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2024 DIGILAW 185 (HP)

Krishan Kumar Sood v. State of Himachal Pradesh

2024-03-19

SANDEEP SHARMA

body2024
JUDGMENT : SANDEEP SHARMA, J. 1. Being aggrieved and dissatisfied with order dated 27.9.2019, passed by the Sub Divisional Officer (C) (Rural) cum Competent authority Land Acquisition (NHAI), Shimla (in short “CALA”) whereby objections having been filed by the petitioners herein under Sections 3H and 3H(4) of the National Highways Act (in short “the Act”) to award No. 21/2015 dated 12.10.2015 and award No. 21-F dated 24.7.2018, passed by the Land Acquisition Collector, came to be dismissed, petitioners have approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, for following relief: “(i) It is, therefore, prayed that the present Writ Petition may kindly be allowed by issuing a writ of certiorari or such other appropriate order or direction as this Hon'ble Court deems fit in the facts and circumstances of the case be issued by quashing/setting aside the order dated 27.9.2019, Annexure P-12, passed by the Learned Sub Divisional Officer (C) (Rural) Cum Competent Authority Land Acquisition (NHAI) Shimla in Case No. 90/2018 titled Krishan Kumar Sood and Others vs. Kailash District Co-Op. Marketing and Consumers Federation Ltd. and Others and a writ of Mandamus be also issued against the Respondents directing Respondent No. 3 to refer the matter in dispute regarding apportionment of amount of compensation with respect to the acquisition of building known as Shekhar Bhawan, Dhalli, Bhattakuffar, Bye Pass Road, NH-2, Dhalli, Shimla-12 standing built upon land comprised in Khasra Nos. 87, 88 and 89 Mauza Chhakdyal Tehsil Shimla Rural District Shimla to the Principal Court of original jurisdiction in terms of sub-section (4) of Section 3H of the National Highways Act, 1956 or such other orders, direction or writ as this Hon'ble Court deems fit and proper to meet the ends of justice be also passed on this petition in the ends of law and justice. Orders for calling the entire records of the case from the respondents be also passed. Costs of the petition be also allowed to the petitioners against the Respondents.” 2. Precisely, the grouse of the petitioners, as has been highlighted in the petition and further canvassed by Mr. Orders for calling the entire records of the case from the respondents be also passed. Costs of the petition be also allowed to the petitioners against the Respondents.” 2. Precisely, the grouse of the petitioners, as has been highlighted in the petition and further canvassed by Mr. Ajay Kumar, learned Senior counsel appearing for the petitioners is that once objections under Sections 3H and 3H(4) of the Act, were filed by the petitioners qua the award passed by the Land Acquisition Collector, specifically stating therein that they being tenants are also entitled to compensation payable to owner of the property, CALA had no option but to refer the dispute to the Principal Civil Court/District Judge, who, after having ascertained entitlement, is also competent to make order with regard to apportionment, if any. 3. For having bird’s eye view, certain undisputed facts as emerge from the record, are that building known as Shekhar Bhawan situated at Dhalli, Bhattakufar situate at Dhalli Bye-pass road, NH-22, having five floors and additional parking owned by respondent No. 4, came to be acquired by NHAI for construction of road and qua that, compensation vide two separate awards came to be awarded in favour of owner of the building, as detailed herein above. Prior to initiation of acquisition proceedings, allegedly, the petitioners herein were given space in the building as detailed herein above on monthly rent of Rs. 1, 30,000/- for a period of fifteen years. Rent agreement was duly registered with the Registrar, Shimla, and pursuant to same, petitioners were carrying out their business, but once factum with regard to acquisition of property in question came to their notice, coupled with the fact that they have already spent huge amount for improvement of the property, they filed objections under Sections 3H and 3H(4) of the Act for apportionment. In the aforesaid objections, petitioners claimed that respondent No. 4 was though in the knowledge of the initiation of acquisition proceedings at the time of leasing out the property to them but yet chose not to disclose such fact to the petitioners, as a result thereof, they invested huge amount for carrying out their business. Petitioners claimed that they spent almost Rs.1.5 crores for renovation of the property and as such, need to be compensated from the amount of compensation awarded in favour of the owner/respondent No. 4. Petitioners claimed that they spent almost Rs.1.5 crores for renovation of the property and as such, need to be compensated from the amount of compensation awarded in favour of the owner/respondent No. 4. However, CALA rejected the prayer made by the petitioners on the ground that as per documents made available to the revenue authorities as well as NHAI, respondent No. 4 is the owner of the property and as such, dispute, if any, with regard to apportionment can only be decided by the competent court of law. In the aforesaid backdrop, petitioners have approached this Court in the instant proceedings. 4. Mr. Ajay Kumar, learned Senior counsel, appearing for the petitioners vehemently argued that once specific question with regard to entitlement and apportionment was raised by the petitioners, that too, on plausible grounds, CALA had no option but to refer the dispute to Principal Civil Court i.e. District Judge, for deciding the issue of entitlement. While making this Court peruse documents annexed with the petition, Mr. Ajay Kumar, learned Senior Counsel, attempted to persuade this Court to agree with his submission that though factum with regard to proposal of NHAI, to acquire the property in question was very much in the knowledge of respondent No. 4, but yet with a view to grab money, he let out the premises to the petitioners, but at no point of time, disclosed the factum with regard to acquisition and compensation on that count. He further submitted that even after receiving the entire amount of compensation, respondent No. 4 kept on receiving the rent from the petitioners and as such, petitioners are entitled for apportionment in accordance with Sections 3H and 3H(4) of the Act. 5. Ms. Shreya Chauhan, learned counsel appearing for NHAI, while refuting the aforesaid submissions made on behalf of the petitioners, contended that since agreement to lease out/rent out the property was executed inter-se petitioners and respondent No. 4 after issuance of notification under Sections 3(A) and 3 (D), NHAI is not obliged to pay compensation, if any, to the petitioners, rather same rightly came to be awarded in favour of respondent No. 4 on account of his being absolute owner of the property. At this stage, learned Senior counsel appearing for the petitioners claimed that no compensation is being claimed from NHAI, rather prayer is for apportionment of the amount received by respondent No. 4. 6. Mr. At this stage, learned Senior counsel appearing for the petitioners claimed that no compensation is being claimed from NHAI, rather prayer is for apportionment of the amount received by respondent No. 4. 6. Mr. Vikrant Thakur, learned counsel appearing for respondent No. 4 also supported the impugned order passed by the CALA. He submitted that till the time entitlement, if any, of the petitioners is established, no apportionment as claimed by way of filing the petition under Sections 3H and 3H(4) of the Act could have been entertained by CALA and as such, no illegality or infirmity can be said to have been committed by the aforesaid authority, while passing impugned order. He also submitted that since lease/rent agreement was executed inter-se respondent No. 4 and petitioners after issuance of Notification under Sections 3 (A) and 3 (D), same being nullity in the eye of law, cannot be enforced by the petitioners, especially while claiming apportionment. 7. Mr. B.C. Verma, learned Additional Advocate General, appearing on behalf of the respondents-State, specifically invited attention of this court to the reply filed by respondents No. 1 and 3, wherein prayer has been made to dismiss the petition on the ground of maintainability. It has been averred in the reply that since disputed questions of facts as well as law are involved in the case, appropriate remedy, if any, for the petitioners, is to file a civil suit. It has been further argued by learned Additional Advocate General that once it is not in dispute that petitioners are not the absolute owners of the property, no illegality can be said to have been committed by CALA, while rejecting the objections preferred by the petitioners. It has been further stated in the reply that entire amount to the tune of Rs. 4,90,59,694/- stands released and disbursed in favour of respondent vide cheque dated 23.10.2019. 8. It has been further stated in the reply that entire amount to the tune of Rs. 4,90,59,694/- stands released and disbursed in favour of respondent vide cheque dated 23.10.2019. 8. Having heard learned counsel for the parties and perused the material available on record vis-a-vis reasoning assigned in the order impugned in the instant proceedings, this Court is of the view that the appropriate course available for the Authority below was to refer the dispute to the decision of the principal civil court of original jurisdiction, within the limits of whose jurisdiction the land was situated, in terms of provisions contained under S.3(H)(4) of the Act ibid, which read as under: “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.” 9. Careful perusal of aforesaid provision of law clearly reveals that where any dispute arises as to the apportionment of the amount or any part thereof or to any person, to whom such amount is payable, competent authority shall refer such issue to court of original jurisdiction, within whose territorial jurisdiction, land is situated. 10. No doubt, in the case at hand, respondent No. 4 is the absolute owner of the property, qua which compensation came to be awarded vide two separate awards as detailed herein above, but it is also not in dispute that, while acquisition proceedings were in progress, petitioners herein were in occupation of the property on account of their being lessee. Since petitioners had been paying the monthly rent to the tune of Rs. 1,30,000/- qua the property in their possession and respondent No. 4 was in receipt of rent, till the time compensation of the property was taken by the NHAI pursuant to notification under Section 3D coupled with the fact that petitioners had raised issue of apportionment in terms of Section 3(H)(4), appropriate course available with CALA was to refer the dispute to Principal Civil Court of original jurisdiction because in such like situations, it was only competent to decide the issue with regard to entitlement. 11. Undisputedly, in the instant case, dispute raised by the petitioners relates to apportionment. 11. Undisputedly, in the instant case, dispute raised by the petitioners relates to apportionment. If it is so, it was otherwise required to be referred to Principal Civil Court of original jurisdiction. Though Principal Civil Court of original jurisdiction has not been defined in the Act, but Section 3H of the Act, defines District Judge of original jurisdiction, but shall not include the high court in exercise of its extraordinary original jurisdiction. 12. As far as arguments raised by Mr. Vikrant Thakur, learned counsel for respondent No. 4 that petitioners instead of filing objections under Section 3H of the Act, could straightaway file civil suit is concerned, same being contrary to the provisions of law, deserve outright rejection for two reasons; firstly, the civil court where the suit is required to be instituted is the Principal Civil Court of original jurisdiction as provided under Section 3(H)(4) of the Act and secondly, till the time claim is not forwarded by the competent authority under the aforesaid provision of law, same is otherwise not maintainable. 13. At this stage, it would be apt to take note of judgment dated 7.7.2023, passed by the Hon’ble Apex Court in Civil Appeal No. 5107 of 2022 titled Vinod Kumar and Others vs. District Magistrate Mau and Others, wherein it came to be ruled that whenever dispute arises as to the apportionment of amount or in part thereof, the competent authority shall refer the dispute for decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated. Relevant paras of the aforesaid judgment read as under: “23. The scheme of the Act 1956 and the statutory provisions referred to above makes it very clear that once any land is acquired under the Act 1956, the competent authority is obliged to pay an amount by way of compensation. There is a procedure which has been prescribed under Section 3G of the Act 1956. Sub-Clause (5) of Section 3G makes it abundantly clear that if the amount determined by the competent authority under sub-section (1) or sub-section (2) of Section 3G is not acceptable to either of the parties, the amount will have to be determined by the arbitrator who may be appointed by the Central Government on the strength of an application by either of the parties. Section 3H provides that the amount determined towards compensation under Section 3G will have to be deposited by the Central Government in accordance with the rules. It is only after such amount is deposited by the competent authority that the possession of the land can be taken. Sub-Clause (4) of Section 3H talks about apportionment of the amount. The language of Sub-Clause (4) of Section 3H is plain and simple. It provides that if any disputes arises as to the apportionment of the amount or any part thereof, the competent authority is obliged 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. 24. In the case on hand, the High Court seems to have completely misread the provisions of the Act 1956. It fell into error as it failed to apply the well settled principle of law that for construing a legal provision, the first and foremost rule of construction is the literal construction. All that the Court has to see at the very outset is what does the provision state. If the provision is unambiguous and from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statute. The other rules of construction are called into aid only when the legislative intent is not clear. 25. It may be mentioned in the aforesaid context that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation, for example, the mischief rule/ purposive construction, etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule. The language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistakes. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency. 26. The language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistakes. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency. 26. There is a fine distinction between determining the amount to be paid towards compensation and the apportionment of the amount. The legislature has thought fit to confer powers upon the Principal Civil Court of original jurisdiction to determine the dispute arising as to the apportionment of the amount. There is a reason, why the legislature has thought fit to confer such power to the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction is land is situated. We shall try to explain hereinafter. 27. The question of apportionment of compensation is not free from difficulties. In apportioning the compensation, the Court has to give to each claimant the value of the interest which he has lost by compulsory acquisition. So stated, the proposition may appear simple, but in its practical application numerous complicated problems arise in apportioning the compensation awarded. The difficulty experienced is due to the nature of a variety of interests, rights and claims to land which have to be valued in terms of money. The compensation awarded for compulsory acquisition is the value of all the interests which are extinguished and that compensation has to be distributed equitably amongst persons having interest therein and the Court must proceed to apportion the compensation so that the aggregate value of all interests is equal to the amount of compensation awarded. But in the valuation of competing interests, which from its very nature is dependent upon indefinite factors and uncertain data, considerable difficulty is encountered. Indisputably, in apportioning compensation the Court cannot proceed upon hypothetical considerations but must proceed as far as possible to make an accurate determination of the value of the respective interests which are lost. The Court must, in each case, having regard to the circumstances and the possibility of a precise determination of the value having regard to the materials available, adopt that method of valuation which equitably distributes the compensation between the persons entitled thereto. [See: Dossibai Nanabhoy Jeejeebhoy vs. P.M. Bharucha, (1956) 60 Bom. L.R. 1208] 28. The Court must, in each case, having regard to the circumstances and the possibility of a precise determination of the value having regard to the materials available, adopt that method of valuation which equitably distributes the compensation between the persons entitled thereto. [See: Dossibai Nanabhoy Jeejeebhoy vs. P.M. Bharucha, (1956) 60 Bom. L.R. 1208] 28. Thus, the only general principle one could state is that apportionment under Sub-Clause (4) of Section 3H of the Act 1956 is not a revaluation but a distribution of the value already fixed among the several persons interested in the land acquired in accordance with the nature and quantum of the respective interests. In ascertainment of those interests, the determination of their relative importance and the manner in which they can be said to have contributed to the total value fixed are questions to be decided in the light of the circumstances of each case and the relevant provisions of law governing the rights of the parties. The actual rule for apportionment has to be formulated in each case so as to ensure a just and equitable distribution of the total value or compensation among the persons interested in the land. 29. In the circumstances referred to above, the legislature thought fit to assign such function to none other than the Principal Civil Court of original jurisdiction. 33. We are of the view that when it comes to resolving the dispute relating to apportionment of the amount determined towards compensation, it is only the Principal Civil Court of original jurisdiction which can do so. Principal Civil Court means the Court of the District Judge. 34. Our final conclusion is as under: 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 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. The competent authority possesses certain powers of the Civil Court, but in the event of a dispute of the above nature, the summary power, vesting in the competent authority of rendering an opinion in terms of sub-section (3) of Section 3H, will not serve the purpose. The competent authority possesses certain powers of the Civil Court, but in the event of a dispute of the above nature, the summary power, vesting in the competent authority of rendering an opinion in terms of sub-section (3) of Section 3H, will not serve the purpose. 11 The dispute being of the nature triable by the Civil Court that the law steps in to provide for that to be referred to the decision of the Principal Civil Court of original jurisdiction. The dispute regarding apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, would then have to be decided by that Court.” 14. If the aforesaid exposition of law is read in its entirety, it clearly suggests that competent authority possesses certain powers of civil court, but in the event of dispute with regard to apportionment of the amount or any part thereof, summary power vesting in the competent authority of rendering an opinion in terms of sub-section 3 of Sub-Section 3H will not serve the purpose, rather dispute being of the nature, triable by Civil Court requires to be referred to the Principal Civil Court of original jurisdiction. It is quite clear from the aforesaid judgment that dispute regarding apportionment of the amount or any part thereof or to any person, to whom the same or any part thereof is payable, would be exclusively triable by Principal Civil Court of original jurisdiction, but definitely not by CALA, which is only required to render opinion in terms of Sub-Section 3 of Section 3H of the Act. 15. In the instant case, bare perusal of the order impugned in the instant proceedings, compels this Court to observe that CALA exceeded its his jurisdiction by itself deciding the issue of apportionment that too, on flimsy grounds. 16. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this court finds merit in the present petition and impugned order dated 27.9.2019 (Annexure P-12) is quashed and set aside and CALA is directed to make reference, as prayed for, by the petitioners under Sections 3H and 3H(4) of the Act, to the principal civil court of original jurisdiction, for deciding the issue of entitlement/apportionment inter-se petitioners and respondent No. 4. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any.