Smt. Gadde Deepthi V. The Union of India

WP/22053/2018

AI Insights

The case involves petitioners who owned house plots in G.Konduru village, Krishna District, which were acquired for the widening of National Highway No.221. The petitioners contested the compensation awarded, arguing that their land was non-agricultural and should be valued as commercial property, not agricultural land. Initially, the compensation was set based on agricultural land rates, which the petitioners found unreasonable. After an arbitration petition, the compensation was increased but still did not meet their expectations. The petitioners filed a writ petition challenging the process and outcome of the compensation assessment. The respondents argued that the writ petition was not maintainable due to the availability of an alternative remedy under the Arbitration and Conciliation Act, 1996.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 721755 (HC-ANDHRA_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 14-06-2023
• Assessment Year: misc
• Other Referred Cases: Parachuru Venkatakrishnama Naidu vs. The Government of Andhra Pradesh, Udayakumar vs. Project Director NHAI & ors., Genpact India Private Limited vs. Deputy Commissioner of Income Tax & Another, Commissioner of Income Tax vs. Chhabil Dass Agarwal, Smt. Kanak and another vs. U.P.Avas Evam Vikas Parishad and others, Nirmal Singh and others vs. State of Haryana, Shrachi Burdwan Developers Private Limited vs. The State of West Bengal and others, Punjab National bank vs. O.C.Krishnan and others, Nekkalapudi Ramakrishna Pratap vs. District collector-cum-Arbitrator and others, M/s. Kelkar & Kelkar vs. M/s. Hotel Pride Executive Pvt. Ltd., Titagur Paper Mills Co.Ltd. v. State of Orissa, Mafatlal Industries Ltd. v. Union of India, Munshi Ram v. Municipal Committee, Chheharta
• Laws Referred To: National Highways Act, 1956, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, Arbitration and Conciliation Act, 1996, Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: ASSISTANT GOVERNMENT PLEADER FOR LAND ACQUISITION
• Assessee Lawyers: PRABHALA RAJASEKHAR
• Keywords: Arbitration; Compensation; Land Acquisition; Non-Agricultural Land; Writ petition
• Section: 26; 3(a); 3G

Judgement Text

" RC,J W.P.No.22053 of 2018 1 HON’BLE SRI JUSTICE RAVI CHEEMALAPATI WRIT PETITION No. 22053 of 2018 ORDER: The case of the petitioners, in brief, is that they are owners of the respective house plots situated in G.Konduru village & Mandal, Krishna District, having purchased them through registered sale deeds and the said land is a non- agricultural land and the petitioners purchased house sites covered under lay out of the local Gram panchayat. It is further case of the petitioners that, the 1st respondent issued notification under Section 3-A of the National Highways Act, 1956 for acquisition of lands in G.Konduru village for widening/extension of existing road of National Highway No.221 in the section of Vijayawada- Bhadrachalam. The 7th respondent in his report dated 14.03.2017 has recommended for enhancement of compensation at Rs.4,500/- per sq.yard, which is the average of Government market value and private market value of the petitioners’ plots. The petitioners have also specifically submitted in the statement recorded under Section 3G of the National Highways Act, 1956 that, RC,J W.P.No.22053 of 2018 2 the land was already converted for non-agricultural purpose and sought compensation at the rate of Rs.15,000/- per square yard. However, an award was passed treating the entire land as agricultural land and the value of the land was fixed at Rs.6,01,518/- per acre, instead of fixing compensation on the basis of square yards. It is the further case that dissatisfied with the same, the petitioners along with others filed petition before the District Collector/arbitrator for enhancement and the District Collector enhanced the value from Rs.6,01,518/- to Rs.13,40,000/- per acre. It is the further case of the petitioners that, the registered sale deeds clearly show that they purchased house sites which are meant for construction of houses and it is a commercial area and hence fixation of compensation treating the land as agricultural land is highly unreasonable and moreover, the authorities did not follow the procedure for determining the value of the land. Hence, the present writ petition has been filed. 2. The 5th respondent filed counter affidavit denying the averments of the writ petition, inter alia contending that, the writ petition is not maintainable as RC,J W.P.No.22053 of 2018 3 alternative remedy of filing Arbitration Original Petition against the award of the arbitrator is available to the petitioners. It is further stated that the recommendations of the Tahsildar, being subordinate, are not binding on Competent Authority under Land Acquisition, who is vested with original jurisdiction in the matter of acquisition and he is duty bound to determine the market value of the lands taking various factors into consideration, as per the procedure laid down under the Rules but not on the recommendations of the subordinate officers. The 3rd respondent has followed the procedure prescribed under Section 26 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 by taking into consideration various factors such as the lands were covered with bushes with no marking of plots on ground and there are no civic amenities existed such as roads, electricity, water and drainage facilities and the lands have not been developed on ground as house sites and further the petitioners did not produce any documents regarding conversion of land from agriculture to non-agriculture to sustain their claim and as such the 3rd respondent has fixed the value of the RC,J W.P.No.22053 of 2018 4 land at Rs.6,01,518/- per acre, which is higher than the basic value of Rs.5,50,000/- and if other statutory benefits were allowed on market value, the rate per acre comes to Rs.15,72,023/-. It is further stated that, the Arbitrator & Collector has enhanced the compensation from Rs.6,01,518/- to Rs.13,40,000/- per acre, which comes to Rs.35,00,000/- per acre if other statutory benefits were allowed. It is further stated that, in addition to the market value 100% solatium and 12% additional market value was calculated from the date of publication of 3A notification till the date of passing of award as per new Land Acquisition Act. The petitioners instead of challenging the Arbitral award in the competent District Court has directly approached this Court by filing the writ petition. Hence, prayed to dismiss the writ petition. 3. The petitioners filed reply affidavit to the counter affidavit filed by the 5th respondent and while reiterating the contents of the writ petition further contended that, the respondent authorities have totally ignored the documents on record and ground reality while passing the award and deprived the petitioners of their property right as per Article 300A of the Constitution and the RC,J W.P.No.22053 of 2018 5 award was passed ignoring the report of the Tahsildar called for by the competent authority. It is further stated that even according to the authorities it is not their case that, the lands are being used as agricultural lands and the compensation fixed as an agricultural land is illegal and arbitrary and hence prayed to allow the writ petition. 4. Heard Sri Prabhala Rajasekhar, learned counsel for the petitioners, and the learned Assistant Government Pleader for Land acquisition for the respondents. 5. Sri Prabhala Rajasekhar, learned counsel for the petitioners, in elaboration would submit that, despite the fact that the record produced by the petitioners before the concerned authorities disclosed that the land acquired is meant for commercial purpose and the same was purchased by the petitioners as house sites, they fixed compensation treating the land as agricultural land, which is highly unreasonable and the authorities did not follow the procedure for determining the value of the land. As the authorities have adopted the procedure which is unknown to law and is highhanded, preposterous, iniquitous and RC,J W.P.No.22053 of 2018 6 presumptuous and violative of Articles 14 and 300-A of the Constitution of India and in utter derogation and disregard to the provisions of the National Highways Act, as such the petitioners filed this writ petition. Mere availability of alternative remedy of preferring an appeal would not by itself debars the petitioners from filing writ petition, when the authorities have taken up unreasonable attitude in determining the issue involved in utter disregard to the procedure established by the statute and that too when once the writ petition has been admitted, the same cannot be dismissed on the ground of alternative remedy. The learned counsel for the petitioners would further submit that, to determine the rate of compensation to be paid for the acquired land, the sale deeds with respect of smaller pieces of land has to be taken into consideration, however subject to deduction in order to keep provision for developmental expenses that the acquirer has to incur. Despite this fundamental principle of law, the authorities arbitrarily fixed compensation as if the land is an agricultural land completely ignoring the voluminous documentary evidence placed before it to show that the subject land was purchased by the petitioners as house sites on yardage basis, RC,J W.P.No.22053 of 2018 7 which is unreasonable. The arbitrator though enhanced the compensation granted by the Land Acquisition officer a little bit, however, he did not make any independent assessment of the market value of the land and its potentiality, rather relying on the value of the land fixed by the Land acquisition officer, which is llegal and is in conflict with public policy. Hence, prayed to allow the writ petition directing the authorities to determine and pay compensation on yardage basis treating the land as a commercial land. In support of his contentions, the learned counsel for the petitioners relied on Parachuru Venkatakrishnama Naidu vs. The Government of Andhra Padesh, represented by its Secretary, Land Acquisition, Secretariat Buildings, Hyderabad and three others 1 , Udayakumar vs. Project Director NHAI & ors. 2 , Genpact India Private Limited vs. Deputy Commissioner of Income Tax & Another3, Commissioner of Income Tax 1. (2015) 2 ALD 735 2. (2019) 1 KLT 519 3. 2019(4) ILR (Kerala) 729 RC,J W.P.No.22053 of 2018 8 and others vs. Chhabil Dass Agarwal 4, Smt. Kanak and another vs. U.P.Avas Evam Vikas Parishad and others5 and Nirmal Singh and others vs. State of Haryana through collector6 6. On the other hand, the learned Assistant Government Pleader for Land Acquisition would submit that, as the lands were covered with bushes with no marking of plots found on ground and no civil amenities existed such as roads, electricity, water and drainage and as the lands have not been developed on ground as house sites, the Competent Authority for Land Acquisition, considering the lands as agricultural lands, fixed sale value, which is higher than the basis value. Dissatisfied with the same, the writ petitioners filed Arbitration petition before the Arbitrator & Collector seeking enhancement and the Arbitrator upon considering all the factors enhanced the compensation amount. If the petitioners are aggrieved by the award of the Arbitrator, as per the Act they have an efficacious remedy of filing AOP before the Competent District Civil Court under 4. (2014) 1 Supreme Court Cases 603 5. 2003(7) SCC 693 6. (2015) 2 SCC 160 RC,J W.P.No.22053 of 2018 9 Section 3G(6) of the National Highways Act. However, the petitioners, without availing alternative efficacious statutory remedy of preferring an appeal, have filed this writ petition and, therefore, the writ petition cannot be entertained. The learned Assistant Government Pleader would further submit that when the Act provides for hierarchy of appeal, this last track procedure cannot be allowed to be derailed by taking recourse to proceeding under Articles 226 and 227 of the Constitution. Further, the challenge made by the petitioners to the award of the Arbitrator involved disputed questions of facts, which cannot be determined in this writ by this Court while exercising jurisdiction under Article 226 of the Constitution of India. To resolve the grievance of the petitioners as to what would be the fair and reasonable compensation, voluminous oral and documentary evidence is required to be placed on record, which cannot be done by this Court and thus the remedy available to the petitioners would have been to file AOP before the competent District Civil Court. Hence, prayed to dismiss the writ petition. In support of his contentions, the learned Assistant Government Pleader placed reliance on Shrachi Burdwan Developers Private Limited v. RC,J W.P.No.22053 of 2018 10 The State of West Bengal and others 7 , Punjab National bank vs. O.C.Krishnan and others8, Nekkalapudi Ramakrishna Pratap vs. District collector-cum-Arbitrator and others9 and M/s. Kelkar & Kelkar vs. M/s. Hotel Pride Executive Pvt. Ltd.10. 7. Perusal of the material available on record makes it clear that house plots of the petitioners purchased by under various respective sale deeds were acquired by National Highway Authority of India. While passing the award, the authorities have treated the entire land as agricultural land as against the claim made by the petitioners that the land is non-agricultural land and they have purchased the land as house sites. Aggrieved thereby, the petitioners filed petition for arbitration before the District Collector/Arbitrator for enhancement and the District Collector/Arbitrator has enhanced the same from Rs.6,01,518/- to Rs.13,40,000/- per acre. The complaint of the petitioners in this writ petition is that their grievance has not been properly considered and fixing compensation 7. Civil Appeal No.5856 of 2021, dated October 05, 2021 8. Appeal (Civil) 5287 of 2001, 13th August, 2001 9. AIR 2006 AP 136 10. Civil Appeal No.3479 of 2022, dated May 04, 2022. RC,J W.P.No.22053 of 2018 11 on the basis of acres treating it as agricultural land, instead of on yardage basis treating the land as commercial land, is highly unreasonable. On the other hand, the respondents challenged the very maintainability of this writ petition on the ground of availability of alternative efficacious statutory remedy. 8. In view of the above specific contentions, it is relevant here to peruse Sections 3G(5) and 3G(6) of the National Highways Act, 1956. As per Section 3G(5) of the Act, the aggrieved party can have his remedy redressed by filing an Arbitration petition against the award before Arbitrator. Section 3G(6) of the Act is to the effect that, subject to the provisions of the Act, the provisions of the Arbitration and Conciliation Act, shall apply to every arbitration under this Act. Thus, the party aggrieved by the arbitral award has to avail remedies available to him under Section 34 of the Arbitration & conciliation Act, 1996. That is to say, the aggrieved party can file a petition before the Principal Civil Court of Original Jurisdiction in a District. RC,J W.P.No.22053 of 2018 12 9. It is settled law and also reiterated by the Hon’ble Supreme Court in Titagur Paper Mills Co.Ltd. v. State of Orissa11, that non-entertainment of petitions under the writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has appraoched the High Court without availing the same unless he has made out an exceptional case warrant such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. 11.(1983) 2 SCC 433 RC,J W.P.No.22053 of 2018 13 10. In Mafatlal Industries Ltd. v. Union of India12 it has been held that so far as the jurisdiction of the High Court under Article 226, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/ Article 32, the Court would certainly take note of the legislative intent manifested with the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. 11. Further in Munshi Ram v. Municipal Committee, Chheharta13 it has been held that when a statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking remedy are excluded. 12.(1997)5 SCC 536 13. ((1979) 3 SCC 83 RC,J W.P.No.22053 of 2018 14 12. However, there are some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. In the absence of the above, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 13. The prime grievance of the petitioners in this writ petition is non- consideration of nature of land as commercial land and non-providence of compensation on yardage basis, instead on the basis of acres. 14. From the above, it is evident that neither defiance of the fundamental principles of judicial procedure nor violation of the principles of natural justice is complained of by the petitioners. The grievance of the petitioner is only in relation to the outcome of the adjudication but not in relation to process of adjudication. RC,J W.P.No.22053 of 2018 15 15. It is a well settled principle of law that the Court in Writ Petition only deals with process of adjudication but not with the ultimate result or outcome of the adjudication. 16. In Nirmal Singh and others (supra 6) relied on by the learned counsel for the petitioners, the Hon’ble Supreme Court held that the Court should look into sale instances of smaller pieces of land while applying reasonable element of deduction. 17. However, disputed questions of fact would have to be dealt with in that process. The same also requires admittance of both the oral and documentary evidence by both the parties and critical analysis of the said evidence. Thus, the same cannot be undertaken by this Court while exercising jurisdiction under Section 226 of the Constitution of India, more particularly, when an when an alternative efficacious statutory remedy of filing an AOP before the competent Principal District Court is available to the petitioner. RC,J W.P.No.22053 of 2018 16 18. The contention of the petitioners that after admission, the writ petition could not be dismissed on the ground of availability of alternative remedy is concerned, in Genpact India Private Limited (supra 3) relied on by the learned counsel for the petitioners, their Lordships of Hon’ble Supreme Court held that, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner. Thus, the said contention carry no merit and thus a writ petition can be dismissed on the ground of availability of alternative remedy, even after it was admitted. 19. In the instant case, since the Land Acquisition Act provides for efficacious remedy of filing application under Section 34 of the Arbitration and Conciliation Act before the concerned Principal District Court within whose RC,J W.P.No.22053 of 2018 17 jurisdiction the subject lands are situated and that too when violation of principles of natural justice is not complained of, this Court cannot entertain the writ petition under Article 226 of the Constitution of India. When the statute provides for a further remedy for a person aggrieved, it must be sought in that forum and in that manner, when glaring procedural irregularities are not complained. 20. In view of the above, the remedy available to the petitioners is to take recourse of law as per 3G(6) of the Act by filing a petition under Section 34 of the Arbitration and Conciliation Act, but not by way of filing this writ petition. Therefore, the Writ Petition is liable to be dismissed. 21. The learned counsel appearing for the petitioners would further contend that if this Court were to hold that this writ petition is not maintainable for availability of efficacious alternative remedy, liberty be reserved in favour of the petitioners to take further recourse of law under the provisions of the Act. RC,J W.P.No.22053 of 2018 18 22. Accordingly, the writ petition is dismissed. However, the petitioners are at liberty to take further recourse under the provisions of the Act. There shall be no order as to costs. As sequel thereto, miscellaneous petition, if any, pending shall stand closed. Interim orders, if any, shall stand vacated. ________________________ JUSTICE RAVI CHEEMALAPATI 14th June, 2023 RR RC,J W.P.No.22053 of 2018 19 HON’BLE SRI JUSTICE RAVI CHEEMALAPATI WRIT PETITION No.22053 of 2018 14TH June, 2023 RR "