IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3878 of 2010 1. ARUN KUMAR SINGH S/O SRI CHANDRA NAND SINGH R/O VILL.- DHOLBAJJA, P.S.- FORBISGANJ, DISTT.- ARARIA 2. KAMINI SINGH W/O SRI ARUN KUMAR SINGH R/O VILL.- DHOLBAJJA, P.S.- FORBISGANJ, DISTT.- ARARIA 3. ABHAY KUMAR SINGH S/O SRI RANJAN KUMAR SINGH R/O VILL.- DHOLBAJJA, P.S.- FORBISGANJ, DISTT.- ARARIA 4. NAVIN KUMAR SINGH S/O SRI SIVANAND SINGH R/O VILL.- DHOLBAJJA, P.S.- FORBISGANJ, DISTT.- ARARIA Versus 1. THE UNION OF INDIA THROUGH THE SECRETARY MINISTRY OF SHIPPING, SURFACE TRANSPORT AND NATIONAL HIGHWAY, NEW DELHI 2. THE MANAGING DIRECTOR NATIONAL HIGHWAY AUTHORITY OF INDIA, NEW DELHI 3. THE PROJECT DIRECTOR NATIONAL HIGHWAY AUTHORITY, ARARIA AT PURNEA, BIHAR 4. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY CUM COMMISSIONER ROAD CONSTRUCTION DEPARTMENT, BIHAR, PATNA 5. THE PRINCIPAL SECRETARY CUM COMMISSIONER DEPARTMENT OF REVENUE AND LAND REFORMS, BIHAR, PATNA 6. THE DIRECTOR, LAND ACQUISITION DEPARTMENT OF REVENUE AND LAND REFORMS, BIHAR, PATNA 7. THE DISTRICT MAGISTRATE ARARIA, DISTT.- ARARIA 8. THE COMPETENT OFFICER CUM DISTRICT LAND ACQUISITION OFFICER ARARIA, COLLECTORATE, ARARIA 9. ADDITIONAL COLLECTOR CUM ARBITRATOR PURNEA For the Petitioners : Mr. Amar Nath Singh, Advocate. For the State : Mr. Rabindra Priyadarshi, AC to AAG-III. For the NHAI : M/s N.K. Agrawal, Sr. Adv. Sunil Kumar, Advocate. For the Union : Miss Kalpana(CGC) ----------- 03. 29.03.2010 Heard learned counsel for the petitioners and the counsel for the National Highway Authority of India, New Delhi(hereinafter referred to as the “NHAI”). 2. Petitioners are the raiyat of the lands acquired for the purpose of widening of NH-57 in terms of the provisions contained in the National Highways Act, 1956(hereinafter referred to as the Act). They are aggrieved by the order passed by the Project Director, NHAI, Araria dated 5.12.2009, Annexure-1, whereunder reference has been made - 2 - under Sub-Section-(5) of Section-3G of the Act to the Arbitrator for fresh determination of the compensation amount determined by the competent authority under Sub-Section-(1) of Section-3G of the Act. 3. It is submitted on behalf of the petitioners that the reference was made on 5.12.2009 after taking possession of the lands in question by the competent authority on 22.10.2009, as such, reference is bad for the reason that the competent authority having taken possession under Section-3E the Project Director is not authorized to make reference under Sub-Section-(5) of Section-3G. In this connection, it is pointed out with reference to the provisions contained in Section-3E of the Act that possession of the subject matter of acquisition is to be taken after determination of the amount under Section-3G and determination under Section-3G shall include determination by the Arbitrator under Sub- Section-(5) of Section-3G as well, as such, before taking possession of the land by the competent authority, if the Project Director was not satisfied with the quantum of the amount of compensation determined by the competent authority under Sub-Section-(1) of Section-3G then he aught to have requested the competent authority not to take possession until the amount is finally determined by the Arbitrator under Sub- Section-(5) of Section-3G of the Act. The Project Director having made no such request to the competent authority not to take possession of the lands in question at this belated stage after the possession of the lands in question was taken by the competent authority could not have made, reference under Sub-Section-(5) of Section-3G of the Act. In this connection, learned counsel further referred to Section-3H of the Act - 3 - which inter alia provides that before taking possession of the lands in question, the competent authority must ensure deposit of the amount determined under Section-3G of the act and with reference to the provisions contained in Sub-Section-(1) of Section-3E and Sub-Section- (1) of Section-3H, learned counsel submitted that as reference was not made until the date of taking possession on 22.10.2009 subsequent reference to the Arbitrator is violative of the provisions contained in Sub- Section-(1) of Section-3E and Sub-Section-(1) of Section-3H of the Act and the belated reference made on 5.12.2009, Annexure-1 be quashed. In this connection, learned counsel for the petitioners also relied on the counter affidavit filed by the competent authority in the earlier round litigation between the parties, which is annexed as Annexure-7 to suggest that the Project Director had approved the amount determined by the competent authority whereafter 18.9.2008 was fixed as the date for payment of the compensation but later on the Project Director refused to sign the cheque for the amount determined by the competent authority. 4. In support of the aforesaid two submissions learned counsel for the petitioner has relied on the judgment of the Hon’ble Supreme Court in the case of Nagar Palika Nigam Versus Krishi Upaj Mandi Samiti & Ors., reported in (2008) 12 Supreme Court Cases 364, Paragraph-16 and submitted that the mandate of the Parliament in Sub- Section-(1) of Section-3E and Sub-Section-(1) of Section-3H of the Act is quite apparent that before taking possession of the land acquired the amount of compensation has to be finally determined and deposited with the competent authority. Final determination will include the - 4 - determination made by the Arbitrator and this Court should not read something which is not provided under Sub-Section-(5) of Section-3G so as to provide that request for arbitration can be made even at a belated stage after taking possession of the land by the competent authority. In this regard, learned counsel also relied on the judgment reported in the case of Babulal Badriprasad Varma Versus Surat Municipal Corporation & Ors. Reported in (2008) 12 Supreme Court Cases 401 and submitted that from the contents of letter dated 23.10.2009 which is Annexure-C to the earlier counter affidavit, Annexure-7 it would appear that the Project Director waived his right to dispute the quantum of the amount determined by the competent authority as determination of the amount of compensation by the competent authority was final. 5. Counsel for the NHAI has opposed the submission. He states that close reading of Sub-Section-(1) of Section-3E of the Act would indicate that the power to take possession of the lands vested in the Central Government in terms of the notification under Section-3A and declaration under Section-3D is entrusted to the competent authority after the competent authority has determined the compensation amount and the Central Government has deposited the same with the competent authority in terms of the provisions contained in Section-3H of the Act. The amount determined by the competent authority under Sub-Section- (1) of Section-3G shall not include the amount determined by the Arbitrator under Sub-Section-(5) of Section-3G of the Act as the determination by the Arbitrator is to be preceded by reference made by either of the parties namely the land holder or the Project Director, - 5 - NHAI. In this connection, he also submitted that there cannot be any estoppel against the statute and the contents of letter dated 23.10.2009 may not bind the Project Director in view of the clear provisions of Sub- Section-(5) of Section-3G of the Act. In case the amount of compensation determined by the competent authority under Sub-Section- (1) of Section-3G of the Act is not acceptable to either of the parties the compensation amount shall on an application by either of the parties be determined by the Arbitrator. He also submitted that request for reference can be made within three years from the date of determination of the compensation amount by the competent authority under Sub-Section-(1) of Section-3G of the Act as the provisions of the Limitation Act, 1963 have not been excluded by the Act. 6. Having gone through the different provisions of the Act, I am of the view that while proceeding with the acquisition under the Act, the Central Government has to first issue notification under Section-3A and thereafter declaration under Section-3D of the Act, whereafter the amount of compensation has to be determined by the competent authority under Sub-Section-(1) of Section-3G of the Act. Having determined the amount of compensation the competent authority is to call upon the Project Director to deposit the amount determined under Sub-Section-(1) of Section-3G of the Act and once the amount determined by the competent authority is deposited under Sub-Section-(1) of Section-3H of the Act with the competent authority, the competent authority is empowered to take possession of the lands in question. Having taken possession of the lands in question the competent authority has to hand - 6 - over possession to the Project Director for proceeding with the purpose for which the acquisition has been made. The Project Director having come to learn about the amount determined by the competent authority under Sub-Section-(1) of Section-3G is at liberty to either accept the amount of compensation determined by the competent authority or to request for reference under Sub-Section-(5) of Section-3G of the Act within a reasonable time or in any case within the time provided for the same under Article-137 of the Limitation Act, 1963 as the provisions of the Limitation Act, 1963 does not appear to have been excluded either specifically or by necessary intendment from the proceedings taken under the Act. 7. Accordingly, I find that the reference made by the Project Director in the instant case under order dated 5.12.2009, Annexure-1 is not vitiated either on the ground of delay or for lack of jurisdiction as the competent authority having taken possession of the lands in question on 22.10.2009 the Project Director made reference on 5.12.2009 i.e. within three months of the taking over possession by the competent authority. In the circumstances, I do not find any merit in this application, which is dismissed. AFR Rajesh/ (V.N.Sinha, J.)