IMPORTANT POINT
High Court cannot assume jurisdiction of Executing Court while exercising jurisdiction under Article 226 of Constitution of India.

JUDGMENT :

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 01.04.2022 passed by the High Court of Judicature of Bombay at Aurangabad in Writ Petition No.144 of 2021 by which in a writ petition filed by the respondents herein – original land owners, in exercise of powers under Article 226 of the Constitution of India, the High Court has directed the appellant – NHAI to deposit the entire compensation amount as awarded by the learned Arbitrator and thereafter permitting the original land owners – original writ petitioners to withdraw the amount as mentioned in paragraph 4, the NHAI has preferred the present appeal.

2. That the land of the respondents herein – original land owners – original writ petitioners came to be acquired by the NHAI under the provisions of the NHAI Act. That the amount of compensation came to be enhanced by the learned Arbitrator. The award passed by the learned Arbitrator has been challenged by the NHAI by availing the statutory remedy under Section 34 of the Arbitration Act to the extent of the enhanced amount. That as there was no stay of the award passed by the learned Arbitrator in a proceedings under Section 34 of the Arbitration Act, the respondent herein – original land owners instead of filing the execution petition to execute the award declared by the learned Arbitrator enhancing the amount of compensation, filed the writ petition before the High Court and prayed for a Writ of Mandamus and/or appropriate directions/orders directing the NHAI to deposit the amount with the Competent Authority, Land Acquisition and Sub-Divisional Officer in pursuance of the award dated 12.06.2018. By the impugned judgment and order the High Court has disposed of the said writ petition by directing the appellant – NHAI to deposit the entire amount along with interest with the Land Acquisition Authority and thereafter has directed the original writ petitioners – land owners to withdraw 50% of the amount along with interest on filing an affidavit of undertaking that if in the litigation journey, an adverse order is passed against them and they are found to have withdrawn excess amount, the said amount would be redeposited with the authority. So far as the remaining 50% of the amount with interest is concerned, the High Court has permitted the original writ petitioners – original land owners to withdraw 25% of the amount by tendering a solvent surety and the remaining 25% of the amount to be deposited with the competent authority with a liberty to invest the said amount in a fixed deposit account in any Nationalized Bank. Feeling aggrieved and dissatisfied with the impugned order passed by the High Court, the NHAI has preferred the present appeal.

3. Ms. Aishwarya Bhati, learned ASG appearing on behalf of the appellant – NHAI has vehemently submitted that the Hon’ble High Court has seriously erred in passing the impugned order in exercise of powers under Article 226 of the Constitution of India.

3.1 It is further submitted by Ms. Bhati, learned ASG that as the award passed by the learned Arbitrator was executable before the concerned Executing Court and therefore when the original writ petitioners had a statutory remedy available to execute the award by initiating the execution proceedings before the concerned Executing Court, the High Court ought not to have entertained the writ petitions under Article 226 of the Constitution of India to execute the award passed by the learned Arbitrator.

3.2 It is further submitted by Ms. Bhati, learned ASG that even otherwise the Hon’ble High Court has committed a serious error in permitting the writ petitioners – original land owners to withdraw 75% of the amount of compensation with interest, when the appellant had already availed the statutory remedy available to the NHAI to challenge the award passed by the learned Arbitrator, by way of appeal/application under Section 34 of the Arbitration Act.

3.3 Ms. Bhati, learned ASG has placed relianc