JUDGMENT : SANGEET LODHA, J. 1. These intra-court appeals are directed against judgment dated 11.4.18 passed by the learned Single Judge of this Court, whereby the writ petitions preferred by the respondent assailing the award dated 3.6.16 passed by the Competent Authority (Land Acquisition) and Sub Divisional Officer, Girwa, Udaipur,(referred as ‘Competent Authority’ hereinafter) have been allowed and the appellants have been held liable for payment of compensation to the respondents towards the value of the land as also for demolition of structures raised thereon, in light of a communication dated 16.11.15 of the Competent Authority addressed to Project Director, National Highway Authority of India (‘NHAI’). 2. The facts relevant are that the respondent no. 1 in both the appeals, Amar Marbles Private Limited and Aman Marbles Private Limited (referred to as “respondents” hereinafter) were allotted the land ad measuring 1.05 hectare each comprising Araji No. 2810/1044 in the Village-Amberi, Tehsil-Girwa, District Udaipur, by the State Government, for establishing an industry, vide order dated 29.6.88. The possession of the land was handed over to the respondents on 9.8.88 and the lands were duly entered in the revenue record in their names. The lease deeds were executed on behalf of the State Government in favour of the respondents on 17.7.89. The lands allotted were barren, which were developed by the respondents and a marble industry was established thereon. 3. The respondent no. 2-Union of India, issued a notification dated 7.11.14 under Section 3A of the National Highways Act, 1956 (‘the Act’) for acquisition of the land for the purpose of construction (widening/four laning), maintenance, management, operation of National Highway No. 8 in the stretch of KM 245.000 and KM 260.100 (Gomati Chauraha-Udaipur Section) in District Udaipur of Rajasthan. As per the notification inter alia the lands belonging to the respondents were shown as the lands of category “private” and of nature “industry”. 4. After completion of the enquiry prescribed under Section 3C of the Act, the Union of India proceeded to issue the notification dated 8.5.15 under Section 3D of the Act, for the declaration of the acquisition of the lands mentioned therein. In the said notification also the lands belonging to the respondents were shown as private land of industrial nature. The respondents did not raise any objection in respect of the land acquisition proceedings before the Competent Authority. In the said notification also the lands belonging to the respondents were shown as private land of industrial nature. The respondents did not raise any objection in respect of the land acquisition proceedings before the Competent Authority. However, the respondents made the representation for grant of alternate lands in lieu of the lands sought to be acquired. According to the respondents, the Competent Authority passed an award for compensation while considering prevalent market rates as well as the nature of the land and forwarded the same to the appellant-NHAI. However, subsequently, the Competent Authority while passing an award dated 3.6.16 deducted the amount of the lands acquired on the ground that the respondents are only holding the lease hold rights and therefore, are not entitled for value/price of the land and accordingly, determined only the cost of the structure removed as compensation payable to the respondents. The conclusion as aforesaid regarding the respondents being not entitled for compensation towards the value/price of the land was arrived at by the Competent Authority, relying upon a circular dated 17.6.08 issued by the NHAI. 5. In these circumstances, the respondents preferred writ petitions before this Court assailing the award passed as aforesaid, which are allowed by the learned Single Judge by the impugned judgment in the following terms: “In this background, this court is of the firm opinion that the petitioners deserve the relief claimed for in the writ petitions and are entitled to receive compensation for their industrial land acquired by the respondent National Highway Authority of India in addition to the compensation awarded for the removal of structures raised thereupon. The impugned award Annex. 8 dated 03.06.2016, whereby the petitioners were assessed as being entitled to compensation only on account of demolition of structures raised on their lands and were deprived of compensation for acquisition of their industrial land is hereby modified. The respondent National Highway Authority of India has already assessed compensation payable to the petitioners by treating the land in question to be private industrial land vide correspondence dated 16.11.2015. Thus, the Land Acquisition Officer is directed to make payment of compensation to the petitioners in accordance with the above communication with interest applicable as per law within a period of three months from today. Both the writ petitions are allowed in these terms. The stay petitions are disposed of. No order as to costs.” Hence these appeals. 6. Thus, the Land Acquisition Officer is directed to make payment of compensation to the petitioners in accordance with the above communication with interest applicable as per law within a period of three months from today. Both the writ petitions are allowed in these terms. The stay petitions are disposed of. No order as to costs.” Hence these appeals. 6. Mr. M.R. Singhvi, learned Senior Advocate appearing on behalf of NHAI contended that the respondents never raised any objection against the land acquisition proceedings at any point of time and consequently, the award was passed by the Competent Authority. If the respondents were aggrieved by the amount of compensation determined by the Competent Authority under subsection (1) or sub-section (2) or Section 3G of the Act, it was open for them to make an application under sub-section (5) of Section 3G of the Act, to the arbitrator appointed by the Central Government, which could have determined the amount of compensation payable taking into consideration the parameters laid down under sub-section (7) of Section 3G of the Act. Learned counsel urged that the respondents having chosen not to question the award by availing the statutory remedy available, the same has attained finality and could not have been upset by the learned Single Judge, while entertaining the writ petitions preferred by them. Learned counsel submitted that the questions raised regarding the investment and development made on the land, are disputed questions of fact, which otherwise cannot be examined in writ jurisdiction and thus, the learned Single Judge has seriously erred in interfering with the award by entertaining the writ petitions preferred by the respondents bye-passing the remedy available under the relevant statute. Learned counsel submitted that the learned Single Judge has seriously erred in holding that under communication dated 16.11.15 between the Competent Authority and Project Director, NHAI, the NHAI has already assessed the compensation payable to the respondents, treating the land in question to be private industrial land. Drawing the attention of the Court to the said communication dated 16.11.15, learned counsel submitted that as a matter of fact under the said communication as well it is determined that the respondents are not entitled for compensation towards the price of the land and therefore, while deducting the amount of Government land, the cost of structure removed from the land quantified at Rs. 30,55,583/- payable to the respondents was directed to be added to the amount of compensation Rs.6,79,57,445/- payable to other khatedars and sanction for Rs. 7,10,13,028/- was sought. Accordingly, the learned counsel submitted that the writ petitions preferred by the respondents on the strength of the communication dated 16.11.15 were absolutely misconceived and thus, the learned Single Judge has erred in directing the payment of compensation to the respondents in terms of the said communication. Learned counsel urged that as a matter of fact the award passed by the Competent Authority is in conformity with the communication dated 16.11.15. Learned counsel further submitted that the learned Single Judge has seriously erred in holding that the respondents were allotted the lands in question on payment of price thereof under the Rajasthan Land Revenue (Industrial Areas Allotment) Rules, 1959 (‘the Rules’) and therefore, they are entitled for compensation for price of the land. Drawing the attention of the Court to Rule 9 of the Rules, learned counsel submitted that only lease hold rights are transferred to the respondents over the Government land with the clear stipulation that the lessee shall have limited ownership on the land leased till the lease subsists and shall have the right of assignment only for the purpose of taking of loan or for pledging as collateral security for a loan taken by the lessee or some other industry own by the same management. The lessee have no right to sell the land and thus, taking into consideration the nature of the allotment, the respondents, who are lessees cannot claim compensation for the land owned by the State. Learned counsel submitted that the respondents have not challenged the determination of compensation by invoking the statutory remedy and thus, the award has attained finality but if this Court in the interest of justice considers it appropriate may relegate the respondents to remedy available under the Act and the arbitrator, who has power to determine the compensation, co-extensive with the power vested in the Competent Authority, may be directed to determine the claim on merits. 7. On the other hand, Mr. 7. On the other hand, Mr. Vikas Balia, learned counsel appearing for the respondents drawing the attention of the court to the notification dated 8.5.15 issued by the Union of India in exercise of the power conferred under sub-section (1) of Section 3A of the Act, submitted that in the notification issued the lands of the appellants were shown to be the ‘private land’ and the nature of the land was specified as ‘industrial’ and thus, there was no occasion for the appellants to raise objections against the proposed acquisition. Learned counsel submitted that had the land being shown in the notification issued as Government land, the respondents would have raised the appropriate objections and the question would have been determined by the Competent Authority in accordance with law. Learned counsel submitted that merely because there are conditions imposed regarding the user of the land and right to transfer is restricted, it cannot be said that the respondents have no right whatsoever to transfer the land. Learned counsel submitted that even in the case of residential land allotted by the State, the rights extended are lease hold right and thus, it does not mean that any person who is deprived of his residential land, shall not be entitled for any compensation towards the value of the land. Though in the writ petitions, the respondents have claimed the compensation towards the value of the land as well alleging that their entitlement to compensation for the value of the land stands determined by the Competent Authority under communication dated 16.11.15 however, before us, the learned counsel while agreeing that even under the communication dated 16.11.15, the respondents are held not entitled for the compensation towards the value of the land, submitted that no such approval as sought for by the Competent Authority from the National Highway Authority, at whose instance, the land was sought to be acquired, is envisaged under the law and thus, the exercise undertaken by the Competent Authority as aforesaid is absolutely contrary to law and without jurisdiction. Learned counsel submitted that what to say about the award of compensation in respect of the lease hold rights over the land, as per sub-section (2) of Section 3G the compensation is required to be paid even in respect of the right of user or any right in the nature of easement on the land sought to be acquired and thus, the action of the Competent Authority in denying the compensation towards the value of the land relying upon the circular dated 17.6.08 issued by the National Highway Authority is ex facie arbitrary and contrary to law and therefore, the matter needs to be remitted to the Competent Authority for determination of the amount of compensation afresh keeping in view the provisions of Section 3G of the Act. Learned counsel submitted that as a matter of fact, denial of the compensation to the respondents for deprivation from the land over which they have lease hold rights, is violative of Article 300A of the Constitution of India as well. Learned counsel would submit that even Circular dated 17.6.08 nowhere says that for the lease hold rights, no compensation is payable. As a matter of fact, the Competent Authority is under an obligation to determine the compensation in conformity with the provisions of the Act, uninfluenced by any such circular issued by the National Highway Authority. Learned counsel reiterated that the compensation was required to be determined on the basis of the title over the land and the nature of the land as specified in the notification issued for acquisition and the Competent Authority had no jurisdiction whatsoever to deny the compensation towards the value of the land by recording the finding without any justifiable reasons that in respect of the lease hold rights, no compensation is payable. Learned counsel submitted that under sub-section (5) of Section 3G, if the compensation determined by the Competent Authority is not acceptable to either of the parties, they are entitled to approach the arbitrator appointed by the Central Government and thus, the arbitrator can only go into the questions regarding the adequacy or inadequacy or the excess of the amount of the compensation determined and cannot enter into the question regarding the nature of the rights of the person over the land sought to be acquired and consequential entitlement for the compensation and thus, the remedy provided under sub-section (5) of Section 3G of the Act cannot be said to be an efficacious remedy. Learned counsel submitted that when the Competent Authority has not even determined the compensation payable to the appellants towards the value of the land, the question of appellants invoking the remedy under Section 3G (5) does not arise. Learned counsel submitted that availability of the alternative remedy does not operate as an absolute bar against the exercise of the extra ordinary jurisdiction by this court under Article 226 of the Constitution of India. On the facts and in the circumstances of the case, where the factum of the appellants having lease hold rights over the land in question is not in dispute, the question which arises for consideration of this court is question of law and therefore, there is absolutely no reason why the respondents should be relegated to the remedy available under the relevant statute. 8. Replying the arguments of the learned counsel for the respondents, Mr. Singhvi, learned counsel appearing for the appellants submitted that the respondents had raised the edifice of the writ petition on the strength of communication dated 16.11.15 and therefore, now they cannot be permitted to contend that said order is void and without jurisdiction. Learned counsel urged that the respondents are attempting to set up a case beyond the pleadings which cannot be permitted. Learned counsel would submit that Section 3G is complete code regarding the entitlement and determination of the compensation to the person whose land is acquired for public purpose and therefore, it would not be appropriate for this court to exercise the jurisdiction bypassing the statutory remedy available under Section 3G (5) of the Act. Learned counsel would submit that Section 3G is complete code regarding the entitlement and determination of the compensation to the person whose land is acquired for public purpose and therefore, it would not be appropriate for this court to exercise the jurisdiction bypassing the statutory remedy available under Section 3G (5) of the Act. Learned counsel submitted that it absolutely fallacious to contend that the question with regard to the entitlement of the respondents for compensation towards the lease hold rights of the land in question cannot be gone into by the arbitrator rather, the power of the arbitrator is co-extensive with the power to be exercised by the Competent Authority and thus, all questions regarding their entitlement for compensation are open to be raised by the respondents before the arbitrator. 9. We have considered the rival submissions and perused the material on record. 10. Indisputably, in the notification dated 7.11.14 issued by the respondent no. 2 under Section 3A of the Act, the category and nature of the lands belonging to the respondents were shown as ‘private’ and ‘industry’ respectively and thus, if the respondents had no objection to the use of the land for the purposes mentioned in the notification, there was no occasion for them to raise objections to the acquisition in terms of provisions of Section 3C (1) of the Act. Moreover, it is not the law that if the acquisition is not objected by the person whose land is sought to be acquired, he has no right to make a claim for determination of fair compensation. As a matter of fact, the stage of making the claim for compensation arises only after publication of declaration under sub-section (1) of Section 3D, whereby the land acquired vests absolutely in the Central Government free from all encumbrances. 11. As per sub-section (7) of Section 3G, the Competent Authority while determining the amount under sub-section (1) is required to take into consideration inter alia the market value of the land on the date of publication of the notification under Section 3A of the Act. 11. As per sub-section (7) of Section 3G, the Competent Authority while determining the amount under sub-section (1) is required to take into consideration inter alia the market value of the land on the date of publication of the notification under Section 3A of the Act. As noticed above, in the notification issued under Section 3A, the land in question was shown to be ‘private land’ of the nature ‘industry’ and therefore, the appellants had no occasion to speculate that he could be denied compensation towards the value of the land on the ground that they are holding only lease hold rights over the same, moreso when, right to compensation even in respect of right of user or any right in the nature of an easement on the land acquired, is recognized by the provisions of sub-section (2) of Section 3G of the Act. Thus, nothing turns on the question that the appellants had not objected to the acquisition of the land by filing appropriate objections inasmuch as, the appellants had no objection against the acquisition of the land rather, the grievance raised by the appellants was with regard to the determination of the adequate compensation of the land acquired, which now stand vested in the Central Government. 12. It is true that the appellants had raised the edifice of the writ petition on the basis of the communication dated 16.11.15 drawn by the Competent Authority (Land Acquisition) addressed to the Project Director, NHAI, presuming that under the said communication, the appellants are held entitled for compensation towards the lands quantified at Rs.12,27,46,134/-. As a matter of fact, after consideration of the rival submissions, the learned Single Judge has also opined that in terms of communication dated 16.11.15, the appellants were held entitled for compensation treating the land in question to be private industrial land and accordingly, the directions are issued to pay the compensation to the appellants in terms of the said communication with interest applicable as per law. But the fact remains that under the said communication though, the compensation payable towards the value of the land in question is determined by the Competent Authority but the appellants herein are not held entitled for the compensation towards the value of the land on the ground that the Government land allotted on lease hold basis on acquisition does not make the lease holder entitled for compensation towards the cost of the land. In this view of the matter, apparently, the learned Single Judge has erred in directing payment of compensation towards the value of the land to the appellants presuming that under the communication dated 16.11.15, the appellants are held entitled for the compensation towards the value of the land by the Competent Authority. 13. But then, strangely enough, a perusal of the said communication further reveals that the amount of compensation is determined by the Land Acquisition Officer solely on the basis of circular dated 17.6.08 issued by the NHAI laying down guidelines for release of compensation. Obviously, as per the mandate of the provisions of Section 3G of the Act, the Competent Authority is required to determine the entitlement of any person to fair compensation in respect of the land acquired taking into consideration the relevant factors as specified under sub-section (7) of Section 3G, independently uninfluenced by any such guidelines issued. Be that as it may, it is nowhere provided under any statute that a person holding the lease hold rights over the land owned by the Government is not entitled for any compensation towards the value of the land. To the contrary, as noticed above, even deprivation of right to use the land or any right in the nature of an easement also entails liability of compensation as specified under sub-section (2) of Section 3G of the Act. Admittedly, the appellants were holding the demised land owned by the State Government as lessee, had raised buildings thereon and were in possession and enjoyment of the same at the time of acquisition of the land and thus, the Competent Authority has seriously erred in depriving them from any compensation towards their right to user of the land in terms of the lease granted in their favour, erroneously presuming that no compensation is payable in respect of the lease hold rights over the Government land. 14. 14. As a matter of fact, the question with regard to entitlement of the lessee of the land acquired to compensation is no more res integra. 15. In “Inder Parshad vs. Union of India”, (1994) 5 SCC 239 , the Apex Court while considering the issue with regard to compensation payable for the pre existing right, title and interest of the lessee wherein the land was owned by the Government, observed: “5. In this case, admittedly the Government being the owner of the land, the Appellant held the demised land as lessee with superstructure built thereon and was in possession and enjoyment of the same on the date of acquisition. The contents of the award extracted hereinbefore clearly indicate that the Land Acquisition Collector could not determine compensation payable towards the leasehold interest held by the Appellant. Being an owner the Government is not enjoined to acquire its own interest in the land or land alone for public purpose. When its land is granted on lease in favour of a lessee its power to resume the land is subject to non-fulfillment of the terms and conditions of the lease by the lessee. So long as the lessee acts and complies with the covenants contained in the lease or the grant, the right to resumption in terms of the lease or grant would not arise. But when the land is required for public purpose, the Government should get absolute title thereof free from all encumbrances. Compensation becomes payable for the leasehold right or interest held by the lessee or grantee when the land is acquired. The point becomes clear from the following illustrations. Take a case where the Government granted lease of agricultural land on the annual payment of rent with a covenant that the Government is entitled to resume the land when needed for public purpose or as when the Government finds that the land is required for public purpose. In terms of the covenants, the Government is entitled to exercise its option to determine the lease though the lessee has been complying with the condition of payment of annual premium or rent and resume the land in accordance with terms of the grant. In that event, the need to take recourse to acquisition and to make compensation does not arise. In that event, the need to take recourse to acquisition and to make compensation does not arise. Take a case where the Government granted the lease of the open land with permission to the lessee to construct a building for his quiet enjoyment with appropriate covenants and the lessee with permission constructed the building and by complying with the covenants of the lease was in quiet enjoyment. The selfsame property, when required for public purpose, the Government cannot unilaterally determine the lease and call upon the lessee to deliver the possession. Therefore, the Government is required to exercise the power of eminent domain by invoking the provisions under the Land Acquisition Act for getting such land. The Collector shall have to determine the compensation towards the leasehold interest held by the lessee, if assessable separately and determine the compensation. The lessee being the owner of the superstructure and the Government being the owner of the land if compensation is determined for both the components, then the same has to be apportioned between them. At what proportion the lessor and the lessee are entitled to receive the compensation has to be determined. In the absence of any covenant in the lease for payment and in the absence of any specific date available to him, the Collector has to determine the respective shares at which the compensation is to be apportioned between the Government and the lessee, the course open to the Land Acquisition Collector is to determine the total compensation, make an award and make a reference to the civil court Under Section 30 for decision on appointment. Exactly that is the situation on the facts of this case. Take another illustration. The Government grants a patta of its land subject to payment of land revenue. Later, the land is required for public purpose. The payment of land revenue is at par with the payment of land revenue payable by a private owner to the State. By grant of patta, the title has been vested in the grantee. Therefore, the grantee is entitled to the full compensation of the acquired land.” (Emphasis supplied) 16. In “Kiran Tandon Vs. The payment of land revenue is at par with the payment of land revenue payable by a private owner to the State. By grant of patta, the title has been vested in the grantee. Therefore, the grantee is entitled to the full compensation of the acquired land.” (Emphasis supplied) 16. In “Kiran Tandon Vs. Allahabad Development Authority & Ors.” 2004 (10) SCC 745 , the Supreme Court while relying upon the decision in Inder Parshad’s case (supra) held that leasehold rights being limited in nature and different from ownership right, a lessee is not entitled to the entire amount of compensation for the acquired land. 17. In “Haryana Wakf Board Vs. State of Haryana & Ors.”, 2018 (1) RCR (Civil) 150, the Supreme Court while referring to the decision in inter-alia Inder Parshad’s case (supra) observed that the application of its ratio will depend upon the facts and circumstances of the each case and nature of rights. 18. In the backdrop of position of law settled as above, adverting to the facts of the present case, admittedly, vide lease deed dated 17.7.89 executed between the State of Rajasthan and the respondents herein, the lands in question were allotted to the respondents on leasehold basis for 99 years for establishing marble industry. It is pertinent to note that while granting the lease as aforesaid, in terms of Rule 3A of the Rules, price of the land equivalent to the prevailing market price of the same class of the agriculture land in the vicinity was also charged from the respondents. It is true that under Rule 9 of the Rules, the lessee of the land allotted has limited ownership on the land leased till the lease subsists and has right of assignment only for the purpose of taking a loan for the development of the industry or for pledging as collateral security for loan taken by the lessee or some other industry owned by the same management. But at the same time, as per proviso (ii), once the land has been utilized for the purpose for which it was allotted within the period specified in Rule 7, the lessee with the permission of the allotting authority had right to transfer his right and interest in the whole land so leased out, the condition of the lease remaining unchanged and on such transfer, transferee is required to pay the excess amount of the yearly lease rent mentioned in Rule 5 on such transfer. That apart, by virtue of proviso (iia), even a transfer made without prior permission of allotting authority is permissible to be regularized on payment of penalty of Rs. 3000/- for each transfer and in that case, the lease deed can be executed in favour of such transferee for the remaining period of lease. In this view of the matter, ignoring the nature of the leasehold rights of the respondents over the land in question, the Competent Authority could not have denied the compensation to the respondents in respect of their rights over the land in question which are not liable to be terminated prematurely without there being any breach of the covenant on the part of the lessee. 19. Coming to the availability of the remedy available under subsection (5) of Section 3G of the Act before the arbitrator, suffice it to say that in the first instance, the compensation payable to the respondents taking into consideration the nature of their leasehold rights over the land in question was required to be determined by the Competent Authority and if it is determined that the respondents having limited ownership rights or only leasehold rights over the lands acquired, are not entitled to full compensation towards the value of the land and the dispute arises as to apportionment of the amount or any part thereof, as per the provisions of sub-section (4) of Section 3H of the Act, the dispute has to be referred by the Competent Authority to decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated. In this view of the matter, in the considered opinion of this Court, in absence of determination of the compensation payable to the respondents for the leasehold rights over the land in question and the apportionment thereof, if any, the question of the respondents approaching arbitrator for determination of adequate compensation, does not arise. 20. In view of the discussion above, the impugned order passed by the learned Single Judge directing the appellants to make payment of compensation to the respondents treating the land in question to be private industrial land in terms of communication dated 16.11.15, cannot be sustained. The matter needs to be remanded to the Competent Authority for determination of respondents’ entitlement to compensation in respect of the land acquired taking into consideration the nature of their leasehold rights keeping in view the position of law discussed above. 21. In the result, the special appeals are partly allowed. The order under appeals passed by the learned Single Judge directing the appellants to pay the compensation towards the value of the land to the respondents in terms of the communication dated 16.11.15 is set aside. The matter is remanded to the Competent Authority to determine the compensation payable to the respondents for deprivation of their leasehold rights in accordance with law. Needless to say that if the respondents are not held entitled for the entire compensation determined towards the value of the land and there arises a dispute regarding apportionment, the same shall be referred to the decision of the civil court of competent jurisdiction in terms of sub-section (4) of Section 3H of the Act. The writ petitions preferred by the respondents shall stand disposed of accordingly. No order as to costs.

National Highways Authority of India v. Amar Granites Pvt. Ltd.