Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4009 of 2013 ====================================================== 1. Md. Gufran Alam S/O Late Md. Salimuddin Resident Of Village - Belwa Tapu Tola, P.O. - Gaiyari, P.S. - Arariya, District - Araria Versus .... .... Petitioners 1. The State Of Bihar 2. The District Magistrate, Araria 3. The Competent Authority-Cum-Land Acquisition Officer, Araria 4. The Project Director, National Highway Authority, Araria 5. Md. Ekramuddin S/O Late Md. Hasan Residence Of Village - Belwa, P.S. - Arariya, District - Araria 6. Abdur Rahman S/O Late Md. Mahfouz Alam Resident Of Village - Sher Langa, P.O. - Bagrhara, P.S. - Jokihat, District - Araria 7. Mostt. Mahmooda, w/o late Abdur Rauf 7(a) Md. Sahid, son of late Abdur Rauf 7(b) Md.Shakib, son of late Abdur Rauf All are resident of village-Shairlangha, P.O.Bakdhara, P.S. Jokihat, District-Araria 7© Bibi Shahjanha, D/O late Abdur Rauf, W/O Shahwaz Alam, resident of village-Mainpur, P.O.Bairgachhi, P.S. Bairgachhi, District- Araria. 7(d) Bibi Shahista, D/O late Abdur Rauf, W/O Rizwan, resident of village- Bakdhara, P.O.Bakdhara, P.S. Jokihat, District-Araria. 8. Bibi Maimun Nisha W/O Md. Soiyab Alam Resident Of Satbitta, P.O. - Bairgachhi, District - Araria 9. Asmati Khatoon W/O Mansur Alam Resident Of Satbitta, P.O. - Bairgachhi, District - Araria 10. Wasib Ahmad Son Of Late Abdus Salam Resident Of Village - Gaiyari, P.S. And District - Araria 11. Moiz Alam Son Of Late Abdus Salam Resident Of Village - Gaiyari, P.S. And District - Araria 12. Harun Alam Son Of Late Abdus Salam Resident Of Village - Gaiyari, P.S. And District - Araria 13. Bibi Raisa Khatoon D/O - Late Abdus Salam Resident Of Village - Gaiyari, P.S. And District - Araria 14. Bibi Rashida Khatoon D/O Late Abdus Salam Resident Of Village - Gaiyari, P.S. And District - Araria 15. Bibi Sauda Khatoon D/O Late Abdus Salam Resident Of Village - Gaiyari, P.S. And District - Araria 16. Bibi Sogar Khatoon D/O Late Abdus Salam Resident Of Village - Gaiyari, P.S. And District - Araria 17. Bibi Firaza Khatoon D/O Late Abdus Salam Resident Of Village - Gaiyari, P.S. And District – Araria 18. Moin Aalam, son of Abdus Salam, resident of village-Gaiyari, P.S. & District- Araria. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Amar Nath Singh Patna High Court CWJC No.4009 of 2013 (7) dt.03-12-2013 2 Mr. Kamal Kishore Singh For the State : Mr. Shashi Bhushan Kumar,S.C.-7 For National Highway : Mr. Sunil Kumar Singh Mr. Ranjan Kumar Singh For Private Respondents : Mr.Gyanand Roy Mr.Sheo Nandan Mishra ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 7 03-12-2013 Heard learned counsel for the petitioner and learned counsels for the State and for the private respondents. The petitioner seeks quashing of the order dated 10.1.2013 passed in Appeal Case No. 01 of 2012-13 by the Collector, Araria as also the consequential notice dated 14.2.2013 issued by the Competent Officer-cum-Land Acquisition Officer, Araria. The petitioner claims to be the owner of land bearing Thana No.206, Khata No.2438, Khesra No.1531, area 0.98 ¼ decimal at Mauza Basantpur, Gaurichak falling within the limit of Nagar Parishad, Araria. The said land was acquired for widening of National Highway No. 57 on 13.05.2006 under the provisions of the National Highway Act. Under Section 3-A of the Act, the Central Government appointed the District Land Acquisition Officer, Araria as the Competent Authority to determine the amount in the proceedings for payment of compensation under Section 3-G of the Act. The amount of compensation was
Legal Reasoning
Patna High Court CWJC No.4009 of 2013 (7) dt.03-12-2013 3 determined as payable to the petitioner, as no other person including the respondents came forward at that stage for payment. The award was prepared by the competent authority on 29.1.2010. Although it is not stated in the pleadings herein but it is stated by learned counsel that the petitioner being dissatisfied with the amount payable had also applied for enhancement of the same by moving for the determination by the arbitrator and the amount of award was enhanced by order dated 18.1.2011 of the arbitrator. Subsequently, respondent No.5 filed a writ petition bearing C.W.J.C. No.7311 of 2011 before this Court for a direction to restrain the National Highway Authority not to pay the enhanced amount of compensation claiming that the petitioner was only one of the co-sharers. The writ application was dismissed by order dated 27.04.2011 holding that the same was not maintainable in view of the alternative remedy available to the petitioner of that case. Thereafter, L.P.A. No.1025 of 2011 was filed by respondent No.5 in which by order dated 17.08.2011, this Court noted that the dispute is with regard to the apportionment of the amount of compensation awarded for acquisition of the land by the National Highway Authority for road widening and Section 30 of the Land Acquisition Act, 1894 provides for a remedy on the precise issue and in view of the alternative statutory remedy Patna High Court CWJC No.4009 of 2013 (7) dt.03-12-2013 4 available to the appellant, the petition under Article 226 of the Constitution was not maintainable and on the said ground, the appeal was dismissed observing that the appellant may avail of the remedy under Section 30 of the Land Acquisition Act. It appears that while the L.P.A. was dismissed at the stage of admission itself without issuing notice to the petitioner, it was not pointed out by learned counsel for the appellant of that case that provision similar to section 30 of the Land Acquisition Act, 1894 exists under section 3-H (4) of the National Highways Act, 1956 and thus the reference was made to Section 30 of the Land Acquisition Act, 1894. Thereafter, Appeal No.01 of 2012-13 was filed before the Collector under Section 30 of the Land Acquisition Act, in which the petitioner as also the Project Director, National Highways Authority, Araria raised an objection that the appeal was not maintainable before the Collector and beyond his jurisdiction in terms of Section 3 (b) of the National Highways Act. However, the Collector proceeded in the matter and passed final orders therein in which instead of deciding the issue of reference, he came to the conclusion that the petitioner’s title is under dispute and, therefore, directed the Additional Collector, Araria to cancel the Jamabandi of the petitioner by initiating legal proceedings and further directed the Competent Patna High Court CWJC No.4009 of 2013 (7) dt.03-12-2013 5 Authority-cum-District Land Acquisition Officer, Araria to stop the payment of further amounts of compensation and take steps for recovery of the amounts paid in accordance with law. Learned counsel for the petitioner submits that those orders could not have been passed, as the Collector has no jurisdiction to pass any such order under the provisions of the National Highways Act nor could have issued any direction as he has issued in the proceedings purportedly under Section 30 of the Land Acquisition Act. Learned counsels for the State and for the private respondents submit that the appeal has been filed in terms of the direction of the Division Bench of this Court and thus there was nothing wrong in the Collector’s order to have passed the same in the case. In my view, this Court does not and cannot confer any jurisdiction upon any person or authority as that is the function of the Legislature by way of statutory enactments. The proceedings of acquisition having been taken up under the National Highways Act any challenge to their action could only be under the statutory provisions of the said Act and by approaching the statutory authorities created thereunder. As a matter of fact, it is evident from the order dated 17.8.2011 passed in L.P.A. No.1025 of 2011 Patna High Court CWJC No.4009 of 2013 (7) dt.03-12-2013 6 that this Court had merely referred to the provisions of Section 30 of the Land Acquisition Act stating that there was an alternative statutory remedy available to the appellant and while dismissing the L.P.A. granted liberty to him to avail remedy under Section 30
Legal Reasoning
of the Land Acquisition Act and it was for learned counsel for the appellant of that case, namely, the private respondent No.5, herein, to have pointed out that the proceedings were under the National Highways Act and if that had been done this Court would have referred to the provisions of the said Act and not the Land Acquisition Act. Moreover, it was for the concerned persons to have availed of the correct statutory remedy, that too, when before the Collector both the National Highways Authority as also the petitioner had taken the plea that the proceedings before the Collector were not maintainable. In any view of the matter, the Collector having not been conferred with any jurisdiction under the provisions of Section 3- H of the National Highways Act to make a reference, rather the competent authority in the present matter was the Land Acquisition Officer, Araria, hence, the Collector could not have proceeded in the matter and decided the case. As a matter of fact, the Collector could not have issued any direction to the statutory Patna High Court CWJC No.4009 of 2013 (7) dt.03-12-2013 7 authority, namely, the competent authority, the Land Acquisition Officer, as he cannot treat him as his subordinate when he acts as the competent authority under the said Act, although for other administrative purposes the said Land Acquisition Officer may be his subordinate. Thus for the aforesaid reasons, I am of the view that the order dated 10.1.2013 and the entire proceedings in Appeal No.01 of 2012-13, including all consequential actions thereupon are without jurisdiction and they are, accordingly, quashed. The writ application is, thus, allowed. It is, however, made clear that this order shall not stand in the way of the respondents, in case they proceed to invoke the provisions of the National Highways Act which shall be considered by the competent authority in accordance with law. V.P.Sinha/- (Ramesh Kumar Datta, J)