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2024 DIGILAW 692 (BOM)

Walmik Popat Patil v. Government of India

2024-06-26

R.V.GHUGE, Y.G.KHOBRAGADE

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JUDGMENT : (R.V. Ghuge, J.) 1. Rule. Rule made returnable forthwith and heard finally by the consent of the respective sides. 2. We have extensively heard the learned Advocates for the respective sides and have perused the Petition paper book with their assistance. We have considered the judgment delivered by the Hon'ble Supreme Court in Union of India Vs. Tarsem Singh, (2019) 9 SCC 304 ; National Highway Authority of India Vs. M. Hakeem and Anr., AIR 2021 SC 3471 and Narayan Das Jain Vs. Agra Nagar Mahapalika, (1991) 4 SCC 212 . It is trite law that the statutory benefits to be computed on the quantum of compensation, have to be granted by mathematical calculations, by the Arbitrator under the provisions of Section 3G(5) of the National Highways Act, 1956 (for short 'the 1956 Act'). 3. The question raised in this Writ Petition is, as to what should be the remedy to the Petitioners/land losers to seek such statutory benefits of solatium and interest component, as per the Notification issued under Section 3A of the National Highways Act, dated 15/03/2013, and the Notification dated 28/08/2015, issued under Section 105(3) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short 'the 2013 Act'). 4. It is apparent that the Award under Section 3-G(5) is dated 20/07/2023. Section 31(5) of the Arbitration and Conciliation Act, 1996 mandates that, an Arbitral Award is to be signed and such a signed copy is to be delivered to each of the parties. The Petitioners have placed a photostat copy of the said Award in the Petition paper book, which was filed on 20/09/2023. 5. It is submitted across the bar that this Award, by way of a signed copy, was received by the Petitioners after the filing of this Writ Petition. It is contended that, immediately an Application was made through the learned Advocate representing these Petitioners, on 09/10/2023, bringing it to the notice of the Arbitrator that the Award is bereft of the statutory benefits, and though the Arbitrator has recorded in paragraph No.14 of the Award that solatium and multiplier based on the lands acquired, are benefits that are payable to the land losers, such benefits were not granted in the operative part of the order, more specifically, the solatium amount. The said Application is still pending before the Arbitrator, which is said to have been filed under Section 33(4) of the Arbitration and Conciliation Act, 1996. Notices to the respective sides have also been given. 6. The learned Advocate for the Respondent No.5/National Highway Authority of India (NHAI) has, on the one hand, reserved his submissions, for the reason that the above contention of the Petitioners is beyond the pleadings in the Writ Petition. On the other hand, he submits that, if such application is filed before the Arbitrator within a period of 30 days, the Arbitrator will have to assess, as to whether such application can be entertained, if it is beyond limitation. He prays that the contention on behalf of the NHAI may be left open to the Arbitrator to be considered. 7. It goes without saying that the Authority concerned must appoint trained Arbitrators since it is not a formality under Section 3-G(5) of the 1956 Act to appoint an Arbitrator and it is also not a mere formality that the Arbitrator should mechanically proceed and deal with the proceeding. The legitimate expectation from an Arbitrator is that he should deal with the matter meticulously and with full knowledge of the subject, since there are several issues which have to be adjudicated upon by the Arbitrator. If an Arbitrator is oblivious of the fact that the statutory benefits have to be granted on quantifying the compensation, this is bound to create obstacles, not only for the land losers, but even for the Statutory Authorities, who have to continue to litigate and spend on litigation. Things become worse for the land losers as litigation would be foisted upon them only for the reason that the Arbitrator was oblivious of granting statutory benefits, which could be a matter of mathematical calculations. 8. In Sundar Vs. Union of India, (2001) 7 SCC 211 (Five Judges Bench), the Hon'ble Supreme Court has appreciated that the Scheme under the Land Acquisition Act for compensation to be paid, includes not only the amount to determine, but also the additional amount as is stipulated under Section 23(2) of the Land Acquisition Act, 1894, which is known as the 'solatium' amount. Landmark judgments in State of Gujarat Vs. Vakhtsinghji, (1968) 3 Supreme Court Reporter 692 and Sham Lal Narula (Dr) Vs. CIT, (1964) 7 SCR 668 , have been adverted to. Landmark judgments in State of Gujarat Vs. Vakhtsinghji, (1968) 3 Supreme Court Reporter 692 and Sham Lal Narula (Dr) Vs. CIT, (1964) 7 SCR 668 , have been adverted to. There is no dispute between the parties before us that, these Petitioners are entitled for the solatium component. 9. The issue, therefore, is as to whether this Court should exercise it's extraordinary jurisdiction under Article 226 of the Constitution of India, so as to rush in aid of such land losers, who are villagers, farmers and who are merely demanding statutory benefits as a right. It is often said that, a litigant must have a right in law, and if the litigant establishes such a right, the litigant should demand justice and not beg for justice. 10. The fact situation emerging from the record is that, the Petitioners are not at fault. In paragraph No.14 of the Arbitral Award dated 20/07/2023, it does appear that the Arbitrator was aware of the fact of statutory benefits to be granted to the Petitioners. In fact, in paragraph No.16, it is specifically stated that the Applicant would be getting 100% solatium and additional multiple factor as 1.5 on the market value of land, as well as 9% interest from the date of the Award. Paragraph Nos. 14, 15 and 16 of the Arbitral Award, read as under :- "14. In case of Shivram Versus State of Himachal Pradesh & Ors. SC Civil appeal No.1585 of 2001 & Rajjamma Versus Project Director, NHAI Thusharbindu No.337, the Hon'ble court has held that the compensation granted was not less than the compensation granted in respect of similar placed properties acquired earlier for the very same purpose invoking the provisions contained in the Land Acquisition Act 1894, as such it would be rightful to take into consideration the earlier orders passed by the arbitrator tribunal in present case, but it is not disputed that the rates given were considering the provisions of old act and present matters are filed under the new act where the benefits are on higher side which includes 100% solatium and multiple factor based on the land acquired under the acquisition project. 15. 15. Regarding issue of difference in size of land Applicant has relied on Mehrawal Khewaji Trust (Regd.) v State of Punjab, 2012 AIR SC 2721 where it is observed in Para 17 that "the value of sale of small pieces of land can be taken into consideration for determining the value of large tract of land but with a rider that the Court while taking such instances into consideration has to make a reasonable deduction keeping in view of the other attendant circumstances.". Size of piece land used as comparable sale exemplar is only 18.58 sqm. 16. In present cases the applicant would be getting 100% solatium and additional multiple factor as 1.5 on the market value of land as well 9% interest on from the date of award. As the previous rate of 2274 is an accepted rate from arbitration, it can be considered a fair value of land for 2011. Generally, the award would be bound to give an increase of about 30-50% as per the growth of the area, increase in value due to highway and other factors, which in my opinion would be fair compensation of the acquired land. In the current case, a multiplication factor of 1.5 is being provided as per the new Act. As per the legal paradigm, a solatium is a payment made to a victim as compensation for injured feelings or emotional pain and suffering, and hence solatium component is not used in calculation of fair market value. In view of the above observations, the base rate of 2274 as per the new act is a fair value for the current land." 11. In the light of the undisputed fact situation as above, the issue is, whether we should entertain this Writ Petition or relegate the Petitioners once again to the Arbitrator on the basis of an application dated 09/10/2023, said to have been filed by the Advocate for the Claimants after he received the signed copy of the Award, reminding the Arbitrator that he has forgotten to write in the operative part of the order that these Claimants are entitled for solatium and the interest components. In fact, what is averred in the said application, copy of which is tendered across the bar by the learned Advocate for the Petitioners (marked as 'X-1' for identification), is that they have specifically reminded the Arbitrator by pleading that, he has recorded that the statutory benefits are payable and that, he has forgotten to issue a direction in the operative part of the order. 12. In our view, the judgment delivered by the Hon'ble Supreme Court in Godrej Sara Lee Ltd. Vs. Excise and Taxation Officer-cum-Assessing Authority and Others, especially paragraph No.4, guides us to hold that this Court should issue a command in it's extraordinary Writ jurisdiction, after noticing that the Petitioners before us are innocent and it is not on account of their conduct that the Arbitrator forgot to issue a direction or mention in the operative part of the order that they are entitled for the statutory benefits. If the Petitioners are not at fault and if a right vests in them in view of the provisions of law, should the Petitioners go back to the Arbitrator to beg for justice or should they be allowed to demand justice in this Court. In paragraph No.4 in Godrej Sara Lee Ltd. (supra), the Hon'ble Supreme Court has observed as under :- "4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition "not maintainable". In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper." 13. The purport of the view expressed by the Hon'ble Supreme Court in paragraph No.4 is that, this Court should examine whether, an exceptional case is made out in aid of litigants, more so, when they are helpless and no oblique motives are attributed to their conduct, coupled with the fact that they are deprived of justice for no fault on their part. 14. It is in these circumstances, that we are exercising our extraordinary Writ jurisdiction and we are entertaining this Writ Petition to the extent of directing payment of statutory benefits to the Petitioners in the nature of solatium and interest. 15. In view of the above, this Writ Petition is partly allowed. We direct the Competent Authority (Land Acquisition) and Special Land Acquisition Officer, Amalner, Respondent No.4 herein, to add the component of solatium and interest on the enhanced amount, and after making due calculations, the concerned Arbitrator shall call upon the NHAI to make the funds available. The payment shall be made to these Petitioners within a period of 90 days after the Competent Authority corrects the Award. The interest component shall be computed upto the date of payment. 16. Rule is made partly absolute in the above terms. 17. No order as to costs.