Gujarat High Court

Sanjaykumar Thakorbhai Naik vs Competent Authority on 3 March, 2021

Bench: Sonia Gokani, Gita Gopi

              C/SCA/18813/2019                            ORDER




               IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                R/SPECIALCIVILAPPLICATIONNO. 18813of 2019

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                          SANJAYKUMARTHAKORBHAINAIK
                                    Versus
                             COMPETENTAUTHORITY
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Appearance:
MRAJ YAGNIK(1372)for the Petitioner(s)No. 1
 for the Respondent(s)No. 1
. for the Respondent(s)No. 2
ADVANCECOPYSERVEDTO GOVERNMENTPLEADER/PP(99)for the Respondent(s)No.
3
NANAVATI& CO.(7105)for the Respondent(s)No. 3
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 CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
        and
        HONOURABLE MS. JUSTICE GITA GOPI

                                 Date: 03/03/2021

                             ORALORDER

(PER: HONOURABLEMS. JUSTICESONIAGOKANI)

1. The present petitioner seeks the following prayers :-

"A. Your Lordships Be pleased to hold and declare that land acquisition award for Village Pungam annexed at ANNEXURE-A passed by respondent Competent Authority . under Section 36 (1) of the National Highways Act, 1956, in connection with acquisition of land for construction of Vadodara-Mumbai Six/Eight Lane Expressway and to the extent of determination of compensation as illegal and unconstitutional and Be Further pleased to quash and set aside the impugned award only to the extent of manner and method in which the amount of compensation is determined and the actual amount is awarded without disturbing the entire land acquisition proceedings.

B. Your Lordships be pleased to direct the respondent Competent Authority and the respondent National Highway Authority of India, in light of the ratio laid down by this Hon'ble

C/SCA/18813/2019 ORDER

Court in judgment and order dated 12.09.2019 passed in SCA No. 8734 of 2019, to apply multiplying factor 2.00 instead of 1.00 and thereby recalculate the compensation and Be further Pleased to direct the respondent Competent Authority and respondent National Highway Authority of India to award the recalculated compensation within a period of three months from the date of the order.

C. Your Lordships Be pleased to direct respondent Land Acquisition Officer, on remand of the award for limited extent as stated hereinabove, to determine the amount of compensation in the cases of petitioners afresh by taking into consideration the mandate of Section 26 of the Act of 2013 read with amended Rule 5 of the Gujarat Stamp (Determination of Market Value of PrOperty) Rules, 1984 as amended vide notification dated 21st March 2016 as well as implement the guidelines of respondent Ministry of Road, Transport and Highways issued in December, 2017 providing for comprehensive guidelines for land acquisition under the National Highways Act, 1956;

D. Be pleased to direct respondent Land Acquisition Officer, on remand of the award for limited extent as stated hereinabove, to provide opportunity in person and/or in writing to all the parties to make a representation with regard to issues raised in the present petition in the process of determining compensation as per the Schedule I, II and III of the Act of 2013 as a part of preparing and announcing the award as is provided in the National Highways Act, 1956;

E. Your Lordships be pleased to hold and declare that the impugned award passed by the respondent Competent Authority without taking into consideration the consideration set forth in instrument/s executed by the State Government, the Central Government, a local authority, Gujarat Housing Board, Gujarat Slum Clearance Board or Gujarat Industn'al Development Corporation as mandated in proviso to Section 32A of the Gujarat Stamps Act, 1958 is illegal, bad in law and hence unconstitutional and Be further pleased to direct the respondent authority to take into consideration the consideration set forth in instrument/s executed by the State Government, the Central Government, a local authority, Gujarat Housing Board, Gujarat Slum Clearance Board or Gujarat Industrial Development Corporation as mandated in proviso to Section 32A of the Gujarat Stamps Act,

C/SCA/18813/2019 ORDER

1958 and thereby redetermine the compensation in coherence with the mandate of proviso to Section 32A of the Gujarat Stamps Act, 2018.

F. To hold and declare that appointment of District Collector as an arbitrator vide notification issued in February 2017 under Section 36 [5] of the National Highways Act, 1956, and annexed at ANNEXURE-I, after issuance of notification dated 28.08.2015 and Amendment in section 12 read with amended Schedule 5 and Schedule 7 based on Arbitration and Conciliation (Amendment) Act 2015, suffers from conflict of interest, raises justifiable grounds with regard to impartiality and independence of the respondent Collector as an Arbitrator and the same is therefore violative of section 12 of the Arbitration and Conciliation Act, 1996 (as amended in 2015) and runs contrary to the statutory obligation imposed on the Collector under section 26 of the Act of 2013 and therefore illegal and unlawful and be further pleased to hold and declare the same as suffering from legal malafide discriminatory, irrational, arbitrary and therefore and violative of Articles 14, 19, 21 and 300A of the Constitution of India and therefore unconstitutional;

AND Be further pleased to quash and set aside the appointment of respondent Collector as arbitrator under section 3G (5) of the National Highways Act vide notification issued in February, 2017 at ANNEXURE-I;

G. To direct respondent no. 4, Central Government represented by Ministry of Road Transport and Highway to appoint a judicial officer not below the rank of District Judge, retired or a sitting or any other senior judicial officer as an arbitrator under section 3G(5) of the National Highways E Act, 1956 to arbitrate upon the dispute between respondent Competent Authority / Dy. Collector and the petitioners and similarly situated persons whose land are acquired for construction of Vadodara - Mumbai Six/Eight Lane Expressway following the mandate of section 26 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013;

H. During the pendency and final disposal of the present petition, be pleased to direct respondent no. 4, Central Government represented by Ministry of Road Transport and Highway to appoint a judicial officer not below the rank of District

C/SCA/18813/2019 ORDER

Judge, retired or a sitting or any other senior judicial officer as an arbitrator under section 3G(5) of the National Highways Act, 1956 to arbitrate upon the dispute between respondent Competent Authority/Dy. Collector and the petitioners and similarly situated persons whose land are acquired for construction of Vadodara- Mumbai Six/Eight Lane Expressway following the mandate of section 26 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

I. During the pendency and final disposal of the present petition be pleased to stay the notification issued in February 2017 at Annexure-I appointing respondent Collector as an arbitrator u/s 3G [5] of the National Highways Act, 1956;

J. During the pendency and final disposal of the present petition be pleased to stay arbitration proceedings being presided over by respondent Collector.

K. Your Lordships be pleased to direct the respondent Competent Authority and the respondent National Highway Authority of India, in light of the ratio laid down by this Honb'ble Court in judgment and order dated 12.09.2019 passed in SCA No. 8734 of 2019, to apply multiplying factor 2.00 instead of 1.00 and thereby recalculate the compensation and Be further Pleased to direct the respondent Competent Authority and respondent National Highway Authority of India to award the recalculated compensation within a period of three months from the date of the order.

L. Be pleased to grant ad-interim 0r interim relief in terms of Clause F.

M. To pass any other and further reliefs that may be deemed fit and proper and in the interest of Justice and Equity."

2. We have heard the learned advocates on both the sides. It can be culled out that on the strength of the judgment of this Court rendered in Special Civil Application No.8734 of 2019, which has been confirmed by the Apex Court in Special Leave Petition (Civil) Diary No.18777 of 2020 dated 07.01.2021, the petitioner is seeking re-determination of the

C/SCA/18813/2019 ORDER

factor and the re-computation of compensation thereafter.

3. Considering the issues involved and for the purpose of re- determination of factor, the competent authority ;

(i) shall determine the nature of land acquired; and

(ii) shall also prepare the Draft Award based on the factor, as has been decided by this Court in Special Civil Application No.8734 of 2019 dated 07.01.2021.