Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1183 (PAT)

Shital Prasad v. Collector of District

2012-08-27

KISHORE K.MANDAL

body2012
ORDER Land(s) of the two petitioners herein were acquired by the State Government for construction/widening of the N.H.57 under the provisions of the National Highways Act, 1956 (for short the ‘Act’) Petitioners were put on notice vide Annexure 1 series to accept the compensation amount as fixed under the award. The said notice was issued some time in February, 2008. It appears that part of the land(s) of the petitioners were treated as commercial, whereas part of them were not tread as such. Petitioners thereafter invoked the jurisdiction of the Authority under section 3G(5) of the Act and the matter was referred to the Arbitrator for fresh determination of the compensation. On a consideration of the matter, the Respondent-District Land Acquisition Officer-cum- Competent Authority, Madhubani passed orders in two matters bearing case no.32/10-11 and 36/10-11 whereby the remaining portion(s) of the land(s) of the petitioners were also treated as commercial and, accordingly, the arbitral award was directed to be paid in favour of the petitioners. In doing so, the benefits of solatium, however, was not granted on the ground that Bihar Settlement and Rehabilitation Policy,2007/Bihar Bhuarjan Punasthapan Niti, 2007 ( for short the ‘Policy/Niti’) would not be applicable to the case of the petitioners as the award(s) were prepared prior to coming into force of the aforesaid Policy/Niti with effect from 19.2.2007. Petitioners were continued to deny payment of arbitral award/money. Raising these twin grievances, the present writ application has been filed by the petitioners. 2. A counter affidavit on behalf of respondent nos. 5 and 6 and rejoinder thereto on behalf of the petitioners have been filed. 3. Learned counsel for the petitioners submits that from the documents placed at Anenxure-1 it would appear that the award was prepared after coming into effect of 2007 Policy/Niti. Learned counsel relying on the Resolution of the Government (Annexure-4), further submits that even prior to coming into operation of 2007 Policy/Niti the State-Respondents were obliged to pay the solatium @ 30% of the amount/value. It has also been contended that from Clause 5 of the Resolution of the Government (Annexure-4), it would appear that if the award has not been prepared on the date of coming into force of the policy (19.2.2007), the benefits/privileges enumerated under 2007 Policy would be payable to the persons who are affected by such acquisition(s). It has also been contended that from Clause 5 of the Resolution of the Government (Annexure-4), it would appear that if the award has not been prepared on the date of coming into force of the policy (19.2.2007), the benefits/privileges enumerated under 2007 Policy would be payable to the persons who are affected by such acquisition(s). It is, thus, contended that the respondent no.3 committed serious error in law by refusing solatium on the amount so determined under the impugned award. The respondents are, therefore, required to be mandated by this Court for payment of the award/value together with solatium and interest as per 2007 Policy/Niti. 4. Learned counsel for the Respondent-NHAI, on the other hand, submits that the Respondent-Arbitrator has exceeded its jurisdiction in granting relief in favour of the petitioners by changing the nature of land. He states that compensation amount so determined by the authority under the Act was paid to and received by the petitioners. Having received the amount they denied the delivery of possession of land in favour of the respondent. Learned counsel emphasized that the Respondent-Arbitrator acted beyond jurisdiction in changing the nature of land from residential to commercial. He argued that the award made by the Arbitrator is implementable through the process of the court as provided under section 36 of the Arbitration & Conciliation Act, 1996. Relying on the averments made in paragraph 15 of the counter affidavit, it is submitted that NHAI filed Misc. Case Nos. 46/11 and 45/11 before the learned District Judge, Madhubani for setting aside the award. Learned counsel informs the Court that those proceedings were, however, withdrawn and whereafter two miscellaneous proceedings vide Misc. Case No.15/12 (NHAI vs. Laxmi Devi) and 16/12(NHAI vs. Shital Prasad) have been filed before the Sub-ordinate Judge, Jhanjharpur which are pending consideration. 5. I have heard the parties at length and perused the materials on record. 6. The grievance of the petitioners is that the respondents have not paid them the amount as determined by the Arbitrator under the orders (Annexure-3 series). It is also the grievance of the petitioners that while determining the amount payable to the petitioners, the Respondent-Arbitrator in a cryptic manner denied the petitioners the privileges/benefits accruing to such persons under 2007 Policy in the matter of grant of solatium and interest. It is also the grievance of the petitioners that while determining the amount payable to the petitioners, the Respondent-Arbitrator in a cryptic manner denied the petitioners the privileges/benefits accruing to such persons under 2007 Policy in the matter of grant of solatium and interest. The petitioners take a stand that the award was prepared subsequent to the implementation of 2007 Policy and, as such, all the beneficial provisions contained therein would be applicable in the case(s) at hand. It is also the contention that in similarly placed cases the respondents have already granted the benefit of 2007 Policy but the same was refused in the case of the petitioners on an erroneous ground that the award was prepared prior to coming into force of the 2007 Policy. It is also the grievance that the respondents have not till date paid them the amount/compensation as determined by the Respondent-Arbitrator. 7. The respondents have taken a stand that the award can be implemented through the process of the court as provided under the Arbitration and Conciliation Act, 1996. It is also the stand of the respondents that the award was prepared prior to coming into effect of the 2007 Policy. The petitioners having received the amount as determined initially by the Authority under the provisions of the Act did not hand over the possession of the land(s) which would disentitle them from seeking any relief from this Court. It further manifests that the respondents aggrieved by the award (Anneuxre-3 series) passed by the Respondent-Arbitrator filed suits/miscellaneous proceedings challenging the correctness and legality thereof which are pending before the competent court in which correctness or otherwise of the award (Annexure-3 series) is to be decided by the court in presence of the parties. 8. In that view of the matter, this Court, without delving into the issue relating to the application of the provisions of the 2007 Policy in the case of the petitioners, would permit them to raise the same before the said court by way of counter claim. If any such counter claim is raised/filed before the court the same shall also be considered in accordance with law. 9. Another related grievance of the petitioners is that till date the respondents have not paid the amount as determined by the Respondent-Arbitrator under Anenxure-3 series. If any such counter claim is raised/filed before the court the same shall also be considered in accordance with law. 9. Another related grievance of the petitioners is that till date the respondents have not paid the amount as determined by the Respondent-Arbitrator under Anenxure-3 series. They take a stand that the suit was filed beyond time and no interim order has been obtained thereat and, as such, in all fairness, the respondents ought to have paid the entire amount as determined by the Arbitrator with conditions subject to decision of the Court. 10. Learned counsel for the respondent(s), on the other hand, submits that since the matter is before the court, the amount determined by the Arbitrator would be payable upon disposal of the suit. 11. Learned counsel for the State informs the court that the cheques as per the amount fixed under the impugned award have already been drawn and forwarded to the Respondent Project Director for his counter signature and on receipt thereof the same shall be paid to the petitioners with condition(s). Having considered the submissions of the parties and on going through relevant pleadings in this regard, this Court is persuaded to dispose of the present application by the following order:- Let the respondent nos. 5 and 6 take appropriate steps to obtain interim order/injunction in the pending suit/miscellaneous proceeding(s) within six weeks from today, failing which respondent nos. 5 and 6 shall clear payment of the entire amount as determined by the Arbitrator under the award (Annexure-3 series) within two weeks thereafter. Respondent no.4 shall thereafter immediately pay the same to the petitioners on furnishing adequate security/surety to his satisfaction. Such payment shall be subject to the final result of the suit/ miscellaneous proceeding(s) pending before the court.