ORDER : 1. The petitioners by way of this writ petition have challenged the notice directing for dispossession. 2. This Court vide order dated 11.4.2018 had restrained the railway authorities from making demolition with regard to the residential houses of the petitioners and allow the petitioners to reside in their house. 3. The reply has been filed by the railways and a preliminary objection has been raised. It is submitted that the benefit which the petitioners are claiming with regard to the rehabilitation is part of compensation for which the petitioners have an alternative efficacious remedy under Section 20F(6) of the Railways Act, 1989. It is also stated that the petitioners have approached the Arbitrator by filing applications relating to the monetary compensation. Once such an application has been moved, the Arbitrator can also examine the matter relating to rehabilitation aspect. 4. On merits, respondents have submitted that the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter to be referred as the ‘Act of 2013’) would not be applicable with regard to land acquisition under the Railways Act, 1989 in view of the provisions of Section 105. It is, therefore, submitted that the provisions of the Act could not have been applied for the purpose of considering the case of the petitioners and the relevant provisions which would apply for the purpose would fall in terms of Section 20 Chapter IV(A) of various sections therein. 5. Learned Senior Counsel Mr. Kamlakar Sharma, appearing for the respondent-railway submits that under Section 20F(6) there is a provisions of determination of amount of compensation and the power to take possession is exercised as per Section 20(I) of the Act of 1989. Further it is submitted that the railways in terms of Section 105(3) of the Act of 2013 has adopted entitlement matrix in accordance with the Act of 2013 whereby as per entitlement matrix compensation for land and revenue assets fall to man and building as well as resettlement and rehabilitation assistance for project affected people has been adopted. It is submitted that the land or area which is being sought to be acquired from the properties of the petitioners has been determined by the SDO, Ajmer and a table has been mentioned in the reply pointing out the acquired area of property and the percentage of the area acquired. It is submitted that the land or area which is being sought to be acquired from the properties of the petitioners has been determined by the SDO, Ajmer and a table has been mentioned in the reply pointing out the acquired area of property and the percentage of the area acquired. Learned Counsel submits that as per the said table only part area of the property is being acquired and the remaining area shall remain with the petitioners and they can continue to reside there as per their will. In the circumstances, authority had taken decision for not granting any compensation of rehabilitation and resettlement assistance to the petitioners on the ground that the same is not relatable to their livelihood. 6. Learned Counsel for the petitioners submits that the Act of 2013 could not have been given a go bye once its first Schedule and Second Schedule have been adopted by the respondents as per the entitlement matrix adopted by the railways. It is submitted that before providing rehabilitation and resettlement the petitioners cannot be dispossessed. The question regarding compensation has already been raised before the Arbitrator. However, the Arbitrator who has been appointed in terms of Section 20F(6), would not be able to decide question regarding rehabilitation and resettlement. It is thus not an alternative, efficacious remedy available to the petitioners. On merits also, the petitioners submit that the claim of the petitioners regarding resettlement and rehabilitation was rejected only on the ground that the acquisition of the property would not affect the livelihood of the land owners and their families. It is his submission that such a decision was illegal and unjustified. Once the residential houses of the petitioners itself are taken away the very right to life and liberty would be taken away and further there is no such embargo under the Second Schedule or under the entitlement matrix that the resettlement would be not granted to the petitioners unless they are earning their livelihood from the said premises. The further objection of the petitioners is that the provisions of 28(I) with regard to power to take possession would apply only after the aforesaid exercise of rehabilitation and resettlement is conducted by the respondents. The further objection of the petitioners is that the provisions of 28(I) with regard to power to take possession would apply only after the aforesaid exercise of rehabilitation and resettlement is conducted by the respondents. Learned Counsel for the petitioners also submits that the notice period as provided under Section 20(I) of 60 days as well as under Section 38 of the Act of 2013 has not been issued to the petitioners and the period of 60 days was required to be given to the petitioners for vacating the premises. Learned Counsel submits that the provisions of the Act of 2013 would apply as in the award itself the respondents have referred to Sections 37, 38, 31(1) & 38(1) of the Act of 2013. 7. Before adverting to the merits of the case, it would be useful to quote provisions of the relevant Sections of the Act of 2013 :- “105. Provisions of this Act not to apply in certain cases or to apply with certain modifications.– (1) Subject to subsection (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule. (2) Subject to sub-section (2) of section 106, the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule. (3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be. (4) A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament. 38. Power to take possession of land to be acquired.– (1) The Collector shall take possession of land after ensuring that full payment of compensation as well as rehabilitation and resettlement entitlements are paid or tendered to the entitled persons within a period of three months for the compensation and a period of six months for the monetary part of rehabilitation and resettlement entitlements listed in the Second Schedule commencing from the date of the award made under section 30: Provided that the components of the Rehabilitation and Resettlement Package in the Second and Third Schedules that relate to infrastructural entitlements shall be provided within a period of eighteen months from the date of the award: Provided further that in case of acquisition of land for irrigation or hydel project, being a public purpose, the rehabilitation and resettlement shall be completed six months prior to submergence of the lands acquired. (2) The Collector shall be responsible for ensuring that the rehabilitation and resettlement process is completed in all its aspects before displacing the affected families. 31. Rehabilitation and Resettlement Award for affected families by Collector.– (1) The Collector shall pass Rehabilitation and Resettlement Awards for each affected family in terms of the entitlements provided in the Second Schedule. (2) The Collector shall be responsible for ensuring that the rehabilitation and resettlement process is completed in all its aspects before displacing the affected families. 31. Rehabilitation and Resettlement Award for affected families by Collector.– (1) The Collector shall pass Rehabilitation and Resettlement Awards for each affected family in terms of the entitlements provided in the Second Schedule. (2) The Rehabilitation and Resettlement Award shall include all of the following, namely:- (a) rehabilitation and resettlement amount payable to the family; (b) bank account number of the person to which the rehabilitation and resettlement award amount is to be transferred; (c) particulars of house site and house to be allotted, in case of displaced families; (d) particulars of land allotted to the displaced families; (e) particulars of one time subsistence allowance and transportation allowance in case of displaced families; (f) particulars of payment for cattle shed and petty shops; (g) particulars of one-time amount to artisans and small traders; (h) details of mandatory employment to be provided to the members of the affected families; (i) particulars of any fishing rights that may be involved; (j) particulars of annuity and other entitlements to be provided; (k) particulars of special provisions for the Scheduled Castes and the Scheduled Tribes to be provided: Provided that in case any of the matters specified under clauses (a) to (k) are not applicable to any affected family the same shall be indicated as ‘not applicable’: Provided further that the appropriate Government may, by notification increase the rate of rehabilitation and resettlement amount payable to the affected families, taking into account the rise in the price index. Relevant Section of the Railways Act, 1989 20E. Declaration of acquisition - (1) Where no objection under sub-section (1) of section 20D has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objections under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification, that the land should be acquired for the purpose mentioned in subsection (1) of section 20A. (2) On the publication of the declaration under subsection (1), the land shall vest absolutely in the Central Government free from all encumbrances. (2) On the publication of the declaration under subsection (1), the land shall vest absolutely in the Central Government free from all encumbrances. (3) Where in respect of any land, a notification has been published under subsection (1) of section 20A for its acquisition, but no declaration under sub-section (1) of this section has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect: Provided that in computing the said period of one year, the period during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 20A is stayed by an order of a court shall be excluded. (4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority. 20F. 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. (6) If the amount determined by the competent authority under sub-section (1) or as the case may be, sub-section (i) 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 in such manner as may be prescribed. (7) 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) 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. (8) The competent authority or the arbitrator while determining the amount of compensation under subsection (1) or sub-section (6), 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 20A; (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. (9) In addition to the market-value of the land as above provided, the competent authority or the arbitrator, as the case may be, shall in every case award a sum of sixty per centum on such market-value, in consideration of the compulsory nature of the acquisition. 20-I. Power to take Possession - (1) Where any land has vested in the Central Government under subsection (2) of section 20E, and the amount determined by the competent authority under section 20F with respect to such land has been deposited under sub-section (1) of section 20H with the competent authority by the Central Government, the competent authority may, by notice in writing, direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof to the competent authority or any person duly authorized by it in this behalf within a period of sixty days of the service of the notice. (2) If any person refuses or fails to comply with any direction made under sub-section (1), the competent authority shall apply- (a) in case of any land situated in any area falling within the metropolitan area, to the Commissioner of Police; (b) in case of any land situated in any area other than the area referred to in clause (a), to the Collector of a district, and such Commissioner or Collector, as the case may be, shall enforce the surrender of the land, to the competent authority or to the person duly authorised by it. 20-O. Application of the National Rehabilitation and Resettlement Policy, 2007 to persons affected due to land acquisition- The provisions of the National Rehabilitation and Resettlement Policy, 2007 for project affected families, notified by the Government of India in the Ministry of Rural Development vide number F.26011/4/2007- LRD, dated the 31st October, 2007, shall apply in respect of acquisition of land by the Central Government under this Act. 8. The question which has been raised in the present petition is essentially relating to the rehabilitation and resettlement of the project affected people that are the petitioners. While the petitioners have already raised their objections relating to the monetary compensation awarded to them before the Arbitrator in terms of Section 20F(6), question before this Court is whether the Arbitrator can examine the issue relating to the rehabilitation and resettlement of the petitioners and thus an alternative remedy is existing with the petitioners or whether this Court is to decide case on merits and examine the question raised by the petitioners with regard to the decision relating to non-grant of rehabilitation of the petitioners on the ground that the same is not connected with livelihood. 9. Upon considering the said notice, I find that the said notice does not conform in terms of Section 20(I) and it is the notice dated 28.3.2017 which mentions the provisions of the Section 20(I) of the Railways Act for dispossession. Thus, the notice does not conform and the same is therefore, quashed and set aside. However, the respondents shall be free to give fresh notice within the meaning of Section 20(I) for dispossession providing 60 days as required under the said provision. Thus, the notice does not conform and the same is therefore, quashed and set aside. However, the respondents shall be free to give fresh notice within the meaning of Section 20(I) for dispossession providing 60 days as required under the said provision. The exercise relating to resettlement and rehabilitation in terms of Schedule Second of the entitlement matrix adopted by the railways under the Act of 2013 has to be conducted within a period of three months henceforth. If the said exercise is not conducted, the petitioners shall be free to approach this Court. 10. A look at Section 20F(6), (7) (8) and (9) shows that the Arbitrator appointed under the Act of 1989 was required to deal with considerations as mentioned in 20(F) & 20(O), 18 and 20E(9). That apart Section 20(o) it was proceeded under the Act of 1989 to apply the National Rehabilitation & Resettlement policy, 2007 to persons affected due to land acquisition. Learned Counsel for the railways has pointed out that under the policy of 2007, there is also an ombudsman appointment. However, this Court notes that after coming into force of the Act of 2013, the railway Boards have now approved the resettlement matrix for the present project according to Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013. Thus, for the present project, the policy of 2007 will not apply at the same time keeping in view the provisions of the Act of 1989. I find that Section 20F (8) and (9) also do not take care relating to the rehabilitation aspect. Thus, it cannot be said that there is an alternative remedy available to the petitioners to approach the Arbitrator for the purpose of rehabilitation and resettlement in terms of entitlement of matrix adopted by the railways. It is noted that the Arbitrator could not have looked into the rehabilitation aspects even under the Policy of 2007 and, therefore, this Court would not grant the arbitrator powers which are not available under the Act. 11. The question now therefore is whether the order passed by the Land Acquisition Officer, Ajmer denying the petitioners benefit of the Second Schedule on the ground of the petitioners not earning livelihood from the said properties is justified or not. 11. The question now therefore is whether the order passed by the Land Acquisition Officer, Ajmer denying the petitioners benefit of the Second Schedule on the ground of the petitioners not earning livelihood from the said properties is justified or not. A look at the order goes to show that the Land Acquisition Officer shall examine the case of the petitioners under the Act of 2013 and the Second Schedule therein. However, in view of what has come out before this Court, it is apparent that the Second Schedule is adopted by the Railways as per decision dated 25.07.2017. The second Schedule provides as under:- S. No. Elements of Rehabilitation and Resettlement Entitlements Entitlement/provision Whether provided or not (if provided, details to be given) 1. Provision of housing units in case of displacement (1) If a house is lost in rural areas, a constructed house shall be provided as per the Indira Awas Yojana specifications. If a house is lost in urban areas, a constructed house shall be provided, which will be not less than 50 sq mts in plinth area. (2) The benefits listed above shall also be extended to any affected family which is without homestead land and which has been residing in the area continuously for a period of not less than three years preceding the date of notification of the affected area and which has been involuntarily displaced from such area: Provided that any such family in urban areas which opts not to take the house offered, shall get a onetime financial assistance for house construction, which shall not be less than one lakh fifty thousand rupees: Provided further that if any affected family in rural areas so prefers, the equivalent cost of the house may be offered in lieu of the constructed house: Provided also that no family affected by acquisition shall be given more than one house under the provisions of this Act. Explanation.- The houses in urban areas may, if necessary, be provided in multi-storied building complexes. 2. Explanation.- The houses in urban areas may, if necessary, be provided in multi-storied building complexes. 2. Land for Land In the case of irrigation project, each affected family owning agricultural land in the affected area and whose land has been acquired or lost, or who has, as a consequence of the acquisition or loss of land, been reduced to the status of a marginal farmer or landless, shall be allotted, in the name of each person included in the records of rights with regard to the affected family, a minimum of one acre of land in the command area of the project for which the land is acquired: Provided that in every project those persons losing land and belonging to the Scheduled Castes or Scheduled Tribes will be provided land equivalent to land acquired or two and a one half acres, whichever is lower. 2A Offer for Developed Land In case the land is acquired for Developed urbanisation purposes, twenty Land per cent of the developed land will be reserved and offered to land owning project affected families, in proportion to the area of their land acquired and at a price equal to the cost of acquisition and the cost of development: Provided that in cases the landowning project affected family wishes to avail of this offer, an equivalent amount will be deducted from the land acquisition compensation package payable to it. 3. Choice of Annuity or Employment The appropriate Government shall ensure that the affected families are provided with the following options: (a) where jobs are created through the project, ‘after providing suitable training and skill development in the required field, make provision for employment at a rate not lower than the minimum wages provided for in any other law for the time being in force, to at least one member per affected family in the project or arrange for a job in such other project as may be required; or (b) onetime payment of five lakhs rupees per affected family; or (c) Annuity policies that shall pay not less than two thousand rupees per month per family for twenty years, with appropriate indexation to the Consumer Price Index for Agricultural Labourers. 4. 4. Subsistence grant for displaced families for a period of one year Each affected family which is displaced from the land acquired shall be given a monthly subsistence allowance equivalent to three thousand rupees per month for a period of one year from the date of award. In addition to this amount, the Scheduled Castes and the Scheduled Tribes displaced from Scheduled Areas shall receive an amount equivalent to fifty thousand rupees. In cases of displacement from the Scheduled Areas, as far as possible, the affected families shall be relocated in a similar ecological zone, so as to preserve the economic opportunities, language, culture and community life of the tribal communities. 5. Transportation cost for displaced families Each affected family which is displaced shall get a one-time financial assistance of fifty thousand rupees as transportation cost for shifting of the family, building materials, belongings and cattle. 6. Cattle shed/petty shops cost Each affected family having cattle or having a petty shop shall get onetime financial assistance of such amount as the appropriate Government may, by notification, specify subject to a minimum of twenty-five thousand rupees for construction of cattle shed or petty shop as the case may be. 7. One time grant to artisan, small traders and certain others Each affected family of an artisan, small trader or self-employed person or an affected family which owned non-agricultural land or commercial, industrial or institutional structure in the affected area, and which has been involuntarily displaced from the affected area due to land acquisition, shall get one-time financial assistance of such amount as the appropriate Government may, by notification, specify subject to a minimum of twenty-five thousand rupees. 8. Fishing rights In cases of irrigation or hydel projects, the affected families may be allowed fishing rights in the reservoirs, in such manner as may be prescribed by the appropriate Government. 9. One-time Resettlement Allowance Each affected family shall be given a one-time “Resettlement Allowance” of fifty thousand rupees only. 10. Stamp duty and registration fee (1) The stamp duty and other fees payable for registration of the land or house allotted to the affected families shall be borne by the Requiring Body. (2) The land for house allotted to the affected families shall be free from all encumbrances. (3) The land or house allotted may be in the joint names of wife and husband of the affected family. 12. (2) The land for house allotted to the affected families shall be free from all encumbrances. (3) The land or house allotted may be in the joint names of wife and husband of the affected family. 12. From the above, it is apparent that the benefit has to be granted to the petitioners who are residing in their residential houses and their livelihood is primarily dependent on the sole houses which they possessed. As per the Second Schedule the respondents are required to either provide a constructed house or grant cash assistance. However, in either cases, the order of the Land Acquisition Officer denying the petitioners the benefit of the Second Schedule is required to be set aside and the same is accordingly set aside. 13. The question however would remain is whether the petitioners can be dispossessed without providing rehabilitation or resettlement of the property only after the resettlement and rehabilitation has been done. This aspect is required to be examined in terms of Section 20(I) of the Act of 1989. Section 20(I) empowers the competent authority to give a notice in writing of a period of 60 days from the date of service of notice for surrendering or delivering possession of the property for which it has already deposited the amount determined by the competent authority under Section 20(F) with respect to such land. Admittedly the amount has already been deposited by the competent authority as assessed by the Land Acquisition Officer. Thus, the respondents would be entitled to give a notice of 60 days to the petitioners for asking them to surrender possession of the property which has been acquired by them. The notice given by the respondents dated 28.3.2018 however, only granted 7 days time for dispossession. 14. Learned Counsel for the respondents states that earlier a notice was given on 1.12.2017 and the same should be treated as notice for dispossession. 15. One submission has been raised by the learned Senior Counsel relating to the remedy available under the Act of 2013 of approaching the authority formed under Section 51 of the Act of 2013. However, I find that the Act of 2013 would not apply and, therefore, the provisions relating to the filing of an appeal before the authority formed under Section 51 of the Act of 2013 cannot be treated as a remedy available to the petitioners. However, I find that the Act of 2013 would not apply and, therefore, the provisions relating to the filing of an appeal before the authority formed under Section 51 of the Act of 2013 cannot be treated as a remedy available to the petitioners. Section 105(3) only allows adoption of the Schedule appended to the Act of 2013. Thus, the rigors of the Act of 2013 have no application in relation to acquisition undertaken by the railways in terms of the Act of 1989. In the circumstances neither remedy would lie before the authority under the Act of 2013 nor the petitioner can approach the Arbitrator who was appointed under the Rehabilitation Policy of 2007. In view thereof, the submission advanced by the learned Senior Counsel is rejected. 16. With the aforesaid observations, the writ petition is partly allowed.