INTRODUCTION
The petitioner challenged the order of award passed by the respondent -Land Acquisition Officer cum Sub Divisional Officer, Jalore, through the writ petition under Article 226 of the constitution, regarding the procurement procedures, implemented by the National Highway Authority of India.
FACTS OF THE CASE
Agricultural lands in Khasra have been converted for residential purposes by Decree of 20.06.2011 approved by the Sub Divisional Officer (hereinafter "SDO"), Jalore, describing the above-mentioned land in the revenue register as 'Gair Mumkin Awasiya'.
The said land has been projected to acquire for the purpose of building the National Highway, and thus, the notice was issued on 16.03.2018 under section 3A of the National Highways Act, 1956 and, a statement was published on 14.02.2019. under section 3D of the Act of 1956 Procurement procedure was initiated by the National Highway Authority, the compensation and award were determined according to the claimant's land by the Land Acquisition Officer cum SDO on 12.08.2021.
Counsel for the petitioner while challenging the said order argued that, the respondent erred in considering the residential land, duly converted by the applicants, as agricultural land and calculated the value of the land according to the prevailing market rate for agricultural land in the area instead of calculating the rates on the basic residential areas.
The council submitted that the respondent has just relied on clause no. 11 (ii) in the 20.06.2011 conversion decree and opined that the conversion order held nullified as the petitioner was unsuccessful in raising the construction within the required period of two years and the council believe that mere requirement in the conversion order does not lead the order to be annulled except by the cognisant application of mind. But the authority rescinds the order and reinstates its title as agricultural land.
Petitioner was asked by the honourable Court why they haven’t approached to avail the remedy given under section 3G (5) of the National Highway Authority Act of 1956 and placed a writ petition before the court to which the council argued there is fundamental erroneousness of law on the part of the officer in considering the petitioner's land to be agricultural land, the petitioner has got no other remedy, except to be benefitted by writ jurisdiction of this Court.
The council relied on the decision of the Supreme Court in Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. & Ors.
The following points are mentioned in Section 3G of the National Highway Authority Act,1956:
Determination of the amount due as compensation:
1. If the land is acquired pursuant to this law, an amount will be paid which will be governed by decree of the competent authority
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2. If the right of use or any right of a servitude nature over land is acquired under this Act, a sum shall be paid to the owner and to any other person whose right of use over such land has been infringed in any way whether by reason of such purchase an amount computed at ten percent, of the sum determined in subsection (1), for such land
3. Authority needs to give public notice which should be published in two local newspapers before determining the amount payable sub-section (1) or sub-section (2) in order to invite claim from all the persons whose right of use over such land affected.
4. This notice will set out the particulars of the land and will require all persons interested in that land to appear before them, or by an agent or lawyer referred to in paragraph (2) of Section 3C, before the authority at any given time and location and to declare the nature of the interest they have in such land.
5. If it is unacceptable to either of the parties the amount determined by the authority, the amount could be fixed, at the request of a party, by the arbitrator appointed by the Central Government
6. The arbitrator while determining the amount needs to take into consideration the following points:
a) The market value on the date of publication of the notice of the land under section 3A
b) Any damage suffered by the interested party when taking possession of the land, due to the detachment of the said land from another land, or have an effect on his other immovable property or his earnings.
c) Following the possession of the land, the person involved is required to change his residence or place of business, the reasonable expenses due to this change.
JUDGEMENT AND THE ORDER OF THE HIGH COURT
Without addressing the disputes and arguments on the substance of the determination of the amount, this Court limits the current order to the amount of scope of the intrusion under Article 226 of the Constitution of India.
According to the court, the petitioner can challenge the said order of the officer through section 3G of the Act of 1956 as the section itself deals with the determination of compensation and the remedy to challenge the impugned order of the authority, therefore is a complete code in itself.
According to the High Court the act provides the remedy under Sub-section (5) of section 3G of the Act which explicitly says that if the amount, under sub-section (1) or sub-section (2), determined by the authority is unacceptable, the party can refer to the arbitrator who will be appointed by the Central Government and also subsection (7) of the Act of grants powers to the Arbitrator to inspect and deal with all the circumstances while determining the compensation.
Petitioners’ argument that as far as the duly approved conversion order is rescinded, withdrawn, or otherwise varied, the calculation of land should be made according to residential rates may well be judged by the Arbitrator as in accordance with the law.
Taking note of the judgment cited by the council of the petitioner, the High Court opined that it suffices to recall that the decision of the Supreme Court in the case of Harbanslal Sahnia (supra) is of limited use to the applicant because the recourse to arbitration, in this case, as provided for in the dealership agreement, for which the Supreme Court, based on the facts implied therein observed that the High Court should not have dismissed the writ petition based on the alternative remedy, as the rule of alternative recourse is that of discretionary power.
Considering that all facts and elements of the determination of reward, including the grounds that have been invoked before the Court, the court opined that there is sufficient legal remedy available to the petitioner and the matters are subjected to deal by the arbitrator and also for the determination of the amount requiring the conduct of evidence, this Court is not motivated to exercise its writ jurisdiction under Section 226 of the Constitution of India, especially where the order does not found to be fundamentally incompetent. Therefore, the writ petition and the Stay application stand dismissed.
This article is written by Pratham Bagani of Fergusson College.