IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1540 of 2013
Sangeeta Agrawal
....Petitioner
Versus
The Union of India & others
… Respondents
-------Coram:
THE HON’BLE MR JUSTICE P.P. BHATT
-------For the Petitioner
: Mr. V. Shivnath, Amicus Curiae.
M/s. Ayush Aditya & Shashank Shekhar, Advocates
For the Union of India: Mr. Prabhash Kumar, Advocate
For the State of Jharkhand: Mr. Md. Shamim Akhtar, S.C. (Mines)
For the NHAI
: Ms. Sweety Topno, Advocate
------
/17.6.2013:
Petitioner, by way of filing the present writ petition, under Article
226 of the Constitution of India, has prayed for issuance of an appropriate
writ/ order/ direction for quashing and setting aside the order dated 9.2.2013
(Annexure-4) whereby the competent authority has rejected the claim of the
petitioner.
2.
Heard the learned counsel for the petitioner as well as
respondents and perused the materials placed on record.
3.
Learned counsel for the petitioner, while referring the impugned
order, pointed out that the competent authority has failed to appreciate the
case and has passed order under Section 3H (4) of the National Highways
Act, 1956. Learned counsel for the petitioner has also referred to Section 30
of the Land Acquisition Act, 1894 so as to give comparative picture of the
provisions contained in the aforesaid two Acts. Learned counsel for the
petitioner, in support of his submission, has also referred to and relied upon
the decision rendered by the Hon'ble Apex Court in the case of Sharda Devi
versus State of Bihar and another, reported in (2003) 3 Supreme Court
Cases 128 and another decision given by Hon'ble Madras High Court in the
case of Padmavathi versus National Highways Authority of India in Writ
Petition No. 25649 of 2006 and submitted that duty has been cast upon the
competent authority to refer the dispute under Section Section 3H (4) of the
National Highways Act, 1956.
Learned counsel for the petitioner, while
referring the reply to the counter-affidavit filed by the respondents and while
referring various documents annexed to the said reply and more particularly
Annexure-9, pointed out that the mutation entires were made by the Circle
Officer who enquired and found that the land in question stands in the name
of the petitioner in the revenue record. It is submitted that ignoring the said
aspect of the matter, the impugned order is passed by the competent
authority and thereby rejected the lawful claim of the petitioner. It is
submitted that the competent authority instead of deciding the matter, made
certain observations, which goes against the present petitioner.
4.
As against that, learned counsel for the respondent- State
Government, while referring the counter-affidavit filed by the respondentState Government, tried to justify the order passed by the competent
authority and submitted that there is no dispute about the contention raised
by the learned counsel for the petitioner that the dispute is required to be
decided by the competent civil court, but the competent authority is not
having any legal obligation to refer the same to the competent civil court, in
view of Section 3H (4) of the National Highways Act, 1956.
5.
Learned counsel appearing for the National Highway Authority of
India has also, while referring the counter-affidavit filed by the National High
way Authority of India, tried to justify the order passed by the competent
authority and submitted that there is no merit in the present writ petition and
therefore, the competent authority cannot be asked to refer the dispute to the
competent civil court. If the petitioner wants to establish right, title and
interest in respect of land under acquisition, petitioner has to prove his case
before the competent civil court and for this purpose, petitioner is required to
approach the competent civil court.
6.
Learned counsel appearing for the Union of India has also
adopted the arguments advanced by the learned counsel for the State
Government as well as National Highway Authority of India and tried to justify
the order passed by the competent authority.
7.
Learned senior counsel, Mr. V. Shivnath, requested that he may
be allowed to intervene as Amicus Curiae in this matter and submitted that
since the question of law is under consideration before the court,
unreasonable stand is taken by the respondents. The learned senior counsel
also appreciated efforts made by the junior counsel Mr. Ayush Aditya in
preparing and arguing this case. However, he being senior counsel, would
like to render proper assistance to this Court as according to him, it is the
duty of the senior counsel to assist the Court in such eventuality. This Court
appreciate the gesture shown by the learned senior counsel Mr. V. Shivnath.
8.
Core question, which is required to be decided in the present
case, is as to whether the competent authority under the National Highways
Act, 1956 can decide title over the property. Whether the impugned order has
been passed without jurisdiction and without any authority of law. Provisions
as contained in Section 3H of the Act comes into play after determination of
compensation. Section 3H of the National Highways Act, 1956 reads as
under:
“3-H. Deposit and payment of amount.—(1) The amount determined
under Section 3-G shall be deposited by the Central Government in such
manner as may be laid down by rules made in this behalf by that
Government, with the competent authority before taking possession of the
land.
(2) As soon as may be after the amount has been deposited under subsection (1), the competent authority shall on behalf of the Central
Government pay the amount to the person or persons entitled thereto.
(3) Where several persons claim to be interested in the amount
deposited under sub-section (1), the competent authority shall determine
the persons who in its opinion are entitled to receive the amount payable
to each of them.
(4) If any dispute arises as to the apportionment of the amount or any
part thereof or to any person to whom the same or any part thereof is
payable, the competent authority shall refer the dispute to the decision of
the principal civil court of original jurisdiction within the limits of whose
jurisdiction the land is situated.
(5) Where the amount determined under Section 3-G by the arbitrator
is in excess of the amount determined by the competent authority, the
arbitrator may award interest at nine per cent. per annum on such excess
amount from the date of taking possession under Section 3-D till the date
of the actual deposit thereof.
(6) Where the amount determined by the arbitrator is in excess of the
amount determined by the competent authority, the excess amount
together with interest, if any, awarded under sub-section (5) shall be
deposited by the Central Government in such manner as may be laid
down by rules made in this behalf by that Government, with the
competent authority and the provisions of sub-sections (2) to (4) shall
apply to such deposit.”
9.
There is a similar provision in Section 30 of the Land Acquisition
Act, 1894, which provides as under:
“30. Dispute as to apportionment- When the amount of
compensation has been settled under section 11, if any dispute arises as to
the apportionment of the same or any part thereof, or as to the persons to
whom the same or any part thereof, is payable, the Collector may refer
such dispute to the decision of the Court.”
10.
From perusal of the aforesaid provision, it appears that in a
similar provision contained in L.A. Act the word “may” is used, whereas in
Section 3 H(4) word “shall” is used.
11.
Now in view of the aforesaid provisions, facts of the present case
is required to be analyzed.
In view of the order passed by the competent authority dated
9.2.2013 (Annexure-4), it transpires that competent authority has gone into
the enquiry regarding title belonging to the land in question and has
expressed opinion about the title of the land in question, which is not
permissible in view of Section 3H as referred above, as the said task is
required to be undertaken by the competent principal civil court of original
jurisdiction within the limits of whose jurisdiction the land is situated and in
view of the decision rendered by the Hon'ble Apex Court in the case of
Sharda Devi versus State of Bihar and another, reported in (2003) 3
Supreme Court Cases 128, as referred by the learned counsel for the
petitioner. In para- 36 & 37 of the said judgment, the Hon'ble Apex Court held
as under:
“36. To sum up, the State is not a “person interested” as defined in
Section 3(b) of the Act. It is not a party to the proceedings before the
Collector in the sense, which the expression “parties to the litigation”
carries. The Collector holds the proceedings and makes an award as a
representative of the State Government. Land or an interest in land preowned by the State cannot be the subject-matter of acquisition by the
State. The question of deciding the ownership of the State or holding of
any interest by the State Government in proceedings before the Collector
cannot arise in the proceedings before the Collector [as defined in Section
3(c) of the Act]. If it was government land there was no question of
initiating the proceedings for acquisition at all. The Government would
not acquire the land, which already vests in it. A dispute as to the preexisting right or interest of the State Government in the property sought to
be acquired is not a dispute capable of being adjudicated upon or referred
to the civil court for determination either under Section 18 or Section 30
of the Act. The reference made by the Collector to the court was wholly
without jurisdiction and the civil court ought to have refused to entertain
the reference and ought to have rejected the same. All the proceedings
under Section 30 of the Act beginning from the reference and
adjudication thereon by the civil court suffer from lack of inherent
jurisdiction and are therefore a nullity liable to be declared so.
37. However, we would like to clarify our decision by sounding
two notes of caution. Firstly, the quashing of the proceedings under
Section 30 of the Land Acquisition Act would not debar the State from
pursuing such other legal remedy before such other forum as may be
available to the State Government and on the merits and the
maintainability thereof we express no opinion herein. Secondly, the
situation in law would have been entirely different if the title of the
appellant would have come to an end by any event happening or change
taking place after the making of the award by the Collector as was the
case in Dr G.H. Grant v. State of Bihar. The title of Dr Ghosh had come
to an end by change of law referable to a date subsequent to the making
of the award. In this context it was held “there is no reason why the right
to claim a reference of a dispute about the person entitled to
compensation may not be exercised by the person on whom the title has
devolved since the date of the award” (SCR p. 585 G) and “there is
nothing in Section 30 which excludes a reference to the court of a dispute
raised by a person on whom the title of the owner of land has, since the
award, devolved” (SCR p. 586 A).”
12.
Another decision given by Hon'ble Madras High Court in the
case of Padmavathi versus National Highways Authority of India in Writ
Petition No. 25649 of 2006 also appears to be relevant for the purpose of
deciding the present case. Relevant abstractions of the said judgment as
incorporated in para-19 &20 are reproduced as under:
“19. Under the above circumstances, I am of the considered view that the
parties, in whose favour an Award was passed on 18.3.2006, should not
be made to suffer, especially when the Competent Authority failed to
refer the matter to the Court under Section 3-H(4) of the Act. If the
Competent Authority had referred the dispute under Section 3-H(4), the
parties would have at least got appropriate directions for depositing the
money into a Bank account and got a nominal rate of interest from
18.3.2006. Now a period of more than 11 months have passed from the
date of determination of the compensation amount and the first
respondent has taken a stand in paragraphs-11 and 13 of the counteraffidavit that there is actually no need for the Competent Authority to
refer the matter to the Civil Court. Therefore, I am of the considered view
that the Competent Authority should be directed to deposit the
compensation amount together with simple interest at 6% p.a. from
18.3.2006 till the date of deposit and also refer the dispute under Section
3-H(4) of the Act.
20. Accordingly, this writ petition is disposed of with the following
directions:
(a) The Competent Authority shall, within four weeks of receipt or
production of a copy of this order, deposit in any Nationalised Bank, the
amount of compensation as determined by him by the Award dated
18.3.2006 in respect of the property over which the petitioner claims title,
together with interest at 6% p.a. from 18.3.2006 till the date of deposit.
(b) The Competent Authority shall, within four weeks of receipt or
production of a copy of this order, make a reference under Section 3-H(4)
of the National Highways Act, 1956, to the Principal Civil Court of
Original Jurisdiction within the limits of whose jurisdiction, the land is
situate. (c) It is open to the petitioner as well as her rival claimants to get
appropriate orders from time to time, from the Court to which the dispute
is referred, for renewing the deposit made under Clause (a) above during
the pendency of the dispute and for payment out after the dispute is
adjudicated one way or the other.”
13.
In the light of above referred provisions as contained in Section
3H (4) of the National Highways Act, 1956 as also above referred two
decisions, this Court is of the view that the statutory obligation and duty is
cast upon the competent authority under the Act itself to refer such dispute to
the competent civil court. In the light of facts and circumstances of the
present case, the impugned order deserves to be quashed and set aside.
Accordingly, the impugned order is ordered to be quashed and set aside and
the competent authority is directed to take further appropriate steps for
referring the dispute to the competent civil court having jurisdiction.
14.
With the aforesaid observation and direction, this writ petition
stands disposed of.
.
(P.P. Bhatt, J.)
S.B.