V.M.SAHAI,J. - (1.) THE present petition has been filed seeking relief in the nature of issuance of writ of mandamus to the respondent Competent Authority/Project Director to pay compensation for the acquired land at once in the light of award dated 23.12.2008 (which are annexed as Annexures 6 and 7) and payment notice dated 22.1.2009 (Annexure 8 to the writ petition) and also to direct the Project Director to consider and dispose of the representation of the petitioners dated 29.3.2009 (Annexure 10 to the writ petition) by reasoned and speaking order and to pay the amount of compensation for the acquired land for the purpose of construction of National Highway with 30% solatium on the market value and with 12% interest per annum.
(2.) IN brief, facts according to the petitioners are that petitioners No. 1 and 2 Balwant Singh and Rajwant Singh are the recorded tenure holder of plot No. 246 to an extent of 0.126 hectare area out of total 0.155 hectare situated in village Sansarpur, Tappa-Dub Khara, Pargana-Nagar Purab, Tehsil-Basti, District Basti, a true copy of khatauni is annexed as Annexure-1 to the writ petition; that under the provision of Section 3 A of the National Highways Act, 1956 Central Government issued notification No. Ka.Aa/49 (a) dated 18.1.2006 published in the Gazette of India dated 18.1.2006 declaring intention to acquire land of cluster of villages including abvoe mentioned land in village Sansarpur for the purpose of widening National Highways No. 28; that substance of the notification was published on 16.2.2006 in the local newspaper Hindustan and Dainik Jagran inviting objection under Section 3C from concerned tenure holder; that plot No. 224 (0.072) is only being acquired. However their plot No. 224(0.224) is also being acquired. The competent authority fixed 16.5.2006 for hearing of the petitioners' objection, a true copy of notice is annexed as annexure 3 to the writ petition. The Competent Authority heard and disposed of objection of the tenure holders vide award dated 23.12.2008 and notification under Section 30 was issued on 19.5.2006; that land in question vested in Central Government. Thereafter the Competent Authority proceeded to determine the amount of compensation due to petitioners under Section 3 G inviting objections vide notice dated 16.6.2006 fixing 21.8.2006 for hearing (Annexure 4 is true copy of said notice dated 16.6.2006). That petitioners No. 3 and 4 filed objections on 6.7.2006 before the Competent Authority claiming rate of compensation, solatium etc as to their land in question (true copy of the objection is annexed as annexure 5 to the writ petition). Under the Notification dated 19.5.2006 the entire area of the acquired land was 1.284 hectare, out of which 0.233 hectare land belonged to Gram Samaj and hence the Competent Authority proceeded to determine case No. 81 compensation of villagers land Sansarpur II in area 1.051 hectare. The compensation has to be paid at the market value of the land, sale deed exampler of area for the last three years formed basis of the compensation rate. Project Director/authorised agent submitted valuation of land in question as Rs. 4,39, 471/- The Project Director, the Special Land Acquisition Officer, Basti/Competent Authority vide award dated 23.12.2008, after hearing all the representations and objections determined total compensation amount of Rs. 2,12,93, 218/- per hectare. A true copy of award dated 23.12.2008 is annexed as Annexure 6 to the writ petition. In terms of award the petitioners No. 3 and 4 are entitled for total compensation amount of Rs. 55,00,000/- for their acquired land plot Nos. 204/A (0.072) hectare and plot No. 224 (0.224) hectare. No dispute regarding the share of compensation exists between the two share holders. It is further submitted that in terms of the said award dated 23.12.2008 petitioners No. 1 and 2 are jointly entitled for total amount of compensation awarded as Rs. 27,00,000/- for their acquired land plot No. 246 measuring 0.126 hectare. That petitioners on applying were served the certified copy of the award dated 23.12.2008. The compensation awards have attained finality and have become binding amongst parties as Central Government has not on date appointed under Section 3G (5) of the Act any Arbitrator; that the Project Director of the Central Government has deposited the total amount of compensation award through demand draft under Section 3 H (i) of the Act, Rule/W2 of Manner of Depositing Rules, 1998 on 19.1.2009 with the Competent Authority in the State Public Deposit Account for payment to concerned land owners; on deposit of the amount in the manner as alleged the Project Director took over possession of the petitioners' said land for the purpose of widening National Highways No. 28. That on 22.1.2009 a notice under Section 3H (2)of the Act was issued to the petitioners alongwith other villagers for payment of compensation on 29.1.2009 and on other dates specified in the notice, a true copy of it is annexed as annexure 8 to the writ petition. In response to the said notice the petitioners approached the office of the competent authority on the date fixed at 10 a.m. but no amount of compensation was ever paid to the petitioners. The date fixed for the payment of compensation has expired long back, no subsequent notice for determination of compensation amount has been issued as yet. Section 3H(2) of the Act casts duty on the Central Government to pay the determined amount of compensation through Competent Authority as soon as amount is deposited under Section 3H(1) of the Act. That till now the Competent Authority has not paid compensation awarded to the petitioners, that without paying compensation the Project Director started construction of widening road in question by showing of criminal force upon the land of petitioners; that petitioners made representation on 27.3.2009 to the District Magistrate, Basti for payment of compensation in terms of award dated 23.12.2008, a true copy of award dated 27.3.2009 is annexed as Annexure 9 to the writ petition; that since no response was received from the Collector the comprehensive representation was made by the petitioners on 29.3.2009 to the Project Director for payment of compensation awarded, true copy of which is annexed as annexure 10 to the writ petition; that the representation is still pending with the competent Authority and has not yet been disposed of ; that the land acquired is agricultural in nature and is the sole source of livelihood of petitioners and the petitioners cannot be deprived of their property without payment of compensation as required under the Law. It is further submitted that their right for compensation cannot be delayed by postponing payment for a long time. In the circumstances for delay in payment petitioners are entitled for compensation with 12% interest per annum from the date of actual taking of possession till date of payment with 30% solatium. The opposite parties have rebutted the contentions made in the writ petition and crux of the contention as raised by the opponents in the counter affidavit filed by respondents No. 2 and 3 is that excessive valuation of land has been fixed. The respondents have made a representation challenging the award as the same has not been passed on sound legal reasoning and also not in consonance of law of fixation of compensation of the acquired land and National Highways Authority of India has decided to challenge the award before the Arbitrator under Section 3G(5) of the Act for setting aside the award and determining the compensation afresh in accordance with law. The contention of the respondents is that they have challenged the award and have made a representation to the Arbitrator. The award has not attained the finality as yet and in the circumstances, compensation as determined under the award cannot be paid to the petitioners. An affidavit has been filed by Om prakash Gupta, Tehsildar (Nyayayik) Basti. In para 11 of the counter affidavit it is contended that cheque has to be issued by the joint signature of the answering respondent and respondent No. 3, Answering respondent after making the signature on cheque No. 554114 sent it for signature of respondent No. 3 but respondent No. 3 declined and restrained himself from signing the cheque and informed vide order dated 2.2.2009 that amount of compensation is excess and it requires approval of National Highways Authority of India prior to distribution and request was also made to defer the payment of compensation till its approval by the National Highways Authority of India and in the meantime respondent No. 2 instituted arbitration proceedings on 30.4.2009 before the Arbitrator/District Magistrate, Basti, the payment could not be made to the petitioners although cheque was signed by the answering respondent. As respondents No. 2 and 3 have instituted arbitration proceedings before the Arbitrator for reconsideration of the terms of award and only on finalization of proceedings the compensation determined by the arbitrator shall be paid to the petitioners.
(3.) AS against the counter affidavits filed by the respondents the petitioners have filed their rejoinder affidavit, in which they have specifically stated that the said representation made to the Arbitrator against the award has been rejected vide order and judgment dated 9.7.2009 passed by the Collector, Basti/Arbitrator as has been stated in para 3 of the rejoinder affidavit of Balwant Singh. It is further alleged that the facts are wrongly mentioned in the counter affidavit. Arbitration Suit No. 41 and 43 of 2009 have been dismissed vide order dated 9.7.2009 by the Collector, Basti which is filed with supplementary Rejoinder affidavit filed on 25.8.2009. It is submitted on behalf of the petitioners No. 1 to 4 that Collector/District Magistrate, Basti has rejected the Arbitration in the said case on merit after hearing both the sides, certified copy of said order is annexed as annexure SRA-1 to the affidavit.;