Writ Petition No.5946 of 2018

6th March, 2019.

Petitioner Counsel: Mr. A.B. NAKSHANE
Respondent Counsel: Mrs. M.P. MUNSHI, Mr. A.A. KATHANE, Ms. KALIA

Cases Cited:
T. Yunis s/o Hazi T. Ameer Sab Vs. National Highways Authority and others, W.A. Nos.31066, 31994-96/2012 (Gm-Res) (Kar.) [Para 4,6,9]
P.S. Moorthy, etc Vs. District Collector and another, 2016 (160) AIC 820 [Para 4,6]
Indian Farmers Fertilizer Cooperative Limited Vs. Bhadra Products, 2018 ALL SCR 1105=(2018) 2 SCC 534 [Para 5,8]

JUDGMENT

JUDGMENT :- Rule. Rule returnable forthwith. Heard finally with the consent of learned Counsel for all the parties.

2. By this Writ Petition, the petitioner (original land owner) has challenged order dated 29032017, passed by the ArbitratorAdditional Commissioner, on an application filed by the petitioner under Section 3G(5) of the National Highways Act, 1956 (for short, 'Act of 1956'). It has been held by the Arbitrator, that the said application moved by the petitioner on the ground that the quantum of compensation determined by the respondent no.3 Competent Authority was not acceptable and appropriate amount of compensation was required to be awarded by the Arbitrator, was barred by limitation.

3. The respondent no.3 Competent Authority passed its award, determining the quantum of compensation payable to the petitioner in respect of land of the petitioner acquired under the provisions of the Act of 1956. The said award was passed on 28-09-2015. The petitioner was dissatisfied with the quantum of compensation and therefore, on 21-07-2016, he moved an application under Section 3G(5) of the Act of 1956, before the Arbitrator claiming that the quantum of compensation determined by the respondent no.3 Competent Authority was not acceptable and appropriate amount of compensation was required to be awarded by the Arbitrator. By the impugned order, the Arbitrator, as noted above, has rejected the application on the ground that the petitioner failed to explain delay in approaching the Arbitrator under Section 3G(5) of the Act of 1956, and that the application for condonation of delay filed by the petitioner deserved to be dismissed. Aggrieved by the same, the petitioner has filed the present Writ Petition.

4. Mr. A.B. Nakshane, learned Counsel appearing for the petitioner, submitted that a perusal of Section 3G(5) of the Act of 1956, would show that there is no specific period of limitation prescribed in the said provision for approaching the Arbitrator. It is also pointed out that Section 3J of the Act of 1956, provides that the provisions of the Land Acquisition Act, 1894, are not applicable to the acquisitions made under the aforesaid Act. On this basis, it is submitted that when no specific period of limitation is prescribed under Section 3G(5) of the Act of 1956, Article 137 of the Limitation Act, 1963 (for short, Act of 1963') would apply and an application filed under Section 3G(5) of the Act of 1956, would be maintainable if it is filed within the aforesaid period of three years from the date when the respondent no.3-Competent Authority passed its award determining the quantum of compensation payable to the petitioner. It was pointed out that the said award was passed by respondent no.3 Competent Authority on 28-09-2015 and the application under Section 3G(5) of the Act of 1956, was preferred again by the petitioner on 21-07-2016, before the Arbitrator and that therefore, it was within the period of limitation of three years. On this basis, it was contended that the impugned order was not sustainable and that it was required to be quashed and set aside so that the arbitration proceedings as envisaged under the provisions of the Act of 1956, for enhancement of compensation could be undertaken. The learned Counsel has placed reliance on the judgments of the Karnataka High Court in the case of T Yunis s/o Hazi T. Ameer Sab vs National Highways Authority and others (W.A. No.31066/2012 and 31994-96/ 2012 (Gm-Res) and Madras High Court in the case of P.S. Moorthy, etc vs District Collector and another, reported at 2016(160) AIC 820.

5. On the other hand, Mr. A.A. Kathane, learned Counsel appearing for the respondent no.2, submitted that a perusal of the impugned order shows that sufficient opportunity was given to the petitioner by the Arbitrator to make submissions and to pursue the application filed by him under Section 3G(5) of the Act of 1956 and since no effort was made on behalf of the petitioner, the application for condonation of delay was taken up for consideration and it stood rejected. It was submitted that since the provisions of the Arbitration and Conciliation Act, 1996 (for short, 'Act of 1996') would apply in full force to the proceeding before the Arbitrator, the learned Counsel referred to Sections 23 and 25 of the Act of 1963, to contend that the petitioner was expected to make statement of claim and to pursue the same, in failure of which the proceeding stood terminated by default on the part of the petitioner. Reference was also made to Section 32 of the Act of 1996, particularly subsection (2)(c) thereof, to contend that due to failure on the part of the petitioner to pursue his application, the Arbitrator had found it impossible to continue the proceedings and that the proceedings stood terminated. On this basis, it was contended that the petitioner ought to have filed an application under Section 34 of the Act of 1996 and that the present Writ Petition was not maintainable. Reliance was placed by the learned Counsel for the respondent no.2 on the judgment of the Hon'ble Supreme Court in the case of Indian Farmers Fertilizer Cooperative Limited vs Bhadra Products, reported at (2018) 2 SCC 534 : [2018 ALL SCR 1105], in support of the aforesaid contention.

6. Heard Counsel for the parties and perused the record. The grievance raised on behalf of the petitioner is, that although he was dissatisfied with the quantum of compensation determined by the respondent no.3 Competent Authority in its award dated 28-09-2015, due to the approach adopted by the Arbitrator and passing of the impugned order, he has been deprived of his valuable right to raise grievance in respect of determination of just and fair quantum of compensation. The principal contention raised on behalf of the petitioner is, that in the absence of an express period of limitation prescribed in Section 3G(5) of the Act of 1956, the period of limitation of three years ought to be applied as per Article 137 of the Act of 1963. A perusal of the aforesaid provision i.e. Section 3G(5) of the Act of 1956 shows that there is indeed no specific period of limitation prescribed therein. Although a proceeding under Section 3G(5) of the Act of 1956, is akin to the avenue of raising grievance that was available to the land owner under Section 18 of the erstwhile Land Acquisition Act 1894, whereas under Section 18 of the said Act a specific period of limitation was provided, there appears to be no such specific period of limitation under Section 3G(5) of the Act of 1956. Therefore, the contention raised on behalf of the petitioner relying upon Article 137 of the Act of 1963, prescribing period of limitation of three years appears to be reasonable and proper. The learned Counsel for respondent no.2 Authority could also not specify any provision in the Act of 1956 providing for a period of limitation for an application under Section 3G(5) of the Act of 1956. It is relevant that even in the impugned order, although the Arbitrator has come to a conclusion that the application filed by the petitioner under Section 3G(5) of the Act of 1956 was barred by limitation, because it was filed after ten months of the award passed by the respondent no.3 Competent Authority, there was no discussion or reference in the impugned order as to what would be the prescribed period of limitation for an application under Section 3G(5) of the Act of 1956. In these circumstances, the reliance placed on behalf of the petitioner on the judgment of the Karnataka High Court in the case of T Yunis s/o Hazi T. Ameer Sab vs National Highways Authority and others (supra) and Madras High Court in the case of P.S. Moorthy, etc vs District Collector and another (supra) is justified. The Karnataka High Court has taken into consideration the provisions of the Act of 1956, provisions of the Act of 1963 as also the provisions of the Act of 1996, to come to a conclusion that an application filed under Section 3G(5) of the Act of 1956, is governed by the limitation prescribed under Article 137 of the said Act of 1963. This Court agrees with the said position of law enunciated by the Karnataka High Court in the judgment cited supra. The Madras High Court in the case of P.S. Moorthy, etc vs District Collector and another (supra) has also proceeded on the basis that the limitation period of an application under Section 3G(5) of the Act of 1956 would be three years. In fact in the case of P.S. Moorthy, etc vs District Collector and another (supra) the Madras High Court held that application filed beyond the aforesaid period of three years could be entertained by condoning the delay, because the land owners had lost their valuable property and that they were certainly entitled to determination of just and fair compensation payable to them. The approach of the Karnataka High Court as well as the Madras High Court is in tune with the necessity of law to compensate the land owners whose lands are acquired, by giving them just and fair compensation.

7. As regards the contention raised on behalf of the respondent no.3 Authority on the basis of the provisions of the Act of 1996, this Court is of the opinion that only because in the initial part of the impugned order the Arbitrator had recorded that opportunities were granted to the petitioner to make his arguments and he had allegedly failed to take benefit of the same, that alone cannot be a factor to conclude that the proceedings before the Arbitrator had become impossible to be continued and they stood terminated in that context. The learned Counsel for the respondent no.2 has emphasized that even the petitioner in the Writ Petition has stated that there was existence of alternative remedy of filing an application under Section 34 of the Act of 1996 and that therefore, the present Writ Petition ought to be dismissed as not maintainable on the basis of existence of alternative remedy.

8. In the peculiar facts and circumstances of the present case, this Court refuses to take into consideration the question as to whether an alternative remedy in the form of application under Section 34 of the Act of 1996, is available to the petitioner. In any case, the existence of alternative remedy as a ground for not entertaining a Writ Petition is a self imposed restriction by the High Court and it is more a rule of policy and certainly not a rule of law. Therefore, it is settled law that even if alternative remedy exists, in peculiar facts and circumstances of a case the High Court can exercise writ jurisdiction. Therefore, in the present case, considering the fact that the land of the petitioner stood acquired in respect of which quantum of compensation stood determined and the petitioner was dissatisfied with the quantum of compensation and further when the statute itself provides an avenue for the petitioner to raise such grievance by making an application under Section 3G(5) of the Act of 1956, this Court finds that the present Writ Petition can certainly be entertained by examining the correctness or otherwise of the impugned order passed by the Arbitrator. Therefore, in this context, the judgment of the Hon'ble Supreme Court in the case of Indian Farmers Fertilizer Cooperative Limited vs Bhadra Products [2018 ALL SCR 1105] (supra) is of no assistance to the respondent no.2

9. Since this Court has agreed with the position of law enunciated by the Karnataka High Court in the case of T Yunis s/o Hazi T. Ameer Sab vs National Highways Authority and others (supra), it is held that the limitation period for an application under Section 3G(5) of the Act of 1956, shall be three years on the basis of Article 137 of the Act of 1963. Since, in the present case the application under Section 3G(5) of the Act of 1956 was filed on 21-07-2016 in respect of an Award passed by the respondent no.3 Competent Authority on 28-09-2015, and the said application was clearly within aforesaid period of limitation, it shows that the Arbitrator erred in rejecting the application filed on behalf of the petitioner solely on the ground that it was barred by limitation.

10. In the light of the above, the Writ Petition is allowed. The impugned order is quashed and set aside. The Arbitrator is directed to take up the application dated 21-07-2016, filed by the petitioner under Section 3G(5) of the Act of 1956 for being determined on merits.

11. Rule made absolute in above terms.

Petition allowed.