High Court
Legal Reasoning
1 WP-7336-18.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 7336 OF 2018Anant Shankarrrao KorkeDied Through L.Rs. 1. Mohini Anant Korke, Age 50 years,2. Rahul Anant Korke, Age 26 years,3. Ashwini Anant Korke, Age 28 years, All Occu. Agricultur, R/o. Salwade, Taluka and District Dhule..PetitionersVersus1.The State of MaharashtraThrough Collector, Dhule2.The National Highway Authority of IndiaB-23,Near Kamgar Chowk, N-4, CIDCO,Aurangabad3.The Competent Authority(Land Acquisition) N.H.211 &Deputy Collector, Land Acquisition No.1,Dhule4.The District Superintending AgricultureOfficer, Dhule..Respondents…WITH WRIT PETITION NO. 7338 OF 20181.Babulal Paulad Vanjari2.Bansi Paulad Vanjari,Died, through L.Rs.2ABebabai Bansi Chavhan (Vanjari)Age 45 years, 2B.Ramrao Bansi Chavan (Vanjari)Age 26 years, 2C.Bhimrao Bansi Chavhan (Vanjari)Age 20 yars, 2D.Arunabai Machindra JadhavAge 30 years,All Occu. Agriculture, R/o. Tarwade,Taluka and District Dhule 2 WP-7336-18.odtVersus1.The State of MaharashtraThrough Collector, Dhule2.The National Highway Authority of IndiaB-23,Near Kamgar Chowk, N-4, CIDCO,Aurangabad3.The Competent Authority(Land Acquisition) N.H.211 &Deputy Collector, Land Acquisition No.1,Dhule4.The District Superintending AgricultureOfficer, Dhule..Respondents…WITHWRIT PETITION NO. 8883 OF 2018Gorakh Digambar PagareAge Major, Occu. Agri.,R/o. Vinchur, Taluka and District Dhule..PetitionerVersus1.The State of MaharashtraThrough Collector, Dhule2.The National Highway Authority of IndiaB-23,Near Kamgar Chowk, N-4, CIDCO,Aurangabad3.The Competent Authority(Land Acquisition) N.H.211 &Deputy Collector, Land Acquisition No.1,Dhule4.The District Superintending AgricultureOfficer, Dhule..Respondents… 3 WP-7336-18.odtWITHWRIT PETITION NO. 7339 OF 2018Pravin Sudam PatilAge Major, Occu. Agri.,R/o. Junawanee, Taluka and District Dhule..PetitionerVersus1.The State of MaharashtraThrough Collector, Dhule2.The National Highway Authority of IndiaB-23,Near Kamgar Chowk, N-4, CIDCO,Aurangabad3.The Competent Authority(Land Acquisition) N.H.211 &Deputy Collector, Land Acquisition No.1,Dhule4.The District Superintending AgricultureOfficer, Dhule..Respondents…WITHWRIT PETITION NO. 8931 OF 20181.Sunita Digambar Desale,2.Revaji Tarachand PatilBoth Age Major, Occu. Agri.,R/o. Vinchur, Taluka and District Dhule..PetitionersVersus1.The State of MaharashtraThrough Collector, Dhule2.The National Highway Authority of IndiaB-23,Near Kamgar Chowk, N-4, CIDCO,Aurangabad3.The Competent Authority(Land Acquisition) N.H.211 &Deputy Collector, Land Acquisition No.1,Dhule 4 WP-7336-18.odt4.The District Superintending AgricultureOfficer, Dhule..Respondents...WITH WRIT PETITION NO. 10945 OF 2021National Highways Authority of IndiaProject Implementation Unit,Nashik, Through its Project DirectorRavindra Suhasrao Ingole, Age 40 years, “Mansaram Nagar”, Circuit House,Sakri Road, Dhule – 424 002..PetitionersVersus1. The Competent Authority Land AcquisitionNH-211 And Deputy Collector Land Acquisition No.1, Dhule2.Anant s/o. Shankarrao Korke, Age Major, Occu. Agriculturist, R/o. Salwade, Taluka and District Dhule..Respondents…WITH WRIT PETITION NO. 11181 OF 2021National Highways Authority of IndiaProject Implementation Unit,Nashik, Through its Project DirectorRavindra Suhasrao Ingole, Age 40 years, “Mansaram Nagar”, Circuit House,Sakri Road, Dhule – 424 002..PetitionersVersus1. The Competent Authority Land AcquisitionNH-211 And Deputy Collector Land Acquisition No.1, Dhule2.Babulal Poulad Vanjari,3.Bansi Paulad Vanjari,4.Anil Paulad Vanjari,R.No.2 to 4 Age Major, Occu.Agri.,R/o. Tarvade, Taluka and District Dhule..Respondents
Legal Reasoning
5 WP-7336-18.odtMr. Ajeet B. Kale, Advocate along with Ms. Sakshi Kali, Advocate forPetitioners in Writ Petitions No.7336, 7338, 7339, 8883 and 8931 of 2018;Mr. Deepak S. Manorkar, Advocate for Petitioner in Writ Petitions No.10945 and 11181 of 2021;Mr. D. R. Korade, A.G.P. for Respondents/State;Mr. A. G. Talhar, Advocate, Mr. Suresh W. Mundhe, Advocate andMr. D. S. Manorkar, Advocate for Respondent/National HighwaysAuthority CORAM : S. G. MEHARE & SHAILESH P. BRAHME, JJ. RESERVED ON : 11.02.2025 PRONOUNCED ON : 06.03.2025 JUDGMENT (PER: S. G. MEHARE, J.)1.Rule. Rule made returnable forthwith. Heard finally withconsent of respective learned counsel for the parties.2.The writ petitions are based upon identical facts andevidence, hence, taken up together for common decision.3.Writ Petition No.10945 and 11181 of 2020 filed by petitioner– National Highways Authority of India (NHAI) has impugnedcorrigendum dated 21.03.2017 which is claimed to besupplementary award / corrigendum dated 22.05.2017.4.By these writ petitions under Article 226 of the Constitutionof India, the petitioners are seeking directions against respondentsto include the plants in the Award No.3 of 2013 passed byrespondent No.2. 6 WP-7336-18.odt5.The case of petitioners, in brief, is that their lands wereacquired for National Highway No.211. Accordingly, Award wasdeclared in 2017. Respondent No.2 noticed that there was adifference in number of plants standing in the fields of the farmersin the joint measurement prepared by respondent No.3. Therefore,respondent No.2 directed respondent No.3 by letter dated11.01.2016 not to value the plants on the basis of jointmeasurement prepared by respondent No.3. The office ofrespondent No.3 drew a fresh panchnama in the presence ofrepresentatives of Revenue Office, Land Acquisition Office andfarmers of the fields. Respondent No.3 forwarded a freshpanchnama in respect of plants of respondent No.2 on 10.08.2016.Respondent No.3 did not determine the value of plants as per thepanchnama dated 10.08.2016. Despite the valuation reportsubmitted by respondent No.3, those plants were not consideredand included in the award. The petitioners are entitled tocompensation for those plants.6.Respondent No.2, by way of affidavit-in-reply, opposed thecontentions of the petitioners. The Central Government has issuednotification under Section 3A of the National Highways Act, 1956(for short, “NH Act”) and appointed respondent No.3 as CompetentAuthority, Land Acquisition. The Central Government hasexpressed its intention to acquire the lands in the villagesmentioned in the notification. The joint measurement was carried 7 WP-7336-18.odtout pursuant to the gazette notification under Section 3(A). In thejoint measurement report, no plants were mentioned in thedisputed fields owned by the petitioners. Then the compensationproceeding was initiated under Section 3(G) of the N.H.Act. Thepetitioners have raised objection before the competent authorityon 30.07-2014. However, it does not refer to non-inclusion ofPomegranate plants in the fields under acquisition or in the award.During the initial joint measurement and spot panchnama, therewere no plants as such in the land of the petitioners. Therefore,the award was declared. Once the award is declared, respondentNo.3 competent authority becomes functus officio. The notice ofjoint measurement on the basis of which the plants were includedin for valuation, nor it received any corrected award including oradding it for determination of amount for the entire propertiesunder acquisition. In a nut-shell, the contesting respondent has acase that when the initial joint measurement was carried out noplants as claimed by the petitioners were planted. Valuation doneby respondent No.3 was subsequent to the award passed.Therefore, the petitioners do not deserve for compensation asprayed for.7.The petitioners have also filed rejoinder to the affidavit-in-reply of respondent No.2. By way of re-joinder, the petitionershave explained that Pomegranate plants were reflected inmeasurement report dated 28.08.2013 (R-1). Again the spot visit 8 WP-7336-18.odtwas made on 11.12.2015 and plants were found at that time.Another inquiry was made on 11.07.2017, that time also plantswere found standing in the field.8.Mr. A. B. Kale, the learned counsel for the petitioners hasvehemently argued that Pomegranate plants were standing in thefield when the joint measurement was done in the presence ofconcerned authorities. Respondent No.3 had addressed a letter torespondent No.4 for submitting valuation report of the fruit plants.Accordingly, a report was submitted on 12.05.2017. It is evidentfrom this report that fruit bearing plants were standing. He hasreiterated his arguments as per his pleadings. The first jointmeasurement was done on 28.03.2013, second was done on11.12.2015 and third was done on 11.12.2017. All thesemeasurements were carried out at the instance of respondentNo.3. The facts are within the knowledge of respondent concernedthat the fruit bearing plants were planted in the field and werenoticed at the time of joint measurement. Hence, the competentauthority cannot deny the compensation and in such a situation,they should have pass the supplementary or additional award. Herelied on the certain case laws, those would be considered in duecourse.9.The learned counsel for contesting respondent would submitthat no plants were found at the time of first joint measurement. 9 WP-7336-18.odtThe reply of the Competent Authority, Land Acquisition disclosedthat since there were no fruit bearing plants, the award wascorrectly passed. The entry of plants was added in the jointmeasurement report subsequently. The competent authority hadcalled the authenticated joint measurement report vide letterdated 10.06.2009 and in that report the fruit bearing plants werenot mentioned as claimed by the petitioners, since there were nofruit bearing plants in the field when the last joint measurementwas done. There is a great possibility of creating the evidence byplanting the fruit bearing plants only with an ill-motive to get morecompensation. If the petitioners were not satisfied with the award,they should have approached the Arbitrator under Section 3-G(7)of the N.H.Act. Same parameters for the determination of theprice apply to the competent authority and arbitrator.10.Mr. Talhar, learned counsel for the competent authorityadopted the arguments of the contesting respondent No.2. Hereferred to paragraph No.16 and 19 of the case of Sau.Sangeeeta Natwarlal Karwa and another vs. State ofMaharashtra and others, Writ Petition No.5327 of 2022,dated 28.02.2023 (Bombay High Court), in which it has beenheld that Section 3(A) of the NH Act does not permit theCompetent Authority to make any correction or for that matter topass any order in the nature of correction of an award or anamended award. Once the award is passed by the Competent 10 WP-7336-18.odtAuthority, the Competent Authority loses any authority to tinkerwith it in any manner whatsoever. Referring to the case ofBhupendarsingh vs. Competent Authority and Others, AIRBombay R 645, it has been argued that the supplementary awardis thus without jurisdiction of the Competent Authority. Section 33of the Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013 (for short,“Act of 2013”) does not apply to the acquisition proceeding underthe N.H.Act.11.In reply, the learned counsel for the petitioners would submitthat if the issue raised before the Court can be decided by theArbitrator, liberty may be granted to the petitioners to approachthe Arbitrator. However, the experience is that the Arbitrator doesnot decide the dispute like in this case. Therefore, this Court is theonly Competent Authority to resolve the matter.12.Where the Central Government is satisfied that the land isrequired for the public purpose, it is to be acquired with suchintention. To acquire the land, it may by notification in the OfficialGazette, declare its intention to acquire such land, as per Section3-A(1) of the NH Act. Section 3B of the NH Act empowers theCentral Government or any persons authorized by the CentralGovernment to make inspection, survey, measurement, valuationor enquiry, etc. Section 3-C of the NH Act provides for hearing the 11 WP-7336-18.odtobjections. The party interested in the land has a right to object tothe use of his land for the purpose or purposes mentioned in Sub-section (1) of Section 3-A. Such objection is made to thecompetent authority in writing and setting out the grounds thereofand the competent authority shall give the objector an opportunityof being heard, either in person or by a legal practitioner, and thecompetent authority should pass an order either allowing ordisallowing the objections and after making such further inquiry, ifany. Thereafter, the Central Government, on receiving report fromthe competent authority, shall declare by notification in the officialgazette that the land should be acquired for the purpose or for thepurposes mentioned in Section 3-A. On the publication ofdeclaration of acquisition under sub-section (1) of Setion 3-D, theland shall vest absolutely in the Central Government free from allencumbrances.13.In the case at hand, case revolves around the dispute aboutthe existence 950 pomegranate plants seen planted in the fields ofthe petitioners. First award was passed on 08.08.2016. The saidaward includes the nature of objection raised by the respectiveland owners. It shows that the petitioners were represented byAdv. Sanjay Shimpi. It does not reflect that the objection wasraised that fruit bearing plants as mentioned above were foundduring the measurement. The objection was raised that the non-agricultural potentiality of the land should be considered and rate 12 WP-7336-18.odtas per non-agricultural land be granted and owners should begiven the employment in the Government department and as perthe new Act, 2013, four times compensation be granted to them.This objection was taken on 30.07.2014.14.It seems that the petitioners did not dispute the firstmeasurement of year 2013. However, petitions are silent aboutthe dates of the measurement. It is just an application-cum-representation presuming that everybody knows the facts of thecase and there is no dispute at all. The record also reveals that asupplementary award was passed in 2017. The record furtherreveals that first award was passed on 08.08.2016 andsupplementary award was passed in 2017. The joint measurementof 2013 shows no fruit bearing plants existing in the field of thepetitioners. The objection of existence of fruit bearing plantsseems to have been raised after the first award was passed.However, it seems from the record that 950 pomegranate plantswere seen added in the joint measurement (R-3). To rebut thisentry, contesting respondent No.2 filed on record the certifiedcopy showing that at the initial measurement there were no suchplants found existing in the field of the petitioners. We findsubstance in the submission of the contesting respondent that theevidence of plants in the field of the petitioners was possiblycreated subsequently and in any case it came across that suchplants are planted subsequent to the measurement. We could 13 WP-7336-18.odtunderstand if the petitioners raised objection first time when theyraised objection before competent authority through their counsel,their silence corroborates contention of the respondents that therewere no pomegranate plants in the field when the first jointmeasurement was done. Therefore, the activities of thecompetent authority calling report from respondent No.4 areapparently after the award was passed and raises suspicion.Normally, once the measurement is done, unless there are seriousdeficiencies another joint measurement is avoided. The purposeof the joint measurement before the notification is to identify theexact position of the land proposed to be acquired. Themeasurement after measurement should not be a routine practice.The law has taken care if any mistake has happened andsomething is not mentioned in the first joint measurement, thepersons interested have right to register the objection immediatelyand those objections are heard and to be decided by thecompetent authority. This precaution, the law has taken, only witha view to avoid mischief to be played with the Government andextracting unnecessarily heavy amount for the acquisition of theland. At the cost of repetition, we again observe that thepetitioners through counsel had raised objection but did notwhisper a single word about the plants. It is said that the silencespeaks a lot. Therefore, the case laws relied upon by thepetitioners would not assist them. 14 WP-7336-18.odt15.The next legal question that has been raised is, can asupplementary award be passed. A serious objection has beenraised that once an award is passed, competent authority has noauthority to pass additional or supplementary award. To bolsterhis argument, the learned counsel for the contesting respondenthas rightly relied upon the case of Bhupendrasingh (supra).16.The Bombay High Court at Principal Seat has referred toabove judgment in the case of Sau. Sangeeta (supra). It hasbeen observed in paragraph No.16 that Section 3(G)(5) of theNational Highways Act clearly indicates that the completemechanism is provided under Section 3(G) of the NH Act includingthe remedy for redressal of the grievance arising out of an awardand the amount determined by the Competent Authority underSection 3(G)(1) and (2) by filing an application before the learnedArbitrator to be appointed by the Central Government. It has beenfurther observed in paragraph No.17 that this Court, in case ofBhupendrasingh (supra) held that the provisions of Section 33 ofthe Act of 2013 are not available to the Competent Authorityconstituted under Section 3(A) of the N.H.Act in the process ofacquisition of the land under the N.H.Act and thus it isimpermissible for the Competent Authority to make any correctionor to pass any order in the nature of correction of an award or anamended award. Once the award has been passed by theCompetent Authority, the Competent Authority loses any authority 15 WP-7336-18.odtto tinker with it in any manner whatsoever. Further, it has beenobserved in paragraph No.18 that in the absence of anyprovisions, it cannot be held that the Competent Authority underN.H.Act would have any power or authority either to correct theaward for any reason whatsoever or for that matter, to pass anadditional award or to review the same. The supplementary awardis thus totally without jurisdiction and deserves to be quashed andset aside. 17.To counter above arguments, the learned counsel for thepetitioners relied on the case of Hemant Brijraj Lalwani vs. TheGovernment of India, Writ Petition No.15562 of 2019, inwhich the Co-ordinate Bench held/observed that when admittedly,as mentioned in the award, the compensation for a particular GatNumber was not determined, the Competent Authority can bedirected to pass a suitable supplementary award to that extentwhich will not run afoul to the decision in the matter ofBhupendersingh (supra). The facts of that case and the facts ofthe case at hand are altogether different. 18.The petitioners, in the first award at no point of time, raisedobjection that the pomegranate plants were not recorded in thejoint measurement. Hence, we find substance in the submission ofcontesting respondent that the supplementary award includingfruit bearing plants by the Competent Authority is withoutjurisdiction. 16 WP-7336-18.odt19.The learned counsel for the petitioners has raised anotherquestion that since the petitioners have no other remedy, suchmatters can only be determined under the writ jurisdiction. Hewould submit that jurisdiction of the Arbitrator under Section 3-G(5) of the N.H.Act is very limited. The Arbitrator cannot travelbeyond calculation, mistake or incorrect determination of theamount. 20.To bolster his arguments, he relied on the case of RajivMemorial Academy Welfare Society vs. Union of India andothers, WRIT – C No.8247 of 2018, dated 05.03.2018, inwhich the petitioner had sought to quash the award of theArbitrator passed under Section 3-G(5) of the N.H.Act, for thereason that the Arbitrator had remanded the matter to theCompetent Authority for a fresh determination. Pickingobservations from the case that the Arbitrator has to determinethe amount and would not be justified in remitting the matter tothe Competent Authority, the learned counsel for the petitionersinterpreted the said section that the Arbitrator has no power otherthan determination of the valuation. He also relied on the case ofBhartiya Rashtriya Rajmarg Pradhikaran vs. RajeshKaushik and others, Appeal under Section 37 of theArbitration and Conciliation Act 1996 No. 36 of 2020, dated12.01.2021, wherein again the matter was remitted to theCompetent Authority. Hence, it was held that remitting the matter 17 WP-7336-18.odtis without jurisdiction. In that context, the view of Rajiv MemorialAcademy Welfare Society (supra) was reiterated. The issue inboth the matters was the power of Arbitrator to remit the matter.In case of Bhartiya Rashtriya Rajmarg Pradhikaran (supra)paragraph Nos.11 and 12 were referred to, which read thus;“11.Irrespective of the fate of the arbitrationproceedings, the order of the competent authority wouldnot merge in the award rather it would continue to exist,though its enforceability (as to quantum of compensationpayable), may, in given facts be eclipsed by the arbitralaward. It is so because, the terms of reference arise fromthe plain language of section 3-G (5) of the Highways Act.That provision of law and command the arbitrator tohimself determine the just amount of compensation.12.Thus, in no event, the arbitrator may set aside theorder passed by the competent authority and he maynever remit the matter to the original / competentauthority to pass a fresh order. Typically, that power is apower of Court or Tribunal sitting in appeal or revision thattoo, if specifically granted by statute, and not implied. …… … ”21.Both cases were revolving around the issue to remit thematter to the Competent Authority. Hence, we are of the opinionthat the case law would also not help the petitioners. 22.Section 3G-(5) and (6) of the N.H. Act reads thus; “3-G (5) If the amount determined by the competentauthority under sub-section (1) or sub-section (2) is notacceptable to either of the parties, the amount shall, on anapplication by either of the parties, be determined by thearbitrator to be appointed by the Central Government. 18 WP-7336-18.odt(6)Subject to the provisions of this Act, the provisions ofthe Arbitration and Conciliation Act, 1996 (26 of 1996) shallapply to every arbitration under this Act.”23.If the dispute arise on the determination of the amount bycompetent authority, either of the parties have the rights to file anapplication before the Arbitrator. On the basis of material placedbefore the Arbitrator, he has to determine the just compensation.Reading Sub-sections (5) and (6) of Section 3-G of the N.H.Act, wedo not find any limit to the Arbitrator only to determine thecompensation based on the documents / material placed by thecompetent authority. Hence, we do not agreeable to Mr. A. B. Kale,learned counsel for the petitioners that since the jurisdiction of theArbitrator is restricted / limited to determination of the amount,the writ jurisdiction is the only remedy.24.After hearing the arguments of the respective counsel andon going through the record we find that many disputed questionson facts have been raised. For that purpose, both parties have tolead evidence to establish the facts. The provisions of ArbitrationAct 1996 are applicable to such application filed under sub-section(5) of Section 3-G of the N.H.Act is a complete code to determinethe dispute. Hence, we do not find substance in the arguments ofMr. A. B. Kale, learned counsel for the petitioners.
Decision
19 WP-7336-18.odt25.For the above reasons, we dismiss the Writ PetitionsNo.7336, 7338, 7339, 8931 and 8883 of 2018 without affecting theright of the petitioners as is available under the law. Rule standsdischarged. 26.Writ Petition No.10945 and 11181 of 2021 stand allowed bydeclaring that the competent authority has no power to passimpugned corrigendum dated 21.03.2017 and supplementaryaward 22.05.2017; hence, the same stand quashed and set aside.27.Rule made absolute in Writ Petition No.10945 and 11181 of2021.28.No order as to the costs. [ SHAILESH P. BRAHME ] [ S. G. MEHARE ] JUDGE JUDGErrd