Patna High Court - Orders
Binod Kumar Singh vs The Union Of India & Ors on 27 June, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6406 of 2014
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1. Bindeshwari Singh Son of Late Uma Shankar Singh
2. Bablu Singh Son of Late Chandrama Singh
3. Ram Badan Singh Son of Jagarnath Singh
4. Baban Singh Son of Late Ram Kumar Singh
5. Ram Sakal Singh Son of Parmeshwar Singh
6. Rang Bahadur Singh S/o Ram Subhag Singh
7. Vijay Bahadur Singh Son of Bachchan Singh
8. Lalmuni Singh Son of Late Tufani Singh
9. Raj Bansh Singh Son of Sant Singh
10. Ajay Kumar Singh Son of Late Kripa Shankar Singh
11. Nathuni Singh Son of Ram Briksh Singh
12. Kalawati Devi Wife of Ram Lochan Singh
13. Niranjan Singh Son of Ramashish Singh
14. Nagwanshi Kuer Widow of Late Jaleshwar Singh
15. Sheorati Kuer Widow of Late Ramayan Singh
16. Sheo Saran Sah Son of Late Annu Sah
17. Chandra Bhushan Pandey Son of Late Haridwar Pandey and Mother of
Late Naurangi Kuer
18. Dau Singh Son of Faujdar Singh
19. Vijay Kumar Singh Son of Late Raj Narayan Singh
20. Sheo Murat Singh @ Sheo Murat Yadav Son of Sheo Kumar Singh
21. Sheo Bali Singh Son of Late Hanuman Singh
22. Pyari Kuer Widow of Late Jiut Yadav
23. Nathuni Singh Yadav S/o Late Bhagirathi Singh Yadav
24. Reshma Devi Wife of Nathuni Singh Yadav
25. Chandra Shekhar Singh Son of Late Parash Nath Singh
26. Shyam Adhar Singh Son of Late Parikha Singh
27. Hari Bansh Singh Son of Nathuni Singh
28. Ram Kumar Singh Son of Late Subash Singh
29. Aliyar Singh Yadav S/o Kuber Singh
30. Birendra Singh Son of Nand Kishore Singh
31. Ramadhar Singh Son of Late Tuffani Singh
All residents of village- Barej, P.S And Anchal- Mohania, District-
Kaimur.
.... .... Petitioner/s
Versus
1. The Union of India through the Ministry of Railway, New Delhi.
2. The Ministry of Railways Through The Deputy Chief Project Manager,
Eastern Dedicated Freight Corridor Corporation Of India Ltd., In The
District Of Rohtas And Kaimur At Kaimur ( Bhabua)
3. D.R.M., E.C. Railway, Mugalsarai ( U.P)
4. The Divisional Commissioner, Patna- Cum- Arbitrator for the Special
Railway Project Namely Eastern Dedicated Freight Corridor at and District-
Patna.
5. The Competent Authority- cum- District Land Acquisition Officer,
Kaimur, At Bhabua.
.... .... Respondent/s
Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 2
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with
Civil Writ Jurisdiction Case No.6425 of 2014
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1. Binod Kumar Singh Son Of Kapil Deo Singh Resident Of Village- Barej,
P.S.- Mohania, District- Kaimur
.... .... Petitioner/s
Versus
1. The Union of India through the Ministry of Railway, New Delhi
2. The Ministry of Railways Through The Deputy Chief Project Manager,
Eastern Dedicated Freight Corridor Corporation Of India Ltd. In The
District Of Rohtas and Kaimur at Kaimur (Bhabua)
3. The Divisional Commissioner, Patna-Cum-Arbitrator for the Special
Railway Project Namely Eastern Dedicated Freight Corridor, At and
District Patna
4. The State Of Bihar Through Competent Authority-Cum-District Land
Acquisition Officer, Kaimur At Bhabua
.... .... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No.6458 of 2014
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1. Awadhesh Kumar Shrivastava Son Of Laxmi Narayan Shrivastava
Resident Of Village- Barej, P.S.- Mohania, District- Kaimur.
.... .... Petitioner/s
Versus
1. The Union of India through the Ministry Of Railway, New Delhi
2. The Ministry Of Railways Through The Deputy Chief Project Manager,
Eastern Dedicated Freight Corridor Corporation Of India Ltd. In The
District Of Rohtas and Kaimur at Kaimur (Bhabua)
3. The Divisional Commissioner, Patna-Cum-Arbitrator for the Special
Railway Project Namely Eastern Dedicated Freight Corridor, At and
District Patna
4. The State of Bihar Through Competent Authority-Cum-District Land
Acquisition Officer, Kaimur At Bhabua.
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.6471 of 2014
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1. Prashant Kumar Son Of Late Satya Narain Singh, Resident Of Village-
Barej, P.S.- Mohania, District- Kaimur.
.... .... Petitioner/s
Versus
1. The Union of India through the Ministry Of Railway, New Delhi
2. The Ministry Of Railways Through The Deputy Chief Project Manager,
Eastern Dedicated Freight Corridor Corporation Of India Ltd. In The
Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 3
District Of Rohtas and Kaimur at Kaimur (Bhabua)
3. The Divisional Commissioner, Patna-Cum-Arbitrator for the Special
Railway Project Namely Eastern Dedicated Freight Corridor, At and
District Patna
4. The State Of Bihar Competent Authority-Cum-District Land Acquisition
Officer, Kaimur at Bhabua
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.6509 of 2014
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1. Kamla Singh Son of Tapshi Singh, Resident of Village - Barej, P.S.
Mohania, District - Kaimur
.... .... Petitioner/s
Versus
1. The Union of India through the Ministry Of Railway, New Delhi
2. The Ministry Of Railways Through The Deputy Chief Project Manager,
Eastern Dedicated Freight Corridor Corporation Of India Ltd. In The
District Of Rohtas And Kaimur At Kaimur ( Bhabhua )
3. The Divisional Commissioner, Patna - Cum - Arbitrator for the Special
Railway Project Namely Eastern Dedicated Freight Corridor, At and
District Patna
4. The State of Bihar Through Competent Authority - Cum - District Land
Acquisition Officer, Kaimur At Bhabhua
.... .... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No.896 of 2013
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1. Birendra Kumar Singh S/O Late Shri Ramdeo Singh R/O Village- Sakari,
P.S. And Anchal- Kudra, District- Kaimur At Bhabua
.... .... Petitioner/s
Versus
1. The Union of India through the Ministry Of Railways, New Delhi
2. The Ministry Of Railways Through The Deputy Chief Project Manager
Eastern Dedicated Freight Corridor Corporation Of India Ltd. In Teh
District Of Rohtas and Kaimur at Kaimur (Bhabua)
3. The Divisional Commissioner, Patna-Cum-Arbitrator for the Special
Railway Project Namely Eastern Dedicated Freight Corridor, At and
District Patna
4. The Competent Authority-Cum-District Land Acquisition Officer,
Kaimur at Bhabua
.... .... Respondent/s
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Appearance :
(In CWJC No.6406 of 2014)
For the Petitioner/s : Mr. T.N. Maitin, Sr. Adv.
Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 4
Mr. Akhouri Vipin Bihari Shrivastava, Adv
For the Respondent/s : Mr. Ram Balak Mahto
Mr. Neeraj Kumar Gupta, Adv.
Mr. Sunil Kumar Ravi, Adv.
(In CWJC No.6425 of 2014)
For the Petitioner/s : Mr. Akhouri Vipin Bihari Shrivastava, Adv.
For the Respondent/s : Mr. Neeraj Kumar Gupta, Adv.
Mr. Madhubala Verma, AC to GA 2
Mr. Sunil Kumar Ravi, Adv.
(In CWJC No.6458 of 2014)
For the Petitioner/s : Mr. Akhouri Vipin Bihari Shrivastava
For the Respondent/s : Mr. Akhileshwar Singh, AC to GA 3
Mr. Sunil Kumar Ravi, Adv.
(In CWJC No.6471 of 2014)
For the Petitioner/s : Mr. Akhouri Vipin Bihari Shrivastava
For the Respondent/s : Mr. Ga1- Shyam Kishore Sharma
Mr. Sunil Kumar Ravi, Adv.
(In CWJC No.6509 of 2014)
For the Petitioner/s : Mr. Akhouri Vipin Bihari Shrivastava
For the Respondent/s : Mr. AAG14- Kaushal Kumar Jha
Mr. Sunil Kumar Ravi, Adv.
(In CWJC No.896 of 2013)
For the Petitioner/s : Mr. Anjani Kumar Sinha No-1, Adv.
For the Respondent/s : Mr. Ashok Kumar Keshari, Adv.
For the State Mr. Krishna Chandra AC to AG
Mr. Sunil Kumar Ravi, Adv.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
5 27-06-2014Identical question has been raised in all the writ applications and as such all writ petitions are disposed of by a common order.
Primarily, the question has been raised by the petitioners that Divisional Commissioner of Patna who is the sole Arbitrator, under the Railway Amendment Act, 2008, has passed the order behind back without giving any notice to the parties affected and submission has been made that the aforesaid order is completely arbitrary, nonest in the eye of law and liable to be set Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 5 aside.
Some facts are undisputed that the Parliament has amended the Railways Act by the Railway Amendment Act, 2008 where the provision has been given for enhancing the infrastructure of the Railways.
The new Amendment has been inserted with the sole purpose of acquiring the land for providing national infrastructure for public purpose which will lead to development of the Railway which works as vein in the body system of the country.
The Government of India has taken a policy decision to develop the Railways, particularly for fast movement of the goods, so that material should reach to destination without any hindrance would accelerate the development of the country.
For creating better infrastructure of the Railways, it has been decided to create Eastern Dedicated Freight Corridor, running from Punjab to West Bengal which is meant for fast movement of the goods from one corner of country to another corner without any unnecessary consumption of time, and for that, the land was required has acquired by the Railways for the purpose of laying the railway track.
In pursuance thereof, in terms of specially added provision which deals with the acquisition of land for special Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 6 railway project has been dealt with in Section 37A of the Railways Act which provides that special railway project is meant for providing national infrastructure for a public purpose which is completely specified time-framed scheme, purpose is that within the specified period infrastructure for the railways be developed, thereby will lead to development of the country. Under the added and amended provision of the Railway Amendment Act, 2008 where Section 20A provides power to acquire the land there it has been provided that if the Central Government is satisfied, for public purpose, that any chunk of land is required for execution of a special railway project it may, by notification, declare its intention to acquire such land. The said notification will give a brief description of the land and of the special railway project for which the land is intended to be acquired. The competent authority shall cause of substance of the notification to be published in two local newspaper one of which will be in vernacular language. Section 20D deals with the hearing of the objection which provides that any person interested in the land may, within a period of thirty days from the date of publication of the notification under sub-section (1) of Section 20A, object to the acquisition of land for the purpose mentioned in that sub-section. The competent authority would consider the objection and ground Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 7 set out therein and after hearing the persons affected to dispose of the objection made thereunder. Section 20E deals with the declaration of acquisition which provides that after disposal of the objection, the authority would submit the report 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 sub-section (1) of section 20A of the Act accordingly the land shall vest absolutely in the Central Govt. free from all encumbrances. Section 20F deals with the determination of amount payable as compensation which provides that if any land is acquired under this Act, there shall be payment of compensation amount which shall be decided by the competent authority and the award under this section would be prepared within one year from the date of publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. Sub-section (6) of Section 20F provides that if the amount determined by the competent authority under sub-section (1) or as the case may be, sub-section (3) 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. Sub-section (7) Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 8 of Section 20F of the Act says subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 shall apply to every arbitration under this Act and sub-section (8) of Section 20F provides that the competent authority or the Arbitrator while determining amount of compensation under sub- section (1) or sub-section (6), as the case may be, shall take into consideration, the incidence mentioned therein Section 20N states that the Land Acquisition Act, 1894 will not apply as being the special Act. In the back ground of creating the land available for Eastern Dedicated Freight Corridor the land of the petitioner was acquired.
In CWJC No. 6406 of 2014 (Bindeshwari Singh and Ors. Vs. Union of India & Ors.), CWJC No. 6425 of 2014 (Binod Kumar Singh Vs. Union of India and Ors.), CWJC No. 6458 of 2014 (Awadhesh Kumar Srivastava Vs. Union of India), CWJC No. 6471 of 2014 (Prashant Kumar Vs. Union of India), CWJC No. 6509 of 2014 (Kamla Singh Vs. Union of India) the Deputy Chief Project Manager, Eastern Dedicated Freight Corridor Corporation of India Ltd. had moved before the Arbitrator against compensation amount fixed by the competent authority.
With regard to CWJC No. 896 of 2013 (Birendra Kumar Singh Vs. Union of India and Ors.) a private person, Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 9 namely, Birendra Kumar Singh being dissatisfied with the order of competent authority approached the Arbitrator and in all the cases single point has been raised that the Arbitrator, Commissioner of Panta Division who has been notified by the Central Government with the sole Arbitrator under the Railway Amendment Act, 2008, has passed the order behind the back of petitioners.
The counsel for the petitioners submits that the said order is completely without jurisdiction and the same is nullity which violates under Article 14 of the Constitution of India and in support of their contention, an order of this Court passed in CWJC No. 11493 of 2013 has been pressed into service wherein the same and identical situation had arisen and the Court has set aside the order of Arbitrator and remanded back the matter for fresh hearing.
The counsel for the respondent, Mr. Ashok Keshari, one of the lawyer, representing, respondent no. 2 has submitted following points which are as follows:-
(i) (i) An arbitration award, as per the Act, can be challenged before the civil court and this court should not exercise the power under Article 226 of the Constitution in view of Section 20F sub-clause (6) specifically provides that the person aggrieved by the Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 10 order of competent court, may challenge the order before arbitrator, where it has been provided the provisions of the Arbitration and Conciliation Act, 1996 shall apply to every arbitration under this Act and as such, if petitioners feel aggrieved by the order of arbitrator, he can raise their challenge under Section 34 of the Arbitration Act, 1996 before the competent civil court.
(ii) He has further submitted that the land has been acquired for the special purpose of developing Eastern Dedicated Freight Corridor. Section 37A of the Amendment Act shows that purpose behind for providing national infrastructure for public purpose in specified time if their writ applications are allowed to be entertained, it will frustrate whole purpose of the scheme under which the land has been acquired.
(iii) He has further submitted that if the petitioners have submitted jurisdiction under the Arbitration Act, now they cannot turn round and challenge the order directly to this Court instead they should raise their grievance before the forum provided under the amendment Act.Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 11
(iv) He has further submitted that they cannot be allowed to take benefit of certain provisions of the Act and in another breath will not elect the forum civil court and they cannot be allowed to straightway come to this Court and challenge the arbitration award.
(v) He has further submitted that when there is a clash of a public interest and a private interest, public interest will prevail over the private interest.
(vi) He has further submitted that the order passed by Arbitrator cannot be said that he has no jurisdiction and as such, under the Act, petitioners have alternative remedy to exercise instead of invoking extra ordinary jurisdiction under Article 226 of the Constitution.
(vii) He has further submitted that Section 20N of the Act shows that the provisions of Acquisition Act, 1894 has been completely excluded behind idea to create infrastructure for railway project.
(viii) He has further submitted that the right to property is not a fundamental right and they cannot say that by acquiring the land there is a breach of Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 12 fundamental right provided under Constitution and for that they cannot come straightway to this Court.
(ix) He has further submitted that without giving any notice or without hearing the petitioners, passing the order is a disputed question of fact, which can only be decided in the civil court.
(x) It has been submitted that it is a complete code and as such, when the provisions are available, parties should be asked to adopt the correct procedure.
So far in the case of Birendra Kumar Singh, CWJC No. 896/2013, the order sheet shows that in presence of the petitioner, the order was passed and as such, he cannot say that no notice was given to the petitioner and the order has been passed behind his back.
It is not required to deal with the matter on merit of case. Special provision has been made for quick acquisition of land meant for the speedy development of infrastructure. It is also not disputed that under the Amendment Act is complete code for acquisition of land for special purpose.
In this case, petitioners are not challenging the acquisition but they are challenging the manner the order has been Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 13 passed by Arbitrator (Commissioner) by which the compensation has been fixed, will not create any obstruction in establishing the Eastern Freight Corridor. The question also arises that it is necessary, when the Commissioner, Patna Division has been conferred power by a special Act to act as an Arbitrator as a quasi judicial body to decide the lis persons affected at least have expectation of minimum requirement of personal hearing so that they would repose faith of getting justice otherwise, persons affected will loose confidence. When a party is given proper hearing and his grievance is properly adjudicated, faith of public is maintained.
Here is the question, the Commissioner who has been appointed as an Arbitrator was actually required to give a notice to the parties affected, it is no longer res integra, in certain circumstances, alternative remedy is not bar, the court can exercise the power of judicial review and it will be apt to rely on the judgment of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others, reported in 1998 (8) SCC 1.
In paragraph 15 of the said judgment where the Court has considered in what circumstance the court can exercise power even though there is an alternative remedy where it has been said, when it is meant for enforcement of any of the Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 14 fundamental rights, there is a violation of natural justice, where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged which emerge from aforesaid judgment. In a situation the order has been passed without hearing the party, the Court can straightway exercise the power of judicial review, as not giving notice is an act of arbitrariness violates Articles 14 and 21 of the Constitution of India.
It is well known principle of law that only the justice should not be done but it should also appear that justice has been done to the party.
The same issue had come before this Court in CWJC 11493 of 2013 where the similar question was raised by the respondents and the Court has considered under what circumstances alternative remedy cannot be a bar while exercising the judicial review as provided under Article 226 of the Constitution. The Court has held that the doctrine of alternative remedy is a self-evolved restriction. It will be relevant to quote paragraph 3 of the said judgment which is as follows:-
. "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 -Versus- Antarim Zila Parishad, Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 15 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:
"There are at least two well-recognized exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. - (See the decisions of this Court in Carl Still G m b H v State of Bihar, AIR 1961 SC 1615 and Bengal Immunity Co Ltd v State of Bihar, (1955) 2 SCR 603 = (AIR 1955 SC 661). In the second place, the doctrine has no Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 16 application in a case where the impugned order has been made in violation of the principles of natural justice. (See 1958 SCR 595, 605+(AIR 1958 SC 86,93)."
Impugned order is set aside and matter is remanded back to the Arbitrator to decide the case with reasoned order after hearing all the parties.
With regard to Birendra Kumar Singh case, it is submitted by the petitioner that he filed the case but no case number was given, nor any date was fixed, the straightway the Arbitrator has passed the order behind his back.
Though the impugned order says that the order has been passed in presence of the petitioner but the counsel for the petitioner, in paragraph 20-21 of the writ application has stated that the order has been passed without giving notice and narration which has been made in the order sheet is an error of record. The respondent has not brought any material fact to contradict the statement of the counsel for the petitioner and accordingly, the order passed in CWJC No. 896/2013 is also set aside the matter is remanded back to the Arbitrator who is directed to hear the parties after giving notice and decide the case on its merit but the order passed in CWJC No. 896 of 2013 is confined to Birendra Kumar Patna High Court CWJC No.6406 of 2014 (5) dt.27-06-2014 17 Singh, not to others.
With regard to CWJC No 896 of 2013, Birendra Kr. Singh Vs. Union of India, the petitioner is directed to appear before the Commissioner-cum-Arbitrator on 21st July 2014.
In this view of the matter, the objection raised by the Corporation is not sustainable in law as every Arbitrator has a bounden duty to hear and decide the case with reasoned order.
Accordingly, this petition is disposed of.
(Shivaji Pandey, J) Mahesh/-
U T