National Highways Authority Of India vs Sheetal Jaidev Vade

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5256 of 2022

National Highways Authority of India .. Appellants

Versus

Sheetal Jaidev Vade & Ors. .. Respondents

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 01.04.2022 passed by the High Signature Not Verified Digitally signed by R Natarajan Date: 2022.08.24 17:14:54 IST Court of Judicature of Bombay at Aurangabad in Writ Petition Reason:

No.144 of 2021 by which in a writ petition filed by the 2

respondents herein – original land owners, in exercise of

powers under Article 226 of the Constitution of India, the High

Court has directed the appellant – NHAI to deposit the entire

compensation amount as awarded by the learned Arbitrator

and thereafter permitting the original land owners – original

writ petitioners to withdraw the amount as mentioned in

paragraph 4, the NHAI has preferred the present appeal.

2. That the land of the respondents herein – original land

owners – original writ petitioners came to be acquired by the

NHAI under the provisions of the NHAI Act. That the amount

of compensation came to be enhanced by the learned

Arbitrator. The award passed by the learned Arbitrator has

been challenged by the NHAI by availing the statutory remedy

under Section 34 of the Arbitration Act to the extent of the

enhanced amount. That as there was no stay of the award

passed by the learned Arbitrator in a proceedings under

Section 34 of the Arbitration Act, the respondent herein –

original land owners instead of filing the execution petition to

execute the award declared by the learned Arbitrator 3

enhancing the amount of compensation, filed the writ petition

before the High Court and prayed for a Writ of Mandamus

and/or appropriate directions/orders directing the NHAI to

deposit the amount with the Competent Authority, Land

Acquisition and Sub­Divisional Officer in pursuance of the

award dated 12.06.2018. By the impugned judgment and

order the High Court has disposed of the said writ petition by

directing the appellant – NHAI to deposit the entire amount

along with interest with the Land Acquisition Authority and

thereafter has directed the original writ petitioners – land

owners to withdraw 50% of the amount along with interest on

filing an affidavit of undertaking that if in the litigation

journey, an adverse order is passed against them and they are

found to have withdrawn excess amount, the said amount

would be re­deposited with the authority. So far as the

remaining 50% of the amount with interest is concerned, the

High Court has permitted the original writ petitioners –

original land owners to withdraw 25% of the amount by

tendering a solvent surety and the remaining 25% of the 4

amount to be deposited with the competent authority with a

liberty to invest the said amount in a fixed deposit account in

any Nationalized Bank. Feeling aggrieved and dissatisfied with

the impugned order passed by the High Court, the NHAI has

preferred the present appeal.

3. Ms. Aishwarya Bhati, learned ASG appearing on behalf of

the appellant – NHAI has vehemently submitted that the

Hon’ble High Court has seriously erred in passing the

impugned order in exercise of powers under Article 226 of the

Constitution of India.

3.1 It is further submitted by Ms. Bhati, learned ASG that as

the award passed by the learned Arbitrator was executable

before the concerned Executing Court and therefore when the

original writ petitioners had a statutory remedy available to

execute the award by initiating the execution proceedings

before the concerned Executing Court, the High Court ought

not to have entertained the writ petitions under Article 226 of 5

the Constitution of India to execute the award passed by the

learned Arbitrator.

3.2 It is further submitted by Ms. Bhati, learned ASG that

even otherwise the Hon’ble High Court has committed a

serious error in permitting the writ petitioners – original land

owners to withdraw 75% of the amount of compensation with

interest, when the appellant had already availed the statutory

remedy available to the NHAI to challenge the award passed by

the learned Arbitrator, by way of appeal/application under

Section 34 of the Arbitration Act.

3.3 Ms. Bhati, learned ASG has placed reliance on the order

passed by this Court in Special Leave to Appeal No.12409 of

2022 passed in the case of The Project Director, National

Highways Authority of India vs. Saraswatibai Chandrakant

Shinde & Ors. by which, on the similar set of facts and

circumstances this Court has directed the NHAI to deposit

50% of the compensation amount, as awarded by the Arbitral

Tribunal with the Executing Court and has permitted the 6

original land owners to withdraw the same unconditionally,

and the balance amount of compensation as per the award to

be passed under Section 34 of the Arbitration Act to be

deposited by the NHAI with the Executing Court within four

weeks after such determination.

4. Present appeal is vehemently opposed by Mr. Shirish K.

Deshpande, learned Advocate appearing on behalf of the

private respondents herein – original writ petitioners – original

land owners.

4.1 It is submitted that in the facts and circumstances of the

case more particularly considering the fact that there is no

stay of the award passed by the learned Arbitral

Tribunal/Court in a proceeding under Section 34 of the

Arbitration Act and that NHAI took possession of the land

without paying any compensation, the Hon’ble High Court has

not committed any error in passing the impugned order.

However, learned Counsel appearing on behalf of the private

respondents herein – original land owners – original writ 7

petitioners, is not in a position to dispute and is not disputing

that the award passed by the learned Arbitral Tribunal/Court

is executable by way of an execution proceeding before the

concerned Executing Court.

5. We have heard the learned counsel for the respective

parties at length.

6. At the outset, it is required to be noted that the private

respondents herein – original writ petitioners filed the writ

petition before the High Court and prayed for the following

reliefs in exercise of powers under Article 226 of the

Constitution of India:

“(a) This Writ Petition may kindly be allowed.

(b) That, by way of writ of mandamus of the direction like in nature the respondents No.1 and 2 may kindly be directed to deposit the amount with respondent No.3 in pursuance of the award dated 12.06.2018 vide No.2016/LA/NH­351/CR­ 01 passed by the respondent No.3 forthwith.

(c) That, by way of writ of mandamus of the directions like in nature the respondent No.3 may kindly be directed to make the 8

payment to petitioners forthwith after the respondents No.1 and 2 deposit the amount.”

6.1 Therefore, reliefs which have been sought by the private

respondents herein ­ original writ petitioners were in the

nature of execution of the award passed by the learned

Arbitral Tribunal/Court.

6.2 Apart from the fact that the award dated 12.06.2018 has

been challenged by the NHAI by initiating proceedings under

Section 34 of the Arbitration Act which are reported to be

pending, the High Court ought not to have entertained the writ

petition under Article 226 of the Constitution of India seeking

the reliefs to execute the award passed by the learned Arbitral

Tribunal/Court, when the award passed by the learned

Arbitral Tribunal/Court is to be executed by initiating an

execution proceeding before the concerned Executing Court.

But, by passing the impugned order/directions the High Court

has virtually converted itself into Executing Court. Therefore,

once the original writ petitioner was having an efficacious, 9

alternative remedy to execute the award passed by the learned

Arbitral Tribunal/Court, by initiating an appropriate execution

proceeding before the competent Executing Court, the High

Court ought to have relegated the original writ petitioners to

avail the said remedy instead of entertaining the writ petition

under Article 226 of the Constitution of India which was filed

to execute the award passed by the Arbitral Tribunal/Court. If

the High Courts convert itself to the Executing Court and

entertain the writ petitions under Article 226 of the

Constitution of India to execute the award passed by the

Arbitral Tribunal/Court, the High Courts would be flooded

with the writ petitions to execute awards passed by the

learned Arbitrator/Arbitral Tribunal/Arbitral Court.

7. We disapprove the entertaining of such writ petitions

under Article 226 of the Constitution of India to execute the

award passed by the learned Arbitral Tribunal/Court, without

relegating the judgment creditor in whose favour the award is

passed to file an execution proceeding before the competent

Executing Court.

10 7.1 In view of the above discussion, we would have set aside

the impugned judgment and order passed by the High Court

on the aforesaid ground alone. However, taking into

consideration the similar order passed by this Court in the

case of Saraswatibai Chandrakant Shinde (supra), we deem

it appropriate to dispose of the present proceedings/appeal

with the following directions:

(i) The NHAI shall deposit 50 per cent of the

compensation amount, as awarded by the Arbitral

Court, with the Executing Court within a period of four

weeks. The said amount shall be released to the land

owners unconditionally.

(ii) The learned District Court, before whom the

proceedings under Section­34 of the Arbitration Act

are pending, shall make an endeavour to decide such

proceedings within a period of six months from the

next date of hearing before the said court.

(iii) The balance amount of compensation as per the Award

to be passed under Section 34 of the Arbitration Act, 11

shall be deposited by the NHAI with the Executing

Court within four weeks after such determination. The

said amount shall also be released by the Executing

Court in favour of the land owners subject to the

rights and remedies available to the parties in law.

With these observations and directions, the Appeal is

disposed of.

The impugned order passed by the High Court of Bombay

dated 01.04.2022 stands modified in above terms.

Pending application(s), if any, shall stand disposed of.

…………………………………J. (M. R. SHAH)

…………………………………J. (B.V. NAGARATHNA)

New Delhi, August 24, 2022.