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Madhavi Sharma V/S National Highways Authority and Others.

    S.B. Civil Writ Nos. 5328/2014, 16864/2012, 17790/2012, 17791/2012, 17814/2012, 14987/2013, 15938/2013, 15939/2013, 19521/2013, 20057/2013, 21682/2013, 91/2014, 92/2014, 2879/2014, 14267/2014 and 443/2015

    Decided On, 22 July 2015

    At, High Court of Rajasthan Jaipur Bench

    By, THE HONORABLE JUSTICE: MOHAMMAD RAFIQ

    For Petitioner: Raj Kamal Gaur, Dinesh Kumar Garg and Jeetendra Kumar Sharma, Advocates And For Respondents: Vikas Soni and Priyanka Soni, Advocates



Judgment Text

1. Since a common question of law and facts is involved in these writ petitions, therefore, they were heard together and being decided by this common judgment. For disposal of this bunch, the facts are taken from Writ Petition No. 5328/2014. Land comprised of Khasra Nos. 470 and 471 situated in village Sekhupur, Tehsil and District Dholpur, was acquired by respondent National Highways Authority for widening the National Highway No. 3-Agra-Gwalior section between 51 kilometers to 59 kilometers and for alignment of a loop-line. In the said acquisition, the land of the petitioner was also included. She submitted an application for award of compensation before the Land Acquisition Officer on 22.4.2011 along-with factual reports of 'patwari halka' counter signed by Tehsildar concerned. On that application, respondent No. 2-the Competent Authority (Land Acquisition Officer)-cum-Additional District Collector, Dholpur, passed an order dt. 23.7.2012 holding the petitioner entitled to get compensation, but, as per petitioner, she was not awarded compensation for her entire acquired land, which occurred due to oversight of the factual report. Thus, the petitioner was deprived of compensation of her complete acquired land. The petitioner was awarded compensation of her acquired land treating the same as residential, whereas the said land is abutting the above National Highway and is located in midst of commercial properties and is of commercial nature. Since the amount of compensation was not acceptable to petitioner, she filed an application u/s. 3-G(5) of the National Highways Act, 1956 before the District Collector, Dholpur, who was duly appointed as an Arbitrator by the Central Government for this purpose. In the application, the petitioner alleged that she has not been awarded compensati

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on for the entire acquired land and that while determining the amount of compensation, the authority concerned has treated the land as residential and agricultural. As per the norms of DLC rates, the land falling within 20 feet of the National Highway, should be treated as commercial land and the land falling beyond 20 feet should be treated as residential land. While determining the compensation, the authority concerned did not keep those guidelines into mind and wrongly determined the compensation. The petitioner should have been awarded compensation for 20 x 30 feet (55.76 square meter) land of Khasra No. 471 treating the same as commercial, and compensation for remaining 157.55 square meter land of Khasra No. 471 and 38 square meter land of khasra No. 470 be awarded treating the same as residential. The National Highway Authority filed reply to the said application denying the averments made by petitioner. An objection was also raised that application filed by petitioner is time barred having been filed beyond the period of 30 days from the date of computation of amount of compensation and prayed for dismissal of the application filed by the petitioner. Respondent-the District collector, Dholpur, vide order dt. 5.2.2014, dismissed the application filed by petitioner under Section 3-G(5) of the National Highways Act, 1956 (for short, the Act of 1956) treating the same as time barred having been filed beyond the period of 30 days as provided u/s. 33 of the Arbitration and Conciliation Act, 1996 as well as on merits. Hence this bunch of writ petitions.

2. Heard learned counsel for the parties and perused the material on record.

3. Learned counsel for petitioners argued that as per Sec. 3-G(5) of the Act of 1956 if the amount of compensation determined by the Competent Authority under sub-sec. (1) of Sec. 3-G is not acceptable to either of the parties, the amount shall, on application by either of parties, be determined by the Arbitrator to be appointed by the Central Government. In present case, amount of compensation determined by respondent No. 2 was not acceptable to petitioner because it was wrongly determined and therefore, applications were filed by the petitioners u/s. 3-G(5) of the Act of 1956, which have been dismissed treating the same as time barred holding that the same have been filed beyond the period of 30 days as provided u/s. 33 of the Arbitration and Conciliation Act, 1996 (for short, 'the Act of 1996') and also that the same are devoid of any merit. Under the Act of 1956, no period of limitation is prescribed for filing application before the Arbitrator u/s. 3-G(5) and that Sec. 33 of the Act of 1996 is not applicable on the applications filed by petitioners. Sec. 33 of the Act of 1996 is not applicable to the present cases because it is a provision to correct any computation error, any clerical or typographical error or any other error of similar nature occurring in the award passed by the Arbitrator, whereas in present case the computation of compensation has been made by respondent No. 2 as the Competent Authority and not as an Arbitrator.

4. It is argued that determination of compensation by respondent No. 2 was arbitrary, discriminatory and violative of Art. 14 of the Constitution of India, as for other similar lands of Dholpur city, which were acquired for the very same purpose for widening the same section of very National Highway No. 3, the competent authority had determine compensation treating the lands falling within 20 feet of the National Highway as of commercial nature and beyond 20 feet as of residential nature vide awards dt. 18.6.2008 and 9.7.2008, whereas compensation in present cases has been determined treating the same as residential and agricultural lands. Similar mistake has also been committed by respondent No. 3 while observing that computation of compensation by respondent No. 2 is proper and that compensation cannot be determined on the basis of DLC rates only, it has ignored the locality and other prevailing circumstances relevant for determination of real value of acquired lands.

5. Learned counsel for petitioners, in support of their case, have cited a Division Bench judgment dt. 12.10.2012 of Karnataka High Court in T. Yunis vs. National Highways Authority of India & Ors.

6. Learned counsel for respondents opposed writ petitions and submitted that petitioners had not submitted any objection against the Notification published by the Government of India u/s. 3-A of the Act of 1956 for acquiring the lands of various persons including the land comprising of Khasra No. 470 situated in village Sekhupur, Tehsil and District Dholpiir for widening the National Highway No. 3 of Agra-Gwalior section (Part of 51 KM to 59 KM). Aggrieved persons were heard on their objections by the competent authority and only thereafter declaration u/s. 3-D of the Act of 1956 was made by the Central Government by issuing notification. After publication of declaration vide notification u/s. 3-D, the said land vested in the Central Government free from all encumbrances. Thereafter, the process for determination of amount payable as compensation u/s. 3-G was started. A public notice was published by the competent authority inviting claims from all persons interested in the lands. After giving them full opportunity of hearing, the determination of amount payable as compensation was made by the competent authority. Section 3-G(5) of the Act of 1996 provides that if amount of compensation so determined by the competent authority is not acceptable, it would be determined by the Arbitrator to be appointed by the Central Government on application by either of the parties. As per provisions of Sec. 3-G(6), in the said Arbitration, provisions of the Act of 1996 shall apply. In present cases, petitioners filed applications u/s. 3-G(5) before the Arbitrator (District Collector, Dholpur) appointed by the Central Government, which were duly contested by respondents by filing reply. The Arbitrator, after considering the arguments of the respective parties, passed the impugned award dt. 5.2.2014 as defined under the provisions of the Act of 1996, by which the applications under Section 3-G(5) of the Act of 1956 were rejected. Petitioners have alternative remedy as provided u/s. 34 of the Act of 1996 of filing application for setting aside such award.

7. I have given my anxious consideration to rival submissions and perused the material on record.

8. The Division Bench of Karnataka High Court in T. Yunis, supra, rejected the argument that Art. 119 of the Limitation Act, 1963 shall apply and not Art. 137. The Division Bench judgment was in fact rendered affirming the judgment passed in writ petition filed by none other than the National Highways Authority of India. That was a converse case in which National Highways Authority of India moved an application u/s. 3-G(5) of the National Highway Act, 1956 before the Collector to redetermine the compensation determined by the Arbitrator appointed by the Central Government. In that case, the appellant's land was notified for benefit of the National Highway Authority under sub-sec. (1) of Sec. 3 of the National Highways Act, for widening the National Highway No. 13 at Amaravathi village of Hospet taluk. The Competent Authority determined compensation payable to acquired land at the rate of Rs. 2,583.6/- per square meter, by considering the lands as non-agricultural land and awarded a total compensation of Rs. 78,48,976/-. The National Highway Authority of India moved an application u/s. 3-G(5) of the National Highway Act 1956, to re-determine compensation by the Arbitrator appointed by the Central Government. The Deputy Commissioner, Bellary, was appointed as arbitrator by the Central Government for re determining the market value. The appellant appeared before the Arbitrator and raised an objections in regard to maintainability of application u/s. 3-G(5), contending that same was barred by limitation. The Arbitrator after hearing the parties came to conclusion that application filed by National Highway Authority was maintainable and not barred by limitation. The appellant filed writ petitions challenging said order. Learned Single Judge dismissed the petitions on the ground that limitation to file application u/s. 3-G(5) of the Highways Act would fall under Art. 137 of the Limitation Act and an application can be filed for re-determination of market value, within a period of three years. Petitions were accordingly dismissed. Challenging the same, the appeals were preferred before the Division Bench. The question before the Division Bench to be decided was whether, under the facts and circumstances. Article 119 of the Limitation Act or Art. 137 would attract to consider an application filed under Sec. 3-G(5) of the National Highway Act. The Division Bench has considered the arguments raised by both the parties and in para 7 to 12 held as under:--

"7. In order to appreciate the facts of the case, it would be appropriate for us to consider the provision of 3-G(5) of the National Highway Act which reads as hereunder:

"3-G(5) If the amount determined by the competent authority under sub-sec. (1) or sub-sec. (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."

8. By looking into sub-sec. (5) of Sec. 3-G, it is clear that any person aggrieved by the determination of the amount by the Competent Authority under under sub-sec. (I) of 3-G can make an application before the Arbitrator to be appointed by the Central Government. In other words, though the National Highway Authority is beneficiary for whose benefit the land is acquired is also entitled to make an application for redetermining the amount, determined by the competent Authority. In the circumstances; the application filed by the first respondent invoking Sec. 3-G(5) in redetermining the amount, determined by the third respondent before the second respondent is maintainable.

9. Having held so, the question would be whether the application filed by the second respondent u/s. 3-G(5) was barred by the limitation or not

10. Mr. S.N. Ashwathnarayana, the learned counsel for the appellant relying upon Sec. 3-G(6) contends that the provision of the Arbitration and Conciliation Act, 1996 would apply to arbitration proceedings under the National Highways Act and" there is no quarrel over the aforesaid contention in view of Sec. 3-G(6). According to him Art. 119 of the Limitation Act would apply to the proceedings initiated u/s. 3-G(5) and he relied upon Sec. 43 of the Arbitration and Conciliation Act, 1996. In order to appreciate his arguments, we have to consider Sec. 43 of the Arbitration and Conciliation Act and Arts. 119 and 137 of the Limitation Act. Section 43 of the Arbitration and Conciliation Act reads as hereunder:--

"43. Limitations.--(1) The Limitation Act, 1963 (36 of 1963), shall apply to arbitrations as it applies to proceedings in Court.

(2) for the purposes of this section and the Limitation Act, 1963 (36 of 1963), an arbitration shall be deemed to have commenced on the date referred in Sec. 21.

(3) Where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper.

(4) Where the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (36 of 1963), for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted."

11. Even on perusal of Sec. 43, it is not the case of the respondent that Sec. 43 of Limitation Act is not applicable, but, the contention of the respondent No. 1 is that Art. 119 is not applicable and Art. 137 would apply to the facts of this case. Article 119 of the Limitation Act reads as hereunder:--

119. Under the Arbitration Act, 1940 (10 of 1940)



Similarly Article 137 of the Limitation Act reads as hereunder:--



12. On perusal of Art. 119, we would have agreed with the arguments of the learned counsel for the appellant provided that the first respondent had made an application to set aside the award or get an award remanded for reconsideration or if he had filed an appeal into Court for confirmation and if the Arbitrator has already passed an award, if the person who had no grievance with the order, the said award has to be confirmed and if the person aggrieved by the award is intending to get the award set aside or getting the award remanded for reconsideration, then only Art. 119 of the Limitation Act would apply, and therefore, contention of the appellant's counsel that 30 days limitation would be applicable to an application filed u/s. 3-G(5) of the National Highways Act, cannot be accepted. Admittedly, as of now no award is passed by the Arbitrator. The amount determined by the competent authority under the National Highways Act cannot be treated as an award passed by the Arbitrator. The contention of the appellant counsel is to consider the amount determined by the competent authority as award passed under the Arbitration. But, the said contention cannot be accepted by any Court of law. Therefore, the contention urged by the appellant has to be rejected. Having seen all the three Acts, no period of limitation has been stipulated to seek a reference u/s. 3-G(5) of the National Highways Act. In such circumstances, the only provision available to the parties is to invoke Art. 137 of the Limitation Act, which provides three years from the date on which right to apply accrues. In the instant case, within a period of four months from the date of determining the value by the competent authority. Section 3-G(5) application is moved."

9. Aforesaid judgment having been rendered in writ petition filed by respondent National Highways Authority, has since attained finality, and the stand of the National Highways Authority before the High Court of Karnataka has to be accepted as valid even in the matters before this court because the same has been authoritatively determined so by the Karnataka High Court that since no period of limitation has been stipulated u/s. 3-G(5) of the National Highways Act, 1956, the only provision available to parties to invoke is the provision of Sec. 137 of the Limitation Act, which provides for three years period to file such application from the date on which right to apply accrues.

10. In view of the above, all writ petitions are allowed in terms of Division Bench judgment of Karnataka High Court in T. Yunis, supra. Impugned order passed by respondent District Collector, Dholpur, District Dholpur, is set aside. Matters are remanded back to the District Collector for passing appropriate order on merits treating the applications to be filed within limitation as admittedly in present cases applications have been filed within three years, and to decide the applications afresh within a period of one year from the date the parties approach him along-with a copy of this order, in accordance with law after recording evidence. Since this disposes of bunch of sixteen writ petitions, office to place a copy of this order on record of each file of the bunch
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