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Allahabad High Court · body

2020 DIGILAW 626 (ALL)

Sita Ram v. Union of India

2020-02-26

B.K.NARAYANA, RAVI NATH TILHARI

body2020
JUDGMENT : 1. Heard Sri Shashi Nandan, Senior Advocate assisted by Sri Balendra Deo Misra, learned counsel for the petitioners, learned Standing Counsel for the respondent Nos. 2 and 3 and Sri Neeraj Dube, learned counsel for the respondent No. 4. None appears on behalf of the respondent No. 1. 2. Pleadings between the parties have been exchanged and with the consent of the learned counsel for the parties, we are disposing of this writ petition finally at the admission stage in accordance with the High Court Rules. 3. The facts of this case may be stated briefly hereinbelow: 4. The petitioners in WRIT - C No. 22248 of 2019, claim themselves to be the recorded owners of following plots namely : Plot Nos. 1730/0.0384, 1071/0.0042 sq. metre (owned by petitioner No. 1), plot No. 1732/288 sq. metre (owned by petitioner Nos. 2, 3 & 4), plot Nos. 1077/0.0795, 1742/0.0114 sq. metre (owned by petitioner Nos. 5, 6, 7 and 8), plot No. 1106/0.0231, 1104/0.0209 sq. metre (owned by petitioner No. 10), plot No. 1822/0.0504 sq. metre (owned by petitioner No. 11), plot No. 1650/0.0172 sq. metre (owned by petitioner No. 12), plot No. 1322/0.0129 sq. metre (Owned by petitioner Nos. 13 and 14), plot No. 1722/0.0200 sq. metre (owned by petitioner Nos. 15, 16 and 43), plot No. 1721/0.0230 sq. metre (owned by petitioner Nos. 17, 18, 19, 20, 21, 22, 23, 24, 25 and 41), plot Nos. 1150/0.0216, 1158/0.0042, 1154/0.0060, 1152/0.0480 sq. metre (owned by petitioner Nos. 26 and 27), plot No. 1120/0.0335, 1095/0.0363 sq. metre (owned by petitioner Nos. 28, 29, 30 and 40), plot No. 1107/0.0027 sq. metre (owned by petitioner No. 31), plot No. 1028/0.1106 sq. metre (owned by petitioner Nos. 32, 34 and 36), plot No. 1027/0.0868 sq. metre (owned by petitioner No. 37), plot No. 1034/0.0780 sq. metre (owned by petitioner No. 39), plot No. 1043/0.1232 sq. metre (owned by petitioner Nos. 46 and 47), plot No. 1136/2118/0.0178 sq. metre (owned by petitioner No. 45). 5. The petitioner in connected WRIT - C No. 19215 of 2019, claims herself to be the recorded owner of Gata No. 1121 area 320 sq. metre. 6. The petitioners in connected WRIT - C No. 25323 of 2019 claim themselves to be the recorded owners of plot Nos. 364, 357, 416, 371, 296A, 295, 423, 370, 358, 426, 293, 418, 366, 340, 369 and 342. 7. metre. 6. The petitioners in connected WRIT - C No. 25323 of 2019 claim themselves to be the recorded owners of plot Nos. 364, 357, 416, 371, 296A, 295, 423, 370, 358, 426, 293, 418, 366, 340, 369 and 342. 7. The petitioners in connected WRIT - C No. 23046 of 2019 claim themselves to be the recorded owners of plot Nos. 1934/0.0672 sq. metre, 1942/0.0159 sq. metre, 1939/0.0190 sq. metre, 2151/0.0384 sq. metre, 2153/0.0576 sq. metre, 1979/0.0203 sq. metre, 2310/0.0168 sq. metre, 1887/0.0112 sq. metre, 1781M/0.0624 sq. metre, 1985/0.0168 sq. metre, 1863/0.0768 sq. metre, 2311/0.0224 sq. metre, 2163/0.0480 sq. metre, 1885/0.0230 sq. metre, 2164/0.0264 sq. metre, 2317/0.0110 sq. metre, 2313/0.0288 sq. metre, 1739/0.0568 sq. metre, 1936/0.0578 sq. metre, 1989/0.0192 sq. metre, 1935/0.1102 sq. metre, 1862/0.0559 sq. metre, 2151/0.0384 sq. metre, 1863/0.0768 sq. metre, 2153/0.0576 sq. metre,. 1796/0.0182 sq. metre, 1945/0.0130 sq. metre, 1792/0.0684 sq. metre, 2309/0.0270 sq. metre, 1862/0.0559 sq. metre, 2319/0.0091 sq. metre, 2320/0.0123 sq. metre and 2321/0.0091 sq. metre 8. The plots of the aforesaid petitioners which are situated in villages-Kakora, Nauria Karaiti and Kasia, Tehsil-Sirathu, District-Kaushambi were required by the respondents for the purpose of widening National Highway Road in Chakeri-Allahabad Section. Awards were made under Section 3G (1) of National Highways Act, 1956 (hereinafter referred to as the 'Act') by the competent authority on 18.1.2018 (in WRIT - C Nos. 22248 of 2019 and 19215 of 2019), on 20.4.2017 (in WRIT - C No. 25323 of 2019) and on 20.10.2017 (in WRIT - C No. 23046 of 2019) granting compensation to the petitioners in lieu of acquisition of their land at the rate of Rs. 5500/- sq. metre. There is nothing on record indicating that the award passed by the competent authority under Section 3G(1) of the Act was challenged by the respondents by filing any application before the arbitrator under Section 3G (5) of the Act. However, a fresh award was made by the competent authority under Section 3G(1) of the Act on 15.5.2018 (Annexure 5 to WRIT-C No. 25323 of 2019, Annexure 6 to WRIT - C Nos. 22248 of 2019 and 23046 of 2019 and Annexure 9 to WRIT - C No. 19215 of 2019) by which the competent authority reviewed its original awards and granted compensation at the rate of Rs. 60,00,000/- per hectare or Rs. 780/- per sq. metre. 9. 22248 of 2019 and 23046 of 2019 and Annexure 9 to WRIT - C No. 19215 of 2019) by which the competent authority reviewed its original awards and granted compensation at the rate of Rs. 60,00,000/- per hectare or Rs. 780/- per sq. metre. 9. It is contended by Sri Shashi Nandan, Senior Advocate appearing for the petitioners that there being no power of review conferred upon the competent authority under the Act, the fresh award passed by the competent authority by which the rate of compensation was reduced from Rs. 5,500/- per sq. metre to Rs. 780/- per sq. metre, is wholly without jurisdiction and cannot be sustained. He further submitted that Section 33 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the 'Act of 2013'), limited provisions-whereof relating to determination of compensation have been made applicable to the proceedings under the Act, empowers the Collector to correct any clerical or arithmetical mistakes in awards or errors arising therein either on his own motion or on the application of any person interested or local authority. 10. In support of the aforesaid contention, Sri Shashi Nandan, learned counsel for the petitioners has placed reliance upon Naresh Kumar and others v. Government (NCT of Delhi), (2019) 9 SCC 416 . 11. Per contra, Sri Neeraj Dube, learned counsel appearing for the respondent No. 4 strenuously urged before us that by the impugned award, the competent authority has not reviewed its original awards but has merely ordered correction of certain clerical mistakes in the original awards. He further submitted that since the petitioners' land was agricultural, the competent authority, while passing the original awards, had manifestly erred in awarding compensation at the rate of per sq. metre whereas it was required to determine compensation at the rate of per hectare and at the most, it can be said that the procedural mistake had been corrected by passing the impugned order. 12. metre whereas it was required to determine compensation at the rate of per hectare and at the most, it can be said that the procedural mistake had been corrected by passing the impugned order. 12. In support of the aforesaid contention, he has placed reliance upon Raj Kumar Soni and another v. State of U.P. and another, (2007) 10 SCC 635 , A.V. Papayya Sastry and others v. Government of A.P. and others passed by the Apex Court in Appeal (Civil) No. 5097-5099 of 2004 and Yashwant Sinha and others v. Central Bureau of Investigation through its Director and another passed by the Apex Court in Review Petition (Crl.) No. 46 of 2019 in Writ Petition (Crl.) No. 298 of 2018. 13. Learned Standing Counsel appearing for the respondent Nos. 2 and 3 also adopted the submissions made by Sri Neeraj Dube, learned counsel for the respondent No. 4. 14. We have heard learned counsel for the parties and perused the material brought on record as well as the law reports cited before us. 15. In order to appreciate the respective submissions of the learned counsel for the parties, it would be useful to extract following provisions of Section 3G of the Act and Section 33 of Act of 2013: Section 3G of The National Highways Act, 1956 1[3G. Determination of amount payable as compensation.-- (1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority. (2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent of the amount determined under sub-section (1), for that land. (3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired. (3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired. (4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of Section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land. (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. (6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act. (7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration-- (a) the market value of the land on the date of publication of the notification under Section 3A; (b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land; (c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings; (d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.] Section 33, of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 33. Corrections to awards by Collector.--(1) The Collector may at any time, but not later than six months from the date of award or where he has been required under the provisions of this Act to make a reference to the Authority under Section 64, before the making of such reference, by order, correct any clerical or arithmetical mistakes in either of the awards or errors arising therein either on his own motion or on the application of any person interested or local authority: Provided that no correction which is likely to affect prejudicially any person shall be made unless such person has been given a reasonable opportunity of making representation in the matter. (2) The Collector shall give immediate notice of any correction made in the award so corrected to all the persons interested. (3) Where any excess amount is proved to have been paid to any person as a result of the correction made under sub-section (1), the excess amount so paid shall be liable to be refunded and in the case of any default or refusal to pay, the same may be recovered, as prescribed by the appropriate Government. 16. Even the most superficial reading of the aforesaid provisions indicate that where compensation awarded under Section 3G(1) or (2) of the Act is not acceptable to either of the parties, the amount of compensation on an application by either of the parties will be determined by the arbitrator to be appointed by the Central Government and subject to the provisions of the Act, the provisions of Arbitration and Conciliation Act, 1996 shall apply to every arbitration proceeding under the Act. Sub-section (7) of Section 3G of the Act enumerates the principles which the competent authority or the arbitrator while determining the compensation under Section sub-section (1) or sub-section (5) of Section 3G shall take into consideration. 17. Sri Neeraj Dube, learned counsel for the respondent No. 4 has failed to bring to our attention any provision under the Act conferring power of review on the competent authority. His reliance placed on Section 33 of Act of 2013 is wholly misconceived. Under Section 33 of Act of 2013, the only power given to the Collector is to correct clerical and arithmetical errors in the award either suo motu or on an application by either of the parties. 18. His reliance placed on Section 33 of Act of 2013 is wholly misconceived. Under Section 33 of Act of 2013, the only power given to the Collector is to correct clerical and arithmetical errors in the award either suo motu or on an application by either of the parties. 18. Having very carefully gone through the original awards and the fresh award, we find that the competent authority has in the garb of correcting clerical/arithmetical mistake, has actually passed a fresh award after reviewing the original awards. The correction made, goes to the very root of the matter and has the effect of reducing the quantum of compensation awarded to the petitioners to a great extent. In our opinion, if the awards passed by the competent authority were not acceptable to respondent No. 4, the remedy available to him was to file an application under Section 3G(5) of the Act. 19. The extent to which a review of award after it has attained finality is permissible, was considered in great detail by the Apex Court in the case of Naresh Kumar (supra) and the Apex Court in paragraph 8 and 9 of the said judgment held as hereunder: 8. There is no provision under the Land Acquisition Act, 1894 for review of the Award once passed under Section 11 of the Act and had attained finality. The only provision is for correction of clerical errors in the Award which is provided for under Section 13A of the Act, which was inserted with effect from 24.9.1984. The relevant Section 13A of the Act reads as under: 13A. Correction of clerical errors, etc.--(1) The Collector may, at any time but not later than six months from the date of the award, or where he has been required under Section 18 to make a reference to the Court, before the making of such reference, by order, correct any clerical or arithmetical mistakes in the award or errors arising therein either on his own motion or on the application of any person interested or a local authority: Provided that no correction which is likely to affect prejudicially any person shall be made unless such person has been given a reasonable opportunity of making a representation in the matter. (2) The Collector shall give immediate notice of any correction made in the award to all the persons interested. (2) The Collector shall give immediate notice of any correction made in the award to all the persons interested. (3) Where any excess amount is proved to have been paid to any person as a result of the correction made under sub-section (1), the excess amount so paid shall be liable to be refunded and in the case of any default or refusal to pay, the same may be recovered as an arrear of land revenue. (emphasis supplied) 9. A bare reading of the said Section 13A would make it clear that the same is not a provision for Review of the Award but only for correction of clerical or arithmetical mistakes in the Award. It is further provided in the sub-section (1) of Section 13A that the said correction can be made at any time, but not later than six months from the date of award. In the present case, the Land Acquisition Collector has actually not made any correction of clerical or arithmetical mistake, but has in fact reviewed the Award dated 1.10.2003 by its Review Award No. 16/03-04 dated 14.7.2004, which was also clearly passed beyond such period of six months. 20. There is no material difference between Section 13A of the Land Acquisition Act, 1894 (hereinafter referred to as the Act of 1894) and Section 33 of the Act of 2013. Section 33 of the Act of 2013, in our opinion, is in pari materia of Section 13A of the Act of 1894 and hence, the principles propounded by the Apex Court in the case of Naresh Kumar (supra) while examining the scope of Section 33 of the Act of 2013 shall squarely govern the exercise of power by a Collector or the competent authority under Section 33 of Act of 2013. The three judgments which have been relied upon by the learned counsel for the respondent No. 4 in support of his contention that the competent authority under the facts and circumstances of the case was fully justified in reviewing its original awards, are of no assistance to him. 21. In none of the cases relied upon by the learned counsel for the respondent No. 4, the scope of power of correcting a clerical/arithmetical mistake in an order, was examined. 22. 21. In none of the cases relied upon by the learned counsel for the respondent No. 4, the scope of power of correcting a clerical/arithmetical mistake in an order, was examined. 22. Although learned counsel for the respondent No. 4 has argued that by the impugned award, the original awards have been corrected but the reading of the two awards tells an entirely different story. There is not even a whisper in the impugned award to the effect that any correction was made in the original awards and in fact the competent authority in the garb of making clerical/arithmetical correction in the original awards, has passed a fresh award which is not permissible under the law. 23. The impugned award having been passed by the competent authority without any jurisdiction, cannot be sustained and are liable to be quashed. 24. The writ petitions succeed and are accordingly allowed. The impugned awards dated 15.5.2018 (Annexure 5 to WRIT-C No. 25323 of 2019, Annexure 6 to WRIT-C Nos. 22248 of 2019 and 23046 of 2019 and Annexure 9 to WRIT - C No. 19215 of 2019), is hereby set-aside. However, liberty is given to the respondent No. 4 to pursue the remedy available to him under Section 3G (5) of the Act. The arbitrator shall decide the application, if any, moved by the respondent No. 4 before him without being influenced by the observations made hereinabove. Needless to say that status quo with regard to the possession of the plots in question shall be maintained till the arbitration proceedings are finalized.