Madras High Court
Palanichamy vs The District Collector And Sole ... on 21 June, 2021
W.P.(MD).Nos.7983, 7984 and 7986 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.06.2021
CORAM:
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
W.P.(MD).Nos.7983, 7984 and 7986 of 2021
Palanichamy ... Petitioner in W.P.(MD).No.7983 of 2021
Rajamani ... Petitioner in W.P.(MD).No.7984 of 2021
Premavathi ... Petitioner in W.P.(MD).No.7986 of 2021
Vs.
1.The District Collector and Sole Arbitrator,
(Land Acquisition), Dindigul District ,
Dindigul.
2.The Competent Authority Cum
District Revenue Officer,
National Highways Authority of India,
Dindigul.
3.The Project Director,
National Highway Authority of India,
Dindigul. ... Respondents in all WPs
Common Prayer: Writ petitions filed under Article 226 of the
Constitution of India, for the issuance of Writ of Certiorarified
Mandamus, calling for the records relating to the impugned order passed
by the first respondent in Appeal Nos.02/2020/NH45 (Extn.)/
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W.P.(MD).Nos.7983, 7984 and 7986 of 2021
Vakkampatti, 04/2020/NH45(Extn.)/Vakkampatti, and 03/2020/NH45
(Extn.)/ Vakkampatti, dated 11.12.2020 and to quash the same and
further directing the first respondent to entertain the appeal and to
dispose of the same on merits and in accordance with law, within a
stipulated time fixed by this Court.
For Petitioners : Mr.G.Sridharan
(In all W.Ps)
For Respondents : Mr.M.Lingadurai
(In all W.Ps) Government Advocate for R1 and R2
: Mr.Arul Vadivel @ Sekar for R3
COMMON ORDER
The issue involved in all these Writ Petitions are common and
hence, they are taken up together, heard and disposed of through this
common order.
2. The order passed by the first respondent dated 11.12.2020 is the
subject matter of challenge in all these writ petitions.
3. The case of the petitioners is that they were the absolute owners
of the subject properties, which were acquired under the National
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W.P.(MD).Nos.7983, 7984 and 7986 of 2021
Highways Act, 1956. The second respondent conducted the award
proceedings and fixed the total compensation payable by virtue of an
award dated 10.01.2013. According to the petitioners, they received the
compensation on protest, since they were not satisfied with the award
passed by the second respondent. It is also stated that the copy of the
award was not furnished/served to the petitioners and the petitioners
made an application under the Right to Information Act and only
thereafter, they received the copy of the award on 21.09.2020.
4. Immediately, on receipt of the copy of the award, the petitioners
preferred an application before the first respondent under Section 3G (5)
of the National Highways Act, 1956, seeking for enhancement of
compensation. These applications were rejected by the first respondent,
primarily, on the ground that the petitioners had approached the first
respondent with an exorbitant delay of more than seven years and the
application therefore, cannot be entertained, since it was not filed within
a period of three years, as provided under Article 137 of the Limitation
Act, 1963. Aggrieved by the same, these Writ Petitions have been filed
before this Court.
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W.P.(MD).Nos.7983, 7984 and 7986 of 2021
5. The learned counsel for the petitioners primarily raised two
grounds. The first ground that was raised by the learned counsel for the
petitioners is that there is no period of limitation provided under the Act
to initiate arbitration proceedings before the first respondent and
therefore, the first respondent went wrong in rejecting the application on
the ground of limitation. To substantiate this contention, the learned
counsel for the petitioners relied upon the judgments of this Court in
K.Jayaraj Vs. The Project Director reported in 2016 (1) CWC 627 and
in Project Director Vs. Periyasamy reported in (2018) 4 MLJ 711. The
next contention that was raised by the learned counsel for the petitioners
is that the first respondent does not fall within the definition of a Court
and therefore, unless the enactment itself provides for limitation, the
provisions of the Limitation Act cannot be pressed into service by the
first respondent.
6. Per contra, the learned Government Advocate appearing on
behalf of the first and second respondents submitted that the petitioners
had approached the first respondent with exorbitant delay and therefore,
the claim made by the petitioners was liable to be rejected on that ground
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W.P.(MD).Nos.7983, 7984 and 7986 of 2021
alone. It was further submitted that even if the Limitation Act does not
apply, the petitioners must have approached the first respondent within a
reasonable time and the petitioners cannot be allowed to approach the
first respondent as and when they feel like filing an appeal against the
award passed by the second respondent.
7. Learned Standing Counsel appearing on behalf of the third
respondent also vehemently opposed the claim made by the petitioners.
The learned counsel submitted that the petitioners had received the
compensation without any demur and some of the other land owners had
received the enhanced compensation, after they challenged the award
passed by the second respondent. Therefore, the petitioners wanted to
take advantage of the same and were waiting for the result of the claim
made by the other land owners and thereafter, they approached the first
respondent with an exorbitant delay of seven years. Therefore, the
learned counsel submitted that the first respondent was perfectly right in
rejecting the applications submitted by the petitioners. The learned
counsel further submitted that the National Highways Act does not have
any provisions that is akin to Section 28A of the Land Acquisition Act,
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W.P.(MD).Nos.7983, 7984 and 7986 of 2021
1894, which gives an opportunity to the land owners to seek for
refixation of compensation, based on the enhancement made for the other
land owners. As per the scheme of the National Highways Act, the
District Collector is given the status of an arbitrator and his order is
construed to be an award, which can be challenged only by way of filing
a petition under Section 34 of the Arbitration Act, as per Section 3G(6) of
the National Highways Act. The learned counsel further submitted that
the enhancement of compensation for those land owners, who had filed
an application on time, cannot give a cause of action for the petitioners to
approach the first respondent, seeking for enhancement of compensation
by taking advantage of the said enhancement. The learned counsel
concluded his argument by submitting that the order passed by the first
respondent should be construed as an award under Section 3G(6) of the
National Highways Act and hence, a Writ Petition cannot be maintained
before this Court and at the best, the petitioners can only file a petition
under Section 34 of the Arbitration Act.
8. This Court has carefully considered the submissions made on
either side and the materials available on record.
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W.P.(MD).Nos.7983, 7984 and 7986 of 2021
9. The short issue that arises for consideration in these Writ
Petitions is as to whether, the first respondent was right in rejecting the
applications filed by the petitioners on the ground of limitation and more
particularly, by placing reliance upon the Article 137 of the Limitation
Act. The related issue that would also require an answer from this Court
is as to whether the rejection order passed by the first respondent can be
made a subject matter of challenge in a Writ Petition or whether the
petitioners will have to only file a petition under Section 34 of the
Arbitration Act.
10. The issue as to whether the Limitation Act will apply for filing
an arbitration application before the District Collector is no longer res
integra and it is clear from the judgments cited by the learned counsel for
the petitioners that there is no period of limitation for filing an arbitration
application before the District Collector, seeking for enhancement of
compensation. It therefore, only requires a reiteration of the Division
Bench judgment of this Court to hold that the Limitation Act cannot be
put against the petitioners. The first respondent has applied Article 137
of the Limitation Act, in order to reject the arbitration applications filed
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W.P.(MD).Nos.7983, 7984 and 7986 of 2021
by the petitioners. In the considered view of this Court, the provisions of
the Limitation Act will apply only for suits, appeals and applications
filed before a Court. The Hon'ble Supreme Court had an occasion to
consider the application of the Limitation Act before the Commissioner
of HR & CE, who deals with appeals filed under the HR & CE Act. The
Hon'ble Supreme Court after dealing with the issue in detail came to a
conclusion that the Act will apply only for proceedings before a Court
and since the Commissioner cannot be held to be a Court, he will not
have the power to condone the delay under Sections 5 of the Limitation
Act. Useful reference can be made to the judgment of the Hon'ble
Supreme Court in Ganesan Vs. Commissiner, Tamil Nadu Hindu
Regligious and Charitable Endowments Board reported in 2019 (3)
CTC 469.
11. This Court can draw inspiration from the ratio decidendi of
the above judgment and it can be safely held that the first respondent
does not get the status of a Court while exercising jurisdiction under
Section 3G (5) of the National Highways Act and hence, the Limitation
Act cannot be applied in those proceedings. Unless the enactment itself
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W.P.(MD).Nos.7983, 7984 and 7986 of 2021
provides for limitation, the first respondent was not right in holding that
the application is barred by limitation by relying upon Article 137 of the
Limitation Act.
12. The next issue that requires an answer is as to whether the Writ
Petition can be maintained before this Court against the order passed by
the first respondent. A careful reading of the order passed by the first
respondent shows that the first respondent has refused to entertain the
applications filed by the petitioners. This order does not get the status of
an award in order to challenge the same under Section 34 of the
Arbitration Act. If the first respondent had gone into the merits of the
case and had passed an award, obviously, this Court would not have
exercised its jurisdiction under Article 226 of the Constitution of India,
in view of the provisions of Section 3G(6) of the National Highways Act.
However, the issue involved in the present case is as to whether the first
respondent failed to exercise his jurisdiction on the arbitration
application filed by the petitioners. The first respondent refused to
entertain the application on the ground that it is barred by limitation and
this Court has already held that the Limitation Act will not apply for the
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W.P.(MD).Nos.7983, 7984 and 7986 of 2021
proceedings before the first respondent. Therefore, the consequence of
such a finding is that the first respondent failed to exercise his
jurisdiction under Section 3G(5) of the Act and therefore, it requires the
interference of this Court in exercise of its writ jurisdiction.
13. The petitioners have taken a very categorical stand that they
were not served with the award passed by the second respondent and they
ultimately got it only after they applied under the RTI Act. Therefore
some opportunity must be given to the petitioners to seek for
enhancement of compensation before the first respondent. After all the
petitioners have lost their properties and they will be entitled for payment
of a just compensation.
14. In view of the above discussion, this Court has no hesitation to
interfere with the impugned rejection order dated 11.12.2020, passed by
the first respondent and accordingly, the same is hereby quashed. The
first respondent is directed to entertain the applications filed by the
petitioners seeking for enhancement of compensation and deal with the
same on its own merits and in accordance with law, after affording
opportunity to the petitioners and the third respondent. The final orders
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W.P.(MD).Nos.7983, 7984 and 7986 of 2021
shall be passed by the first respondent within a period of four months
from the date of receipt of a copy of this order.
15. In the result, all these Writ Petitions are allowed with the above
directions. No costs.
21.06.2021
Index :Yes
Internet : Yes
vsm
Note :
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
To
1.The District Collector and Sole Arbitrator,
(Land Acquisition), Dindigul District ,
Dindigul.
2.The Competent Authority Cum
District Revenue Officer,
National Highways Authority of India,
Dindigul.
3.The Project Director,
National Highway Authority of India,
Dindigul.
https://www.mhc.tn.gov.in/judis/
W.P.(MD).Nos.7983, 7984 and 7986 of 2021
N.ANAND VENKATESH.J.,
vsm
W.P.(MD).Nos.7983, 7984 and 7986 of 2021
21.06.2021
https://www.mhc.tn.gov.in/judis/
