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2017 DIGILAW 2124 (ALL)

KHALIQUE HASAN v. UNION OF INDIA

2017-09-08

KRISHNA PRATAP SINGH, SATYENDRA SINGH CHAUHAN

body2017
JUDGMENT Hon’ble Krishna Singh, J.—Since the common question of facts and law are involved in these three appeals, therefore, they are being heard and decided by a common judgement. 2. All the three appeals have been filed challenging the order dated 28.2.2015 passed by the District Judge, Kaushambi dismissing the Arbitration Case No. 7/70/2013 filed under Section 34 of the Arbitration and Conciliation Act, 1996 against the order dated 22.10.2013 passed by the Commissioner, Allahabad Division, Allahabad (Arbitration Tribunal)/respondent No. 4 rejecting the application No. 29 of 2012 preferred under Section 20F(6) of the Railways Act, 1989 (for short ‘the Act’), whereby he refused to initiate arbitration proceedings to determine the amount of compensation of the acquired land under Section 20G(3) of the Act by modifying the award dated 6.9.2010 passed by the competent authority/respondent No. 3 under Section 20F(2) of the Act in Case No. 1/2008-09. 3. The facts giving rise to the present dispute are that the competent authority passed the order on 6.9.2010 and the Commissioner, Allahabad Division, Allahabad passed an order on 22.10.2013 in respect of the claim of the appellants who happen to be the co-owners of plot No. 1348, which has been acquired for construction of the Eastern Dedicated Freight Corridor by the Railways. The competent authority/Additional Magistrate-I, Kaushambi issued a notice for submitting the reply by 20.11.2010 and in pursuance thereof, the appellants submitted their reply on 19.11.2010. It is alleged that the said objection was neither disposed of nor heard and the award was passed on 6.9.2010 i.e. much before the submission of the reply, thereby rejecting the claim of the appellants on the ground that he cannot decide the compensation rate again. The Revenue Inspector and the Tehsildar submitted their reports on 25.11.2011 and 28.8.2011 to the effect that the land of the appellants was of commercial utility. The competent authority took a view that once the award passed, the same cannot be amended. Against the said order, Writ Petition No. 42018 of 2011 was filed by the appellants and the said writ petition was dismissed by this Court by observing that remedy of arbitration is available under Section 20-F(6) of the Railway (Amendment) Act, 2008. The competent authority took a view that once the award passed, the same cannot be amended. Against the said order, Writ Petition No. 42018 of 2011 was filed by the appellants and the said writ petition was dismissed by this Court by observing that remedy of arbitration is available under Section 20-F(6) of the Railway (Amendment) Act, 2008. In pursuance of the said order, an arbitration application was filed before the Commissioner, Allahabad Division, Allahabad, which was registered as Arbitration Case No. 30 of 2012 and the competent authority submitted parawise reply stating therein that once the award passed, the same cannot be amended. The Arbitration Tribunal/Commissioner refused to interfere in the award dated 6.9.2010 by means of order dated 22.10.2013. The aforesaid order was challenged by filing an application under Section 34 of the Arbitration and Conciliation Act, which was registered as Case No. 06/70/13 before the District Judge, Kaushambi. The District Judge by means of order dated 28.2.2015 rejected the aforesaid application. Against the said order, FAFO No. D867 of 2015 was filed alongwith an application under Section 5 of the Limitation Act on 16.6.2015. Thereafter, the application for condonation of delay was taken up and the delay was condoned vide order dated 21.7.2015 and Regular No. 1953 of 2015 was allotted. On 5.12.2015 the appeal was admitted and the lower Court record was summoned. In the month of August, 2015, counter-affidavit was filed on behalf of respondents No. 1 and 2 by Sri Vijay Kumar Singh, Advocate and thereafter rejoinder-affidavit was filed on 9.11.2016. 4. Submission of learned counsel for the appellants is that Chapter IV-A (Sections 20(A) to 20(P)) was inserted in the Act by Act No. 11 of 2008 w.e.f. 31.1.2008, therefore, provisions of this Chapter were applicable in the present case because the land was acquired by means of notifications dated 31.12.2008 and 9.9.2009 i.e. much after the amendment of the Act. He further submits that Section 20G(3) of the aforesaid Chapter obligates the competent authority to ascertain the intended land use category of such land sought to be acquired and take into account the value of land of intended category in the adjoining area before assessing and determining the market value of the land being acquired, but the amended provisions were not considered by the Courts below. Therefore, the award passed by the competent authority is wholly bad in law. Therefore, the award passed by the competent authority is wholly bad in law. It is also submitted that the Commissioner and the learned District Judge also did not apply their mind in a judicious manner in respect of the aforesaid provisions and have wrongly justified the award dated 6.9.2010 by rejecting the arbitration application No. 30 of 2012 and Arbitration Case No. 6/70/13 by the impugned orders dated 22.10.2013 and 28.2.2015 respectively. It is further submitted that the learned District Judge has failed to take into consideration the amended provisions contained in Section 20G(3) of the Act. It is also submitted that the registered sale-deeds from 2002 to 2008 prior to notification dated 31.12.2008 showed the nature of the land adjacent to appellants acquired land as commercial and copies of the same have also been placed on record of Case No. 1 of 2008-09 filed with an application dated 25.8.2011. The reports submitted by the Revenue Inspector and the Tehsildar dated 25.11.2011 and 28.8.2011 also show that the appellants acquired land is of commercial utility. Submission is that in respect of some part of appellants same land acquired under another notification dated 21.12.2010, the compensation was awarded on commercial rate by the competent authority in Case No. 36/2011-12. It has further been submitted that the Commissioner has allowed the arbitration application by setting aside the award of the competent authority and determined the compensation amount of acquired land on the basis of commercial rate prescribed by the District Magistrate, Fatehpur and payment was made to the land holders. Copy of the said order was produced before him, but the same was not taken into consideration. 5. S/Sri Vijay Kumar Singh and Rama Shanker Yadav, learned counsel appearing for the Union of India have submitted that the award has been made in a correct manner and the prescribed authority has applied the correct provisions of the Act. The land of the appellants was not acquired for commercial purpose, therefore, the provisions of Section 20G(3) of the Act are not applicable in the present case. Therefore, they submitted that there is no illegality in the orders/award passed by the Courts below and the argument of the learned counsel for the appellants is misconceived and the appeals are liable to be dismissed. 6. Therefore, they submitted that there is no illegality in the orders/award passed by the Courts below and the argument of the learned counsel for the appellants is misconceived and the appeals are liable to be dismissed. 6. We have heard Sri Deepak Kumar Jaiswal, learned counsel for the appellants and S/Sri Vijay Kumar Singh and Rama Shanker Yadav, learned counsel appearing for the Union of India and perused the record. 7. In order to appreciate the controversy in the present case, we have to advert to the provisions of Section 20G(3). Section 20G(3) was inserted vide Act No. 11 of 2008 and has become effective from 31.1.2008. The said provisions read as under : “20G. Criterion for determination of market value of land.—(1)......... x x x x x x x (3) The competent authority shall, before assessing and determining the market value of the land being acquired under this Act.— (a) ascertain the intended land use category of such land; and (b) take into account the value of the land of the intended category in the adjoining areas or vicinity, for the purpose of determination of the market value of the land being acquired.” 8. The language used in Section 20G(3) of the Act itself shows that it is obligatory upon the competent authority to assess and determine the market value of the land being acquired. The first requirement is that the competent authority is required to ascertain the intended land use category of such land and then take into account the value of the land of the intended category in the adjoining areas or vicinity for the purpose of determination of the market value of the land being acquired. What is the intended land use category, is evident from the notifications dated 31.12.2008 and 9.9.2009. The acquisition was made by the Railways for the purpose of construction of the Eastern Dedicated Freight Corridor and the same was published in the newspapers Amar Ujala and Dainik Jagran on 24.10.2009. Now, it has to be seen that what is the intended use of the Eastern Dedicated Freight Corridor. The intended use of the aforesaid corridor is obviously found for commercial purpose and if the land is intended to be used for commercial purpose, then certainly the provisions of Section 20G(3) of the Act will be attracted. Now, it has to be seen that what is the intended use of the Eastern Dedicated Freight Corridor. The intended use of the aforesaid corridor is obviously found for commercial purpose and if the land is intended to be used for commercial purpose, then certainly the provisions of Section 20G(3) of the Act will be attracted. Therefore, the prescribed authority, Commissioner and the District Judge have not adverted themselves to the provisions of the amended Section 20G(3) of the Act. The intended use of the Eastern Dedicated Freight Corridor is self-explanatory and the finding recorded by the District Judge also goes to indicate that wherever there is dense population and construction of parallel rail line is not possible, there by-pass has been created just to avoid the demolition of the houses and displacement of the persons. The land of the appellants is falling on the by-pass. Obviously, the acquisition is for the purpose of construction of the Eastern Dedicated Freight Corridor, which is the intended use, but all the Courts below failed to take into consideration this aspect of the matter and ignored the amended provisions of the Act. Apart from it, in respect of some part of the same land of the appellants acquired under another notification dated 21.12.2010, the compensation was awarded on commercial rate by the competent authority in Case No. 36/2011-12. The reports submitted by the Revenue Inspector and the Tehsildar dated 25.11.2011 and 28.8.2011 also show that the appellants acquired land is of commercial utility. 9. The entire premise of the argument of learned counsel for the appellants is based on the provisions of Section 20G(3) of the Act and it is also evident from the orders of all the Courts below that the provisions of Section 20G(3) of the Act have not been taken into consideration by them while passing the orders. 10. Looking to the fact that the relevant provisions have been ignored and have not been taken into consideration, we find that the orders passed by all the Courts below cannot be sustained in law and they deserve to be set aside. 11. Accordingly, all the three appeals are allowed and the orders dated 28.2.2015, 22.10.2013 and 6.9.2010 passed by the District Judge, Commissioner, Allahabad Division, Allahabad and the competent authority respectively are hereby set aside. 11. Accordingly, all the three appeals are allowed and the orders dated 28.2.2015, 22.10.2013 and 6.9.2010 passed by the District Judge, Commissioner, Allahabad Division, Allahabad and the competent authority respectively are hereby set aside. The matter is remitted to the competent authority to consider the claim of the appellants afresh taking into consideration the observations made in the judgemnet and decide the matter within a period of three months from the date a certified copy of this order is produced before him.