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2019 DIGILAW 1779 (JHR)

Ishwari Prasad v. State of Jharkhand

2019-10-21

S.N.PRASAD

body2019
ORDER : S.N. Prasad, J. 1. This writ petition is under Article 226 of the Constitution of India, whereby and whereunder the order dated 3.10.2018 passed in Land Acquisition Appeal No. 35 of 2017-18 by the Additional Collector-cum-Arbitrator, Bokaro has been assailed by which the competent authority has declined to enhance the quantum of compensation. 2. It is the case of the petitioner that the authority while deciding the quantum as per the provision as conferred under Section 3(G)(5) of the National Highways Act, 1956, has not appreciated the fact in the right perspective. Furthermore, the authority has taken into consideration the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2015. 3. According to the petitioner, under the National Highway Authority Act, 1956 there is no question of applicability of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 read with Act 2015 and as such there is jurisdictional error also. 4. Learned State Counsel has submitted by showing all alternate provision as provided under the National Highways Act, which is appealable under Section 34 of the Arbitration and Conciliation Act, 1996 and as such he has raised the issue of maintainability of the writ petition. 5. Upon hearing learned counsel for the parties, this Court is of the view that it is not in dispute that there is no absolute bar in entertaining the writ petition but that depends upon certain exceptions i.e. if the order is without jurisdiction or contrary to the statutory provision or there is infringement of any fundamental right as has been held by the Hon'ble Apex Court in the case Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors., reported in (1998) 8 SCC 1 , as also in the case of Maharashtra Chess Association vs. Union of India & Ors. reported in [2019 (3) JLJR (SC) 520]. 6. This Court, has appreciated the argument advanced on behalf of learned counsel for the petitioner; the first ground which has been agitated by the petitioner that the quantum of compensation has not been considered in right perspective, meaning thereby the petitioner is assailing the order on the basis of factual aspect. 7. reported in [2019 (3) JLJR (SC) 520]. 6. This Court, has appreciated the argument advanced on behalf of learned counsel for the petitioner; the first ground which has been agitated by the petitioner that the quantum of compensation has not been considered in right perspective, meaning thereby the petitioner is assailing the order on the basis of factual aspect. 7. It is settled position of law that if there is any dispute pertaining to the factual aspects, the same is required to be appreciated by leading evidence in this regard and in that situation the same cannot be decided by the Writ Court sitting under Article 226 of the Constitution of India by issuing writ of certiorari otherwise the High Court will become the Court of appeal. 8. In view of this fact so far as first ground agitated by the petitioner, this Court is of the view that the impugned order cannot be looked into by the High Court sitting under Article 226 of the Constitution of India. 9. So far as the second issue that the applicability of the provision of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 read with Act 2015 is concerned, it is not in dispute that Section 3-J of the National Highways Act, 1956 wherein it has been provided that Land Acquisition Act is not applicable if acquisition proceeding has been initiated under the National Highways Act, 1956. 10. Since the Act, 1956 Has been enacted after enactment of Land Acquisition Act, 1894, reference of Section 3-J of the Land Acquisition Act, 1984 has been made since the Land Acquisition Act, 1894 has been superseded by the Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and therefore, in view of the Section 3-J of the Act, 2013 will also not be applicable as per the Section 3-J of the National Highways Act, 1956 but the Section 3-J or the reference of Section 3(G) about applicability of the Land Acquisition Act either or the Act, 2013 is for initiating a proceeding not for other determination of quantum of compensation. 11. 11. Here, the Additional Collector-cum-Arbitrator, Bokaro has made reference of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Rules, 2015 for the purpose of appreciating the factual aspect on the basis of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 which contains a provision of Rehabilitation and Resettlement. The Arbitrator has taken into consideration the Rules, 2015 as because in the National Highways Act, 1956 there is no provision for Rehabilitation and Resettlement. 12. Therefore, if the authorities have taken into consideration by making reference of the provision of Rules 2015 it cannot be said that any jurisdictional error has been committed. 13. This Court has further found from the impugned order that the Arbitrator after taking into consideration the provision of the Act, 2015 has found no reason to interfere with the quantum of compensation and as such it cannot be said that there is any jurisdictional error in the aforesaid order. 14. It is not in dispute that the power conferred to be exercised by the Arbitrator under Section 3(G)(5) is subject to the provision of Arbitration and Conciliation Act, 1996, for which the provision of Section 3(G)(5) and its onward provision is being reflected here under as: "3(G)(5) if the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government." 15. In view of such legal position if the land loser not satisfied with the determination as conferred to be exercised under the provision of Section 3-G(5) is required to invoke the jurisdiction conferred under Arbitration and Conciliation Act, 1908 and since the Arbitration arid Conciliation Act provides a provision for appeal to be filed under Section 34 of the Act hence if the land losers are aggrieved With any Order under Section 3(G)(5), the game will subject to appeal under Section 34 of the Arbitration and Conciliation Act, 1996. 16. This Court, therefore, is of the view that this case is not coming Under the exception as decided by the Hon'ble Apex Court in the case of Whirlpool Corporation (supra) to confer the power under Article 226 of the Constitution Of India. 17. 16. This Court, therefore, is of the view that this case is not coming Under the exception as decided by the Hon'ble Apex Court in the case of Whirlpool Corporation (supra) to confer the power under Article 226 of the Constitution Of India. 17. Accordingly, the writ petition fails and it is dismissed on the ground of maintainability. 18. It is open for the petitioner to approach before the appropriate forum as applicable. 19. Accordingly, the writ petition stands disposed of.