@JUDGMENTTAG-ORDER
B.S. Patil, J.@mdashThe National Highways Authority of India has filed these batch of writ petitions challenging the supplementary awards passed by the Assistant Commissioner and the Competent Authority, NH-4 (Mulbagal-Kolar-Bangalore Section), Kolar.
2. Respondent No. 1 is the competent authority appointed by the Central Government for the purpose of carrying out the duties and functions pertaining to acquisition and determination of the amount payable as compensation in accordance with the provisions of National Highways Act, 1956 (for short, ''the Act''), for the relevant stretch of National Highway No. 4 in Mulbagal-Kolar-Bangalore Section.
3. A notification under Sub-section (1) of Section 3D of the Act came to be issued on 14.11.2007 acquiring various lands belonging to different owners who are arrayed as party Respondents in these writ petitions.
4. Respondent No. 1 - Competent Authority exercising his powers under Sub-sections (1) to (4) of Section 3G of the Act passed an award on 28.06.2008 determining the market value and awarding compensation. However, subsequent to the passing of the award, a representation was made by the owners of the acquired lands stating that the acquired lands were situated within municipal limits and/or were converted for non-agricultural use and therefore, they were entitled for payment of market value admissible for non-agricultural lands. They enclosed documents evidencing the conversion and payment of development charges, etc.
5. Respondent No. 1 - Competent Authority having considered the said representation and having verified the documents produced, has found that the lands in question were converted lands for non-agricultural purpose before the date they were acquired by issuing the notification u/s 3A of the Act on 14/18.12.2006 and hence the land owners were entitled for payment of compensation treating the lands as converted lands and not as agricultural lands. Accordingly, by examining several judgments of the Apex Court regarding valuation of land situated within municipal area near residential places and also regarding assessment of agricultural lands having urban potential situated adjacent to converted urban lands, he has passed the impugned supplementary award after inspecting the spot by recording a finding that the lands were entitled for assessment of compensation either as non-agricultural lands or lands having non-agricultural potentiality and awarded compensation by enhancing the market rate per square metre.
6. To appreciate it better, we may take the example of the land comprised in W.P. No. 25048/2010 situated at Dandupalya village, Kasaba Hobli, Hoskote Taluk, Bangalore Rural District, comprised in Sy. No. 145 measuring 4,265 sq. mtrs. Respondent No. 1 has enhanced the compensation by passing the supplementary award and has fixed it at Rs. 1.291.63 per sq. mtr. from Rs. 988.40 per sq. mtr. awarded earlier on 28.06.2008. It is thus clear from the supplementary award passed in this case on 30.01.2010. that the enhanced amount of Rs. 12,93,276/- is ordered to be paid over and above the compensation already determined. The extent of land involved and the rate determined in different cases obviously differ and it is not necessary to refer to each one of them.
7. The contention of the learned Counsel for the Petitioner is that the supplementary awards passed are without authority of law, in as much as Respondent No. 1 has no such power or jurisdiction to sit in judgment over his own award and pass a fresh award styling it as a supplementary award thereby enhancing the compensation payable. In this connection, Counsel for the Petitioner has relied upon a Full Bench decision of the Gujarat High Court in the case of Kanchanbhai Jhaverbhai Desai And Anr. v. State Of Gujarat and Ors. (1995) 1 GLR 1956, wherein while dealing with the provisions of the Land Acquisition Act and the power of the Land Acquisition Officer to pass supplementary award, in paragraph 11, it is held that with regard to the area of land for which award was already made, the same becomes final u/s 12 of the Land Acquisition Act. Therefore, the question of any supplementary award being given in respect of the same area or part thereof did not arise. The Court has further held in the said judgment that in arriving at the amount of compensation, all the factors mentioned in Section 23 of the Land Acquisition Act have to be taken into consideration. If some of the factors are not taken into consideration, it cannot be said that in respect of those facts which are omitted, supplementary awards can be passed. In such circumstance, the remedy is not to ask for a supplementary award, but to file an application u/s 18 of the Land Acquisition Act for reference.
8. Reliance is also placed by the Counsel for the Petitioner on the judgment of the Single Bench of the High Court of Punjab and Haryana in the case of
9. Learned Senior Counsel for the Respondent-owners Mr. Uday Holla has contended that substantial injustice was done to the land owners as the Land Acquisition Officer had failed to take note of a very relevant and important fact regarding the conversion of the lands and their non-agricultural character and potentiality. Therefore, in order to correct the mistake, the supplementary awards came to be passed which cannot be found fault with. According to him, the writ petitions are liable to be dismissed on the ground of suppression of material facts, as the very Petitioner - National Highways Authority of India had consented for passing supplementary awards in some cases in the past based on the legal opinion furnished by its advocates and therefore, it was not open for the Petitioners to now turn around and contend to the contrary. He also contends that this fact is suppressed by the Petitioners. He has drawn the attention of the Court to several judgments where supplementary awards were passed by the Competent Authority and which were acted upon.
10. It has to be stated at the outset that, in none of the judgments relied upon by the learned Senior Counsel for the Respondents, any award enhancing the compensation by reconsidering and revising the basis adopted while passing the first award as is done in the present case came up for consideration. Therefore, none of these cases which are referred to by the Respondent-owners can be made the basis for considering the validity of the award now passed styling it as supplementary award. It is in this background, I find it unnecessary to refer to all such judgments on which the Respondents have placed reliance.
11. Mr. Subramanya, learned Counsel appearing for the Respondent-owners in W.P. No. 25051/2010 has placed reliance on the judgment in the case of
12. The important fact that has to be borne in mind in the present case is that though Respondent No. 1 - Competent Authority has styled the impugned award as a supplementary award, the actual exercise undertaken by him is not something that is supplementary to the award that he had already passed, but is aimed at reviewing his decision and re-writing a fresh award by nullifying the earlier one. As noticed above, the first award was passed on 28.06.2008. The second award, which is styled as supplementary award is passed on 30.01.2010 after a lapse nearly 1 1/2 years. While awarding compensation as per the first award, Respondent No. 1 has treated the lands as dry/garden lands, etc. and has awarded compensation at certain rate per square metre. However, subsequently at the instance of the claimants-land owners, he has conducted a fresh enquiry and has passed a fresh award viz. the second award treating the lands as converted /having non-agricultural potentiality/situated within municipal limits etc., and has enhanced the compensation. This exercise cannot be termed as one falling within the provisions of passing of supplementary award. This is, precisely, an act by which Respondent No. 1 has given a go-by to the earlier award and has passed a fresh award by conducting a fresh enquiry.
13. The question is whether Respondent No. 1 has any such power under the provisions of the Act to pass such a second award. The answer has to be an emphatic No. There is no provision in the Act clothing Respondent No. 1 to pass a second award. Once an award is passed determining the compensation by the competent authority, then as per the provisions contained under Sub-section (5) of Section 3G of the Act, the aggrieved party who does not accept the amount has to make an application to the Arbitrator appointed by the Central Government who will determine the correct amount payable. As per Sub-section (6) of Section 3G of the Act. the provisions of the Arbitration & Conciliation Act, 1996, are made applicable to every arbitration that takes place under the National Highways Act, 1956. As per Sub-section (7) of Section 3G of the Act, certain factors are enumerated which are required to be taken into consideration while determining the amount of compensation by the competent authority and also by the arbitrator. It is thus clear that if it is the case of the claimants-land owners that proper market value to the acquired lands payable as on the date of preliminary notification published u/s 3A of the Act was not determined and awarded by the competent authority, the only course open for them is to move the arbitrator whereupon the arbitrator is enjoined with a duty to determine the same by following the provisions contained under Sub-section (7) of Section 3G of the Act. The aggrieved party will be further entitled to avail the provisions of the Arbitration & Conciliation Act, 1996.
14. In the light of such provisions made under the Act and in the absence of any provision conferring power or jurisdiction in Respondent No. 1 - Competent Authority to pass a second award on the same subject matter, the impugned awards passed enhancing the compensation by passing a second award has to be characterized as illegal and untenable.
15. The concept of supplementary award imported by Respondent No. 1 in the instant case is a total misnomer. A supplementary award by its very nomenclature suggests something that was not done earlier which is attempted by way of a supplementary exercise. It is not uncommon in cases where the original award has not dealt with determination of compensation in respect of a part of the land consisting of structures or in respect of certain fruit bearing trees standing therein, due to non-availability of valuation report by the concerned engineer or the expert valuer, the competent authority excludes the said portion while passing the award with an intention to pass a supplementary award in respect of the said portion. In such an event, supplementary awards could be passed determining the compensation for the portion, which is not included in the earlier award.
16. In the instant case, what is sought to be done is to pass another award in the place of the earlier award by enhancing the compensation adopting a different method by conducting spot inspection and by taking note of other documents made available. If this is permitted, then a question could be asked as to why not a third or fourth or fifth award be passed by the competent authority at the instance of either of the parties. Such a situation, if permitted, will introduce total uncertainty and chaos. In any event, the competent authority cannot use such powers when no such provision is made in the Act. Hence, the impugned supplementary awards cannot be sustained in law as Respondent No. 1 has acted without jurisdiction and without any authority under the provisions of the Act while passing the impugned awards.
17. While this Court is alive to the concern of the land owners that they have to get just and legal compensation payable to their acquired lands and that if any mistake is committed by the competent authority in ignoring the relevant factors while determining the market value, the same deserves to be corrected in accordance with law to enable them to get proper compensation. but such correction has to be made in accordance with law, for which provision is made under the Act as referred to above.
18. In fact, in the course of arguments, it was submitted by the Counsel for the parties that most of the land owners have applied to the arbitrator aggrieved by the award passed by the competent authority. Therefore, the land owners will not be deprived of their entitlement to just and fair compensation by the action of this Court in setting aside the supplementary award. Hence, I am of the view that an act which is done without jurisdiction and against the provisions of law, cannot be sustained on sympathetic considerations. Therefore, all these writ petitions are entitled to succeed.
19. Hence, the writ petitions are allowed. The impugned supplementary awards are quashed.
