Puttarangamma vs Special Land Acquisition Officer
2023 Latest Caselaw 7808 Kant

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        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 18TH DAY OF NOVEMBER, 2023

                           BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

          WRIT PETITION No.17351 OF 2021 (GM - RES)


BETWEEN:

1 . PUTTARANGAMMA
    W/O LATE KANAMAPPA
    AGED ABOUT 70 YEARS.

2 . R.SOMASHEKARA
    S/O RANGAPPA
    AGED ABOUT 58 YEARS.

     BOTH ARE R/O MAKLURAHALLI
     HIRIHUR TALUK - 577 598
     CHITHRADURGA DISTRICT.
                                             ... PETITIONERS

(BY SRI HANUMANTHAPPA A., ADVOCATE)

AND:

1.    SPECIAL LAND ACQUISITION OFFICER
      NATIONAL HIGHWAY AUTHORITY OF INDIA
      PROJECT IMPLEMENTATION UNIT
      AEROPLANE BUILDING, VP EXTENSION
      CHITRADURGA - 577 501.

2.    PLANNING DIRECTOR
      NATIONAL HIGHWAY AUTHORITY
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     CHITHRADURGA - 577 501.

3.   DEPUTY COMMISSIONER
     AND HON' ARBITRATOR
     (NH-4), CHITRADURGA DISTRICT
     CHITRADURGA - 577 501.
                                                 ... RESPONDENTS

(BY SMT.SHILPA SHAH, ADVOCATE FOR R-1 AND R-2;
    SMT.YASHODHA K.P., HCGP FOR R-3)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN
a. CASE NO.ARB.CR.6/2010-11
b. CASE NO.ARB.CR.7/2010-11
c. CASE NO.ARB.CR.8/2010-11
AND, IN CASE NO.L.Q.CR16/2004-05 DTD 30.11.2005 FROM THE
R-3 OFFICE AND SET-ASIDE THE ARBITRATION AWARD PASSED IN
FAVOUR OF THE PETITIONERS LAND DTD 20.06.2017 VIDE ANNX-C
AND ALLOW THE WRIT PETITION.


     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 22.09.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-


                             ORDER

The petitioners are before this Court with a prayer to call for

records in Arbitration Case Nos.6, 7 and 8 of 2010-11 and in Case

No.L.Q.CR16/2004-05 and consequently set aside the arbitration

award dated 20-06-2017 in respect of their land for granting

enhancement in compensation.

2. Heard Sri A.Hanumanthappa, learned counsel appearing for

the petitioners, Smt. Shilpa Shah, learned counsel appearing for

respondents 1 and 2 and Smt. K.P. Yashodha, learned High Court

Government Pleader appearing for respondent No.3.

3. The facts, in brief, germane are as follows:-

The petitioners claim to be joint owners of land to an extent

of 30 guntas in Yaradakatte Village, Hiriyur Taluk,, Chitradurga

District. A notification comes to be issued seeking to acquire the

land of the petitioners by the National Highway Authority of India

for the purpose of widening of the road for National High Way No.4.

The Special Land Acquisition Officer ('SLAO' for short) of the

National Highway Authority of India fixed the compensation for the

land of the petitioners at Rs.42/- per sq. ft. The petitioners, feeling

aggrieved by the compensation so granted by the SLAO approached

the 3rd respondent/Deputy Commissioner of Chitradurga District

who is the statutory Arbitrator in terms of National Highways Act,

1956 ('1956' Act for short) for enhancement of compensation. The

Deputy Commissioner by his order dated 20-06-2017 enhanced the

compensation from Rs.42/- to Rs.85/- per sq.ft. The petitioners

being aggrieved by the arbitral award preferred an arbitration suit

in Arbitration Suit No.5 of 2018 before the Principal District and

Sessions Judge, Chitradurga. The learned District Judge dismisses

the suit on account of delay in preferring the appeal before him.

4. The petitioners claim that their land is adjacent to the land

belonging to Vani Vilas Sugar Factory. The acquisition was the

same for both the pieces of land one belonging to Vani Vilas Sugar

Factory and the other belonging to the petitioners. The

compensation granted to the land of Vani Vilas Sugar Factory was

at Rs.750/- per sq.ft. The petitioners claiming higher compensation

have sought for review of the order passed by the Deputy

Commissioner citing the exemplar of award of compensation to the

land of Vani Vilas Sugar Factory. The review petition also comes to

be dismissed on 09-08-2021. After dismissal of the review petition

by the Arbitrator, the petitioners have preferred the subject

petition.

5. The learned counsel appearing for the petitioners would

seek to contend that arbitration under the 1956 Act was forced

upon the land owner/petitioners. It is not consent for the petitioners

to go in for arbitration. The huge anomaly or discrimination adopted

by the Deputy Commissioner is that the adjacent land of the

petitioners which is also acquired along with the land of the

petitioners is determined at Rs.750/- per sq.ft. as compensation

and identically placed petitioners land is awarded a meager sum of

`85/- per sq. ft. Though this discrimination is writ large and

projected before the Arbitrator, he has refused to entertain a review

petition and, therefore, the petitioners left with no choice have

approached this Court in the subject petition.

6. Per-contra, the learned counsel representing National

Highway Authority would vehemently refute the submissions to

contend that it is a compensation determining mechanism brought

under the 1956 Act and the Deputy Commissioner acts as an

Arbitrator under the Arbitration and Conciliation Act, 1996 ('the Act'

for short) and in terms thereof, an arbitration suit is to be preferred

within 120 days. That having not been done, the petitioners cannot

maintain the writ petition under Article 226 of the Constitution of

India for enhancement of compensation. She would place reliance

upon the judgment of co-ordinate Bench of this Court in

G.S. SHANKARAPPA v. UNION OF INDIA - Writ Petition

No.22008 of 2022 decided on 24-03-2023 to buttress her

submission.

7. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

8. The afore-narrated facts, though not disputed, would

require little elaboration qua the dates. The land of the petitioners

which is the subject matter of acquisition is as afore-narrated. It is

converted from agriculture to non-agricultural purposes on

30-12-1983. A document to that effect is appended to the petition.

On 04-09-2000 a notification is issued under Section 3A of the 1956

Act seeking to acquire several lands between Tumkur and Harihar

for the purpose of making a four lane in National Highway No.4.

The petitioners' land is shown at Sl.No.12 in the said notification.

The purpose was for widening of the road. The SLAO of the National

Highways determines the compensation to petitioners' land at `42/-

per sq. ft. and awards compensation on that basis in favour of the

petitioners. The petitioners then, being dissatisfied with the

compensation awarded by the SLAO, approached the statutory

Arbitrator - 3rd respondent/Deputy Commissioner seeking

enhancement of compensation. The Deputy Commissioner/

statutory Arbitrator enhanced the compensation by way of his

arbitral award on 20-06-2017 from Rs.42/- to Rs.85/- per sq. ft.

The petitioners knocked at the doors of the learned Sessions Judge

by filing an arbitration suit claiming to be aggrieved by the

determination made by the Arbitrator i.e., the Deputy

Commissioner on 20-06-2017. The learned Sessions Judge, in

Arbitration Suit No.5 of 2018, rejects the suit on the score that

maximum permissible limitation to approach the Court in an

arbitration suit against the award of an Arbitrator is maximum of

120 days. The delay in the case at hand was 4 months and 18 days

in filing the arbitration suit. The learned Sessions Judge holds that

limitation Act not being applicable to an arbitration suit filed under

Section 34 of the Act, he was left with no choice but to dismiss the

suit. After dismissal of the arbitration suit on 12-09-2018, the

petitioners claim to have come to know of the higher compensation

awarded to the land belonging to Vani Vilas Sugar Factory. They

claimed to have applied for a certified copy which was delivered to

them on 13-07-2021. By then, the award passed in favour of the

petitioners was already 5 years old. Based upon copy of the award

of compensation in respect of lands belonging to Vani Vilas Sugar

Factory, a review petition came to be preferred before the

Arbitrator/3rd respondent - Deputy Commissioner under Section

33(1)(a) of the Act seeking review of his order contending that

there was error apparent on the face of the record and it was a

reviewable order under Order 47 Rule 1 of the CPC. The Deputy

Commissioner rejects the review petition. The reason for rejection

is that after the award by the Deputy Commissioner, the petitioners

had preferred an Arbitration suit and the suit is dismissed.

Therefore, he cannot in any way consider enhancement of

compensation granted to the land.

9. The petitioners are before this Court in a petition filed

under Article 226 of the Constitution of India for enhancement of

compensation as is enhanced in the case of Vani Vilas Sugar

Factory lands. The writ petition cannot be entertained for reasons

more than one. This Court under Article 226 of the Constitution

cannot determine the compensation awarded to others by drawing

up a scale or a parameter of determination of compensation. It is

all a matter of evidence. The statutory Arbitrator/Deputy

Commissioner had enhanced it from Rs.42/- to Rs.85/-. The

petitioners ought to have preferred the suit by way of an appeal for

enhancement of compensation within 120 days. The petitioners did

not do so. The arbitration suit also comes to be dismissed on

12-09-2018. The dismissal of the suit has become final. This has

merged the award of the Arbitrator with the dismissal of the suit.

The petitioners chose not to challenge the dismissal of the suit any

further. The petitioners then kept quiet for about 3 years of

dismissal of the suit and several years after determination of

compensation in their favour initially by the SLAO. The mere fact

that they came to know of the compensation granted to Vani Vilas

Sugar Factory lands at Rs.750/- per sq.ft. in the year 2021 long

after the dismissal of arbitration suit would not mean that a review

petition would become maintainable before the Arbitrator, the 3rd

respondent. No fault can be found with the order passed by the

Arbitrator in rejecting the review petition.

10. What the petitioners now call in question before this Court

after having lost before every fora is the award of the Arbitrator

dated 20-06-2017 by which the Arbitrator has enhanced the

compensation from Rs.42/- to Rs.85/-. Today we are six years

away from the order passed by the Arbitrator. The petitioners

having lost their grievance before every fora cannot now contend,

that too in a petition under Article 226 of the Constitution, to

determine the compensation taking Vani Vilas Sugar Factory lands

to be the exemplar for enhancement of compensation.

11. The Apex Court, in several judgments, has clearly held

that Section 34 of the Act does not give any power to the concerned

Court to condone the delay beyond a period of 120 days and

entertain an arbitration suit against the award of an Arbitrator.

Section 37 of the Act empowers filing of an appeal against dismissal

of arbitration suit. This remedy is also not availed by the

petitioners. The subject petition cannot be entertained at this

juncture on the plea that fundamental right of the petitioners has

been taken away by acquisition of their lands and right to property

being recognized as constitutional right by the Apex Court in

several judgments. It is too late in the day for the petitioners to

indirectly seek to achieve what they could not achieve in the

arbitration suit. There are plethora of judgments rendered by the

Apex Court and this Court with regard to non-condonable rigour

under Section 34 of the Act. This is a well settled principle of law

as on date. Making reference to every judgment or quoting from

the said judgments any passage would only lead to the bulk of the

subject order. In these circumstances, I deem it appropriate to

refer to the order passed by the co-ordinate Bench rejecting the

petition in G.S.Shankarappa's case (supra). The co-ordinate

Bench has held as follows:

"Petitioner who has lost the land in acquisition not being with the award made by the competent authority had approached the statutory arbitrator under Section 3G(5) of the National Highways Act 1956. Though marginally compensation was enhanced, he was not happy and moved the proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 which did not yield fruit, the bar of limitation being the prime

reason therefor. This is how now he is knocking at the doors of Writ Court.

2. After service of notice, learned Sr. Panel Counsel appearing for the answering Respondents opposes the Petition contending that Petitioner has an alternate and equally efficacious remedy of filing an appeal to this Court as provided under Section 37 of the 1996 Act and therefore, the Writ Petition is ill-advised, consistent with a longline decisions of the Apex Court. She hastens to add that once appeal is time barred, the writ petition also does not lie inasmuch as, the right to remedy to a legal injury is conditioned by prescription of limitation period for working the same out.

3. Having heard the learned counsel for the parties and having perused the Petition papers, this Court is broadly in agreement with the submission of learned Sr. Panel Counsel appearing for the NHAI and therefore, declines indulgence in the matter. The vehement submission of learned counsel for the Petitioner that where the Arbitration is statutory, there cannot be bar to the invocation of writ jurisdiction, appears to be too far fetched an argument. Merely because the arbitration is statutory, the Petitioner cannot claim to constitute a separate clause for the purpose of availing the relief at the hands of Writ Court in a time barred matter.

In view of the above, Writ Petition being devoid of merits, is liable to be rejected, costs having been made easy. However, liberty is reserved to the Petitioner to avail remedy of appeal

under Section 37 of the 1996 Act and the period spent in prosecuting the writ petition is liable to be discounted while computing the period of limitation for such an appeal. All contentions in that regard are kept open."

12. For the aforesaid reasons, finding no merit in the petition,

the petition stands rejected.

Consequently, I.A.No.2 of 2022 also stands disposed.

Sd/-

JUDGE bkp CT:MJ