Sagar Dey vs State Of West Bengal & Ors.

The factual matrix of this case has been stated in precis in my order dated June 19, 2018. I do not repeat it. All I say is that there must be a

mechanism to instruct high officers of the State of West Bengal who hail from the Indian Administrative Service and are serving at the level of

Collectors of the districts, in both law and English. I have not found such pervasive and obstinate ignorance even when the meaning of the words in

the context of the applicable law has been laid down in more than one judgement of this court.

Briefly, the entire grievance of the writ petitioner was that the authorities concerned refused to accept any application for referring the dispute relating

to enhancement of compensation for structures on land which were acquired for the purpose of a national highway, under the provisions of the

National Highways Act, 1956, on the purported ground that only the compensation determined for the acquisition of the land and not the structure,

could be referred to arbitration. This is the effect of the express pleadings contained in paragraphs 8, 9, 10, 11 and 12 of the writ petition.

So that this executive obstinacy is not continued, while allowing the writ petition to the extent mentioned below, I propose to once again reiterate the

matters of record and the position of law. Under Section 3b of the National Highways Act, 1956, unless the context otherwise requires, land has been

defined to include “benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth.â€​

Under Section 3A of the Act of 1956 the Central Government has the power to declare its intention to acquire land which it is satisfied it requires for

the public purpose of building, maintenance, management or operation of a national highway or a part thereof. Naturally, the context does not require

that land be read as something which does not include things attached to the earth, such as structures. Now we come to the meat of the matter. This

involves an interpretation of Section 3G of the said Act of 1956, so I will extract the section in full hereinbelow.

“(1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.

(2) Where the right of user or any right in the nature of aneasement on, any land is acquired under this Act, there shall be paid an amount to the owner

and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount

calculated at ten per cent, of the amount determined under sub-section (1), for that land.

(3) Before proceeding to determine the amount under subsection (1) or sub-section (2), the competent authority shall give a public notice published in

two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired.

(4) Such notice shall state the particulars of the land and shallrequire all persons interested in such land to appear in person or by an agent or by a legal

practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective

interest in such land.

(5) If the amount determined by the competent authorityunder sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount

shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government--

(6) Subject to the provisions of this Act, the provisions of theArbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under

this Act.

(7) The competent authority or the arbitrator while determiningthe amount under sub-section (1) or sub-section (5), as the case may be, shall take into

considerationâ€

(a) the market value of the land on the date of publication ofthe notification under section 3A;

(b) the damage, if any, sustained by the person interested atthe time of taking possession of the land, by reason of the severing of such land from other

land;

(c) the damage, if any, sustained by the person interested atthe time of taking possession of the land, by reason of the acquisition injuriously affecting

his other immovable property in any manner, or his earnings;

(d) if, in consequences of the acquisition of the land, theperson interested is compelled to change his residence or place of business, the reasonable

expenses, if any, incidental to such change.â€​

From the aforesaid, it is clear that compensation has to be determined by the competent authority, on two major counts â€" acquisition of land, and

acquisition of a right in the nature of an easement in or of enjoyment or user of land. There is no other distinction. The compensation as determined is

either for the land as defined in the statute or of rights arising out of or in land, more or less specified. Therefore, when the amount determined â€

either for land or for the said rights arising out of land, as mentioned in sub-sections (1) and (2) respectively â€" is not acceptable to either of the

parties, and either party has been allowed to apply to the Central Government for appointment of an arbitrator to determine the amount, it naturally

refers to compensation for land including structures standing thereon, as also the compensation for the said stated rights arising out of land.

I can put it even more simply â€" any reference to arbitration may be either because a party does not accept the compensation determined by the

competent authority for the land and the structure because land includes the structure standing thereon, or because he does not accept the

compensation determined by the competent authority for the acquisition of the said rights arising out of the land. By reason of the context of Section

3G, the reference to “other immovable property†in clause (c) of sub-section 7 in fact extends the meaning of sub-section (1) and therefore also

of sub-section (5) and may include lands and buildings other than the land including building being acquired.

The statutory scheme indicates that the only recourse given to a person whose land, including structures thereon and/or rights in land are acquired or

affected by acquisition for such public purpose as aforesaid, and who is not satisfied with the compensation determined by the competent authority, is

arbitration. This was the intention of the legislature. Therefore, any interpretation which advances this legislative intention, which also minimizes the

time and expensive of a protracted formal litigation, is to be preferred over any interpretation which would leave the person concerned without a

remedy in a law providing for expropriation. If the interpretation advanced by the Learned Advocates of the State, that since “structure†or

building is not separately and specifically mentioned in sub-sections (1), (2) or (5) of Section 3G, therefore, no arbitration is possible in case of the

acquisition of the structure, standing on the land which is acquired, is accepted, then it will make mince-meat out of the legislative intention, and hence,

such interpretation is expressly repelled.

Therefore, I hold that acquisition of land under the said Act of 1956 includes acquisition of the permanent structures on the said land, including

buildings, and the compensation amount determined under Section 3G(1) of the Act of 1956 must also include in terms of what the competent authority

determines under sub-section (7), the fair market value of the permanent structures thereon, and a person aggrieved by the amount of compensation

even in case of the amount or sum determined for the structure, can seek reference of that dispute before the arbitrator to be appointed under

subsection (5) of Section 3G and if he seeks such reference, the arbitrator is duty bound to decide the dispute and enhance or refuse to enhance the

compensation even on that count, but is not entitled to refuse to accept such reference or refuse to consider such dispute.

 In that view of the matter, the writ petition is allowed and the respondent no.2 is directed to accept the application/reference for arbitration sought

to have been made by the petitioner for enhancement of the compensation in respect of the building and/or structure of the petitioner as stated in

prayer (a) of the writ petition. If such application is made within 14 days from date of uploading a copy of this order on the website, then the

respondent no. 2 shall enter upon the reference and commence arbitration and complete the arbitration and make and publish its award in accordance

with law after giving due opportunities to the parties to present their case, within a period of six months from the date of making of such application

and communicate a duly certified copy of its award, with reasons and the full ordersheet, to the writ petitioner and not a mere synoptic copy of the

award, within 14 days from making and publishing its award.

To avoid future controversies, the respondent no. 1 through its Chief Secretary, is directed to communicate a copy of this order to each Collector in

each District and to all Presidency Commissioners of the State of West Bengal. The writ petition is allowed, to the extent mentioned above. There

shall be no order as to costs.