Dismissed

Gian Dass v. Daulat Ram

Himachal Pradesh HC16 Nov 2017CMPMO/379/2017

Case brief

AI extract

What is this about?

This was an Article 226 petition challenging the maintainability of a civil suit filed for apportionment of land acquisition compensation under the National Highways Act. The Court held that disputes regarding apportionment must be referred under Section 3H (4) to the competent authority, making the civil suit non-maintainable. Consequently, the petition was dismissed.

What did the court decide?

Writ petition dismissed. Petitioners left to approach competent authority under Section 3H (4) of the National Highways Act, 1956.

Gian Dass Vs Daulat Ram — Land Acquisition | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CMPMO No.379 of 2017.

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Judgment reserved on : 31.10.2017.

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Date of decision: 16^th November, 2017.

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Gian Dass and others …..Plaintiffs/Petitioners. Versus Daulat Ram and others …..Defendants/Respondents. Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?¹ Yes For the Petitioners : Mr.Sanjeev Kuthiala, Advocate. For the Respondents : Mr.Maan Singh, Advocate, for respondent No.1. Mr.Neeraj K.Sharma, Dy.A.G., for respondents No. 6 and 8. Ms.Jyotsna Rewal Dua, Senior Advocate with Ms.Shalini Thakur, Advocate, for respondent No.7.

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Tarlok Singh Chauhan, Judge.

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This petition under Article 227 of the Constitution of India

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has been filed with the following substantive prayers:-

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“a) To call for the record of the case pertaining to CMA 121-IV/17, registered No.255/17 instituted on 08.06.2017, titled as Gian Dass & others vs. Daulat Ram and others, pending before the Ld. Civil Judge (Senior Division) Mandi District Mandi H.P. and after examining the legality and propriety of the case direct the Ld. Trial Court to ask respondent No.8 to take steps for recovering the released amount from the respondent No.1.

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b) To direct the Ld. Trial Court to expedite the matter and to decide the stay application and other application and also pass the orders on the stay of the application immediately.

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Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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c) To direct the Ld. Trial Court to take appropriate tangible security/bank guarantee from the respondent No.1 with respect to the amount so received by the respondent No.1 from the respondent No.8 and to further direct the respondent No.8 to release the undisputed compensation amount to the plaintiffs/petitioners.”

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The dispute in question relates to land comprised in Khasra Nos.321, 322 and 323, situate in Mauza Jhiri, Tehsil Aut, District Mandi, which were abutting to the National Highway No.21 and were acquired by respondents No.7 and 8 vide notification dated 16.02.2015 published on 27.03.2015 under the National Highways Act (for short ‘Act’). The petitioners filed objections against the said notification and laid exclusive claim for the award insofar it pertained to Khasra Nos. 322 and 323, respectively. On 18.01.2017, the Land Acquisition Collector passed the award in respect of the aforesaid Khasra Numbers and issued notices to the petitioners as also respondent No.1 to receive compensation vide notice dated 24.05.2017. Since the respondents were also held entitled to a part of compensation, the petitioners filed a reference under Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short ‘Rehabilitation and Resettlement Act, 2013’). However, the said reference was dismissed as not maintainable constraining the petitioners to file a civil suit under Sections 34 to 39 of the Specific Relief Act for the relief as already reproduced hereinabove.

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Upon notices to the respondents, they questioned the jurisdiction of the Civil Court to entertain the suit in view of the specific bar contained under Section 63 of the Rehabilitation and Resettlement Act, 2013. It was further submitted that in absence of any challenge to the lawful award made by the Collector in exercise of powers conferred

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in sub-section (1) of Section 3-G of the National Highways Act, the suit was not maintainable.

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I have heard the learned counsel for the parties and have also gone through the material placed on record.

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At the outset, it may be noticed that the provisions of the erstwhile Land Acquisition Act of 1894, were specifically excluded to the acquisitions made under the National Highways Act, 1956, as is clearly evident from perusal of Section 3-J of the Act which reads thus:-

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“ 3J. Land Acquisition Act 1 of 1894 not to apply

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Nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under this Act.]”

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However, as regards the applicability of the Rehabilitation and Resettlement Act, 2013 which in turn repealed the Act of 1894, there is a difference in position of law. The Central Government was empowered to extend the benefit of First, Second and Third Schedules to the acquisition under the enactment specified in Fourth Schedule of the Rehabilitation and Resettlement Act, 2013, within one year in terms of Section 105(3) of the Act, however, no such notification was issued within one year. In the meantime, three ordinances being Ordinance No.9/2014, 4/2015 and 5/2015 were issued, but all these ordinances lapsed. The Central Government thereafter issued a notification dated 28.08.2015 which is extracted below:-

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“MINISTRY OF RURAL DEVELOPMENT ORDER New Delhi, the 28^th August, 2015. Now, therefore, in exercise of the powers conferred by sub-section(1) of Section 113 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), the Central Government hereby makes the following Order to remove the aforesaid difficulties, namely:-

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1. (1) This order may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015.

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(2) It shall come into force with effect from the 1^st day of September, 2015.

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2. The provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to all cases of land acquisition under the enactments specified in the Fourth Schedule to the said Act.”

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Thus, in view of the aforesaid notification, the provisions of Rehabilitation and Resettlement Act, 2013, relating to determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule, shall apply to all cases of land acquisition under the enactment specified in Fourth Schedule of the Rehabilitation and Resettlement Act, 2013. Admittedly, the National Highways Act is included in the Fourth Schedule and finds mention at Serial No.7 thereof. Yet, it needs to be noticed that save and except what has been set out in the notification dated 28.08.2015, the entire provisions of the Act have not been made applicable to the acquisition carried out under the National Highways Act. Therefore, the provisions of the Rehabilitation and Resettlement Act have only to be read to the extent the acquisition carried out under the National Highways Act as have been specifically spelt out in the notification dated 28.08.2015 and nothing beyond that.

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Having taken note of the Rehabilitation and Resettlement Act, 2013, I may now advert to the relevant provisions of the National Highways Act. Section 3H (4) of the Act provides for apportionment of the amount and reads thus:-

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“ 3-H. Deposit and payment of amount. -

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(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated.”

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It would be noticed that Section 3H (4) of the National Highways Act, 1956, prescribes that if any dispute as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated.

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Indisputably, in the instant case, the dispute raised by the petitioners relates to apportionment and, therefore, the dispute was required to be referred to the jurisdiction of the Principal Court of original jurisdiction.

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Now, the moot question is as to which Court can be said to be a Principal Civil Court of original jurisdiction as the same has not been defined in the Act. However, Section 3(17) of the General Clauses Act, 1897, defines the “District Judge” as “Judge of Principle Civil Court of original jurisdiction”, but shall not include a High Court in exercise of its ordinary or extraordinary original civil jurisdiction. This means that the Principal Civil Court of original jurisdiction contemplated in Section 3H(4) of the National Highways Act, 1956 is the “District

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Judge” of the Civil Court within the limits of whose jurisdiction the land is situated.

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Now, in this background, the further question that arises as to whether the civil suit filed by the petitioners of their own is maintainable in view of what has been noticed above. The answer to the said question is obviously in the negative for more than one reason. Firstly, the Civil Court where the suit has been instituted is not the Principal Civil Court of original jurisdiction and secondly the claim having not been forwarded by the competent authority under Section 3H (4) is otherwise not maintainable.

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In view of the aforesaid discussion, it can conveniently be held that the civil suit instituted by the petitioners before the Civil Court is not maintainable. Accordingly, there is no merit in this petition and the same is dismissed and even the suit instituted by the petitioners is held to be not maintainable and is accordingly dismissed. The parties are left to bear their own costs. Pending application, if any, also stands disposed of.

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However, dismissal of the petition will not debar the petitioners from approaching the competent authority under Section 3H (4) of the National Highways Act, 1956 and in case such application is filed, then needless to say, the competent authority shall consider such application strictly in accordance with law without being influenced by what has been observed above and decide the same as expeditiously as possible.

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16^th November, 2017. (krt)

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(Tarlok Singh Chauhan), Judge.

Gian Dass v. Daulat Ram

Case brief

What is this about?

What did the court decide?

Gian Dass v. Daulat Ram

Case brief

What is this about?

What did the court decide?

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