Surendra Singh vs The State Of Rajasthan
2021 Latest Caselaw 17256 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14587/2021

Surendra Singh S/o Shri Padam Singh Rajpurohit, Aged About 46 Years, Through Power Attorney Holder Shri Padam Singh S/o Shri Mool Singh Aged About 77 Years, Resident Of Village Sankarana, Tehsil Aahor, District Jalore.

----Petitioner Versus

1. The State Of Rajasthan, Through The District Collector, Jalore.

2. The Land Receipt/acquisition Officer (Sub Divisional Officer), Jalore.

3. The Executive Officer, Public Works Department, Block State Highway, Barmer (Raj.).

4. The Project Director And Superintendent Engineer, Public Works Department, National Highway Circle, Jodhpur.

5. Union Of India, Through The Dy. Secretary, Ministry Road Transport And Highways, New Delhi.

----Respondents

For Petitioner(s) : Mr. Sajjan Singh Rajpurohit with Mr. Prashant Tantia

JUSTICE DINESH MEHTA

Order

18/11/2021

1. By way of the present writ petition the petitioner has

challenged the order dated 12.08.2021, being award passed by

the respondent No.2 - Land Acquisition Officer cum Sub Divisional

Officer, Jalore, pursuant to the acquisition proceedings adopted by

the National Highway Authority of India.

2. The facts relevant for the present purposes are that the

agricultural land situate in khasra No.1943/851 ad-measuring

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0.2123 hectare was got converted for residential purposes vide

order dated 20.06.2011 passed by the Sub Divisional Officer (in

short 'SDO'), Jalore, whereafter the description of said land in the

relevant revenue record reflects it to be 'Ger Mumkin Avasiya'.

3. For the construction of national highway, the land was

proposed to be acquired and thus, notification under section 3A of

the National Highways Act, 1956 (hereinafter referred to as the

'Act of 1956') was issued on 16.03.2018, whereafter a declaration

under section 3D of the Act of 1956 was published on 14.02.2019.

4. In furtherance of the acquisition proceedings initiated by the

National Highway Authority, the Land Acquisition Officer cum SDO

passed an award on 12.08.2021 and compensation was

determined qua the petitioner's land.

5. Challenging the order dated 12.08.2021, particularly the

calculation part, Mr. Rajpurohit, learned counsel for the petitioner,

argued that the respondent No.2 has erred in treating the

petitioner's duly converted residential land to be agricultural land

and reckoning the valuation of land as per the prevalent market

rate of agricultural land of the area instead of considering rates of

residential area.

6. Inviting Court's attention towards the part of the award,

learned counsel for the petitioner submitted that respondent No.2

has illegally relied upon the condition No.11 (ii) in the conversion

order dated 20.06.2011 and observing that since the petitioner

has failed to raise construction within the stipulated period of two

years, the conversion order was liable to be cancelled.

7. Learned counsel for the petitioner argued that mere

stipulation in the conversion order does not render the conversion

order to be revoked unless by conscious application of mind, the

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competent authority cancels/revokes such order and restores its

position as an agricultural land.

8. This Court at the outset posed a question to Mr. Rajpurohit

as to why the petitioner be not relegated to avail statutory remedy

given under section 3G (5) of the Act of 1956.

9. Mr. Rajpurohit, learned counsel, argued that since the Land

Acquisition Officer has fallen into the fundamental error of law in

treating the petitioner's land to be agricultural land, the petitioner

has got no alternative remedy, except to avail writ jurisdiction of

this Court.

10. In support of his submission that a writ petition should be

entertained by this Court, learned counsel relied upon the

judgment of Hon'ble the Supreme Court rendered in the case of

Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd & Ors.

reported in (2003) 2 SCC 107 and judgment dated 24.09.2021.

11. Without dealing with the contentions and arguments on merit

of the determination of the amount, this Court confines the

present order to the extent of scope of interference under Article

226 of the Constitution of India.

12. Section 3G of the Act of 1956, which deals with the

determination of compensation and the mechanism for challenge

thereto is a complete code in itself.

13. Section 3G of the Act of 1956 reads thus :

"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

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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 per cent, 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

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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."

14. Sub-section (5) of section 3G of the Act of 1956

unequivocally provides that if the amount determined by the

competent authority under sub-section (1) or sub-section (2) of

section 3G of the Act of 1956 is not acceptable to the party and

the same shall be determined by the Arbitrator to be appointed by

the Central Government.

15. In the opinion of this Court sub-section (5) so also sub-

section (7) of the Act of 1956 confers complete powers upon the

Land Acquisition Officer so also upon the Arbitrator to examine

and deal with all the aspects of determination of compensation.

16. Petitioner's argument that unless the conversion order duly

passed is not revoked, recalled or otherwise modified, valuation of

the petitioner's land is required to be made as per the residential

rates can well be considered by the Arbitrator in accordance with

law.

17. Adverting to the judgment cited by Mr. Rajpurohit, suffice it

to mention that judgment of Hon'ble the Supreme Court in the

case of Harbanslal Sahnia (supra) is of little help to the petitioner,

because the remedy of arbitration in that case was given in the

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dealership agreement, for which Hon'ble the Supreme Court on the

basis of facts involved therein observed that the High Court ought

not to have dismissed the writ petition on the ground of

alternative remedy, as the rule of alternative remedy is that of

discretion.

18. In view of the availability of statutory remedy to the

petitioner and considering the fact that all the facets and

components of determination of compensation, including the

grounds which have been canvassed before this Court, can be

gone into by the Arbitrator and further because determination of

amount will require leading of evidence, this Court is not inclined

to exercise its writ jurisdiction under Article 226 of the

Constitution of India, particularly when the order is not alleged to

be fundamentally without jurisdiction.

19. In view of the discussion aforesaid, the writ petition stands

dismissed.

20. Stay application too stands dismissed accordingly.

(DINESH MEHTA),J

58-A.Arora/-

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