Karnataka High Court
National Highways Authority Of India vs Smt. Asha Rani D/O Ramjilal on 5 August, 2024
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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WA No.100602 of 2023
C/W WA No.100603 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
WRIT APPEAL NO.100602 OF 2023 (LA-RES) C/W
WRIT APPEAL NO.100603 OF 2023 (LA-RES)
IN WA NO.100602/2023:
BETWEEN:
NATIONAL HIGHWAYS AUTHORITY OF INDIA,
C-10, SHREE NILAYAM, 1ST MAIN, 2ND CROSS,
VIVEKANANDA NAGARA, BEHIND R.T.O. OFFICE,
HOSPET 583201,
BY ITS PROJECT DIRECTOR.
...APPELLANT
(BY SRIYUTHS. BIDAN CHANDRAN AND S.M. PATIL, ADVOCATES)
AND:
Digitally
signed by
JAGADISH T R 1. SRI. ALLABHAKSHA S/O LATE HUSSAIN SAB
Location: High
Court of
AGE. 58 YEARS, OCC. AGRICULTURE,
Karnataka
Dharwad R/O. 29TH WARD, 3RD MAIN,
Bench
NEAR 100 BED HOSPITAL ROAD, M.J.NAGAR,
HOSPETE-583201, VIJAYANAGAR DISTRICT.
2. THE COMPETENT AUTHORITY,
SPECIAL LAND ACQUISITION OFFICER,
NATIONAL HIGHWAYS AUTHORITY OF INDIA,
VIDYANAGAR, 5TH CROSS, 4TH MAIN ROAD,
OPP. GANGAMATA TEMPLE,
BALLARI 583104.
...RESPONDENTS
(BY SMT. ARCHANA A. MAGADUM, ADVOCATE)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO, ALLOW THIS WRIT APPEAL AND
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WA No.100602 of 2023
C/W WA No.100603 of 2023
QUASH AND SET ASIDE THE ORDER DATED 07.09.2023 OF THE
LEARNED SINGLE JUDGE IN WRIT PETITION NO.104314/2023, IN
THE INTEREST OF JUSTICE AND EQUITY.
IN WA NO.100603/2023:
BETWEEN:
NATIONAL HIGHWAYS AUTHORITY OF INDIA,
C-10, SHREE NILAYAM, 1ST MAIN, 2ND CROSS,
VIVEKANANDA NAGARA, BEHIND R.T.O. OFFICE,
HOSPET 583201,
BY ITS PROJECT DIRECTOR.
...APPELLANT
(BY SRIYUTHS. BIDAN CHANDRAN AND S.M. PATIL, ADVOCATES)
AND:
1. SMT. ASHA RANI D/O. RAMJILAL,
AGE. 60 YEARS, OCC. HOUSEHOLD,
R/O. RAMESHWARI KUNJ, 4TH CROSS,
PATEL NAGAR, HOSPET-583201.
2. SMT. USHA RANI D/O. RAMJILAL,
AGE. 64 YEARS, OCC. SERVICE,
R/O. RAMESHWARI KUNJ, 4TH CROSS,
PATEL NAGAR, HOSPET-583201.
3. SMT. RASHMI RANI D/O. RAMJILAL,
AGE. 57 YEARS, OCC. HOUSEHOLD,
R/O. RAMESHWARI KUNJ, 4TH CROSS,
PATEL NAGAR, HOSPET-583201.
4. THE COMPETENT AUTHORITY
SPECIAL LAND ACQUISITION OFFICER,
NATIONAL HIGHWAYS AUTHORITY OF INDIA,
VIDYANAGAR, 5TH CROSS, 4TH MAIN ROAD,
OPPOSITE GANGAMATA TEMPLE, BALLARI-583104.
...RESPONDENTS
(BY SMT. ARCHANA A. MAGADUM, ADVOCATE)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO, ALLOW THIS WRIT APPEAL AND
QUASH AND SET ASIDE THE ORDER DATED 07.09.2023 OF THE
LEARNED SINGLE JUDGE IN WRIT PETITION NO.104409/2023, IN
THE INTEREST OF JUSTICE AND EQUITY.
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WA No.100602 of 2023
C/W WA No.100603 of 2023
THESE APPEALS, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT)
Both these appeals arise from a learned Single
Judge's final order dated 07.09.2023 in W.P.
No.104314/2023 C/w W.P. No.104409/2023 whereby the
writ petition of the landlosers having been favoured, the
following order has been made:
"(1) Writ Petitions are allowed.
(2) The NHAI shall deposit 50 per cent of the
compensation amount, as awarded by the Arbitral
Court, with the Executing Court within a period of
four weeks. The said amount shall be released to
the land owners unconditionally.
(3) The learned District Court, before whom the
proceedings under Section-34 of the Arbitration
Act are pending, shall make an endeavour to
decide such proceedings within a period of six
months from the next date of hearing before the
said court.
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(4) The balance amount of compensation as per the
Award to be passed under Section 34 of the
Arbitration Act, shall be deposited by the NHAI
with the Execut6ing Court within four weeks after
such determination. The said amount shall also
be released by the Executing Court in favour of
the land owners subject to the rights and
remedies available to the parties in law.
(5) While releasing 50% of the amount to the land
owners, the amount that is already received by
them shall be set off."
2. Brief facts of the case:
(a) The Appellant-National Highways Authority of India is
established under the provisions of National Highways
Act, 1956. It had acquired the subject lands and the
Special Land Acquisition Officer had passed the
Award. The land owners, who happened to be the
respondents in the above appeals, were not satisfied
and therefore, had laid a challenge in Arbitration. The
Deputy Commissioner, being the Official Arbitrator,
enhanced the compensation. Both the NHAI and the
land owners being aggrieved had invoked Section 34
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of the Arbitration and Conciliation Act, 1996,
unsuccessfully.
(b) In the challenge under Section 34 of the 1996 Act,
the Arbitral Awards were not stayed and therefore,
the landlosers had invoked Section 37 of the Act for
enforcing the same. The Executing Court was not
proceeding with the matter expeditiously and
therefore, the land owners had filed the subject writ
petitions. Later, the writ petition came to be allowed
by the impugned judgment. That being the reason,
the appellant-Authority is before this Court in these
appeals.
3. Learned Senior Panel Counsel appearing for the
NHAI vehemently submits that the learned Single Judge
ought not to have entertained the writ petitions in view of
the law declared by the Apex Court in NATIONAL
HIGHWAYS AUTHORITY OF INDIA VS. SHEETAL JAIDEV
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VADE1. He further submits that sub-section (6) of Section
3G of National Highways Act overrides the provisions of
1996 Act; the National Highways (manner of depositing the
amount by the Central Government; making requisite
funds available to the competent authority for acquisition
of land) Rules, 2019, provide for depositing the excess
differential amount under the arbitral award in Scheduled
Commercial Bank; that course becomes invocable since
MFAs against Section 34 orders are pending before this
Court. All this having been not adverted to, the impugned
order is liable to be voided.
4. Learned counsel appearing for the land owners
per contra contends: Intra Court appeal is not maintainable
vide Apex Court decision in JOGENDRASINHJI VIJAY
SINGHJI VS. STATE OF GUJARAT2; the impugned order of
the learned Single Judge has brought about a just result
inasmuch as it directs payment of only 50% of the amount
in question; right to property is constitutionally guaranteed
2022 SCC OnLine SC 1070
(2015) 9 SCC 1
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under Article 300A and therefore, delaying the payment of
compensation is unjustified; the Apex Court in Sheetal
supra and Bombay High Court decision in SARASWATIBAI
CHANDRAKANT SHINDE VS. THE ADDITIONAL
COLLECTOR3 cases itself has granted relief to the
landlosers, in matchable fact-matrix and therefore,
impugned judgment cannot be faltered. So contending, she
seeks dismissal of the writ appeals.
5. Having heard the learned counsel appearing for
the parties and having perused the appeal papers, we are
inclined to grant indulgence in the matter for the following
reasons:
(a) The first contention as to maintainability of the Intra
Court appeal is difficult to countenance and reasons
for this are not far to seek: The Apex Court in
Sheetal, at para 12 & 13, has deprecated entertaining
of writ petitions for the enforcement of awards/arbitral
awards, by observing as under:
2022 SCC OnLine Bom 10517
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(b) The reliance of learned counsel appearing for the
landlosers on the Apex Court decision in
Jogendrasinhji supra, does not lay down a thumb
rule that, no Intra Court appeal lies against Single
Judge's order made under Article 227 of the
Constitution. At paragraphs 30 & 45.1, it is observed
that: "Thus, maintainability of a letters patent appeal
would depend upon the pleadings in the writ petition,
the nature and character of the order passed by the
Single Judge, the type of directions issued regard
being had to the jurisdictional perspectives in the
constitutional context. Whether a letters patent appeal
would lie against the order passed by the Single Judge
that has travelled to him from the other tribunals or
authorities, would depend upon many a facet." We
are also not impressed by the submission that the
order of the learned Single Judge is exclusively
relatable to Article 227; in our view, it's a product of
exercise of jurisdiction under both the provisions viz.,
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Article 226 & Article 227 of the Constitution. Even
otherwise, these appeals largely fit into exceptions
that may be carved out from the decision of a Seven
Judge Bench decision of this Court in TAMMANNA VS.
RENUKA4
(c) Learned Senior Panel Counsel appearing for the NHAI
is justified is telling us that, a Writ Court cannot
metamorphose itself into an Execution Court and
enforce the SLAO's Award or Arbitral Award inasmuch
as a perfect scheme is structured in the 1956 Act for
the enforcement of awards. The Apex Court, therefore,
had expressed anguish against the High Courts
enforcing the awards. Paragraph 13 & 14 of Sheetal
supra being relevant, are reproduced.
"12. Apart from the fact that the award
dated 12.06.2018 has been challenged by
the NHAI by initiating proceedings
under Section 34 of the Arbitration Act
which are reported to be pending, the High
Court ought not to have entertained the writ
petition under Article 226 of the Constitution
2009 SCC OnLIne KAR 123
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of India seeking the reliefs to execute the
award passed by the learned Arbitral
Tribunal/Court, when the award passed by
the learned Arbitral Tribunal/Court is to be
executed by initiating an execution
proceeding before the concerned Executing
Court. But, by passing the impugned
order/directions the High Court has virtually
converted itself into Executing Court.
Therefore, once the original writ petitioner
was having an efficacious, alternative
remedy to execute the award passed by the
learned Arbitral Tribunal/Court, by initiating
an appropriate execution proceeding before
the competent Executing Court, the High
Court ought to have relegated the original
writ petitioners to avail the said remedy
instead of entertaining the writ petition
under Article 226 of the Constitution of India
which was filed to execute the award passed
by the Arbitral Tribunal/Court. If the High
Courts convert itself to the Executing Court
and entertain the writ petitions under Article
226 of the Constitution of India to execute
the award passed by the Arbitral
Tribunal/Court, the High Courts would be
flooded with the writ petitions to execute
awards passed by the learned
Arbitrator/Arbitral Tribunal/ Arbitral Court.
13. We disapprove the entertaining of
such writ petitions under Article 226 of the
Constitution of India to execute the award
passed by the learned Arbitral
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Tribunal/Court, without relegating the
judgment creditor in whose favour the
award is passed to file an execution
proceeding before the competent Executing
Court."
(d) Learned counsel appearing for the respondent-
landlosers vehemently submits that the Apex Court in
Sheetal itself has granted relief to those who had lost
land in the acquisition and therefore, the impugned
judgment of the learned Single Judge perfectly
accords with the same and therefore, it need not be
voided. She draws support from the decision in
Saraswatibai supra. It hardly needs to be stated that
what this Court is bound by is, the law declared by the
Apex Court and not what the Apex Court does in a
particular case. Declaration of law under Article 141 of
the Constitution is one thing and what is done in a
particular case is another. The later is not much
relevant. Sheetal is decided keeping in view
Saraswatibai also, cannot be disputed. Added, the
Apex Court as the highest Arbitral Tribunal of the
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country has extraordinary powers under Article 142;
the operative portion of the judgment in Sheetal is
largely referable to this extraordinary power, Article
142 though has not been mentioned. Saraswatibai
figures in the operative portion of the order in Sheetal
and not in the paragraphs wherein law has been
crystal clearly declared.
(e) Lastly, the impugned judgment does not advert to
2019 Rules that have been promulgated by the Central
Government under Section 9 of 1956 Act. Rule 3(i)
which learned Panel Counsel had in support of his case
pressed into service reads as under:
"3. The manner of making requisite funds available to
the competent authority shall be as follows:-
(i) Subject to provisions of the Act, the executing
agency authorised by the Central Government in
this behalf, shall open and maintain an account
with one or more Scheduled Commercial Banks
for remittance of the amount for land acquisition
across the country, with arrangements for access
to such account by the competent authority for
specific jurisdiction as per authorisation of limits
by the executing agency. The Executing Agency
shall, on the demand raised by the competent
authority before announcement of the award,
issue requisite authorisation limits in favour of the
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competent authority for withdrawal of amount
from such account as per requirements from time
to time for disbursement to the landowners or
persons interested therein through an electronic
banking mechanism as per extant Reserve Bank
of India regulations and the said authorisation
limits, revolving in nature, shall entitle the
competent authority to withdraw money from
such account as per requirements, without any
further reference to the land acquiring agency, for
disbursement to the landowners or persons
interested therein, as follows:-
(a) The amount determined under section 3(G) of
the Act within fifteen days of the raising of
demand by the competent authority, and
(b) Where the amount determined by the
Arbitrator under sub-section (7) of Section 3G
of the Act is in excess of the amount
determined by the competent authority, the
excess amount, together with interest, if any,
awarded by the Arbitrator, within 30 days of
the communication of Arbitrator's award,
unless such Award has been further
challenged by either of the aggrieved parties."
This provision of the Rule, arguably indicates the
course of depositing the compensation amount in a
particular eventuality. The Panel Counsel is right in
indicating that sub-section (6) of Section 3G of 1956
Act makes applicability of the 1996 Act subject to the
provisions of the former. This intent emerges because
of the expression "Subject to the provisions of this
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Act," employed in sub-section (6) which internalises
the 1996 Act. Therefore, this provision could not have
been ignored while deciding the writ petitions,
inasmuch as appeals in MFAs and Writ Petitions are
pending post Section 34 orders.
In the above circumstances, both the appeals succeed
and impugned judgment made therein is set at naught.
We request learned Single Judges of this Court before
whom MFAs/WPs are pending concerning the determination
of compensation payable under the 1956 Act to the
respondents herein may be heard and disposed off
expeditiously.
Costs made easy.
Sd/-
(KRISHNA S.DIXIT)
JUDGE
Sd/-
(VIJAYKUMAR A.PATIL)
JUDGE
KMS, CT:VP
