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2013 Supreme(Kar) 398
High Court of Karnataka
B.S. PATIL, J.
G. Ravishankar, Chitradurga District
Versus
National Highways Authority of India, Chitradurga Dist., Rep. by Its Project Director & Others
M.F.A. No. 7415 of 2010
Decided on : 16-07-2013
For the Appellant:Shankarlingappa Nagaraj, Advocate.
For the Respondents:R1, Shilpa Shah, for M/s. Singhania & Partners, Advocates, R3, S.B. Shahapura, AGA, R2, Reserved.
Headnote:CONSTITUTION OF INDIA - Articles 300-A & 21: [B.S. Patil, J] Right to property - It is no longer a fundamental right , yet, it is a human right. If taken away, aggrieved person is entitled to protection by way of compensation which includes attempts to mitigate loss which he may suffer.
NATIONAL HIGHWAYS ACT, 1956 - Section 3-G: [B.S. Patil, J] Market value and other benefits - Determined under arbitral award - District Judge setting aside award on ground that award was non-speaking - Held, The findings recorded by the District Judge do not also suggest that the compensation determined by the Land Acquisition Officer constituted fair and just determination of compensation. For that purpose, no discussion is made with regard to the evidence adduced by both parties. The right course for the District Judge was to remand the matter to the Deputy Commissioner for fresh consideration. In a matter like this, where the landowner claims compensation and provision is made for redressing his grievance by providing a forum for determination of just and fair compensation payable to him, the authorities/Court invested with the power has to consider the evidence on record and fix the market value as it obtained on the date the notification under Section 3-A of the Act came to be issued. Section 3-G(1) of the Act, provides for payment of amount by way of compensation which shall be determined by the Competent Authority under the Act. Section 3-G(5) of the Act, provides that the aggrieved party can make an application to the Arbitrator for determining just and fair compensation payable to the acquired land, for which purpose the provisions of the Arbitration and Conciliation Act, 1996, is applicable.
NATIONAL HIGHWAYS ACT, 1956 - Section 3G(7): [B.S. Patil, J] Factors to be taken into account in determining the compensation - Held, Some of the factors to be taken note of are the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings. Yet another factor to be taken into consideration is, that if as a result of the acquisition, the person interested is compelled to change his residence or place of business, then reasonable expenses, if any, incidental to such change, has to be awarded. The scope of Section 3-G(7), includes in its fold the payment of just and fair compensation to the acquired land as it obtained on the date of publication of the notification under Section 3-A of the Act. The requirement spelt out in Section 3-G(7)(c) and 3-G(7)(d) obligating the authority to make good the damage, if any, sustained by the person interested at the time of taking possession of the land in view of the acquisition injuriously affecting his other immovable property in any manner, or his earnings, encompasses in it an attempt to be made to mitigate such damage, if permissible and possible. It cannot be said that when a portion of the land is acquired and in the non-acquired portion if the landowner can legally carry on his business to eke his livelihoold, he could not be denied of such opportunity to carry on the business by denying him access to the unacquired portion and that the only obligation of the acquiring body is to assess the damage and pay the compensation including for the loss of business. This is a very pedantic approach. If the landowner is entitled in law to continue his business in the non-acquired portion by running a petrol bunk, in accordance with law, then every effort has to be made firstly by the acquiring body itself and subsequently by the Competent Authority which is invested with the power to determine and pay the just and fair compensation. If such an effort was not made by the acquiring body then, when the matter comes up before the Arbitrator - Deputy Commissioner, such an attempt to mitigate the damage can be justifiably done.
1. In this appeal, appellant is challenging the order dated 17.03.2010 passed by the learned Principal District Judge, Chitradurga, in Arbitration Case (A) No.75/2007, thereby allowing the application by setting aside the award dated 08.05.2007 passed by the Deputy Commissioner, Chitradurga, in No.LAQ/C.R/14/ 2005-06.
2. An extent of 22,869 sq. ft. of land comprised in Sy. No.49/2 of Aimangala village, Hiriyur Taluk, Chitradurga District, belonging to the appellant has been acquired for the benefit of respondent No.1-National Highways Authority of India, for the purpose of widening National Highway No.4. A notification under Section 3D of the National Highways Act, 1956 (for short, ‘the Act’) came to be issued on 29.10.2001. On 30.12.2002, the Competent Authority/Land Acquisition Officer passed an award determining the market value and compensation payable at the rate of Rs.42 per sq. ft. Aggrieved by the same, the claimant moved the Deputy Commissioner under Section 3G(5) of the Act, read with the provisions of the Arbitration and Conciliation Act, 1996.
3. The Deputy Commissioner/Arbitrator exercising his power under Section 3G(7) of the Act, has passed the award dated 08.05.2007 enhancing the market value of the land and fixing the same at Rs.125/- per sq. ft. He has granted the following reliefs taking note of the loss suffered by the appellant in his business and the inconvenience caused to him apart from the trauma undergone in that process.
(a) Land compensation at Rs.125/- per sq. ft. for 22,869 sq. ft. as the land value.
(b) Loss of business for 10 years at Rs.5,00,000/-.
(c) The respondents shall provide intersection to access the vehicles from N.H. within 500 mtrs., from the sides. This facility is ordered to be made in view of fact, the land owner has sacrificed his precious land and parted his livelihood for this purpose. This is to be done on both humanitarian grounds and as a matter of justice and fair play.
(d) The respondents shall also prepare a rehabilitation package if the appellant is likely to be displaced from the existing place.
4. Aggrieved by this order, the respondents herein filed Arbitration Case No.75/2007 invoking the provisions of Section 34(2) of the Arbitration and Conciliation Act, 1996, seeking to set aside the order passed by the Deputy Commissioner.
5. The learned District Judge, having considered the respective contentions, has passed the impugned judgment setting aside the award passed by the Arbitrator. The learned District Judge has found fault with the approach adopted by the Deputy Commissioner in determining the market value at Rs.125/-per sq. ft. in the wake of the sale transaction, wherein the claimant had sold certain extent of land comprised in the very same survey number in favour of the National Highways Authority at Rs.42/-per sq. ft. The learned District Judge has further found that the relief granted by the Arbitrator directing the National Highway Authorities to provide inter-section to have access to the vehicles from National Highway within 500 metres to the petrol bunk of the claimant was without authority of law. Referring to Section 3G(7) of the Act, the District Judge has found that the Deputy Commissioner failed to discharge his duties by passing a speaking order and the order passed by the Deputy Commissioner was contrary to the provisions contained under Section 3G(7) of the Act.
6. Learned Counsel appearing for the appellant submits that the District Judge has totally erred in passing the impugned judgment. His contention is, that having found fault with the award passed by the Arbitrator, the District Judge has not made any attempt to ensure that the claimant-land owner gets a just and fair compensation in terms of the provisions contained under the Act. He further points out that as the claimant-appellant had access to the petrol bunk well before the acquisition for widening the National Highway, the authorities while determining compensation
