Mohan Lal vs State Of U.P. Thru Collector And 2 ...
2013 Latest Caselaw 2059 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 21
 

 
Case :- WRIT - C No. - 26903 of 2013
 

 
Petitioner :- Mohan Lal
 
Respondent :- State Of U.P. Thru Collector And 2 Others
 
Petitioner Counsel :- Santosh Kumar Pandey
 
Respondent Counsel :- C.S.C.,R.K. Singh
 

 
Hon'ble Satya Poot Mehrotra,J.

Hon'ble Vipin Sinha,J.

    The present Writ Petition has been filed by the petitioner, inter-alia, praying for quashing the Award dated 2.2.2013 (Annexure 7 to the Writ Petition) in respect of Plot No. 211, situated in Village-Unasi, Tehsil- Meerganj, Pargana & District Bareilly. The said Plot has hereinafter referred to as "the plot in question".

    It appears that a Notification dated 25th November, 2011 under sub-section (1) of Section 3-A of the National Highways Act, 1956 (in short "The Highways Act") was issued by the Central Government for acquisition of land in the District Bareilly for National Highway No. 24.

    The substance of the Notification was published in two Newspapers on 22nd December, 2011 as per the provisions contained under sub-section (3) of Section 3-A of the Highways Act.

    Subsequently, a Declaration dated 5th September, 2012 under Section 3-D of the Highways Act was issued by the Central Government. Copy of the Declaration dated 5th September, 2012 has been filed as Annexure 2 to the Writ Petition.

    As per the Declaration, plots belonging to various persons including the plot in question belonging to the petitioner stood vested in the Central Government.

    The Competent Authority determined the amount payable as compensation in respect of the land acquired by the Award dated 2.2.2013 (Annexure 7 to the Writ Petition) under Section 3-G of the Highways Act.

    An amount of Rs. 98750/- was determined as compensation payable to the petitioner for acquisition of the plot in question.

    The petitioner has, thereupon, filed the present Writ Petition raising grievance that the amount of compensation awarded for acquisition of the plot in question was inadequate.

    We have heard Shri Santosh Kumar Pandey, learned counsel for the petitioner, the learned Standing Counsel appearing for the respondent nos. 1 and 2, and Shri R.K. Singh, learned counsel for the respondent no.3, and perused the record.

    Shri R.K.Singh, learned counsel for the respondent no.3 has raised a preliminary objection that for redressal of his grievances as raised in the Writ Petition, the petitioner has an alternative remedy to approach the Arbitrator as per the provisions contained in sub-sections (5) and (6) of Section 3-G of the Highways Act, and keeping in view the alternative remedy available to the petitioner, no interference is called for in the present Writ Petiiton.

    Shri R.K.Singh, learned counsel for the respondent no.3 further states that the Central Government has appointed the District Magistrate, Bareilly as Arbitrator under the provisions of sub-section (5) of Section 3-G of the Highways Act.

    Shri Santosh Kumar Pandey, learned counsel for the petitioner submits that the existence of alternative remedy is not an absolute bar to the entertainment of the Writ Petition under Article 226 of the Constitution of India, and therefore, the Writ Petition may be entertained despite the existence of such alternative remedy.

    We have considered the submissions made by the learned counsel for the parties.

    Section 3-G of the Highways Act lays down as under:

" 3G. Determination of amount payable as compensation.-(1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.

(2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten percent of the amount determined under sub-section (1), for that land.

(3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired.

(4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land.

(5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) 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.

(6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.

(7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration-

(a) the market value of the land on the date of publication of the notification under section 3A;

(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;

(c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;

(d) if , in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change."

    Sub-section (1) of Section 3-G of the Highways Act, thus, provides for determination of the amount of compensation by the competent authority in respect of the land acquired.

    Sub-section (2) of Section 3-G of the Highways Act makes provision for determination of compensation in respect of the right of user or any right in the nature of an easement on any acquired land.

    Sub-section (5) of Section 3-G of the Highways Act, inter-alia, provides that if the amount determined by the competent authority under sub-section (1) or sub-section (2) 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.

    Sub-Section (6) of Section 3-G of the Highways Act lays down that subject to the provisions of the Highways Act, the provisions of the Arbitration and Conciliation Act, 1996 shall apply to every arbitration under the Highways Act.

    Sub-section (7) of Section 3-G of the Highways Act lays down various factors which are taken into consideration by the competent authority while determining the amount of compensation under sub-section (1) or by the arbitrator while determining the amount of compensation under sub-section (5) of Section 3-G.

    It will, thus, be noticed that the petitioner has an alternative remedy to approach the Arbitrator under sub-section (5) of Section 3-G of the Highways Act against the Award dated 2.2.2013.

    Question regarding determination of quantum of compensation to be paid in respect of the acquisition of the plot in question, keeping in view the various relevant factors, is basically a question of fact, for the determination of which, evidence will have to be led by the parties. Such exercise cannot appropriately be done in Writ Petition under Article 226 of the Constitution of India.

    In view of the above, we are of the opinion that it will be appropriate that the petitioner be relegated to the alternative remedy available to the petitioner under sub-section (5) of Section 3-G of the Act.

    The Writ Petition filed by the petitioner is liable to be dismissed on the ground of availability of alternative remedy to the petitioner, and the same is accordingly dismissed on the said ground.

Order Date :- 14.5.2013

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