Allowed

Santosh Kumari and Another v. Union of India and Others

Himachal Pradesh HC11 Sept 2024CWP/7178/2023

Case brief

AI extract

What is this about?

Petitioners, legal heirs claiming shares in compensation awarded for acquired land, sought referral of their apportionment dispute to the District Judge under Section 3H(4) of the National Highways Act. The competent authority refused on grounds of prior disbursement. The High Court held referral was mandatory and set aside the refusal.

What did the court decide?

Order dated 22.08.2023 set aside; respondent No.4 directed to refer petitioners' dispute to the Principal Civil Court of original jurisdiction within six weeks.

Santosh Kumari and Another Vs Union of India and… — Land Acquisition | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CWP No. 7178 of 2023 Decided on: 11^th September, 2024

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_________________________________________________________________ Santosh Kumari & Anr ....Petitioners Versus Union of India & Ors. …Respondents

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Coram

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Ms. Justice Jyotsna Rewal Dua,

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lWhether approved for reporting? ____________________________________________________________ For the petitioners: Mr. Sudhir Thakur, Sr. Advocate with Mr. Somesh Sharma, Advocate. For the respondents: Mr. Rajinder Thakur, Central Government Counsel, for respondent No.1 Ms. Shreya Chauhan, Advocate, for respondent No.2. Ms. Leena Guleria, Deputy Advocate General for respondents No. 3 and 4. Mr. P.S. Negi, Advocate, for respondents No. 7 to 12.

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Jyotsna Rewal Dua, Judge

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The Competent Authority-cum- Land Acquisition

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Collector (CALA) has refused to refer the claim of the

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l Whether reporters of Local Papers may be allowed to see the judgment?

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petitioners under Section 3H (4) of the National Highways Act, 1956 (the Act in short) to the learned District Judge for determining the question of apportionment of the awarded amount. Hence, this writ petition.

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2. Heard learned counsel on both sides and

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considered the case file.

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3. The case set up is that:-

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3(i) Land comprised in Khasra No. 228/1, situated at

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Mouja Dalog, Tehsil Kandaghat, District Solan, H.P. was acquired for the purpose of widening/construction of National

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Highway-22 i.e. Solan-Shimla National Highway.

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3(ii) Petitioners’ name figure in the column No.4 in the

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jamabandi for the year 2016-17 in respect of the subject land.

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3(iii) Respondent No.4 passed an award on 27.10.2021

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inclusive of afore described subject land i.e. Khasra No. 228/1. List of the interested persons was prepared and the same was attached to the award as Annexure-I. In the afore list at Sr. No.3, name of Smt. Vidya Devi also appears alongwith other names against Khasra No.228/1, for which, total compensation payable has been assessed at

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Rs.13,09,960/-. At Sr. No.4 of Annexure-I, one solitary name

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of Sh. Harmesh Kumar appears in respect of Khasra No. 228/1 and its compensation has been assessed at Rs. 77,46,80/-.

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3(iv) According to the petitioners, Smt. Vidya Devi died on 04.01.2022. Petitioners and respondents No. 5 to 12 are stated to be the legal heirs of late Smt. Vidya Devi.

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3(v) Petitioners preferred an application under Section 3H of the Act praying for determining the question of their entitlement to the compensation determined under Award No.30/5 dated 27.10.2021 as also to the question of apportionment of the compensation amount in terms of the aforesaid award.

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The case of the petitioners in the application was that:- Award was passed without taking into consideration the revenue record, which clearly reflected the names of the petitioners as co-owners in Khasra No. 228; There was no occasion for the petitioners to relinquish their share in land comprised in Khasra No. 228/1; The compensation amount

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in terms of the award in respect of Khasra No. 228/1 was also required to be paid to the petitioners to the extent of

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their shares after the death of Smt. Vidya Devi; Share of Smt. Vidya Devi was required to be distributed amongst the petitioners and respondents No. 5 to 12; Not only there was a mistake in passing of the award as names of the petitioners were not included in the award, but even the share of Smt. Vidya Devi, who figured at Sr. No.3 in Annexure-I, was required to be disbursed to the petitioners. The prayer was accordingly made to respondent No.4 to amend the award No.30/5 dated 27.10.2021 by including the names of the petitioners in the list of persons entitled for compensation. Further prayer was made that in case there was question of apportionment then petition be referred to the learned District Judge under Section 3H(4) of the Act. The prayer clause of the aforesaid application reads as under: -

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“It is, therefore, prayed that the present petition may kindly be allowed. Award No.30/5 dated 27.10.2021 may kindly be amended and the name of petitioners may kindly be included in the list of persons entitled for compensation and if the Hon’ble Court came to conclusion that there is question of apportionment then the reference petition under Section 3(H) of National Highway Act is to be referred to the Ld. District Judge Solan for the determination of the question of entitlement and the determination of the question of apportionment of the award amount determined vide award No.30/5 dated 27.10.2021 passed with respect to the above mentioned

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land in accordance with law in the interest of justice and fair play.”

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4. Respondent No.4 vide the impugned order dated

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22.08.2023 held that compensation amount had been disbursed on 16.03.2023 in terms of the award, whereas, application under Section 3H of the Act was preferred on 25.04.2023, therefore, the petitioners were at liberty to move directly before the Court of competent jurisdiction. Feeling aggrieved against the order dated 22.08.2023, whereby respondent No.4 refused to refer the application of the petitioners to the Court of Principal Civil Court of original jurisdiction, instant writ petition has been preferred.

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5. Considertion.

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5(i). Section 3H (4) of the Act reads as under: -

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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 is, by now, well settled that civil suit cannot be

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maintained by the petitioners of their own in respect of determining the apportionment of the compensation awarded

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under the provisions of the National Highways Act, 1956. Reference in this regard can be made to Gian Dass and

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others V. Daulat Ram and others¹ .

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Further, Hon’ble Apex Court in Vinod Kumar &

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Ors. Vs. District Magistrate Mau & Ors.² has held that apportionment under sub-clause (4) of Section 3H of the Act, 1956 is not a revaluation, but a distribution of the value already fixed among the several persons interested in the land acquired in accordance with the nature and quantum of the respective interests. It was further held that when it comes to resolving the dispute relating to apportionment of the amount determined towards compensation, it is only the Principal Civil Court of original jurisdiction which can do so. Principal Civil Court means the Court of the District Judge. Hon’ble Apex Court concluded that 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, then, 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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1 CMPMO No.379 of 2017 decided on 16.11.2017

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2 Civil Appeal No.5107 of 2024 decided on 07.07.2023

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The competent authority possesses certain powers of the Civil Court, but in the event of a dispute of the above nature, the summary power, vested in the competent authority under Section 3H(3) of the Act will not serve the purpose. The dispute being of the nature triable by the Civil Court that the law steps in to provide for that to be referred to the decision of the Principal Civil Court of original jurisdiction. The dispute regarding apportionment of the amount or any part of or to any person to whom the same or any part thereof is payable, would then have to be decided by that Court.

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5(ii) In the instant case, the petitioners have raised a dispute that share of Smt. Vidya Devi, whose name figured at Sr. No.3 in Annexure-I of the award dated 27.10.2021, was required to be disbursed to the petitioners and respondents No. 5 to 12, who were her legal heirs, which according to the petitioners, has not been done by respondent No.4. Further case of the petitioners is that their names were also required to be incorporated in the list of owners at Annexure-I and that they also have a right to claim their shares in the compensation amount determined by respondent No.4 against Sr. Nos. 3 and 4. Both Serial Numbers i.e. 3 and 4

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pertain to Khasra No. 228/1. Therefore, in view of the nature of dispute raised by the petitioners, it was incumbent upon respondent No.4 to have referred the dispute under Section 3H (4) of the Act for adjudication to the Principal Civil Court of original jurisdiction. Merely because respondent No.4 had disbursed the compensation amount to some of the coowners of the subject land, is not a ground to reject the application of the petitioners for referring the same for adjudication by the Principal Civil Court of competent jurisdiction under Section 3H(4) of the Act.

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In view of above discussion, this petition is

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allowed. Decision dated 22.08.2023 as contained in Annexure P-4 is set aside. Respondent No.4 is directed to refer the dispute raised by the petitioner in their application dated 24.04.2023 (Annexure P-3) to the concerned Principal Civil Court of original jurisdiction, within six weeks.

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Pending miscellaneous application(s), if any, also stand disposed of.

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Jyotsna Rewal Dua Judge

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September 11, 2024 R.Atal

Santosh Kumari and Another v. Union of India and Others

Case brief

What is this about?

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Santosh Kumari and Another v. Union of India and Others

Case brief

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