central Government would be the appropriate authority to determine the compensation amount if the assessment for compensation of plot no. 2 had been incorrectly made. For that purpose, the parties are to be heard and requisite evidence regarding the market value of the Page No.# 5/7

land, etc. had to be led before the Arbitrator and a writ petition under Article 226 of the Constitution of India is misconceived.

8. I have considered the submissions of the learned counsel for the petitioners and perused the materials on record.

9. I find sufficient force in the submission of the learned counsel for the respondents. Provisions of Section 3G of the N.H. Act has provided for the procedure for determination of amount payable as compensation in respect of any land acquired under the N.H. Act. The competent authority appointed under Section 3(a) of the Act has to first determine the amount payable as compensation. Sub-section (5), sub-section (6) and sub-section (7) of Section 3G are quoted hereunder for ready reference :-

(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.

(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. (7) The competent authority or the arbitrator while determining the amount under sub- section (1) or sub-section (5), as the case may be, shall take into consideration--

(a) the market value of the land on the date of publication of the notification under section 3A;

(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;

(c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;

(d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.

10. It is discernible from above quoted provisions that the Arbitrator appointed by the Central Government is competent to go into the issue regarding adequacy or otherwise of the Page No.# 6/7

amount of compensation determined by the Competent Authority and the provisions of the Arbitration and Conciliation Act, 1996 are applicable subject to the provisions of N.H. Act. The Arbitrator so appointed while determining amount, has to take into consideration the market value of the land on the date of publication of the notification of Section 3A of the N.H. Act.

11. The case of the petitioner is that he has not been provided an adequate compensation for the plot no. 2. The ground urged on behalf of the petitioner is that the plot no. 2 falls in the category of 'business class' whereas the compensation has been determined by the Competent Authority by treating as 'agriculture class'.

12. In the earlier writ petition, decided on 29.11.2018, the claim made by the petitioner in this writ petition, was not pleaded and urged. In specific terms, the issue regarding inadequacy of the compensation amount in respect of the plot no. 2 was not raised. The Court had, however, observed in the judgment and order dated 29.11.2018 that 'the parties' would be at liberty to take recourse to law under sub-section (5) of Section 3G of the N.H. Act.

13. In the aforesaid facts and circumstances obtaining in the case in hand, this Court is of the considered view that there is an adequate alternative and efficacious remedy available under the law in sub-section (5) of Section 3G of the N.H. Act if the compensation amount assessed by the Competent Authority for plot no. 2 is not acceptable to the petitioner. The Arbitrator appointed under the provisions of Section 3G of the N.H. Act can go into the questions as to whether plot no. 2 falls in the category of 'agriculture class' or 'business class' and if it falls under 'business class', whether the compensation paid to the petitioner was adequate or inadequate, on the basis of the evidence to be led by the parties.

14. It is stated at the bar that the Commissioner, Upper Assam Division at Jorhat is the Arbitrator appointed pursuant to the notification dated 13.04.2006 for deciding the issues raised in this writ petition in connection with building (widening/four-laning etc.), maintenance, management and operation of National Highway No. 37.

15. In the above view of the matter, this writ petition is not entertained and is disposed of by granting liberty to the petitioner to make an appropriate application before the Arbitrator appointed by the Central Government under Section 3G of the N.H. Act within a period of 3 Page No.# 7/7

(three) weeks from today. If such an application is made, the Arbitrator will make endeavour to dispose of such application on merit by passing a speaking order as expeditiously as possible after giving reasonable opportunity of being heard to all the interested persons in accordance with law, preferably within a period from 4 (four) months from the date of filing such an application before the Arbitrator.

16. With the observations made and the directions given above, the writ petition stands disposed of. No cost.

JUDGE

Comparing Assistant