MAHANDRA KUMAR AND ANOTHER V. UNION OF INDIA AND 4 OTHERS

WRIC/12138/2020

AI Insights

The case involves a writ petition filed by Mahandra Kumar and another against the Union of India and others, challenging an award related to land acquisition for the Western Dedicated Freight Corridor project. The petitioners argued that the compensation awarded for their land was inadequate and did not reflect its market value as a commercial property. The respondents contended that the petitioners had an alternative statutory remedy under Section 34 of the Arbitration and Conciliation Act, 1996, which they failed to exhaust. The court dismissed the writ petition, emphasizing the importance of exhausting alternative remedies before seeking judicial intervention under Article 226 of the Constitution of India.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 722138 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 25-08-2020
• Assessment Year: misc
• Other Referred Cases: Kerala State Electricity Board Vs. Kurien E. Kalathil, Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others, Nivedita Sharma Vs. Cellular Operators Association of India, Commissioner of Income Tax and others Vs. Chhabil Dass Agrawal, Harvansh Lal Sahnia Vs. India Oil Corporation Ltd., Than Singh Vs. Superintendent of Taxes, Dhubri and others, Mohan Pandey Vs. Usha Rani, Dwarka Prasad Agarwal Vs. B. D. Agrawal
• Laws Referred To: Central Railway Act, 1989 (Amendment Act, 2008), Arbitration and Conciliation Act, 1996
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: C L CHAUDHARY; C S C; B P SINGH KACHHWAH
• Assessee Lawyers: RAMESH CHANDRA; NEERAJ KUMAR
• Keywords: Arbitrator; Certiorari; Certiorari; Compensation; Land Acquisition; Mandamus; Market value; Writ petition
• Section: 34; 20F(6)

Judgement Text

"1 AFR Court No. - 46 Case :- WRIT - C No. - 12138 of 2020 Petitioner :- Mahandra Kumar And Another Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Ramesh Chandra,Neeraj Kumar Counsel for Respondent :- C.L. Chaudhary,C.S.C. Hon'ble Naheed Ara Moonis,J. Hon'ble Deepak Verma,J. 1. Heard Sri Ramesh Chandra, learned counsel for the petitioners, Sri C. L. Chaudhary, learned counsel for the respondent Nos.1, 4 and 5 as well as Sri B. P. Singh Kachhwah, learned Standing Counsel appearing on behalf of the State and perused the record. 2. The instant writ petition has been filed on behalf of the petitioners against the order dated 17.10.2019 where by the respondent No.2-Arbitrator/ Commissioner, Meerut Division, Meerut has passed the award on the ground that the land which has been acquired by the authority and that amount paid as compensation is inadequate the market value as well as acquired plot is not submerged under water. Petitioners being aggrieved against the order dated 17.10.2019 have filed the instant writ petition with the following relief: (a) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 17.10.2019 passed by respondent No.2/arbitrator and order dated 05.08.2015 passed by respondent No.3 (Annexure No.4 and 1 to the writ petition). (b) issue a writ, order or direction in the nature of mandamus commanding the respondent concerned to pay the compensation amount according to Abadi Land to the petitioners. 3. It is submitted by learned counsel for the petitioners that Union of India, Ministry of Railways has acquired the land for the purpose of Special Freight Corridor project known as Western Dedicator Freight Corridor. The 2 petitioners, who are owner of land measuring 167.22 sq. meters of plot No.23 area 0.0602 hec. which, is situated in Village Dalelpur, Pargana Dankaur, Tehsil Sadar, District Gautam Buddha Nagar out of 0.0620 hec. land 167.22 sq. meter land of the petitioner was proposed for acquisition. Petitioners land in dispute is being used for residential purposes and in the surrounding area commercial activities are continuing, as such, disputed land falls in commercial area and compensation ought to have been calculated at the rate of commercial rate as applicable to commercial property. Market value of the land fixed by the state-respondent at the rate of Rs.805/- per sq. meter is much below the rate prescribed in the area as market value of residential and commercial is about Rs.12,000/- sq. meter. The petitioners vide Annexure-2 to the writ petition has filed Misc. Case No.36 of 2019 under Section 20F (6) of Central Railway Act, 1989 (Amendment Act, 2008). The Chief General Manager, DFCCIL/NOIDA Unit (respondent No.4) has filed objection vide Annexure-3 to writ petition in which it has been stated that petitioners should have approached the authority under Section 20F (6) within a period of three years but they had filed petition/application under Section 20F (6) of the Act after about four years which is a time barred application and award dated 05.08.2015 is just and proper hence, requires no amendment/correction as the arbitrator decided the case on the merit. The publication for acquiring the land was made on 16.05.2013 and 20.05.2013 and final award was published on 05.08.2015. Petitioners claimed that they are the owner of the acquired land and land situate near residential area but award has been made without considering these aspects and rate for making award and compensation are below the rate running in that year. Petitioners aggrieved against the award hence, moved an 3 application under Section 20F (6) of the Railways (Amendment) Act, 2008. The arbitrator/respondent no.2 on 17.10.2019 modified the award dated 05.08.2015 passed by the respondent No.3. 4. Further, the learned counsel for the petitioners contended that no notice had been served upon them before passing the order dated 17.10.2019. He submitted that land acquired is being used for residential purposes and in the surrounding areas commercial activities are continuing hence land in dispute is of commercial nature and the market value of the land in question is Rs.12,000/- per sq. meter. The respondent No.2 without considering the ground taken by the petitioners, illegally rejected the claim in an arbitrary manner. 5. The respondents counsel appearing for the respondent Nos.1, 4 and 5 raised a preliminary objection regarding the maintainability of this writ petition on the ground that against the impugned award the petitioners have a statutory alternative remedy available under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as \"the Act, 1996\") in view of the fact by virtue of Section 20F (6) of the Railways (Amendment) Act, 2008 (Hereinafter referred to as \"the Act, 2008\") as such the petitioners are not entitled to invoke the writ jurisdiction. The co-ordinate Bench of this Court in a similar case refused to entertain the petition on the ground of alternative remedy vide order dated 17.03.2020 in Writ-C No.8771 of 2020 (Mawasi Vs. Union of India and 3 others). 6. The learned Standing Counsel has submitted that the Hon'ble Apex Court and this Hon'ble Court have passed various orders in which it has been held that the Courts will not interfere under Article 226 of the Constitution of India until all normal remedies available to petitioners have been exhausted. The 4 existence of alternative remedy is not a absolute bar. In case an alternative efficacious remedy is available, the High Court may not interfere straightaway under Section 226 of the Constitution of India and the petitioners would have been expected to pursue the remedies of appeal or revision. 7. The Hon'ble Apex Court in the case of Kerala State Electricity Board Vs. Kurien E. Kalathil, (2000) 6 SCC 293: AIR 2000 SC 2573: 2000 AIR SCW 2647, has held that the writ petition should not be entertained unless the party exhausted the alternative/statutory efficacious remedy. 8. Now the question before us is that order passed under Section 20F (6) of the Act, 2008 against which an application for setting aside such award before competent civil court is provided under Section 34 of the Act, 1996 can be challenged before High Court without availing remedy provided under the Act, 1996. 9. The provisions of the Act, 1996 have been made applicable to all arbitral proceedings taken under the Act, 2008. To appreciate this objection it is necessary to extract Section 34 of the Act, 1996 and Section 20F (6) of the Act, 2004. Section 34 of the Arbitration and Conciliation Act, 1996 is quoted below: \"34 Application for setting aside arbitral award — (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if— (a) the party making the application furnishes proof that— (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or 5 (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that— (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. (4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as 6 in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.\" 10. Section 20F (6) of the Railways (Amendment) Act, 2008 is quoted below: \"20F. Determination of amount payable as compensation: (6) If the amount determined by the competent authority under sub-section (1) or as the case may be, sub-section (3) 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 in such manner as may be prescribed.\" 11. It is established principle of law of that self restrained is exercised by the High Court in dealing with such matters which otherwise can be looked into by the special forums or statutory authorities. Merely, the ban in granting any interim relief by special forum or Tribunal, created for the purpose of adjudicating of such disputes, would also not be a ground in itself to permit the aggrieved person to by-pass an alternative remedy and to file the petition straightaway in writ jurisdiction unless there are some cogent reasons for permitting such a challenge straightaway in writ jurisdiction. The exceptions, however, have been well defined by the Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others, 1998 (8) SCC, the Supreme Court has laid down certain principles for the guidance and has observed that the High Court in determining the forum in a matter where efficacious remedy is available has the power to issue prerogative writs under Article 226 of the Constitution of India, is plenary in nature and is not limited by any other provisions of the Constitution. This power can be exercised by the High Court not only for issuing writs, for the involvement 7 of any of the fundamental rights contained in Part-III of the Constitution of India but also for any other purpose. The Apex Court came to the conclusion that writ should not generally be entertained if statute provide for remedy of appeal and even if it is admitted, parties should be relegated to the appellate forum. 12. Herein instant circumstances where factual disputes and calculation are involved and no violation of natural justice we should refrain to exercise the power of writ jurisdiction. 13. In the instant writ petition the petitioners have not disclosed any plausible reason why this Court by-pass the remedy provided under Section 34 of the Act, 1996. It is established principle that when the proceedings are taken before the forum under a provision of law which is ultra vires or fundamental right Part-III of the Constitution and principles of natural justice have inviolated then a party aggrieved thereby to move to the High Court for quashing the proceedings on the ground that they are in competent, without a party being obliged to wait until those proceedings run their full course and doctrine of alternative remedy could have no application. 14. In the case of Nivedita Sharma Vs. Cellular Operators Association of India, reported in 2011 SCC (14) 337, the Supreme Court has held that petitioners must exhaust its alternative remedy before State Commission and should not directly come to the High Court for challenging the judgment of District Forum. In the case of Commissioner of Income Tax and others Vs. Chhabil Dass Agrawal, reported in SCC 2014 (1) 603, the Supreme Court has held that when the statutory forum is created by law for redressal of grievances, the writ petition should not be entertained ignoring statutory remedy available in law subject to certain exception. The Apex Court further opined that non entertainment of writ under the writ jurisdiction by the High 8 Court where efficacious alternative remedy is available, is a rule of self impose limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. The Apex Court has also opined that undoubtedly, it is within the jurisdiction of the High Court to grant relief under Article 226 of the Constitution of India despite existence of alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioners and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or if there is sufficient ground to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India. The Supreme Court in the case of Harvansh Lal Sahnia Vs. India Oil Corporation Ltd., SCC 2003 (2) 107, it has been held that rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (a) Where the writ petition seeks enforcement of any of the fundamental rights. (b) Where there is a failure of principles of natural justice. (c) Where the orders or proceedings are wholly without jurisdiction or the virus of an Act is challenged. 15. In the instant petition factual disputes are involved which is clear from the perusal of the record and the argument advanced by the learned counsel for the petitioners the dispute requires documentary evidence to prove the case that acquired property does not lie under water as has been held by arbitrator. The 9 Hon’ble Apex Court by various judgment has restrained the High Court where factual disputes require documentary evidences for adjudication of case for which alternative remedy is available under the law. 16. The Supreme Court in the case of Than Singh Vs. Superintendent of Taxes, Dhubri and others, AIR 1964 SC 1419, Mohan Pandey Vs. Usha Rani, 2003 (6) 230 and Dwarka Prasad Agarwal Vs. B. D. Agrawal, 1992 (4) SCC 61, has held that the remedy under Article 226 of the Constitution of India shall not be available except where violation of some statutory duty on the part of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace the ordinary remedies by way of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution of India being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant. 17. The following principles emerge from the aforesaid decisions: (i) Writ petition is a public law remedy and cannot be invoke for resolution of private law dispute therefore, writ petition is not maintainable for resolution of a property or for declaration of title. (ii) Where there is an alternative, effective and efficacious remedy under law, the High Court will not exercise its jurisdiction under Article 226 of the Constitution of India but 10 rule of such exclusion is a rule of discretion and where the matter involves enforcement of fundamental right or failure to follow principles of natural justice discretion may be exercise to entertain to under Article 226 of the Constitution of India. The writ petition is not an appropriate remedy where the matter required determination of disputed question of fact involving elaborate examination of evidence and where the fundamental rights are infringed. 18. In view of the aforesaid discussions as well as submissions made on behalf of the petitioners we are of the opinion that in the instant writ petition disputed question of facts are involved and the petitioners are required to adduce documentary evidence in support of their case. The petitioners have been given opportunity of hearing before passing impugned order and their case do not fall in any of the category discussed above as such we exercising jurisdiction under Article 226 of the Constitution of India cannot exercise the power of appellate court to reappreciate the evidence. 19. With reference to the facts and circumstances of the present case and in view of the aforesaid prolix discussion, we are of the opinion that the petitioners could have raise their grievances adequately before the appropriate forum available under the law, as such, we find no merit in this writ petition and the same is accordingly, dismissed. 20. No order as to costs. Order Date :- 25.8.2020 Nitin Verma "