R. Thangamuthu and Others Vs. The District Collector/Arbitrator, Erode District and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1179229
CourtChennai High Court
Decided OnJan-21-2016
Case NumberW.P.Nos. 2035 & 2036 of 2016 & W.M.P.Nos. 1779 to 1782 of 2016
JudgeT.S. Sivagnanam
AppellantR. Thangamuthu and Others
RespondentThe District Collector/Arbitrator, Erode District and Another
Excerpt:
national highways act, 1956 €“ arbitration and conciliation of act, 1996 €“ entitlement to enhancement €“ petitioners claim for enhancement of compensation which came to be rejected by district collector by impugned proceedings on ground that petitioners have not approached authority within prescribed period €“ hence, this petition; court held €“ authority who has to discharge claim for enhanced compensation or compensation so fixed is arbitrator who is appointed by central government €“ thus, function of arbitrator is to consider application for higher compensation €“ proceedings are governed by procedure contemplated under the 1996 act and that by itself cannot deny right of land owners for just and reasonable compensation and delay in approaching authority cannot non-suit land owner who has lost his valuable right over property €“ hence, impugned orders are set aside and first respondent is directed to consider petitioners claim for enhanced compensation €“ petitions are allowed. (paras: 10, 13) case referred: 1. r.gopalakrishnan v. the secretary to government and 6 ors. (prayer: petitions filed under article 226 of the constitution of india praying to issue a writ of certiorarified mandamus, to call for the entire records relating to the impugned order passed by the first respondent in his proceedings no.nh-47/arbitration/2015, dated 05.01.2016 and quash the same and consequently direct the first respondent to entertain the petitioner's appeal dated 12.11.2015 filed under section 3-g(5) of national highways act for higher compensation and dispose the same on merits.) common order: 1. with the consent of the learned counsel on either side, the writ petition is taken up for final disposal. 2. heard mr.c.prakasam, learned counsel appearing for the petitioners and mr.r.lakshmi narayanan, learned additional government pleader appearing for the respondents. 3. in all these writ petitions, the petitioners claim for enhancement of compensation which came to be rejected by the district collector by the impugned proceedings on the ground that the petitioners have not approached the authority within a period of three years from the date on which the award has been passed. 4. admittedly, the lands owned by the petitioners have been taken over for the purpose of formation of national highways and it is a compulsory acquisition of land. the petitioners having lost their lands are entitled for fair and reasonable compensation and such claims for higher compensation should be decided at the earliest, without much delay. 5. the petitioners are stated to be the poor agriculturists and probably not well informed about the legal position. be that as it may, this court has considered several writ petitions filed by the land owners who have approached the district collector claiming enhanced compensation and the district collectors have slept over the matter and kept the cases pending for several years. this has compelled this court to issue directions to the respective district collectors to conclude the proceedings at the earliest point of time, since the petitioners have lost their valuable right to property which has been held to be a human right. 6. the learned counsel for the respondents as well as the national highways department would submit that the provisions of the arbitration and conciliation act, 1996 would apply and therefore, the period of limitations will be three years. however, the impugned order does not refer to the provisions of the arbitration and conciliation act and refers only to the national highways act, 1956 which does not provide for any specific period of limitation. 7. before the first bench of this court a writ petition was filed as a public interest litigation in w.p.no.32197 of 2012 [r.gopalakrishnan v. the secretary to government and 6 ors] on behalf of the land owners whose lands were taken by the national highways department for the expansion of nh road 68. the division bench considered the matter, directed the claims to be considered by the respective collectors namely the district collector of villupuram, and the district collector, salem. the said order dated 4.12.2012 reads as follows: "heard the learned counsel appearing for the parties. by this writ petition, styled as public inerest litigation, the petitioner seeks a writ of mandamus to direct the respondents 1 to 3, 5 and 6 to consider and pass orders on his representation dated 08.11.2012. 2. it appears that the lands of agriculturists were acquired for widening the national highway road-68 from ulundurpet to salem. against the compensation assessed by the fifth respndent - competent authority (district revenue officer) under the act, it is stated that the concerned farmers moved the district collector, who is functioning as an arbitrator, for enhancement of compensation. since nothing has been done till date, the present writ petition has been filed. 3. after hearing the learned counsel appearing for the petitioner and mr.p.wilson, learned senior counsel appearing for the national highways authority of india, we weel that the claim of each farmer for higher compensation shall be decided independently, as the same cannot be decided in a representative capacity. therefore, the writ petitioner and the concerned farmers, if so advised, may file individual claim petitions for enhancement of compensation. needless to say that if such claim petitions are filed, the third and fourth respondents - collectors of villupuram and salem district, shall decide the same as expeditiously as possible, preferably within a period of three months from the date of filing claim petitions. 4. with the above direction, the writ petition is disposed of. there shall no order as to costs." thus, the first bench issued the above directions to consider the claims of the land loosers within a stipulated time frame and that was without reference to the plea of limitation. therefore, the question would be as to whether what is the nature of approach of the authorities to such issues. 8. as already observed, the petitioners have lost their valuable property and have not resisted the acquisition proceedings, bearing in mind the public interest involved. in such cases, the approach of the authorities should be to consider applications or claims for enhanced compensation in a pragmatic and justice oriented approach and their approach should be non-pedantic. there is always a distinction between inordinate delay and delay. it is not the case of the respondents that the claims of the petitioners were inordinately delayed, but, solely on the ground that the applications have been filed beyond the period of three years. the petitioners have also set out the reasons as to why they have approached the authority after the period of three years from the date of award. 9. section 3g of the national highways act, 1956, deals with determination of the amount payable as compensation. in terms of sub section (1) of section 3g, where any land is acquired under the said act, the amount payable as compensation shall be determined by an order of the competent autority and sub-section (3) stipulates the procedure to be followed by the competent authority while deciding the claim for compensation. sub-section (4) states that notice given by the competent authority should be with full particulars and it provides for an opportunity to the persons interested in such land to appear in person or by an agent or by a legal practioner to verify their claim. in terms of sub section(5) of section 3g, if the amount determined by the competent authority under section sub-section (1) or sub-section (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. the arbitrator so appointed by the central government is the collector of the respective districts. 10. thus, the authority who has to discharge the claim for enhanced compensation or the compensation so fixed is the arbitratior who is appointed by the central government. thus, the function of the arbitrator is to consider the application for higher compensation. 11. in terms of sub section (6) of section 3g of the act, proceedings to be conducted by the arbitrator is in terms of arbitration and conciliation act and the procedural law at best could aid in the object for which power had been conferred on the arbitrator in terms of section 3g (5) of the national highways act. as long as the national highways act, does prescribe a period of limitation, the procedural law to be followed by the arbitrator while adjudicating a dispute, cannot seek to take away the vested right of a land looser to seek for enhanced compensation for such procedural law cannot seek to abrogate the rights of the person who is aggrieved by the fixation of compensation by the competent authority. this is so because section 3g(5) of the national highways act uses the expression "not acceptable to either of the parties". this interpretation alone would subserve the intention of the statute as the compensation payable should be just and reasonable and not fanciful or a bounty. 12. this district collector has filed a counter affidavit reiterating the contentions raised in the impugned order and by referring to section 3g(6) and the provisons of the arbitration and conciliation of the act. 13. it may be true that the proceedings are governed by the procedure contemplated under the arbitration and conciliation act and that by itself cannot deny the right of the land owners for just and reasonable compensation and the delay in approaching the authority cannot non-suit the land owner who has lost his valuable right over the property. 14. in the light of the above, the impugned orders are held to be unsustainable and accordingly, the writ petitions are allowed and the impugned orders are set aside and the first respondent is directed to consider the petitioners claim for enhanced compensation on merits and in accordance with law as expeditiously as possible, preferably within a period of four weeks from the date of receipt of a copy of this order. no costs. consequently, connected miscellaneous petitions are closed.
Judgment:

(Prayer: Petitions filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the entire records relating to the impugned order passed by the first respondent in his proceedings No.NH-47/Arbitration/2015, dated 05.01.2016 and quash the same and consequently direct the first respondent to entertain the petitioner's appeal dated 12.11.2015 filed under section 3-G(5) of National Highways Act for higher compensation and dispose the same on merits.)

Common Order:

1. With the consent of the learned counsel on either side, the writ petition is taken up for final disposal.

2. Heard Mr.C.Prakasam, learned Counsel appearing for the petitioners and Mr.R.Lakshmi Narayanan, learned Additional Government Pleader appearing for the respondents.

3. In all these Writ Petitions, the petitioners claim for enhancement of compensation which came to be rejected by the District Collector by the impugned proceedings on the ground that the petitioners have not approached the authority within a period of three years from the date on which the award has been passed.

4. Admittedly, the lands owned by the petitioners have been taken over for the purpose of formation of National Highways and it is a compulsory acquisition of land. The petitioners having lost their lands are entitled for fair and reasonable compensation and such claims for higher compensation should be decided at the earliest, without much delay.

5. The petitioners are stated to be the poor agriculturists and probably not well informed about the legal position. Be that as it may, this Court has considered several writ petitions filed by the land owners who have approached the District Collector claiming enhanced compensation and the District Collectors have slept over the matter and kept the cases pending for several years. This has compelled this Court to issue directions to the respective District Collectors to conclude the proceedings at the earliest point of time, since the petitioners have lost their valuable right to property which has been held to be a human right.

6. The learned counsel for the respondents as well as the National Highways Department would submit that the provisions of the Arbitration and Conciliation Act, 1996 would apply and therefore, the period of limitations will be three years. However, the impugned order does not refer to the provisions of the Arbitration and Conciliation Act and refers only to the National Highways Act, 1956 which does not provide for any specific period of limitation.

7. Before the First Bench of this Court a Writ Petition was filed as a Public Interest Litigation in W.P.No.32197 of 2012 [R.GOPALAKRISHNAN v. THE SECRETARY TO GOVERNMENT and 6 ORS] on behalf of the land owners whose lands were taken by the National Highways Department for the expansion of NH Road 68. The Division Bench considered the matter, directed the claims to be considered by the respective Collectors namely the District Collector of Villupuram, and the District Collector, Salem. The said order dated 4.12.2012 reads as follows:

"Heard the learned counsel appearing for the parties. By this writ petition, styled as public inerest litigation, the petitioner seeks a writ of mandamus to direct the respondents 1 to 3, 5 and 6 to consider and pass orders on his representation dated 08.11.2012.

2. It appears that the lands of agriculturists were acquired for widening the National Highway Road-68 from Ulundurpet to Salem. Against the compensation assessed by the fifth respndent - Competent Authority (District Revenue Officer) under the Act, it is stated that the concerned farmers moved the District Collector, who is functioning as an Arbitrator, for enhancement of compensation. Since nothing has been done till date, the present writ petition has been filed.

3. After hearing the learned counsel appearing for the petitioner and Mr.P.Wilson, learned Senior Counsel appearing for the National Highways Authority of India, we weel that the claim of each farmer for higher compensation shall be decided independently, as the same cannot be decided in a representative capacity. Therefore, the writ petitioner and the concerned farmers, if so advised, may file individual claim petitions for enhancement of compensation. Needless to say that if such claim petitions are filed, the third and fourth respondents - Collectors of Villupuram and Salem District, shall decide the same as expeditiously as possible, preferably within a period of three months from the date of filing claim petitions.

4. With the above direction, the writ petition is disposed of. There shall no order as to costs."

Thus, the First Bench issued the above directions to consider the claims of the land loosers within a stipulated time frame and that was without reference to the plea of limitation. Therefore, the question would be as to whether what is the nature of approach of the authorities to such issues.

8. As already observed, the petitioners have lost their valuable property and have not resisted the acquisition proceedings, bearing in mind the public interest involved. In such cases, the approach of the authorities should be to consider applications or claims for enhanced compensation in a pragmatic and justice oriented approach and their approach should be non-pedantic. There is always a distinction between inordinate delay and delay. It is not the case of the respondents that the claims of the petitioners were inordinately delayed, but, solely on the ground that the applications have been filed beyond the period of three years. The petitioners have also set out the reasons as to why they have approached the authority after the period of three years from the date of Award.

9. Section 3G of the National Highways Act, 1956, deals with determination of the amount payable as compensation. In terms of sub section (1) of Section 3G, where any land is acquired under the said Act, the amount payable as compensation shall be determined by an order of the competent autority and sub-section (3) stipulates the procedure to be followed by the competent authority while deciding the claim for compensation. Sub-section (4) states that notice given by the competent authority should be with full particulars and it provides for an opportunity to the persons interested in such land to appear in person or by an agent or by a legal practioner to verify their claim. In terms of sub section(5) of section 3G, if the amount determined by the competent authority under section sub-section (1) or sub-section (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. The Arbitrator so appointed by the Central Government is the Collector of the respective districts.

10. Thus, the authority who has to discharge the claim for enhanced compensation or the compensation so fixed is the Arbitratior who is appointed by the central Government. Thus, the function of the Arbitrator is to consider the Application for higher compensation.

11. In terms of sub section (6) of section 3G of the Act, proceedings to be conducted by the Arbitrator is in terms of Arbitration and Conciliation Act and the procedural law at best could aid in the object for which power had been conferred on the Arbitrator in terms of section 3G (5) of the National Highways Act. As long as the National Highways Act, does prescribe a period of limitation, the procedural law to be followed by the Arbitrator while adjudicating a dispute, cannot seek to take away the vested right of a land looser to seek for enhanced compensation for such procedural law cannot seek to abrogate the rights of the person who is aggrieved by the fixation of compensation by the competent authority. This is so because section 3G(5) of the National Highways Act uses the expression "not acceptable to either of the parties". This interpretation alone would subserve the intention of the statute as the compensation payable should be just and reasonable and not fanciful or a bounty.

12. This District Collector has filed a counter affidavit reiterating the contentions raised in the impugned order and by referring to section 3G(6) and the provisons of the Arbitration and Conciliation of the Act.

13. It may be true that the proceedings are governed by the procedure contemplated under the Arbitration and Conciliation Act and that by itself cannot deny the right of the land owners for just and reasonable compensation and the delay in approaching the authority cannot non-suit the land owner who has lost his valuable right over the property.

14. In the light of the above, the impugned orders are held to be unsustainable and accordingly, the Writ Petitions are allowed and the impugned orders are set aside and the first respondent is directed to consider the petitioners claim for enhanced compensation on merits and in accordance with law as expeditiously as possible, preferably within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petitions are closed.