WRIT PETITION NO. 1883 OF 2018

8th November 2019

Petitioner Counsel: Mr. V. D. Sapkal Mr. N. E. Deshmukh
Respondent Counsel: Mr. P. S. Patil Mr. S. B. Deshpande Ms. Sudha Kulthe M/s. M. V. Kini and Co. Mr. D. S. Manorkar
Act Name: Code of Civil Procedure, 1908 Right to Fair Compensation and Transparency in Land Acqusition, Rehabilitation and Resettlement Act, 2013 Constitution of India, 1950

HeadLine : Land acquisition - Modification of award – Jurisdiction of SDO, Land Acquisition - Scope
Land acquisition - Reduction of compensation – Inapplicability of provision of New Land Acquisition Act, 2013

Section :
Section 152 Code of Civil Procedure, 1908 Section 26 Right to Fair Compensation and Transparency in Land Acqusition, Rehabilitation and Resettlement Act, 2013 Section 33 Right to Fair Compensation and Transparency in Land Acqusition, Rehabilitation and Resettlement Act, 2013

Cases Cited :
Paras 12, 18: Umesh Board Paper Mills Pvt. Ltd. Vs. The Union of India and others,

JUDGEMENT

S. V. Gangapurwala, J.

1. Rule. Rule made returnable forthwith. With the consent of learned counsel for respective parties, matters are taken up for final hearing.

2. The petitioners challenge the second award passed by respondent no.3 / competent authority and Sub Divisional Officer, Land Acquisition.

3. All these writ petitions are based on similar set of facts and involve common question of law. To avoid rigmarole are decided by the common judgment.

4. In all these petitions, the petitioners are challenging the second award passed by the competent authority and Sub Divisional Officer, Land Acquisition. For the sake of convenience the facts are taken from Writ Petition No. 1883 of 2018.

5. Initially, the first award was passed U/Sec. 3(G) of the National Highways Act, 1956 on or about 05.07.2017 and subsequently, the second award modifying / substitutting the first award is passed on 01.08.2017.

6. Mr. Sapkal, learned counsel for the petitioners strenuously contends that respondent no. 3 / competent authority and Sub Divisional Officer, Land Acqusition has no jurisdiction and authority to pass subsequent award by modifying the first award. The provisions of the National Highways Act, 1956 do not permit the competent authority to pass subsequent award after the first award is passed. First award is passed U/Sec. 3(G) of the National Highways Act, 1956 and the same is approved by the respondents. Subsequently, the competent authority does not have the jurisdiction to pass the subsequent award ruducing the compensation amount. Initially, as per the first award the compensation was granted at Rs.600/- per Sq.Mtrs. The same is reduced to Rs.47.20 per Sq.Mtrs. The learned counsel further submits that reference to Section 33 of the Right to Fair Compensation and Transparency in Land Acqusition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to Act-2013) cannot be resorted to by the respondents. The provisions of Section 33 of the Act-2013 are inapplicable. The provisions relating to the determination of compensation under the Act-2013 are only made applicable to the acquisitions under the National Highways Act, 1956.

7. The learned counsel on factual matrix submits that to others the compensation has been granted at Rs.600 per Sq.Mtrs. and it is only in respect of the petitioners the compensation has been reduced, though the acquisition is for the same project and same purpose and the lands are also situated adjacent to each other.

8. Mr. Deshpande, learned Assistant Solicitor General for respondent no. 3 submits that the second award was passed U/Sec.33 of the Act-2013. The lands acquired are not adjacent to the National Highway. The acquired lands are acquired first time for bypass National Highway. The rates of such lands which are acquired first time for National Highway bypass are different and cannot be similarly recommended. The preliminary award dated 05.07.2017 was passed. The mistake was committed in valuing the present writ lands. These lands are not adjacent to the Highways or near the highways. After realising this mistake and error, it was necessary to revise the proposal and accordingly the proposal is revised as per the available record. If the petitioners are aggrieved by the quantum of compensation determined by respondent no. 3, then the petitioners have an alternate remedy U/Sec.3, 7(g)(5) of the National Highways Act, 1956 by approaching the Arbitrator.

9. The learned Assistant Solicitor General further submits that as there was an error and miscalculation, therefore revised award was again submitted for sanction and approval. The explanation and reasons were given for revision of the award giving the details how the rates and valuation are changed.

10. The learned Assistant Solicitor General further submits that it is a matter of a public exchequer. In view of that, this Court may not entertain the petitions under Article 226 of the Constitution of India.

11. The learned Assistant Solicitor General further submits that while computing the compensation and reading the provisions of the Act-2013 harmoniously it is abundantly clear that Section 33 of the Act-2013 is made applicable and respondent no. 3 / competent authority has all the powers U/Sec. 33 of the Act-2013. Provisions of Section 26 and 33 of the Act-2013 will have to be read harmoniously. The similar provisions are U/Sec. 152 of the Code of Civil Procedure and U/Sec. 13-A of the Land Acquisition Act, 1894. The provision U/Sec.13A of the Land Acqusition Act, 1894 is pari materia with Section 33 of the Act-2013. The principle made applicable to Section 152 of the Code of Civil Procedure is also made applicable to the National Highways Act, 1956 and Act-2013. The power to declare compensation implicitly and impliedly bestows upon the concerned authority the power to correct the errors so that they represent the correct state of affairs and as such the arithmatic and clerical mistakes can be corrected.

12. The learned Assistatn Solicitor General relies on the judgemnt of the Division Bench of this Court in case of Umesh Board Paper Mills Pvt. Ltd. Vs. The Union of India and others dated 16.03.2018 and submits that the correction can be made U/Sec. 33 of the Act-2013 to the awards passed under the National Highways Act, 1956.

13. The learned Additional Government Pleader also echos the argument advanced by the learned Assistant Solicitor General.

14. Mr. Manorkar, learned counsel for respondent no. 4 submits that as per Ordinance dated 03.04.2015, the provisions of the Act-2013 to the extent of determination of compensation are made applicable. The same are dealt with from Section 26 to 30 and Shedule I, II, III and IV of the Act-2013. The amount of compensation determined by respondent no. 3 was accepted by respondent no. 4 and the amount was also deposited for disbursement.

15. The first award dated 05.07.2017 is placed on record. The same is a final award. The award is in a regional language. The first page of the award reads as under-
राष्ट्रीय महामार्ग अधिनियम - १९५६ (४८ चा १९५६) च्या कलम ३ .... अन्वये नुकसान भरपाई रकमेचा
भूंसपादन अंतिम निवाड़ा
मौजे : रेलनावड़ी ता. कन्नड़ जि. औरंगाबाद
प्रयोजन - राष्ट्रीय महामार्ग क्र. २११ चे चोपदरी/सहपदरी रास्ता
धुले औरंगाबाद सिमासेक्शन
(कि. मी. ३२८-६०० ते ३७९-७६० कि. मी.)
औरंगाबाद जिल्हा
भूंसपादन प्रस्ताव क्र. एआर-११/२०१६, मौजे. रेलनावड़ी
ता. कन्नड़ जि. औरंगाबाद
Even the competent authority has observed that he is passing final award. The operative part of the award reads thus-
वरील सर्व परिस्थितिचा साकल्याने विचार करून भूंसपादन प्रस्ताव क्रमांक ११/२०१६ मध्ये मी सक्षम प्राधिकारी (भूंसपादन) राष्ट्रीय महामार्ग क्र. २११ तथा उपविभागीय अधिकारी कन्नड़ भाग कन्नड़ याद्वारे जाहिर करते की
अंतिमनिवाड़ा
मी सक्षम प्राधिकारी (भूंसपादन) राष्ट्रीय महामार्ग क्र. २११ तथा उपविभागीय अधिकारी कन्नड़ भाग कन्नड़ याद्वारे जाहिर करते की
१) मौजे : रेलनावड़ी ता. कन्नड़ जि. औरंगाबाद येथील राष्ट्रीय महामार्ग क्र. २११ चोपदरीकरणासाठी संपादन केलेले क्षेत्र ७.१८ हे. आर. आहे.
२) हितसंबंधीताना अदा करावयाची एकूणं रक्कम रु. १२, ४५, ३२, ४५० /- एवढी निव्वळ देय राहील.
३) आस्थापना खर्च रु. ३७, ३५, ९८६ /- एवढी रक्कम चलनाने शासकीय कोषगारात जमा करावी.
४) कार्यालयीन खर्चासाठीची रक्कम रु. ३७, ३५, ९८६ /- ही आकाराण्यात येत आहे.
५) प्रस्तावित शेत जमिनीत सरकारी जमिनीचा समावेश आहे.
ठिकाण : कन्नड़ सक्षम प्राधिकारी (भूंसपादन) रा. म. क्र. २११
दिनांक : ०४/ ०७/ २०१७ तथा उपविभागीय अधिकारी कन्नड़
The Deputy Manager of the National Highway Authority of India communicated to the Project Director (respondent no. 4) under letter dated 27.07.2017 and granted approval for payment of compensation to the land owners based on the award declared. It appears that, thereafter, second award came to be passed on or about 01.08.2017, reducing the compensation amount for the same lands for which the earlier award was passed. The second award does not make reference to the first award passed. The second award was passed on the premise as if no award was earlier passed. The same is against the record. The record shows that the final award was passed, though in one of the affidavit respondent no. 3 refers to the award dated 04/05.07.2017 as the preliminary award, still in the additional affidavit filed by respondent no. 3 in paragraph no. 5 he avers that reasons were given for revision of award giving details how the rates and valuation changed. If first award is only a preliminary award then there is no necessity to pass the fresh award. The first award dated 04.07.2017 clearly suggest that it is a final award.

16. The acquisition is under the National Highways Act, 1956. The award is purportedly passed U/Sec. 3(G) of the National Highways Act, 1956. The provisions to the extent of determination of compensation embodied under the Act-2013 are only made applicable to the awards passed under the National Highways Act, 1956 since 01.01.2015. The Notification does not specifically say that the provisions of Section 33 of the Act-2013 shall also be made applicable to the awards passed under the National Highways Act, 1956.

17. We cannot import the provisions of the Act-2013 to the acquisitions under the National Highways Act, 1956 unless they are specifically made applicable. No notification is placed on record to suggest that Section 33 of the Act-2013 is made applicable to the acquisitions under the National Highways Act, 1956.

18. The reliance placed on the judgment in case of Umesh Board Paper Mills Pvt. Ltd. Vs. The Union of India and others (supra) would not be of any assistance to the respondent. In the said case, we had observed that the National Highways Act, 1956 does not contain any provision which permits correction of the award. Section 33 of the Act-2013 permits correction of the award and only clerical and arithmatic correction in the award are permissible. In the said judgment to which one of us (S. V. Gangapurwala, J.) was a party has never held that Section 33 of the Act-2013 is applicable for the acquisitions under the National Highways Act, 1956. The same was only referred to.

19. Much emphasis was laid by the learned Assistant Solicitor General that the public amount is involved and if this Court entertains the petitions it will amount to loss of public money.

20. It is trite that if any statute requires a particular thing to be done in a particular manner it has to be done in that manner only otherwise not to be done at all. Respondent no. 3, while preparing the second award has not only corrected the first award but has passed a different award altogether. It was also not a case of clerical or arithmatical corrections but the market value has been reduced by respondent no. 3 while passing the second award. Respondent no. 3 assumed the authority not vested with him.

21. One thing that needs to be considered is that the award passed by respondent no. 3 can be challenged before the Arbitrator by any party, even by the acquiring body. But under the Act-2013 that right is not given to the acquiring body or the State. That is the marked difference in both the statutes. In view of that, if there is some mistake committed in the award, the acquiring body or any such person has a right to challenge the said award and probably for the said reasons the provision for correction of award is not incorporated under the National Highways Act, 1956.

22. The second award passed by the authority was without any statutory base, the same cannot be sustained.

23. In normal course, we would certainly not have entertained the petitions and would have relegated the petitioners to the remedy availabe under the provisions of the National Highways Act, 1956. However, in the present matter, after the final award was passed respondent no. 3 ventured to pass the second award in respect of the same lands and reduced the valuation of the lands and that too after respondent no. 4 had accepted the final award and also deposited the amount of compensation. No material is placed on record to suggest as to what prevailed upon respondent no. 3 to reduce the valuation and pass second award after the final award was passed. The act of respondent no. 3 in passing the second award without the first award being rescinded is arbitrary, illegal and does not stand to reason.

24. In view of the above, the second award stands quashed and set aside.

25. Rule is made absolute in terms of prayer clasue “A”.

26. Writ Petitions stand disposed of accordingly. No costs.

Decision : Order accordingly