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2016 DIGILAW 3191 (ALL)

NANAK CHAND v. UNION OF INDIA

2016-09-19

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

body2016
JUDGMENT By the Court.—Nanak Chand is before this Court assailing the order dated 22.9.2014 passed by the Competent Authority (Special Land Acquisition Officer), National Highways Tribunal, Mathura-respondent No. 3 and for direction to the respondent No. 3 to refer the dispute regarding apportionment of the amount of compensation to the District Judge, Mathura in terms of Section 3H (4) of the National Highways Act, 1956. 2. Record in question reflects that in the year 1979 Shri Tej Singh (father of the petitioner) purchased a part of Gata No. 41 situate in revenue village Chhata, District Mathura from Shri Mool Chand. Shri Tej Singh constructed a hotel in the name and style of ‘Marwari Bhojnalaya’ on the land in question situated alongside of National Highway-2 in Kasba Chhata, District Mathura and was running the hotel in question. Shri Tej Singh has died and after his death, the petitioner is running the hotel in question. The National Highways Authority of India (in short, NHAI) had taken a policy decision to undertake and develop Six-Lane of Delhi - Agra Section of NH-2 from Km. 20.500 to Km. 200 through DBFOT basis under NHDP Phase-V. The NHAI is the Nodal Agency for execution of the said project. Consequently, the Ministry of Road Transport and Highways, Government of India, in exercise of powers conferred by sub clause (a) of Section 3 of the National Highways Act, 1956 (in short, the 1956 Act), published a notification dated 10.8.2009 in official Gazette authorising the Special Land Acquisition Officer, Mathura as the Competent Authority to perform the functions of such authority under the said 1956 Act in respect of the stretch land from KM 93.800 to KM 176.760 of the National Highway No. 2 for building (widening/six laning, etc.), maintenance, management and operation of the said National Highway in the State of Uttar Pradesh. The said gazette notification was also published in newspapers namely ‘Dainik Jagaran’ and ‘Hindustan Times’ on 26.12.2009 and 25.12.2009 respectively. 3. As per Gazette notification, objections were invited under Section 3C of 1956 Act. The land owners of the village in question filed their objections before the Competent Authority and their objections were heard and disposed of by the Competent Authority. Thereafter the Gazette notification under Section 3-G (3) of the 1956 Act was also issued on 25.6.2010. 3. As per Gazette notification, objections were invited under Section 3C of 1956 Act. The land owners of the village in question filed their objections before the Competent Authority and their objections were heard and disposed of by the Competent Authority. Thereafter the Gazette notification under Section 3-G (3) of the 1956 Act was also issued on 25.6.2010. A notice under Section 3-G (3) of 1956 Act was published by the Competent Authority in daily newspapers ‘Dainik Jagaran’ and ‘Hindustan Times’ on 5.7.2010, inviting claims from the land owners with respect to determination of the compensation. A short public notice was also published in Hindustan Times (Hindi & English) on 14.12.2012 inviting claims regarding land acquisition from the land owners by the Competent Authority/Special Land Acquisition Officer, Mathura. Thereafter, the Competent Authority invited the claims from the land owners, heard the objections/claims at Tehsil office and in presence of revenue inspector of the concerned village, the said objections/claims were decided by the Competent Authority according to on-spot position, land use, available records etc. Finally, the Competent Authority announced the award under Section 3-G of 1956 Act on 29.7.2013 and determined the compensation for agricultural land @ Rs. 1250/- per sqm. and non-agricultural/residential land @ Rs. 5000/- per sqm. and 10% additional compensation apart from additional compensation for improvements/constructions over the land. 4. This much is also reflected from the record in question that the petitioner filed an objection inter alia on the ground that out of total area of 5.876 hec. land from Gata No. 41(M), 6480 sqm. land was acquired. The father of the petitioner had constructed the hotel in the year 1979 and after his death, the petitioner is running the said hotel and as such, he was liable to receive the compensation of the land and building comprised in Gata No. 41. 5. Learned counsel for the petitioner precisely submits that while filing the objection the petitioner had submitted the relevant record but the Competent Authority in most arbitrary manner had rejected the objection of the petitioner holding that the petitioner has failed to produce any evidence regarding ownership of the hotel in question. 5. Learned counsel for the petitioner precisely submits that while filing the objection the petitioner had submitted the relevant record but the Competent Authority in most arbitrary manner had rejected the objection of the petitioner holding that the petitioner has failed to produce any evidence regarding ownership of the hotel in question. The Competent Authority has not even looked into the provisions of Section 3-H (4) of 1956 Act as well as the bundle of evidences filed by the petitioner and as such, the impugned order is contrary to the mandatory provisions of Section 3-H (4) of the 1956 Act. It is sought to be contended that as per provisions contained under Section 3-H (4) of 1956 Act, it was incumbent upon the Competent Authority to make a reference of the dispute to the Principal Civil Court of original jurisdiction i.e. District Judge, Mathura. He further makes submission that even Sections 3-H (3) & (4) of 1956 Act are somewhat similar to Sections 11 and 18 of the Land Acquisition Act, 1894 (in short, the 1894 Act). Under Section 3-H (3) of the 1956 Act, where several persons claim to be interested in the amount deposited under sub-section (1) of Section 3H of 1956 Act, the Competent Authority shall determine the persons, who in its opinion, are entitled to receive the amount payable to each of them but in case there are several persons who claim stake in the property in question, the said claim cannot be resolved under sub-section (1) of Section 3H of 1956 Act and the same is to be dealt with as per provisions contained under Section 3H (4) of the 1956 Act. In support of his submission, he has placed reliance on a Division Bench judgement of Punjab and Haryana High Court in Nirmal Singh v. Union of India and others, CWP No. 19838 of 2009 (O&M) decided on 11.11.2011 and the judgement of High Court of Jharkhand at Ranchi in Sangeeta Agrawal v. The Union of India and others in W.P. (C) No. 1540 of 2013 decided on 17.6.2013. 6. On the other hand, Shri Pranjal Mehrotra, learned counsel for respondent No. 2 has vehemently opposed the writ petition and submits that there is no infirmity or illegality in the impugned order and each and every objection of the petitioner has been considered. 6. On the other hand, Shri Pranjal Mehrotra, learned counsel for respondent No. 2 has vehemently opposed the writ petition and submits that there is no infirmity or illegality in the impugned order and each and every objection of the petitioner has been considered. The petitioner at the relevant point of time could not produce legal ownership record before the Competent Authority and as such, no interference is required to be made in the matter. 7. Shri Anil Kumar Singh, Advocate has filed a counter-affidavit on behalf of respondent No. 4 stating that previously Sri Tej Singh (father of the petitioner) was running the hotel situated on the land of Public Works Department (Road Patari) but the hotel was not registered in his name. Sri Tej Singh has died leaving 3 sons including the petitioner. The petitioner is not occupier of the hotel in question and there is no record of the aforesaid claim of the petitioner. The Competent Authority has passed the order dated 22.9.2014 after considering the objection of the petitioner as well as the respondent No. 4 and the relevant documents produced by both the parties. He further makes submission that even before this Court the petitioner could not show any valid and legal right or claim over the property in question and as such, his claim is unsustainable under sub-section (4) of Section 3H of 1956 Act and the writ petition is liable to be dismissed. 8. In order to resolve the controversy, it would be necessary to read Sections 3A, 3C, 3D and 3H(1) to (4) of the 1956 Act, which are reproduced as under : “3A. Power to acquire land, etc.— (1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land. (2) Every notification under sub-section (1) shall give a brief description of the land. (3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language.” “3C. (2) Every notification under sub-section (1) shall give a brief description of the land. (3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language.” “3C. Hearing of objections.— (1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of Section 3A, object to the use of the land for the purpose or purposes mentioned in that sub-section. (2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, it any, as the competent authority thinks necessary, by order, either allow or disallow the objections. Explanation.—For the purposes of this sub-section, “legal practitioner” has the same meaning as in clause (i) of sub-section (1) of Section 2 of the Advocates Act, 1961 (25 of 1.961). (3) Any order made by the competent authority under sub-section (2) shall be final. 3D. Declaration of acquisition.— (1) Where no objection under sub-section (1) of Section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of Section 3A. (2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances. (2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances. (3) Where in respect of any land, a notification has been published under sub-section (1) of Section 3A for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect: Provided that in computing the said period of one year, the period or periods during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1.) of Section 3A is stayed by an order of a Court shall be excluded. (4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any Court or by any other authority. 3H. Deposit and payment of amount.— (1) The amount determined under Section 3G 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 sub-section (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. (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. It is true that the 1956 Act is a special statute which has clothed the Central Government with the power to acquire any land for a public purpose, which is required for building, maintenance, management or operation of a National Highway or part thereof. But many provisions of the 1956 Act are akin to the provisions of the 1894 Act. A perusal of Sections 3A, 3C and 3D of the 1956 Act would show that they are similar to Sections 4, 5A and 6 of the 1894 Act respectively in their contents and intendment. Even Section 3H (3) and (4) of the 1956 Act are somewhat similar to Sections 18 and 30 respectively of the 1894 Act. Likewise, further provisions like Sections 3H and 3G of the 1956 Act are equivalent to Sections 16 and 11 of the 1894 Act. Then it follows that the Competent Authority under the 1956 Act designated by respondent Nos. 1 and 2 would not be clothed with the power to adjudicate the claim of apportionment made by the parties in respect of the land for which notifications for acquisition have been issued under the 1956 Act. Under sub-section (3) of Section 3H of the 1956 Act, the Competent Authority may determine the persons who would be entitled to receive the amount payable to each of them where several persons make claim in respect of the amount deposited under sub-section (1) of Section 3H of the 1956 Act. This Section does not talk about any dispute between several claims, which in fact, has been specifically dealt with in sub-section (4) of Section 3H of the Act. This Section does not talk about any dispute between several claims, which in fact, has been specifically dealt with in sub-section (4) of Section 3H of the Act. Sub-section (4) of Section 3H of the 1956 Act opens with the words ‘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’, then the Competent Authority nominated by the State Government like respondent No. 3 is under obligation to refer the dispute to the decision of the principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated. 10. As indicated above, sub-sections (3) and (4) of Section-3H of the 1956 Act are somewhat similar to Sections 18 and 30 respectively of the 1894 Act. For ready reference Sections 18 and 30 of 1894 Act are reproduced herein under : “18. Reference to Court.— (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made,? (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector’s award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2), or within six months from the date of the Collector’s award, whichever period shall first expire. 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.” 11. 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.” 11. From perusal of the aforesaid provisions, it appears that in a similar provision contained in 1894 Act the word “may” is used, whereas in Section 3H (4) of 1956 Act, the word “shall” is used. 12. The persons, who have notice of acquisition proceedings, would have to apply for a Reference under Section 18 of the 1894 Act. Under Section 18 reference could be in respect of the measurement of the land and/or the amount of compensation and/or in respect of persons to whom it is payable and/or for apportionment of compensation amongst persons interested. Section 30 of 1984 Act merely deals with apportionment of compensation when the amount of compensation has been settled. Thus, it is clear that Section 18 is to be invoked when a person claiming a pre-existing right has notice of the acquisition proceedings, whereas Section 30 comes into play only if a person had no notice of the acquisition proceedings or the rights came into existence after the acquisition proceedings. The 1894 Act clearly proceeds to mention that a person who had notice of the acquisition proceedings and who, by virtue of Section 50, is debarred from filing a Reference under Section 18 of 1894 Act cannot be allowed to apply for a Reference under Section 30. The view expressed by us is the same view that has been so expressed by the Apex Court, in the case of Mehr Rusi Dalal v. Union of India, 2004 (7) SCC 362 after following the judgement in the case of Sharda Devi v. State of Bihar, 2003 (3) SCC 128 . 13. What we find from the record in question is that in the present matter the gazette notification under Section 3 of 1956 Act was issued on 4.12.2009/8.2.2011 and the same was also published in two daily newspapers namely “Hindustan Times” (English) and “Dainik Jagaran” (Hindi) on 25.12.2009 and 26.12.2009 respectively. Again the same was published in Hindustan (English) and “Amar Ujala” (Hindi) on 25.2.2011. Again the same was published in Hindustan (English) and “Amar Ujala” (Hindi) on 25.2.2011. In the said acquisition the objections were also decided under Section 3-C of the 1956 Act and as per provisions contained under Section 3-C the declaration of acquisition was made through notifications dated 25.6.2010 and 2.6.2011. It is relevant to indicate that at the time of publication under Section 3D (declaration of acquisition) the name of respondent No. 4 was also mentioned and the petitioner, neither at the time of initial publication nor declaration under Section 3D of 1956 Act, has raised any grievance. Inspite of notice at no point of time the petitioner filed any objection and at the belated stage he has prayed that as per Section 3H (4) of 1956 Act, his case is liable to be transferred to the Principal Civil Court of original jurisdiction by the Competent Authority. The property in question was purchased by respondent No. 4 through registered sale-deed on 27.3.2004 and on account of deficiency of stamp, the Additional District Magistrate (Finance and Revenue), Mathura vide order dated 28.11.2006 has held that the disputed land belonged to the contesting respondent No. 4 and as such, he passed an order asking an amount of Rs. 4,20,500/- as interest @ 1.5% per month till the payment against the deficiency of stamp duty on the registered sale-deed through which the respondent No. 4 had purchased the property in question. Admittedly, the petitioner for the first time as per his own showing had proceeded to file an objection on 11.1.2013 for apportionment of compensation. We have also considered the judgements cited by the petitioner in Nirmal Singh’s case (supra) and Sangeeta Agrawal’s case (supra) and find that the aforesaid judgements would not be of any help to the petitioner under the facts and circumstances of the present case. 14. We have also considered the judgements cited by the petitioner in Nirmal Singh’s case (supra) and Sangeeta Agrawal’s case (supra) and find that the aforesaid judgements would not be of any help to the petitioner under the facts and circumstances of the present case. 14. In view of aforesaid facts and circumstances, we are of the considered opinion that while passing the impugned order the Competent Authority has considered the objection filed by the petitioner in detail and has proceeded to make a mention that the petitioner at no point of time had produced any revenue record to indicate any claim over the property in question and the entire claim has been set up on the basis of electricity bill, telephone connection and as such, the order impugned is based upon on concrete finding that at no point of time the petitioner could produce any valid title to claim right over the property in question. Even this Court has also asked a pointed query to learned counsel for the petitioner but he has failed to substantiate his claim or to produce any revenue record to indicate that the petitioner has got the valid claim or title over the property in question. 15. We do not find any illegality or infirmity in the impugned order. The writ petition sans merit and is, accordingly, dismissed.