Competent Authority and Special Land Acquisition Officer vs Kuntala Behera Sambalpur

Arindam Sinha, J

Mr. Patnaik, learned advocate appears on behalf of appellant being Competent Authority and Special Land Acquisition Officer, Sambalpur. He submits, his client is aggrieved by judgment dated 26th August, 2021, whereby the Court below has set aside award/order dated 16th February, 2018 passed in Misc. (Arbitration) Case no.7 of 2016 under section 3-G(5) of National Highways Act, 1956. He submits, ground for setting aside the award was simply that the determination of the amount of compensation ought to have been as per the first schedule in right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

He submits, the acquisition proceeding was initiated under National Highways Act, 1956. The notifications, affecting respondent were made on 29th October, 2012 and 21st May, 2013. Award was made on 18th October, 2014. Though it is true that by circular dated 28th December, 2017, Government of India, Ministry of Road Transport and Highways had made it clear that determination of compensation in accordance with the first schedule in all cases of Land Acquisition under the 1956 Act would be w.e.f.1st January, 2015 but that it is not applicable since, he reiterates, the award was made on 18th October, 2014. Pursuant to the award, payment was made on 15th August, 2015 and the Court below found that on 8th September, 2015 the money was credited in account of respondent. Said Court further found that possession was taken on 1st April, 2017. He submits, the determining factor regarding applicability of the first schedule for determination of the compensation must be pendency of the determination proceeding as on 1st  January, 2015. In this case, the determination proceeding concluded with award made on 18th October, 2014, prior to 1st January, 2015.

Mr. Mishra, learned advocate appears on behalf of respondent and hands up circulars dated 29th April, 2015 and 28th  December, 2017. He also points out from impugned judgment that it clearly shows, the awards were made on 10th April, 2014 and 16th July, 2015.

Paragraph 4.4 from circular dated 28th December, 2017 is reproduced below.

“4.4. Following the notification of the aforesaid Ordinances, the Ministry of Road Transport & Highways issued a letter dated 20.04.2015 whereby the select provisions of RFCTLARR Act, 2013 were made applicable to the NH Act, 1956 with effect from 01.01.2015. A conjoint reading of the aforesaid shows that the Ordinance (Amendment) remained in force till 31st August 2015. ‘Removal of Difficulties Order’ was issued by the Department of Land Resources on 28th August 2015, which took effect from 01.09.2015. However, since the date of application of the selected relevant provisions of the RFCTLARR Act, 2013 to the NH Act, 1956 was 01.01.2015 in terms of the Ordinance (Amendment) No.9 of 2014, it remains an unambiguous and accepted position that 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 have been made applicable to all cases of land acquisition under the NH Act, 1956, i.e. the enactment specified at Sr. No.7 in the Fourth Schedule to the RFCTLARR Act, with effect from 01.01.2015.”

Parties will be heard on production of copies of the award made in the Acquisition Proceedings under the Act of 1956, regarding whether the determination of compensation ought to have been in accordance with the first schedule in the Act of 2013.

By consent, list on 9th May, 2022.

...........................................