Shivjee Prasad Mathuri @ Shivajee Prasad Mathuri .…… v. 1. The State of Jharkhand. 2. The Deputy Commissioner, Dhanbad 3. The Additional Collector
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No.5578 of 2022 Shivjee Prasad Mathuri @ Shivajee Prasad Mathuri .……… Petitioner Versus 1. The State of Jharkhand. 2. The Deputy Commissioner, Dhanbad 3. The Additional Collector, Dhanbad 4. The District Land Acquisition Officer-cum-Competent Authority (Under National Highways Act, 1956), Dhanbad 5. The Land Reforms Deputy Collector, Dhanbad 6. The Director of Planning, National Highways Authority of India Limited, Kandra, P.O and P.S: Kandra, District: Dhanbad. 7. Executive Engineer, Building Division, Dhanbad and 8. Circle Officer, District:Dhanbad. ……… Topchanchi, P.O P.S.:Topchanchi, Respondents CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD --------- For the Petitioner For the State For the NHAI : Mr. Jitendra Kumar Pasari, Advocate : Mr. Abhilash Kumar, AC to GP-II : Mrs. Sweety Topno, Advocate 04/04.05.2023 --- This writ petition is under Article 226 of the Constitution of India, for issuance of direction upon the respondent no.3 being the Arbitrator to pass the award himself and determine the amount of compensation himself and quashing of the order dated 11.02.2020 passed by the respondent no.3 in Arbitration Case No.39 of 2019.
Legal Reasoning
2. Mr. Jitendra Kumar Pasari, learned counsel for the petitioner
Decision
has submitted that the impugned order is not sustainable in the eye of law at least for two reasons, i.e., (i) The statutory command in view of the provision of Section 3G(5) of the National Highways Act, 1956 command the Arbitrator, in a case if the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be 2 determined by the Arbitrator to be appointed by the Central Government and as such, it is the statutory duty of the Arbitrator, so appointed in view of the provision of Section 3G(5) of the Act, 1956 to determine amount. (ii) The second ground has been taken that the writ petitioner on earlier occasion has approached before this Court by filing the writ petition being W.P.(C) No.4325 of 2018 and the Coordinate Bench of this Court has disposed of the writ petition by giving liberty to the writ petitioner to file fresh application under Section 3G(5) of the Act, 1956 before the concerned respondent, who in turn was directed to refer the matter for determination of objection of the petitioner by the Arbitrator in terms of Section 3G(5) of the Act, 1956. 3. The contention has been raised that once this Court has also in exercise of power conferred under Article 226 of the Constitution of India by taking into consideration the statutory command, as provided under Section 3G(5) of the Act, 1956, has directed the Arbitrator so appointed, ought to have determined the amount. But here, it would be evident from the impugned order that the amount has not been determined, rather, the Arbitrator has come to conclusion, after going through the documents, that inquiry is necessary and as such, he has passed the direction upon the District Land Acquisition Officer, Dhanbad and the authority of the N.H.A.I. to get the matter inquired afresh and re-assess the value thereof and thereafter, to ensure the payment of amount of compensation. The contention has been raised that the Arbitrator has committed gross illegality, since, even though, he has come to the conclusion that a further inquiry is necessary but instead of 3 adjudicating the issue for the purpose of determination of the actual amount of compensation, has directed the authorities to re-assess the same, the authority is none-else, rather, the same who has assessed the amount of compensation, against which, the application for reference made was not being satisfied with assessment of the amount of compensation. Learned counsel, therefore, submits that the Arbitrator has failed to discharge the statutory obligation and has again send the matter before the same authority from whose order the writ petitioner was aggrieved. 4. Mrs. Sweety Topno, learned counsel appearing for the respondent-N.H.A.I., is fair enough to submit that as per the statutory command as provided under Section 3G(5) of the Act, 1956, the very word “determine” is having the determining factor, by virtue of which, the Arbitrator is required to adjudicate before determining the amount of compensation once the matter has been referred before him and thereby, it is incorrect on the part of the petitioner to take the ground that the Arbitrator has not discharged his duty, as conferred to him in view of the provision of Section 3G(5) of the Act, 1956. 5. Learned counsel appearing for the State-respondent has accepted the argument advanced by the learned counsel appearing for the N.H.A.I. However, in addition to that, submission has been made that the review of the order impugned has been passed and as such, the same may be directed to be decided by the authority concerned. 6. Mr. Pasari, learned counsel for the petitioner has submitted that power of review can only be exercised by the authority if provided under the statute and herein, under the National Highways Act, 1956 4 no such power has been conferred upon the authority, particularly the authority who is exercising the power conferred under Section 3G(5) to exercise the power of review and therefore, it is incorrect on the part of the learned counsel appearing for the State to take the ground of disposal of the review in absence of any statutory power available in this regard. 7. This Court has heard the learned counsel for the parties and perused the material available on record as also the impugned order passed by the Arbitrator in exercise of power conferred under Section 3G(5) of the National Highways Act, 1956. 8. This Court in order to appreciate the argument advanced on behalf of the parties, deems it fit and proper to first refer the certain legal provision which has got bearing for just and proper consideration of the lis. Section 3(G) provides the determination of amount payable as compensation and the same can be invoked in a case where any land has been acquired and for the purpose of making payment of compensation amount which is to be determined by the competent authority, for ready reference, Section 3G is being referred as under:- “3-G. Determination of amount payable as compensation.- (1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority. (2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person 5 whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent of the amount determined under sub-section (1), for that land. (3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired. (4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3-C, before the competent authority, at a time and place and to state the nature of their respective interest in such land. (5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government. (6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act. (7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration- (a) the market value of the land on the date of publication of the notification under section 3-A; 6 (b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land; (c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings; (d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental of such change.” The “competent authority” has been defined under Section 3(a) which means any person or authority authorized by the Central Government, by notification in the Official Gazette, to perform the functions of the competent authority for such area as may be specified in the notification. The competent authority has been notified by the appropriate government so as to exercise the power of determination of amount of compensation, i.e., District Land Acquisition Officer. Section 3G(5) provides that if the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government. Sub-Section (6) provides that subject to the provisions of this Act, the provisions of Arbitration and Conciliation Act, 1996 shall apply to every arbitration under this Act. 7 Here in the given facts of the case, the land of the writ petitioner has been acquired by the National Highway Authority for the purpose of construction of highways, i.e., for expansion/widening of NH-2 (Barwadda-Aurangabad Section). The compensation amount was paid in view of the provision of Section 3G(1) and (2) but the writ petitioner being not satisfied with the quantum of amount, has made an application for its reference to the Arbitrator appointed, in view of the provision of Section 3G(5) of the Act, 1956. The aforesaid application having not been referred, then writ petition being W.P.(C) No.4325 of 2018 has been filed and the coordinate Bench of this Court has passed the order while disposing of the writ petition granting liberty to the writ petitioner to file fresh application under Section 3G(5) of the Act, 1956 before the respondent no.4 who in turn was directed to refer the matter for determination of the objection of the petitioner by the Arbitrator in terms of Section 3G(5) of the Act, 1956, for ready reference, paragraph-3 of the order dated 18.09.2018 passed in W.P.(C) No.4325 of 2018 is being referred as under:- “Having heard the learned counsel for the parties and considering the limited grievance of the petitioner, this writ petition is disposed of giving liberty to the petitioner to file a fresh application under Section 3G(5) of the Act, 1956 before the respondent no.4.On receipt of the said application, the respondent no.4 shall refer the matter for determination of the objection of the petitioner by the Arbitrator in terms 8 with Section 3G(5) of the Act, 1956 within a period of four weeks from the date of receipt of the application.” The writ petitioner in the light of the aforesaid liberty has made application before the respondent no.4 and thereafter, the matter was referred before the Arbitrator for the purpose of determination of the amount in view of the provision of Section 3G(5) of the Act, 1956. The proceeding commenced and the parties have been called upon, but as would appear from the order dated 11.02.2020, the impugned order that the Additional Collector-cum-Arbitrator, Dhanbad has come to conclusion after going through the relevant records and after hearing the parties that a further inquiry is necessary in this regard and hence, the direction has been given to the District Land Acquisition Officer, Dhanbad and the National Highway Authority to again inquire into the rate of the land and the standing structure there over and ensure that if the further amount found to be payable, the same may be ensured to be paid in favour of the parties, which order is under challenged in this writ petition. The provision of Section 3G(5) confers power upon the Arbitrator to determine the amount of compensation if the displaced person is not satisfied with determination of amount in view of the provision of Section 3G(1) and (2) of the Act, 1956. The “Reference” means that once the competent authority has referred the matter for determination of the amount before the authority who has been conferred the power to Act as an Arbitrator then it is the bounded duty to determine by appreciating the evidences and the factual aspect placed before it. 9 There is no provision under the Act, 1956 conferring power upon the Arbitrator to again relegate the matter before the authority who has already assess the quantum of compensation in the light of provision of Section 3G(1) and (2) of the Act, 1956, meaning thereby, that once the matter has been referred before the Arbitrator, the Arbitrator in his statutory duty, is to determine the amount. But herein, the Arbitrator instead of making determination of amount in exercise of power conferred under Section 3G(5) even though after coming to the conclusion that further inquiry is necessary, has directed the authority who has assess the amount under the provision of Section 3G(1) and (2), i.e., the District Land Acquisition Officer, Dhanbad, the original authority and the National Highway Authority to re-inquire the matter and if the amount found to be payable after re-assessment, the same be paid. 9. The question herein is that the Arbitrator when conferred with the power under Section 3G(5), he is to determine the amount either way, that is by enhancing the amount or by not passing an award by holding that it is not a fit case where the amount so assessed and paid require any enhancement. But in no case, he can say by relegating the matter before the authority from whose quantum of compensation, the matter was referred for its determination by the Arbitrator in exercise of power conferred under Section 3G(5) of the Act, 1956. 10. Learned State Counsel has raised an objection that review petition has been filed and as such, the writ petitioner may be directed to pursue the said review. 10 But the said argument, according to the considered view of this Court, is not sustainable in the eye of law due to the simple reason that power of review can only be exercised if conferred under the statute. 11. Learned counsel appearing for the State has failed to refer any provision where the power of review is to be exercised, therefore, the said contention of pursuing the review is hereby, rejected. 12. The law is well settled that power of review can only be exercised if it is provided under the statute, but, the Act does not contain any power of review, hence, the objection taken to the effect that the review is pending, as such, the same may be directed to be decided, is having no substance in view of the fact that the authority cannot review its order since there is no provision to that effect under the statute. 13. This Court, in the entirety of the facts and circumstances as per the discussion made hereinabove is of the view that the impugned order dated 11.02.2020 passed by the respondent no.3 in Arbitration Case No.39 of 2019, requires interference in exercise of power conferred under Article 226 of the Constitution of India by issuance of Writ of Certiorari, for the reason that, the Arbitrator has failed to discharge his statutory duty and it is the settled position of law that the Writ of Certiorari can well be issued if the statutory authority has failed to discharge is duty. 14. Considering the same, the impugned order dated 11.02.2020 passed by the respondent no.3 in Arbitration Case No.39 of 2019, is hereby quashed and set aside. 15. In the result, the matter is remitted before the Arbitrator to exercise the power under Section 3G(5) of the National Highways Act, 11 1956 by determining the amount of compensation, in accordance with law, preferably within the period of six months. 16. Accordingly, the instant writ petition is allowed and disposed of. Rohit/-N.A.F.R. (Sujit Narayan Prasad, J.)