Bihari Lal Agarwal v. The State of Jharkhand

CORAM: HON’BLE MR. JUSTICE RAJESH SHANKAR For the Petitioners For the Respondent-State For the Respondent-NHAI ----- : Mr. Shubham Mishra, Advocate : Mrs. Pinky Tiwary, AC to AG : Mr. Allan Anton Andrew, AC to Ms. Khushboo Kataruka, Advocate ----- Order No. 04 Dated: 06.07.2022 The present writ petition has been filed for quashing the order as contained in memo no. 1611 dated 15.09.2021 (Annexure-7 to the writ petition) passed by the respondent no. 3 – the Additional Collector-cum-Arbitrator under the National Highways Act, 1956 (hereinafter referred to as “the Act, 1956”) in Misc. Case No. 11/2021, whereby the petitioners‟ objection raised under Section 3-G(5) of the Act, 1956 against determination of compensation for acquisition of the land in question has been rejected.

According to the petitioners, the respondent no. 3, vide impugned order dated 15.09.2021, while rejecting the petitioners‟ claim for enhancement of compensation, has not considered the provisions of Section 3-G(7)(a) & (d) of the said Act.

Mrs. Pinky Tiwary, AC to AG appearing on behalf of the State respondents as well as Mr. Allan Anton Andrew, AC to Ms. Khushboo Kataruka, learned counsel for the respondent-NHAI, jointly raise preliminary objection with regard to maintainability of the writ petition and submit that the impugned order dated 15.09.2021 passed by the respondent no. 3 under Section 3-G(5) of the Act, 2 1956 can only be challenged under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act, 1996”). In support of the said submission, learned counsel for the respondents refer to order dated 09.05.2022 passed by this Court in W.P.(C) No. 4438 of 2021 [Basant Kumar Gupta Vs. The State of Jharkhand & Ors.], the relevant paragraphs of which read as under:

Section 3-G(6) of the National Highways Act, 1956 [hereinafter referred to as „the Act, 1956‟] clearly provides that the provisions of the Act, 1996 shall apply to every arbitration under the said Act, subject to the other provisions of the same. Thus, the impugned order as contained in memo No. 1611 dated 15.09.2021 passed by the respondent No.3 in Misc. Case No. 11/2021 has to be treated as an award passed within the meaning and the provisions of the Act, 1996. The Act, 1956 does not provide any further Forum for challenging the award passed by an arbitrator under Section 3-G(5) of the said Act. Thus, if any person is aggrieved with the award of an arbitrator passed under Section 3-G(5) of the Act, 1956, he has got the remedy to file an application under Section 34 of the Act, 1996 for setting aside the same. Hence, this Court is of the view that the petitioner has got alternative/statutory/efficacious remedy of filing an application before the appropriate Court seeking challenge to the order/award as contained in memo No. 1611 dated 15.09.2021 passed by the respondent No. 3 in Misc. Case No. 11/2021.

Considering that the petitioner has got alternative/ statutory/efficacious remedy of filing an application under Section 34 the Act, 1996 before appropriate Court challenging order/award as contained in memo No. 1611 dated 15.09.2021 passed by the respondent No. 3 in Misc. Case No. 11/2021, I am not inclined to entertain the present writ petition and the same is accordingly dismissed as not maintainable.

The petitioner is, however, at liberty to take alternative/ statutory/efficacious remedy under Section 34 of the Act, 1996 against the impugned order as contained in memo no. 1611 dated

15.09.2021 passed by the respondent no. 3. (Rajesh Shankar, J.) Manish