MR. VISHWASRAO DATTATRAY KACHARE Vs. UNION OF INDIA
HIGH COURT OF BOMBAY (AT: STATE)
Mr. Vishwasrao Dattatray Kachare And Ors.
Union of India And Ors.
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G.S. Kulkarni, J. -
(1.) This batch of petitions concern acquisition of land by the National Highway Authority for the purpose of widening and laying of a national highway, under the National Highways Act,1956 (for short the N.H.Act). We, therefore, propose to dispose of these petitions by this judgment, as common issues of law and facts are involved.
(2.) We set out in brief the issues as raised by the petitioners and the reliefs they seek.
Public Interest Litigation No.38 of 2015 concerns about 1497 agriculturists whose lands are affected by acquisition for widening and laying of the Pune Solapur National Highway No.9. The petitioners state that for this land acquisition, awards are passed by the Deputy Collector/ Land Acquisition Officer, under Section 3G (1) of the N.H. Act, in or about September and October 2011. Being not satisfied with the award of compensation, the lands being irrigated agricultural lands, having horticulture crop having pomegranate orchards, applications are filed before the Arbitrator as provided under Section 3G (5) of the Act. It is stated that by virtue of an order dated 8 December 2008 passed by the Government of India, Ministry of Shipping, Road Transport & Highways (Department of Road Transport & Highways), Additional Commissioner, Pune Division, was appointed as an Arbitrator to exercise powers of an Arbitrator under Section 3G (5) of the Act. These applications, according to the petitioners, are pending for quite some time. The case of the Petitioners is that the Additional Commissioner and Arbitrator being a Revenue Officer, is assigned several revenue assignments, as also he is required to decide other revenue disputes, and as such, is heavily burdened with proceedings under various other Acts (Zilla Parishad Act, Village Panchayats Act and Mumbai Provincial Municipal Corporation Act). The petitioners contend that there are about 1376 appeals under the 1894 Act which are pending since the year 2010. It is stated that in addition to these appeals, there are about 11157 other appeals which are pending. The contention is that no appeal under the N.H.Act is being decided, and it will, thus, take several years for the Arbitrator to decide these appeals. It is thus contended that justice is being delayed. The possession of the land is already taken over by the authorities and consequently interest of about 10183 villagers is adversely affected. The petitioners have accordingly prayed for the following reliefs :
(a) Direct the Government of India to take necessary steps to appoint one or more full time Arbitrators for Solapur district or to delegate the powers of the Arbitrator to the Deputy Commissioner for deciding the appeals under Section 3G (5) of the National Highways Act, 1956;
(b) Direct the Additional Commissioner, Pune Division, and the Arbitrator to decide the appeals under Section 3G (5) of the National Highways Act, 1956 before him within a time bound schedule of 6 months.
Mr.Dhakephalkar, learned Senior Counsel for the Petitioners has placed reliance on the order of the Supreme Court dated 11 August 2016 in Civil Appeal No.10553 of 2011 (Sunita Mehra & Anr. v. Union of India & Ors. ), to contend that the arbitrator ought to award solatium and interest on solatium.
(3.) In Writ Petition No.866 of 2014 the contentions are similar to the contentions in PIL No.38 of 2015. An additional contention as urged by the Petitioners is that the Deputy Collector / Special Land Acquisition Officer, who has declared the award is an officer junior to the Arbitrator, namely, Additional Commissioner, Pune Division, and therefore, there is likelihood of a bias. The contention is also that the arbitration proceedings would not be held at the hands of independent and impartial arbitrators as they are being appointed by the Central Government under Section 3G (5) of the N.H. Act. As both the appointments of the Land Acquisition Officer/Competent Authority as also the Arbitrator are made by the Central Government, the Arbitrator has a role to play in the acquisition proceedings. The Arbitrator thus becomes the judge in his own cause. It is contended that under the Arbitration and Conciliation Act, 1996 or even under the Arbitration Act, 1940, no fetters are put on the parties for agreeing to a procedure for appointing an Arbitrator of their choice. Further, the parties can even approach the Hon'ble Chief Justice under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator. However, as under the N.H. Act the Central Government appoints an Arbitrator under Section 3G (5), the said rights are rendered in consequential. This is an unilateral act violative of the principles of natural justice and Article 14 of the Constitution of India. The petitioners therefore have made the following prayers :
(a) Direct the Central Government to replace respondent no.2 as Arbitrator by an Arbitrator from the panel of the Arbitrators of this Court;
(b) To issue appropriate guidelines in respect of prescribing time-frame within which arbitration proceedings under the National Highways Act. 1956 should be decided;
(c) Strike down sub-Section (5) Section 3G of the National Highways Act, 1956 to the extent it empowers the Central Government to appoint an Arbitrator for violations of Article 14 of the Constitution of India and also for violating principles of natural justice.;
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