MAHENDRA PRATAP SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this writ petition, the petitioners challenge the award of the Arbitrator under the Railways (Amendment) Act, 2008. The case was earlier adjourned for the State, the Railways and the Dedicated Freight Corridor Corporation of India Limited (Corporation) to file comprehensive counter affidavits. Both State and Railways maintain that they have no instructions in the matter. However, the Corporation has filed a comprehensive counter affidavit. Heard learned counsel for the petitioners and learned counsel for the Corporation Shri Ashok Kumar Keshari and other counsel for the State and Railways. With their consent, these writ petitions are being disposed of at this stage itself. The grievance of the petitioners is that for acquiring land for establishment of Dedicated Freight Corridor, appropriate steps were taken. The Special Land Acquisition Officer, considering the location of the lands, the usage of the lands, the urbanization of the area, held that the lands had to be treated as urban land meaning thereby residential lands and ordered for payment of compensation accordingly. Petitioners and others were, accordingly, satisfied. These are village lands where some people were (sic - -having) their houses, some lands are vacant where agricultural operations are carried on but it is not disputed that it is an urbanized area. The Corporation, who had to pay the compensation, then preferred an appeal before the Divisional Commissioner, Patna who is the sole Arbitrator under the Railways (Amendment) Act, 2008. It appears that the Divisional Commissioner constituted a team consisting of various Government officials to enquire into the matter and submit a report. Based on the report, he modified the award holding that substantial pieces of land be treated as residential and rest, including petitioners' land, be treated as agricultural, thus, adversely modifying the award and changing the nature of land and consequential compensation on the basis of land now being held to be agricultural. Petitioners filed this writ petition challenging this order of the Divisional Commissioner which included a direction to the Land Acquisition Officer to recompute the compensation on basis of agricultural land, thus, substantially reducing the compensation payable to the petitioners. It may be noted that petitioners came alive to the order of the Commissioner only when the Land Acquisition Officer noticed them for reduction of compensation awarded. The grievance of the petitioners is that, after due enquiry and due consideration, the Land Acquisition Officer granted compensation on basis of the lands being residential lands. The Corporation had a right to object but once such an objection was filed before the Divisional Commissioner, Patna, he was bound to notice all the parties likely to be effected by his decision. Petitioners specifically assert that the Divisional Commissioner did not issue such notice. In fact Shri Keshan appearing for the Corporation concedes that effected parties were not even made parties to the appeal before Divisional Commissioner. This is based upon the application of the Corporation as filed before the Divisional Commissioner as appended to the counter affidavit. The Corporation does not deny the fact that the Divisional Commissioner, at no point of time, either made petitioners parties or noticed them before amending the award to their detriment. Learned counsel for the petitioners, therefore, submits that the order of the Divisional Commissioner was, thus, void ab initio having been passed without hearing the parties. It was in violation of the basic principles of natural justice which is one of the facets of Article 14 of the Constitution. He, thus, submits that the order of the Divisional Commissioner as also the consequential order of the Land Acquisition Officer are, thus, liable to be set aside.

(2.) SHRI Keshari for the Corporation submits that petitioners have efficacious remedy as per the Railways (Amendment) Act, 2008 to go to Civil Court challenging the order of the Divisional Commissioner -cum -Arbitrator under the Arbitration and Conciliation Act. I am noting this point only to reject it. Availability of alternative remedy is not always a bar to entertain writ petition. No statute can restrict the power of a High Court of judicial review under Article 226 of the Constitution and any legislation, which seeks to do, is constitutionally void. The doctrine of alternative remedy is a self -evolved restriction but as the Apex Court has held in the case of M/s Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad, Muzaffarnagar, : AIR 1969 Supreme Court 556, there are at least two well recognized exceptions to the doctrine with regard to exhaustion of statutory remedies. I need not elaborate but I can only quote from the judgment aforesaid: - -

(3.) THUS , the award of the Divisional Commissioner dated 19.5.2012 and consequential modified award of the Land Acquisition Officer, Kaimur dated 25.8.2012 are quashed. The writ petition is, thus, allowed.