Rakesh vs National Highways Authority Of ...
2023 Latest Caselaw 10378 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.1277 of 2023 Date of Decision:27.07.2023 _______________________________________________________

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    Rakesh                                           .......Petitioner





                                                     Versus





    National Highways Authority of India & Ors.    ... Respondents

_______________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1 Yes.

For the Petitioner: Mr. Maan Singh, Advocate.

For the Respondent: Mr. Shreya Chauhan, Advocate for respondents No.1 and 2.

Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals with Mr. Rahul Thakur, and Mr. Ravi Chauhan, Deputy Advocate Generals for respondent No.3/State.

Mr. Sachit Khurana and Ms. Nishi Goel, Advocates, for respondents No.4 and 5.

_______________________________________________________ Sandeep Sharma, Judge(oral):

Being aggrieved and dissatisfied with order dated 9.2.2023

(Annexure P-10), whereby reference petition under Section 3H(4) of the

National Highways Act, 1956( hereinafter referred to as the Act), praying

therein to make reference to the Principal Civil Court/learned District Judge,

Kullu, Himachal Pradesh for apportionment of compensation amount of

land, came to be dismissed, petitioner has approached this Court in the

instant proceedings filed under Article 226 of the Constitution of India,

Whether the reporters of the local papers may be allowed to see the judgment?

praying therein to set-aside aforesaid order and refer the dispute to

Principal Civil Court/learned District Judge, Kullu, Himachal Pradesh under

Section 3H(4) of the Act.

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2. Precisely, the facts of the case, as emerge from the record are

that petitioner entered into agreement to sell with respondents No.4 and 5

for sale of the land compromised in khasra No.311, measuring 00-10-12

hectares situate at Up-Muhal Gharanu Phati Vashisht Kothi, Jagatsukh,

Tehsil Manali, District Kullu, Himachal Pradesh. Since, despite having

received part consideration i.e. Rs. 30 lakh, respondent Nos.4 and 5 failed

to execute the sale deed, petitioner filed Civil Suit No.10 of 2011 in this

Court, which was decreed as compromised on 4.8.2014 (Annexure P-1). As

per compromise decree, respondents No.4 and 5 agreed to execute the

sale deed after receipt of balance payment. However, fact remains that

same was not executed, as a result of which, petitioner was compelled to

file execution proceedings in this Court, which was disposed of vide order

dated 12.3.2018 (Annexure P-2), whereby objections filed by respondents

No.4 and 5 were dismissed, subject to deposit of Rs. 60 lakh in the Registry

of this Court by the petitioner. Pursuant to aforesaid order, though

petitioner deposited sum of Rs. 60 lakh in this Court, but sale deed was not

executed, rather respondents No.4 and 5 filed LPA before the Division

Bench of this Court, but same was also dismissed as withdrawn vide

judgment dated 30th December 2022 (Annexure P-5). During pendency of

aforesaid proceedings, as detailed hereinabove, land in question came to

be acquired by the National Highway authorities for construction of National

Highway-3 and National Highways Authority of India after issuance of notice

under Section 3(d) of the Act, deposited the entire amount with respondent

No.3 on 10.8.2017. After having acquired acknowledge of acquisition of

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land in question, petitioner herein immediately approached respondent No.3

by way of an application dated 23.3.2018 (Annexure P-6), praying therein to

not to release the compensation in favour of respondent Nos.4 and 5 till the

time sale deed is executed in his favour in terms of the compromise decree

passed by this Court. However, fact remains that aforesaid prayer made by

petitioner was not acceded to by respondent No.3, as a result of which,

entire amount of compensation, as detailed hereinabove, was released in

favour of respondent Nos. 4 and 5 on 23.5.2018. After rejection of his

prayer by respondent No.3, petitioner herein filed reference petition under

Section 3(H)(4) of the Act to respondent No.3 for making reference to

Principal Civil Court/learned District Judge, Kullu, Himachal Pradesh for

apportionment of compensation received by respondents No.4 and 5 on

account of acquisition of land in question, however same was rejected vide

order dated 9.02.2023 (Annexure P-10) on the ground that at the time of

acquisition of land, land was not in the name of the petitioner, rather in the

name of respondents No.4 and 5. Apart from above, authority concerned

also stated in the order impugned that there was no direction of High Court

to register the sale deed. In the aforesaid background, petitioner has

approached this Court in the instant proceedings, praying therein to set

aside aforesaid order and direct authority concerned to make reference to

Principal Civil Court/learned District Judge, Kullu, Himachal Pradesh under

Section 3(H)(4) of the Act.

3. Having heard learned counsel for the parties and perused

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material available on record, this Court finds that facts, as have been

noticed hereinabove, are not in dispute, rather stands admitted. Mr. Sachit

Khurana, learned counsel representing respondents No.4 and 5 vehemently

argued that after passing of compromise decree, respondents No.4 and 5

had made themselves available for execution of sale deed, but since

petitioner failed to come forward, sale deed could not be executed. Above

named counsel while fairly acknowledging factum with regard to receipt of

Rs. 30 lakh from the petitioner, contended that since amount already stands

received by respondents No.4 and 5 qua acquisition of land, prayer made

on behalf of the petitioner for making reference under Section 3(H)(4) is not

maintainable, especially when now there is no dispute interse National

Highway authority and the claimants. He further submitted that the amount,

if any, payable by respondents can be recovered by the petitioner not in

these proceedings, but by way of suit for recovery. Though, learned counsel

representing respondents No.4 and 5 also stated that respondents No.4

and 5 are in the process of adopting the appropriate remedy against the

order of the executing Court, but such fact, if any, may not be of much

relevance as far as adjudication of the controversy at hand is concerned.

4. Ms. Shreya Chauhan, learned counsel representing

respondents No.1 and 2 fairly stated that though compensation stands

released in favour of respondents No.4 and 5, but prayer made by the

petitioner for making reference under Section 3(H) (4) can be allowed on

account of the fact that prior to initiation of acquisition proceedings

petitioner and respondents No. 4 and 5 had entered into an agreement to

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sell for sale of the land, which subsequently came to be utilized for the

construction of road.

5. Since, it is not in dispute that land qua which compensation

has been received by respondents No.4 and 5 was agreed to be sold to

petitioner and in that regard, Rs.30 lakh was received by respondents No.4

and 5 in advance, coupled with the fact that petitioner after having acquired

knowledge of acquisition of land in question and deposit of compensation

amount by National Highways Authority of India had approached

respondent No.3, with a prayer to not to release the amount of

compensation till the time sale deed is executed, there appears to be merit

in the contention of Mr. Maan Singh, learned counsel for the petitioner that

authority concerned in terms of provisions contained under Sections 3(H)(4)

had no option but to refer the matter to Principal Civil Court of original

jurisdiction within the limits of whose jurisdiction the land is situated.

6. No doubt, at the time of making of award by respondents No.1

and 2, respondent Nos. 4 and 5 were absolute owner of the property, but

before acquisition proceedings, petitioner and respondents No.4 and 5 had

entered into the agreement to sell for sale of the land in question in favour

of the petitioner. Respondents No.3 and 4 had not only received Rs.30 lakh

in advance, but matter was also compromised before this Court in Civil Suit

having been filed by the petitioner, wherein respondents No.4 and 5 had

agreed to execute the sale deed after receipt of balance payment. After

passing of compromise decree, respondents No.4 and 5 were bound to get

the sale deed executed qua the land in question after receipt of balance

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consideration, which as of today stands deposited in the Registry of this

Court. Though, it has been claimed on behalf of respondents No. 4 and 5

that no steps were taken by the petitioner to get the sale deed executed

after passing of compromise decree, but that question cannot be gone into

these proceedings, rather same shall be determined in the appropriate

proceedings, if any, instituted by the parties to the lis.

7. Interestingly, in the case at hand, though respondents No.4

and 5 had compromised the matter with the petitioner in the Civil Suit,

having been filed by the petitioner, thereby agreeing to get the sale deed

executed in favour of the petitioner, but interestingly while receiving

compensation gave an undertaking to National Highways Authority of India

stating therein that in case litigation pending against them in competent

court of law is decided against them, they will refund the amount of

compensation to National Highways Authority of India, meaning thereby at

the time receipt of compensation, factum with regard to dispute interse

petitioner and respondent Nos. 4 and 5 was very much in the knowledge of

National Highways Authority of India also, if it is so, petitioner rightly

approached respondent No.3 to keep the payment of compensation in

abeyance till the time sale deed is executed in terms of the compromise

decree passed by the court, but authority concerned ignoring objection

raised by the petitioner not only released the amount, but also rejected the

prayer of the petitioner for making reference under Section 3(H)(4) of the

Act.

8. Bare reading of Section 3(H)(4) of the Act, clearly suggests

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that, if any, dispute arises as to the apportionment of the amount or any

part thereof or to any person to whom the same or any part thereof is

payable, the competent authority shall refer the dispute to the decision of

the principal civil court of original jurisdiction within the limits of whose

jurisdiction the land is situated. In the instant case, it is quite apparent from

the facts, as have been noticed hereinabove, that dispute has arisen

interse petitioner and respondents No.4 and 5 qua apportionment of the

amount and as such, there was no occasion for respondent No.3 to refuse

the prayer made by the petitioner for making reference under Sections

3(H)(4). Once by way of an affidavit executed by respondents No.4 and 5, it

had come to the notice of National Highways Authority of India that civil suit

interse petitioner and respondents No.4 and 5 is pending on account of

non- execution of sale deed despite there being agreement to sell in favour

of the petitioner, it ought not have otherwise awarded compensation

without associating the petitioner. However, in the instant case, amount

stands released in favour of respondents No.4 and 5 on the ground that at

the time of acquisition, they were absolute owner but certainly after

execution of agreement to sell and receipt of part payment to the tune of

Rs.30 lakh pre-existing right of the petitioner was created in that property,

meaning thereby he was otherwise required to be heard before release of

amount of compensation.

9. Reliance is placed upon the judgment passed by Hon'ble

Apex Court in civil Appeal No.5107 of 2022, titled as Vinod Kumar and

others vs. District Magistrate Mau and others, decided on 7th July, 2023,

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wherein it has been categorically held that whenever dispute arises as to

the apportionment of the amount or any part thereof the competent

authority shall refer the dispute to the decision of the principal civil court

of original jurisdiction within the limits of whose jurisdiction the land is

situated. It would be profitable at this stage to reproduce relevant para Nos.

23 to 29 and 33 to 34 of the aforesaid judgment hereinbelow:-

"23. The scheme of the Act 1956 and the statutory provisions referred to above makes it very clear that once

any land is acquired under the Act 1956, the competent

authority is obliged to pay an amount by way of compensation. There is a procedure which has been prescribed under Section 3G of the Act 1956. Subclause (5) of Section 3G makes it abundantly clear that if the amount determined by the competent authority under sub- section (1) or subsection (2) of Section 3G is not

acceptable to either of the parties, the amount will have to be determined by the arbitrator who may be appointed by the Central Government on the strength of an application by either of the parties. Section 3H provides that the

amount determined towards compensation under Section 3G will have to be deposited by the Central Government in accordance with the rules. It is only after such amount is

deposited by the competent authority that the possession of the land can be taken. Subclause (4) of Section 3H talks about apportionment of the amount. The language of sub- clause (4) of Section 3H is plain and simple. It provides

that if any disputes arises as to the apportionment of the amount or any part thereof, the competent authority is obliged to refer the dispute to the decision of the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated.

24. In the case on hand, the High Court seems to have completely misread the provisions of the Act 1956. It fell into error as it failed to apply the well settled principle of law that for construing a legal provision, the first and foremost rule of construction is the literal construction. All

that the Court has to see at the very outset is what does the provision state. If the provision is unambiguous and from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statute. The other rules of construction are called into aid only when the legislative intent is not clear.

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25. It may be mentioned in the aforesaid context that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation, for

example, the mischief rule/ purposive construction, etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of

interpretation other than the literal rule. The language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistakes. The presumption is that it intended to say what it has said. Assuming there is a defect or an

omission in the words used by the legislature, the Court cannot correct or make up the deficiency.

26. There is a fine distinction between determining the amount to be paid towards compensation and the apportionment of the amount. The legislature has thought fit to confer powers upon the Principal Civil Court of

original jurisdiction to determine the dispute arising as to the apportionment of the amount. There is a reason, why the legislature has thought fit to confer such power to the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction is land is situated. We shall try to

explain hereinafter.

27. The question of apportionment of compensation is not

free from difficulties. In apportioning the compensation, the Court has to give to each claimant the value of the interest which he has lost by compulsory acquisition. So stated, the proposition may appear simple, but in its practical

application numerous complicated problems arise in apportioning the compensation awarded. The difficulty experienced is due to the nature of a variety of interests, rights and claims to land which have to be valued in terms of money. The compensation awarded for compulsory acquisition is the value of all the interests which are extinguished and that compensation has to be distributed equitably amongst persons having interest therein and the Court must proceed to apportion the compensation so that the aggregate value of all interests is equal to the amount of compensation awarded. But in the valuation of

competing interests, which from its very nature is dependent upon indefinite factors and uncertain data, considerable difficulty is encountered. Indisputably, in apportioning compensation the Court cannot proceed upon hypothetical considerations but must proceed as far as possible to make an accurate determination of the value of

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the respective interests which are lost. The Court must, in

each case, having regard to the circumstances and the possibility of a precise determination of the value having regard to the materials available, adopt that method of valuation which equitably distributes the compensation

between the persons entitled thereto. [See : Dossibai Nanabhoy Jeejeebhoy v. P.M.Bharucha, (1956) 60 Bom LR 1208]

28. Thus, the only general principle one could state is that apportionment under subclause (4) of Section 3H of the

Act 1956 is not a revaluation but a distribution of the value already fixed among the several persons interested in the land acquired in accordance with the nature and quantum of the respective interests. In ascertainment of those interests, the determination of their relative importance and

the manner in which they can be said to have contributed to the total value fixed are questions to be decided in the

light of the circumstances of each case and the relevant provisions of law governing the rights of the parties. The actual rule for apportionment has to be formulated in each case so as to ensure a just and equitable distribution of the total value or compensation among the persons interested in the land.

29. In the circumstances referred to above, the legislature thought fit to assign such function to none other than the Principal Civil Court of original jurisdiction.

33. We are of the view that when it comes to resolving the dispute relating to apportionment of the amount

determined towards compensation, it is only the Principal Civil Court of original jurisdiction which can do so. Principal Civil Court means the Court of the District Judge.

34. Our final conclusion is as under: If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, then, the competent authority shall refer the dispute to the decision of the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated. The competent authority possesses certain powers of the Civil Court, but in the event of a dispute of the above nature, the summary power, vesting in the competent authority of rendering an opinion in terms of subsection (3) of Section 3H, will not serve the purpose.

The dispute being of the nature triable by the Civil Court that the law steps in to provide for that to be referred to the decision of the Principal Civil Court of original jurisdiction. The dispute regarding apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, would then have to be decided by that

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Court."

10. In the aforesaid judgment, Hon'ble Apex Court has

categorically held that though competent authority possesses certain power

of the Civil Court, but in the event of dispute with regard to apportionment

of the amount or any part of the thereof, summary power vesting in the

competent authority of rendering an opinion in terms of sub-section (3) of

Section 3 H will not serve the purpose, rather dispute being of the nature

triable by Civil Court requires to be referred to the Principal Civil Court of

original jurisdiction. It is quite clear from the aforesaid judgment that dispute

regarding apportionment of the amount or any part thereof or to any person

to whom the same or any part thereof is payable, would be exclusively

decided by Principal Civil Court of original jurisdiction, but definitely not by

competent authority, which is only required to render opinion in terms of

Section 3 of Section H of the Act. In the instant case, bare perusal of the

order impugned in the instant proceedings, compels this Court to observe

that competent authority exceeded his jurisdiction by itself deciding the

issue of apportionment that too on flimsy grounds.

11. Consequently, in view of the detailed discussion made hereinabove

as well as law taken into consideration, this Court finds merit in the present

petition and accordingly, same is allowed and impugned order dated

9.2.2023 (Annexure P-10) is quashed and set-aside and respondent No.3

is directed to make reference, as prayed for by the petitioner under

Section 3(H)(4) of the Act to Principal District Judge Kullu within whose

jurisdiction the land is situated for deciding the issue of apportionment

interse petitioner and respondent Nos. 4 and 5.

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12. Learned counsel representing the parties are directed to

cause presence of their respective clients before respondent No.3 on

10.08.2023, enabling it to proceed with the matter in terms of the directions

given hereinabove. Pending applications, if any, also stand disposed of.

(Sandeep Sharma), Judge July 27, 2023 (shankar)