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2023 DIGILAW 554 (JHR)

Bandhan Ravidas v. State of Jharkhand

2023-04-24

RAJESH SHANKAR

body2023
ORDER : 1. The present writ petition has been filed for quashing order dated 05.11.2020 (Annexure-8 to the writ petition) passed by the respondent no. 2 – the Deputy Commissioner, Koderma in Misc. Case No. 23 of 2020, whereby the case of the petitioners has been referred to the Addl. Collector, Koderma-cum-Arbitrator appointed under Section 3-G(5) [wrongly written in the order dated 05.11.2020 as 3-H(5)] of the National Highways Act, 1956 (hereinafter referred to as “the Act, 1956”). Further prayer has been made for issuance of direction upon the respondents to immediately pay compensation to the petitioners treating their lands as residential-cum-commercial which have been acquired for the purpose of four laning/widening of NH-31 from Barhi to Koderma (Barhi-Rajauli Section) under Thana No. 276, Mouza-Chandwara, Block-Chandwara, District -Koderma. 2. The factual background of the case as stated in the writ petition is that a notification under Section 3-A(3) of the Act, 1956 was published in local newspapers i.e., Prabhat Khabar and Dainik Jagran on 22.07.2015 and in Hindustan and Dainik Bhaskar on 19.08.2015 wherein the lands of the petitioners were sought to be acquired for four laning of NH-31 from Barhi to Koderma, situated at Mouza and Block Chandwara, Thana No. 276, District –Koderma. The nature of the said land was shown as ‘residential’. Thereafter, the petitioners raised objection before the Government of Jharkhand, the copies thereof were communicated to the respondent no. 2, the respondent no. 5 – the District Land Acquisition Officer-cum-Competent Authority under the Act, 1956 and the local MLA claiming that only 20% of their lands were residential whereas remaining 80% lands were commercial in nature. However, the objection of the petitioners was not entertained by the said authorities. 3. A Gazette notification dated 29.01.2016 was issued by the Ministry of Road Transport and National Highways, Government of India exercising power under Section 3-D(1) and 3-D(2) of the Act, 1956 and was also published in the local newspapers, wherein the lands of the petitioners were shown as ‘residential’. However, a public notice through newspaper publication under Section 3-G(3) of the Act, 1956 was made on 10.10.2019 in the local newspaper ‘Prabhat Khabar’ showing the nature of the petitioner’s land as ‘agricultural’. 4. However, a public notice through newspaper publication under Section 3-G(3) of the Act, 1956 was made on 10.10.2019 in the local newspaper ‘Prabhat Khabar’ showing the nature of the petitioner’s land as ‘agricultural’. 4. The petitioners thereafter preferred a writ petition being W.P.(C) No. 6818 of 2019 for quashing paper publication dated 10.10.2019 contending that the Gazette Notification issued on 29.01.2016 under Section 3-D(1) and 3-D(2) of the Act, 1956 is binding on the respondents and they have no power to change the nature of the lands in the subsequent notification. The said writ petition was disposed of on 17.02.2020 giving liberty to the petitioners to prefer fresh representation(s) before the respondent no. 2 with further direction to the said respondent to decide the said representation(s) after providing due opportunity of hearing to the petitioners/their representatives. Pursuant to the said order, the petitioners made representations before the respondent no. 2 on 29.02.2020 and 30.05.2020, however, the same remained unresponded. Thereafter, the petitioners preferred Cont. Case (Civil) No. 556 of 2020 in which the respondents filed their show cause affidavit annexing a copy of order dated 05.11.2020 passed by the respondent no. 2 by which the case of the petitioners was referred to the Additional Collector, Koderma-cum-Arbitrator under Section 3-G(5) of the Act, 1956. The said contempt case was then disposed of vide order dated 29.01.2021 giving liberty to the petitioners to challenge the order dated 05.11.2020 passed by the respondent no. 2 in Misc. Case No. 23 of 2020. Hence, the present writ petition. 5. Mr. Anil Kumar Sinha, learned Senior Counsel for the petitioners, submits that the impugned order dated 05.11.2020 is in total disregard of the direction of this Court as contained in the order dated 17.02.2020 passed in W.P.(C) No. 6818 of 2019. It is further submitted that as per Section 3(a) of the Act, 1956, the ‘competent authority’ has to be appointed by the Central Government through notification in the Official Gazette. However, no such notification in the Official Gazette has been made by the Central Government. It is further submitted that as per Section 3(a) of the Act, 1956, the ‘competent authority’ has to be appointed by the Central Government through notification in the Official Gazette. However, no such notification in the Official Gazette has been made by the Central Government. On plain reading of Section 3-G(5) of the Act, 1956, it is clear that if the amount determined by the competent authority is not acceptable to either of the parties, an application has to be given by either of the parties for appointing ‘Arbitrator’ to resolve the dispute with respect to the amount awarded for acquisition of the concerned land. The Act confers right on either of the parties to approach the Central Government for appointment of Arbitrator meaning thereby, for each and every case, there has to be a separate application for appointment of Arbitrator. Though the Gazette Notification dated 29.01.2016 was issued by the Ministry of Road Transport and National Highways, Government of India mentioning the ‘Director’ as the Competent Authority under the Act, 1956, however, in the award, the District Land Acquisition Officer, NH-31, Koderma has been indicated as the Competent Authority. Such change of the competent authority is impermissible as per the said Act, 1956 and the same cannot be given effect to in contravention of the provisions of the said Act. 6. It is further submitted that vide Gazette Notification dated 29.01.2016 published in terms with Section 3-D(1) and 3-D(2) of the Act, 1956, the nature of the petitioner’s lands were shown as ‘residential’. The resolution dated 31.08.2018 issued by the Department of Revenue, Registration and Land Reforms, Government of Jharkhand clearly states that when nature of the land gets changed over a period of time, then in that situation, a Committee headed by the Deputy Commissioner of the concerned district has to be constituted consisting of other concerned officers i.e., Additional Collector, Sub-Divisional Officer, District Land Acquisition Officer, Land Reforms Deputy Collector, Circle Officer and the District Sub-Registrar as the members for ascertaining the nature of the land as well as to remove any anomaly thereof. 7. 7. According to learned Senior Counsel for the petitioners, the nature of the land mentioned in the notification dated 29.01.2016 issued by the Central Government under Section 3-D(1) and 3-D(2) of the Act, 1956 cannot be changed while preparing the award under Section 3-G of the said Act as Section 3-D(4) clearly mentions that a declaration made by the Central Government under section 3-D(1) shall not be called in question in any court or by any other authority. The guidelines as contained in letter dated 28.12.2017 issued by the Ministry of Road Transport and Highways, Government of India to the Chief Secretaries/Addl. Chief Secretaries/Principal Secretaries of all the States along with the Administrators of Union Territories and the Chairman of NHAI (Annexure-A to the counter affidavit dated 29.07.2021) is merely an executive order which cannot override the specific provision of the Act, 1956. Moreover, the nature of the petitioner’s lands has been changed after initial Gazette notification dated 30.06.2015 issued under Section 3-A of the Act, 1956 and thus, the petitioners deserve to be paid compensation at market rate in terms with the Gazette notification dated 29.01.2016 issued under Section 3-D(1) of the Act, 1956. 8. On the contrary, learned counsel for the respondent nos. 1, 2, 4 & 5 (wrongly written as respondent nos. 1 to 3 & 5 in the counter affidavit) submits that the Arbitrator is the competent authority to decide the matter under the Act, 1956 and as such the respondent no. 2 has rightly referred the matter to the Arbitrator and the petitioners may pursue their respective claims before the Arbitrator, if any. The present writ petition filed by the petitioners is premature as the dispute relating to nature of the acquired land is pending adjudication before the Arbitrator and hence, the same is not maintainable. 9. It is further submitted that approximately eight hundred awardees of the said project have preferred their objections before the Arbitrator till now. The Ministry of Road Transport and Highways, Government of India issued letter No. NH.11011/30/2015.LA dated 28.12.2017 to the Chief Secretaries/Addl. 9. It is further submitted that approximately eight hundred awardees of the said project have preferred their objections before the Arbitrator till now. The Ministry of Road Transport and Highways, Government of India issued letter No. NH.11011/30/2015.LA dated 28.12.2017 to the Chief Secretaries/Addl. Chief Secretaries/Principal Secretaries of all the State Governments/Administrators of Union Territories including the Chairman, NHAI and Managing Director, National Highways Infrastructure Development Corporation, New Delhi containing comprehensive guidelines relating to the matter of land acquisition under the Act, 1956 in which it was stated that certain undesirable practices had come to the notice of the Central Government particularly with respect to the complain that the nature of the lands were being changed after publication of notification for acquisition so as to seek higher quantum of compensation and thus it was decided that the nature of lands recorded in the revenue records on the day of publication of the notification under Section 3-A of the Act, 1956 would be considered for determination of compensation. The lands in question have been acquired at the instance of the National Highways Authority of India and for the said purpose, the provisions of the special Act i.e., the National Highways Act, 1956 are to be followed. The Arbitrators have already been appointed in each revenue district of the State of Jharkhand through the Gazette of India notification dated 05.12.2017 issued by the Ministry of Road, Transport & National Highways, Government of India to decide the disputes with respect to compensation in land acquisition matters. Moreover, in view of Clause 10(iii) and 10(iv) of the guidelines dated 28.12.2017, the nature of land as well as the market value of land has to be taken as recorded in the revenue records on the day of publication of notification under Section 3-A of the Act, 1956 and in the said notification issued on 30.06.2015, the nature of the lands of the petitioners have been shown as ‘agricultural’. 10. Heard learned counsel for the parties and perused the materials available on record. The petitioners have challenged the order dated 05.11.2020 passed by the respondent no. 2, whereby the matter of the petitioners has been referred to the concerned Arbitrator. 11. The thrust of argument of learned Senior Counsel for the petitioners is that the impugned order dated 05.11.2020 has been passed by the respondent no. The petitioners have challenged the order dated 05.11.2020 passed by the respondent no. 2, whereby the matter of the petitioners has been referred to the concerned Arbitrator. 11. The thrust of argument of learned Senior Counsel for the petitioners is that the impugned order dated 05.11.2020 has been passed by the respondent no. 2 in disobedience of the direction of this Court as contained in the order dated 17.02.2020 passed in W.P.(C) No. 6818 of 2019. 12. I have perused the order dated 17.02.2020 passed in W.P.(C) No. 6818 of 2019. The claim of the petitioners in the said case was that the notification issued under Section 3-D(1) and 3-D(2) of the Act, 1956 could not be superseded by the impugned paper publication depriving them of receiving appropriate compensation for their land/structure. It was claimed by the petitioners that they filed several representations, however, the same remained un-responded. Learned counsel appearing for the respondent-State in the said case had submitted that if the petitioners preferred fresh representations before the respondent no. 2, the issue in question would be considered and appropriate decision would be taken in that regard. Having taken into consideration the contentions of learned counsel for the parties, the said writ petition was disposed of with following observations: 4. Having heard the learned counsel for the parties and considering the fact that the prayer of the petitioners made in the writ petition also involves factual determination at an appropriate level, without entering into the merit of the case, the petitioners are given liberty to prefer fresh representation(s) before the respondent no. 2 on the present issue. On receipt of the said representation(s), the respondent no. 2, after calling for the relevant records, on making suitable enquiry (if so required) and on providing due opportunity of hearing to the petitioners/their representative, shall take informed decision as expeditiously as possible, preferably within a period of 12 (twelve) weeks from the date of filing of the said representation(s). 5. The writ petition is accordingly disposed of with aforesaid liberty and direction. 13. In compliance of the said order of this Court, the petitioners preferred representation before the respondent no. 2, who instituted Misc. 5. The writ petition is accordingly disposed of with aforesaid liberty and direction. 13. In compliance of the said order of this Court, the petitioners preferred representation before the respondent no. 2, who instituted Misc. Case No. 23 of 2020 and transferred the said case to the Additional Collector, Koderma-cum-Arbitrator observing that if any raiyat had objection related to nature of the land or determination of rate of compensation, there is a provision for filing objection before the Arbitrator. 14. This Court is of the view that since it was specifically observed in the order dated 17.02.2020 passed in W.P.(C) No. 6818 of 2019 that the respondent no. 2 would take a decision in the matter, it was obligatory for the respondent no. 2 to comply the said order and if he had any difficulty in complying it, he should have sought necessary modification of the said order. However, the respondent no. 2 without getting the order modified by this Court, has transferred the matter to the Arbitrator. The officer who held the post of the respondent no. 2 and passed the order dated 05.11.2020 is thus cautioned to give due respect to the orders of the constitutional courts and comply those in true letter and spirit. It is incumbent upon the administrative authorities to pay respect to the order of the constitutional courts, failing which their audacious attitude is to be dealt with strictly so as to make them aware of existence of rule of law in the country. 15. Coming back to the merit of the case, Section 3-A of the Act, 1956 empowers the Central Government to acquire any land for the building, maintenance, management or operation of a national highway or part thereof for public purpose and to issue notification in the official Gazette declaring its intention to acquire such land which shall include a brief description of the land. 16. Section 3-C provides for hearing of the objection of any interested person in the land and any order made by the competent authority after hearing such objection has to be final. 16. Section 3-C provides for hearing of the objection of any interested person in the land and any order made by the competent authority after hearing such objection has to be final. Section 3-D provides that if no objection is filed under Section 3-C within the specified period or objection filed by the interested person has been disallowed by the Competent Authority, a report regarding the same shall be sent by the competent authority to the Central Government who thereafter shall issue notification declaring that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of Section 3-A. A declaration made by the Central Government under sub-section (1) of Section 3-D shall not be called in question in any court or by any other authority. 17. Section 3-G provides for determination of amount payable as compensation for which the competent authority shall give a public notice published in two local newspapers inviting claims from all persons interested in the land to be acquired stating the particulars of the land as well as the nature of their respective interest in such land and shall require all persons interested in such land to appear in person or through an agent or a legal practitioner referred to in sub-section (2) of Section 3-C before the competent authority, at a scheduled time and place. 18. In view of Section 3-G(5) of the Act, 1956, if the amount determined by the competent authority under sub-section (1) or sub-section (2) of Section 3-G 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. 19. 18. In view of Section 3-G(5) of the Act, 1956, if the amount determined by the competent authority under sub-section (1) or sub-section (2) of Section 3-G 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. 19. As per Section 3-G(7), the competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5) of Section3-G, as the case may be, has to take into consideration – (a) the market value of the land on the date of publication of the notification under Section 3-A, (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 and (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. 20. Thus, if any of the parties is aggrieved with the determination of compensation by the Competent Authority, he may file application raising his objection and the same shall be decided by the Arbitrator. Though none of the petitioners had made application for referring their matter to the Arbitrator, however, as per the contention of learned Senior Counsel for the petitioners, it seems that the petitioners are aggrieved with the determination of quantum of compensation by the Competent Authority. It is contended that the amount of compensation of the petitioner’s lands should be fixed at market rate and the nature of the lands should be treated as ‘residential/commercial’ and not ‘agriculture’. I am of the view that the said claim of the petitioners can effectively be adjudicated by the Arbitrator following the procedure laid down in the Act, 1956. It appears that approximately eight hundred awardees of the said project have preferred the objections before the Arbitrator and as such, it will be appropriate that the petitioners also get their matter adjudicated before the Arbitrator. 21. It appears that approximately eight hundred awardees of the said project have preferred the objections before the Arbitrator and as such, it will be appropriate that the petitioners also get their matter adjudicated before the Arbitrator. 21. In view of the aforesaid facts and circumstance, the writ petition is disposed of with liberty to the petitioners to pursue their respective matters before the Arbitrator-cum-Additional Collector, Koderma, who shall decide the same in accordance with law expeditiously. I.A. No. 6485 of 2022 also stands disposed of accordingly.