IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5237 of 2010 1. RAM GOPAL GOEL S/O LATE MAHABIR PRASAD GOYAL R/O VILL.- CHAKARDHA BAZAR N.H.57, P.O.- CHAKARDHA BAZAR, N.H.57, P.S.- NARPATGANJ, DISTT.- ARARIA (BIHAR) 2. BENI PRASAD GOYAL S/O LATE MAHABIR PRASAD GOYAL R/O VILL.- CHAKARDHA BAZAR N.H.57, P.O.- CHAKARDHA BAZAR, N.H.57, P.S.- NARPATGANJ, DISTT.- ARARIA (BIHAR) 3. SMT. DEOKI GOYAL W/O RAM GOPAL GOEL R/O VILL.- CHAKARDHA BAZAR N.H.57, P.O.- CHAKARDHA BAZAR, N.H.57, P.S.- NARPATGANJ, DISTT.- ARARIA (BIHAR) Versus 1. THE STATE OF BIHAR, THROUGH THE PRINCIPAL SECRETARY CUM COMMISSIONER, ROAD CONSTRUCTION DEPARTMENT, BIHAR, PATNA 2. THE PRINCIPAL SECRETARY CUM COMMISSIONER, DEPARTMENT OF REVENUE AND LAND REFORMS, BIHAR, PATNA 3. THE DIRECTOR, LAND ACQUISITION, DEPARTMENT OF REVENUE AND LAND REFORMS, BIHAR, PATNA 4. THE DISTRICT MAGISTRATE, ARARIA, DISTT.- ARARIA 5. THE COMPETENT OFFICER CUM DISTRICT LAND ACQUISITION OFFICER, ARARIA, COLLECTORATE, ARARIA 6. THE MANAGING DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, NEW DELHI 7. THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY, ARARIA AT PURNEA, BIHAR For the Petitioners : M/s Amarnath Singh, Kamal Kishor Singh, Advocates. For the State :- Mr. Ravindra Priyadarshi, AC to AAG-3. For respondent nos.5 and 7 : M/s N.K.Agrawal, Sr. Adv., Sunil Kumar, Dr. Bidhu Ranjan, Advocates. ----------- 05. 14.05.2010 Having heard counsel for the petitioners, the State and the counsel for the Competent Authority-cum- District Land Acquisition Officer, Araria, respondent no.5 and the Project Director, National Highway Authority of India, Araria at Purnia(hereinafter referred to as the NHAI) on 29.4.2010 orders in the case was reserved directing the counsel for the parties to file their written argument by 7.5.2010, in compliance whereof counsel for the Project Director, respondent no.7 filed his written argument on 7.5.2010, which is taken on record but counsel for the petitioners and the Competent Authority-cum-District Land Acquisition Officer, Araria, respondent no.5 have not filed any written submission, in the circumstances, this order is 2 being passed without the benefit of the written submission of the counsel for the petitioners and the Competent Authority, respondent no.5. 2. Petitioners are the land holders whose lands are situate in the district of Araria and have been acquired for widening of NH-57. They have filed this writ application praying inter alia to direct the Competent Authority-cum- District Land Acquisition Officer, Araria, Respondent no.5 and the Project Director, NHAI, Araria at Purnea, respondent no.7 to pay compensation of the lands acquired in terms of the provisions contained in the National Highways Act, 1956(hereinafter referred to as the Act) and the Bihar Land Acquisition and Rehabilitation Policy, 2007(hereinafter referred to as the 2007 Policy) contained in memo No.395 dated 19.2.2007, Annexure-E to the counter affidavit of the competent authority. 3. It is submitted on behalf of the petitioners that the 2007 Policy was modified under letter No.1161 dated 23.5.2007, Annexure-F to the counter affidavit and the policy is made applicable to even those cases of land acquisition in which award was published prior to 19.2.2007 but neither compensation amount to the extent of 80% was paid to the land owner/raiyat nor possession was delivered to the authority. Learned counsel in support of the aforesaid contention has relied on the orders of this Court dated 3 25.8.2009 passed in C.W.J.C. No.5296 of 2009, Annexure-1 to the writ application in which the Union of India, Managing Director and the Project Director, NHAI submitted before this Court that the matter has been resolved and as per the decision taken by NHAI, the circular of the State of Bihar has been accepted for fixation of land compensation. It is submitted with reference to the aforesaid resolution of the NHAI quoted under order dated 25.8.2009 that not only the policy resolution dated 19.2.2007 but also its clarification made under letter dated 23.5.2007 is applicable for determination and payment of compensation amount to the petitioners and others whose lands have been acquired for widening of NH-57. Learned counsel for the petitioner further submitted that after acquisition of the lands of the petitioners for widening of NH-57 award was made and signed by the competent authority on 31.1.2007 and thereafter sent to the Project Director for approval. After approval from the Project Director the compensation amount was paid to the petitioners on 7.6.2007. It is submitted that as neither the petitioners were paid compensation nor possession of the land was delivered to the NHAI prior to 19.2.2007, petitioners became entitled for payment in terms of the 2007 Policy in view of paragraph-3 of the clarification made under letter dated 23.5.2007. Appreciating the aforesaid factual aspect the competent authority published 4 the revised award and forwarded the same along with the estimate for approval by the Project Director under letter No.228 dated 25.9.2007 issued under the signature of the Collector, Additional Collector and the District Land Acquisition Officer, Araria, which is contained in Annexure-C to the counter affidavit of the competent authority. The Project Director having received the letter dated 25.9.2007 under letter No.1435 dated 1.2.2009, Annexure-D to the counter affidavit informed the competent authority that award in the case of the petitioners having been published on 31.1.2007 i.e. before coming into force of the 2007 Policy and petitioners having received the compensation amount on 7.6.2007 are not entitled for payment of compensation amount in the light of 2007 Policy. NHAI subsequently accepted the 2007 Policy before this Court as is evident from order dated 25.8.2009, the competent authority under letter No.386 dated 2.12.2009, Annexure-G requested the Project Director to approve the revised award dated 30.11.2009 in the light of 2007 Policy and its clarification dated 23.5.2007 as the raiyats/land owners whose lands have been acquired under award dated 31.1.2007 were paid compensation amount on 7.6.2007 and possession was delivered thereafter. The request of the competent authority made under letter dated 2.12.2009 to approve the revised award in the case of the petitioners was not accepted by the Project Director and 5 petitioners have approached this Court for a direction to the Project Director to approve the revised award dated 30.11.2009 submitted under letter dated 2.12.2009 for his approval. 4. Counsel for the competent authority has supported the prayer of the petitioners and submitted that the NHAI having accepted the 2007 Policy, as is evident from orders of this Court dated 25.8.2009 they are bound by clarification made under letter dated 23.5.2007 as well and if NHAI had any reservation about the subsequent clarification the Project Director should have raised such reservation before this Court when order dated 25.8.2009 was being passed. Having not raised such objection before the Division Bench of this Court NHAI is stopped from raising such objection before this Court and the Project Director should approve the revised award dated 30.11.2009 so that petitioners and others who were paid compensation on 7.6.2007 after coming into force of 2007 Policy and its clarification be allowed the benefit of 2007 Policy. 5. Counsel for the NHAI has opposed the submission. He states that award in the case of the petitioners was published on 31.1.2007 i.e. much before coming into force of 2007 Policy on 19.2.2007 and its clarification made under letter dated 23.5.2007 and petitioners having already received compensation amount on 6 7.6.2007 there being no provision under the Act or the Rules framed thereunder to revise the award, the prayer of the petitioners and the competent authority to pay the compensation amount as per the revised award is wholly devoid of merit. It is further submitted that compensation for the acquisition made under the Act is to be determined by the competent authority as per the provisions contained in Sub-Section-(7) of Section-3G of the Act, which inter alia provides that while determining the compensation amount the competent authority has to consider the market value of the land acquired on the date of publication of notification under Section-3A of the Act and there being clear embargo under Section-3J of the Act not to apply the provisions of the Land Acquisition Act 1 of 1894 to the acquisition made under this Act, the 2007 Policy can have no application to the acquisition made under the Act. It was further submitted by the counsel for the NHAI that earlier concession which was recorded before this Court under order dated 25.8.2009 was in terms of the resolution of the NHAI but till date NHAI has not taken any resolution in regard to the subsequent clarification of 2007 Policy made under letter dated 23.5.2007 and until such decision is taken by the NHAI the subsequent clarification made by the State of Bihar cannot be applied to the case of the petitioners and all other land holders whose lands have been acquired for widening NH-57 7 and award published prior to 19.2.2007. 6. Having considered the submission of the parties, it is evident that the compensation for the lands acquired under the Act is to be determined by the competent authority as per the provisions contained in Sub-Section-(7) of Section-3G of the Act, which inter alia provides that the compensation be determined taking into account the market value of the lands acquired on the date of publication of notification under Section-3A of the Act. The 2007 Policy provides for the mode and the guidelines to determine the market value of the lands acquired. In appreciation of the fact that 2007 Policy provides for mode to determine the market value of the lands acquired the NHAI resolved to accept the 2007 Policy which is evident from the orders of this Court dated 25.8.2009. Once the NHAI has accepted the 2007 Policy it is axiomatic that the subsequent clarification of the same policy made earlier on 23.5.2007 has also its approval. 7. The submission that provisions of the Land Acquisition Act are not applicable to the acquisition made under the Act is also misplaced as by accepting the 2007 Policy and its clarification the provisions of the Land Acquisition Act are not being incorporated for acquisition of lands under the Act, it is only the mode and the manner to determine the market value of the lands acquired is being 8 accepted to determine the compensation amount in the light of the provisions contained in Sub-Section-(7) of Section-3G of the Act. Petitioners having been paid the compensation amount on 7.6.2007 their case is covered by Clause-3 of letter dated 23.5.2007 clarifying the original policy dated 19.2.2007 and in appreciation of the concession made by the NHAI before this Court recorded under orders dated 25.8.2009 passed in C.W.J.C. No.5296 of 2009, Annexure-1 the competent authority under letter No.386 dated 2.12.2009, Annexure-G to the counter affidavit requested the Project Director to approve the revised award in the light of the resolution of the NHAI adopting the 2007 Policy. The award dated 31.1.2007 was revised by the competent authority under award dated 30.11.2009 in the light of the provisions contained in Clause-3 of the clarification dated 23.5.2007 as petitioners were paid the compensation amount on 7.6.2007 i.e. after coming into force of the 2007 Policy on 19.2.2007. The submission that there being no provision under the Act and the Rules to revise the award, the competent authority should not have revised the award is also misplaced in view of the fact that the award is being revised in the light of the resolution of the NHAI accepting the 2007 policy and its clarification before this Court as is evident from order dated 25.8.2009, Annexure-1. 8. In the circumstances, the Project Director, 9 respondent no.7 is directed to approve the revised award dated 30.11.2009 and difference amount between the original award and the revised award be paid to the petitioners as early as possible, in any case within one months from the date of receipt/production of a copy of this order before the Competent Officer-cum-District Land Acquisition Officer, Araria and the Project director, NHAI, Araria, respondent nos.5 and 7. 9. This writ application is, accordingly, allowed. AFR Rajesh/ ( V. N. Sinha, J.)