# Dr. Rajeev Sinha v. U.O.I. & Ors. Opp. Parties

- **Citation:** (2024) 3 ILRA 2009
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-05
- **Case number:** Writ-C No. 33840 of 2023
- **Bench:** Manoj Kumar Gupta, A.C.J. Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-rajeev-sinha-v-u-o-i-ors-opp-parties-51606
- **Pages:** 13

## Headnote

CONSTITUTION OF INDIA - Article 226 -
Maintainability of writ petition - Arbitral
award under National Highways Act, 1956
2010 INDIAN LAW REPORTS ALLAHABAD SERIES
- Alternative remedy under Section 34 of
Arbitration and Conciliation Act, 1996 -
Exceptions.
Where an arbitral award passed by the Collector
under Section 3G(5) of the National Highways
Act, 1956 is challenged on the ground that
directions issued by the District Judge in
proceedings under Section 34 of the Arbitration
and Conciliation Act, 1996 have been completely
ignored, the writ petition under Article 226 of
the Constitution is maintainable. Availability of
an alternative statutory remedy is not an
absolute bar where the authority has acted in
defiance of judicial discipline and fundamental
principles of procedure.

NATIONAL
HIGHWAYS
ACT,
1956
-
Section 3G(5) & (7) - Determination of
compensation - Duty of Arbitrator.
The Arbitrator is under a statutory obligation to
independently
assess
market
value
by
considering sale exemplars, potentiality of land,
location, surrounding development and other
parameters
specified
in
Section
3G(7).
Mechanical reliance upon the award of the
Special Land Acquisition Officer or stamp duty
rates, without independent application of mind,
renders the award unsustainable.

ARBITRATION AND CONCILIATION ACT,
1996 - Section 34 - Effect of remand
order - Binding nature.
Once an arbitral award is set aside by the
District Judge under Section 34 with specific
findings and directions, the Arbitrator, being a
subordinate authority, is bound to decide the
matter afresh strictly in accordance with such
directions. Failure to comply with remand
directions amounts to violation of judicial
discipline and vitiates the subsequent award.

LAND ACQUISITION - Market value -
Revenue entries - Relevance.
Market value of acquired land cannot be
determined
solely
on
the
basis
of
its
classification in revenue records. Absence of
declaration under Section 143 of the U.P.
Zamindari Abolition and Land Reforms Act, 1950
is not conclusive for denying compensation
based
on
commercial
potential
where
surrounding development, location and sale
deeds indicate higher market value.

JUDICIAL
DISCIPLINE
-
Subordinate
authorities - Duty to follow superior court
orders.
Orders passed by superior courts or appellate
authorities
are
binding
on
subordinate
authorities. Ignoring or bypassing directions
contained in a remand order constitutes
jurisdictional error and results in illegality
apparent on the face of the record.

WRIT
JURISDICTION
-
Alternative
remedy - Exceptions.
The rule of exhaustion of alternative remedies is
a rule of discretion and not of compulsion. Writ
jurisdiction can be exercised where the authority
has acted without jurisdiction, in violation of
principles of natural justice, or in disregard of
binding judicial directions.

ORDER - Arbitral award quashed -
Matter remitted.
Arbitral award passed by the Collector after
remand, without compliance of directions issued
by the District Judge, held illegal and quashed.
Petitioner
left
at
liberty
to
seek
fresh
determination by the Arbitrator strictly in
accordance with remand directions.

CITATIONS

## Text

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3 All. Dr. Rajeev Sinha Vs. U.O.I. & Ors.
2009
for release of the amount in June,
2023, they were aged about 57 years and
have responsibility of three children of
marriageable age. The award was passed in
the year 2017 and the money was invested
in Fixed Deposit.

20. The guidelines has been issued
in case of General Manager, Kerala State
Road
Transport
Corporation
v.
Sushamma Thomas (Supra) which have
now been incorporated in the Rules was
only to safeguard the interest of the
claimants particularly the minors and the
illiterate. These guidelines were not meant
to understood to mean that the tribunal was
suppose to take a rigid stand while
considering
the
application
of
the
petitioners for the release of money.

21. In the present case, the
application was filed for release of the
money so that the petitioners' daughter
could get married. Proof of this fact was
also filed before the tribunal but the
tribunal has failed to understand the
urgency in the matter and has mechanically
passed the orders. There is nothing to show
that the petitioners are illiterate on the other
hand a genuine reason has been given by
the petitioner for release of the balance
amount.

22. Considering the facts of this
case that the claimants are now aged about
57 years having responsibility of two
daughters and one son and particularly that
the award was passed in the year 2017 of
an accident which has taken place in the
year 2015, there is no reason to not allow
the application of the petitioners in its
entirety.
23. The Court is of the opinion that
the direction for further investment in
Fixed Deposit as contained in the order
impugned
cannot
be
sustained
and
therefore, the
impugned
order
dated
05.06.2023 is hereby quashed to the extent
its directs for depositing the remaining
amount in Fixed Deposit.

24. The writ petition is allowed.

25. The petitioners are entitled for
the release of amount as prayed by them.
The tribunal is directed to release the
amount
and
the
interest
accrued
immediately upon receipt of the certified
copy of this order.
----------
(2024) 3 ILRA 2009
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2024

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA,
A.C.J.
THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 33840 of 2023
connected with
Writ-C No. 42177 of 2023

Dr. Rajeev Sinha ...Petitioner
Versus
U.O.I. & Ors. ...Opp. Parties

Counsel for the Petitioners:
Kalpana Sinha, Sri Navin Sinha(Sr. Advocate), Sri
Utkarsh Srivastava

Counsel for the Opp. Parties:
A.S.G.I., C.S.C., Sri Pranjal Mehrotra, Sri Raghav
Dwivedi

CONSTITUTION OF INDIA - Article 226 -
Maintainability of writ petition - Arbitral
award under National Highways Act, 1956
2010 INDIAN LAW REPORTS ALLAHABAD SERIES
- Alternative remedy under Section 34 of
Arbitration and Conciliation Act, 1996 -
Exceptions.
Where an arbitral award passed by the Collector
under Section 3G(5) of the National Highways
Act, 1956 is challenged on the ground that
directions issued by the District Judge in
proceedings under Section 34 of the Arbitration
and Conciliation Act, 1996 have been completely
ignored, the writ petition under Article 226 of
the Constitution is maintainable. Availability of
an alternative statutory remedy is not an
absolute bar where the authority has acted in
defiance of judicial discipline and fundamental
principles of procedure.

NATIONAL
HIGHWAYS
ACT,
1956
-
Section 3G(5) & (7) - Determination of
compensation - Duty of Arbitrator.
The Arbitrator is under a statutory obligation to
independently
assess
market
value
by
considering sale exemplars, potentiality of land,
location, surrounding development and other
parameters
specified
in
Section
3G(7).
Mechanical reliance upon the award of the
Special Land Acquisition Officer or stamp duty
rates, without independent application of mind,
renders the award unsustainable.

ARBITRATION AND CONCILIATION ACT,
1996 - Section 34 - Effect of remand
order - Binding nature.
Once an arbitral award is set aside by the
District Judge under Section 34 with specific
findings and directions, the Arbitrator, being a
subordinate authority, is bound to decide the
matter afresh strictly in accordance with such
directions. Failure to comply with remand
directions amounts to violation of judicial
discipline and vitiates the subsequent award.

LAND ACQUISITION - Market value -
Revenue entries - Relevance.
Market value of acquired land cannot be
determined
solely
on
the
basis
of
its
classification in revenue records. Absence of
declaration under Section 143 of the U.P.
Zamindari Abolition and Land Reforms Act, 1950
is not conclusive for denying compensation
based
on
commercial
potential
where
surrounding development, location and sale
deeds indicate higher market value.

JUDICIAL
DISCIPLINE
-
Subordinate
authorities - Duty to follow superior court
orders.
Orders passed by superior courts or appellate
authorities
are
binding
on
subordinate
authorities. Ignoring or bypassing directions
contained in a remand order constitutes
jurisdictional error and results in illegality
apparent on the face of the record.

WRIT
JURISDICTION
-
Alternative
remedy - Exceptions.
The rule of exhaustion of alternative remedies is
a rule of discretion and not of compulsion. Writ
jurisdiction can be exercised where the authority
has acted without jurisdiction, in violation of
principles of natural justice, or in disregard of
binding judicial directions.

ORDER - Arbitral award quashed -
Matter remitted.
Arbitral award passed by the Collector after
remand, without compliance of directions issued
by the District Judge, held illegal and quashed.
Petitioner
left
at
liberty
to
seek
fresh
determination by the Arbitrator strictly in
accordance with remand directions.

CITATIONS

1. State of U.P. v. Mohammad Nooh, AIR 1958
SC 86

2.
K.S.
Rashid
&
Son
v.
Income
Tax
Investigation Commission, AIR 1954 SC 207

3. Ram and Shyam Company v. State of
Haryana, (1985) 3 SCC 267

(Delivered by Hon'ble Kshitij Shailendra,
J.)

1. These two connected writ petitions
arise out of same controversy and,
therefore, were heard together. Since all the
relevant facts and arguments are covered by
Writ C No.33840 of 2023, a detailed
judgement is being pronounced treating the
said writ petition as the leading one and
after conclusion of the judgement in the
3 All. Dr. Rajeev Sinha Vs. U.O.I. & Ors.
2011
said writ petition, a separate order shall be
passed in the connected Writ C No.42177
of 2023.

2. The Writ C No.33840 of 2023
under Article 226 of the Constitution of
India
has
been
filed
assailing
the
order/award dated 28.07.2023 passed by
the Collector, Jhansi in the capacity of
Arbitrator
under
the
provisions
of
Arbitration and Conciliation Act, 1996
(hereinafter referred to as 'the Act of
1996') made applicable by virtue of
Section 3G(6) of the National Highways
Act, 1956 (hereinafter referred to as 'the
Act of 1956') in Case No. 2337 of 2023
(Computerized
Case
No.D202306370002337) (Dr. Rajeev Sinha
v. National Highways Authority of India,
Jhansi), with a further prayer directing the
District Magistrate /Collector /Arbitrator,
Jhansi to decide the said case in terms of
guidelines/directions
contained
in
the
judgment and order dated 27.04.2022
passed by the District Judge, Jhansi.

THE WRIT PETITION

3. The facts of the case are that the
petitioner purchased part of land covered
by Plot No.481, ad-measuring 0.230
hectares, i.e. 2300 sq. mtrs., situated in
Village Koncha Bhanwar, Pargana, Tehsil
and District-Jhansi, vide registered sale
deeds dated 27.03.1993 and 04.02.1994. It
is pleaded that, in exercise of powers under
the Act of 1956, the Central Government
issued a notification dated 03.09.2009
under Section 3A of the Act which was
followed by notification dated 09.04.2010
under Section 3D of the Act acquiring the
petitioner's land and the Special Land
Acquisition Officer, assessing the market
value of the land @ Rs.15 lacs per hectare
and
attaching
certain
value
to
the
constructions existing thereon, declared an
award dated 30.09.2010. The petitioner
approached the Competent Authority as per
Section 3G(5) of the Act of 1956
whereafter an Arbitration Case No.521 of
2012 was registered before Collector/
District Magistrate, Jhansi. The Arbitrator
declared his award on 15.09.2017 on the
lines of the Special Land Acquisition
Officer principally on the ground that the
land had not been declared as 'abadi' under
Section 143 of the UP. Zamindari Abolition
and Land Reforms Act, 1950 (hereinafter
referred to as 'U.P. Z.A. & L.R. Act') and,
therefore, would continue to remain an
'agricultural land'.

4. The petitioner assailed the award
dated 15.09.2017 by availing statutory
remedy under Section 34 of the Act of 1996
made applicable by virtue of Section 3G(6)
of the Act of 1956. The District Judge,
Jhansi, by judgment and order dated
27.04.2022, passed in Misc. Case No.12 of
2017 under Section 34 of the Act of 1996,
set aside the award dated 15.09.2017 and
remanded the matter to the Arbitrator for
fresh
consideration
in
the
light
of
observations made in the order itself after
affording opportunity of hearing to the
parties.
After
remand,
the
District
Magistrate/Collector, Jhansi, as Arbitrator,
has,
by
the
order
impugned
dated
28.07.2023, rejected the reference holding
that the compensation awarded under the
award dated 30.09.2010 was according the
law and that the petitioner was not entitled
to any further compensation. It is this order
of the Arbitrator which is under challenge
in the present writ petition and has been
assailed mainly on the ground that the
directions contained in the order of the
District Judge dated 27.04.2022 have not
been followed by the Arbitrator. The
detailed arguments advanced on behalf of
2012 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner shall be noted at appropriate
place in this judgement.

PREVIOUS PROCEEDINGS IN THE
INSTANT CASE

5. This Court, in its order dated
04.10.2023, noted the main contention
advanced on behalf of the petitioner that
the Collector had chosen to overlook the
directions issued by the District Judge and,
by making some observations, this Court
directed the learned Additional Chief
Standing Counsel to communicate the order
to
the
State-respondents
for
due
compliance. Later on, by an order dated
02.11.2023, Shri Rajiv Gupta, learned
Additional Chief Standing Counsel was
granted further time to enable the Collector
to revisit the matter and file a fresh
affidavit. Then, the order dated 08.11.2023
records that the respondent No.3 (Collector,
Jhansi) has recalled the order dated
28.07.2023 fixing 10.11.2023 as date of
hearing and learned counsel representing
the National Highways Authority of India
(hereinafter referred to as 'N.H.A.I.') was
granted
time
to
obtain
instructions.
Thereafter, various dates were fixed and, in
the meantime, the fresh order dated
03.11.2023 passed by the Collector, Jhansi
whereby he had recalled the order dated
28.07.2023 (impugned in the present writ
petition) was challenged by the N.H.A.I. by
filing Writ C No.42177 of 2023 (National
Highways Authority Of India v. State of
U.P. and Another) which was directed to be
connected with the present writ petition and
both the matters were heard simultaneously.

COUNTER AFFIDAVIT OF THE STATE
RESPONDENTS

6. In the present case, though the
State-respondents initially justified passing
of the order impugned dated 28.07.2023
making
various
submissions
in
the
affidavits of certain officers, later on, the
State came up with the stand that since the
Collector had already recalled order dated
28.07.2023, the State-Authorities were
ready to comply with the directions issued
by this Court or any other court of law.
Therefore, the N.H.A.I. remained the only
contesting party and, hence, the Court
proceeds to examine the defence taken in
the counter affidavit filed on behalf of
N.H.A.I.

COUNTER AFFIDAVIT OF THE N.H.A.I.

7. The counter affidavit filed on
behalf of N.H.A.I. principally raises an
objection regarding maintainability of the
present writ petition by taking aid of
Section 34 of the Act of 1996 and it has
been stated that since the said provision
speaks that recourse to the Court against an
arbitral award may be made only by an
application for setting aside such award in
accordance with sub-sections (2) and (3),
challenge made by the petitioner to the
award of the Collector by means of the
present writ petition under Article 226
would tantamount to by-passing statutory
alternative remedy and, hence, the writ
petition should be dismissed on this ground
alone. Further pleadings in the counter
affidavit are that even the subsequent
exercise carried out by the Arbitrator, in
terms of the order dated 03.11.2023, is
unsustainable due to the fact that, after
making the award, the Arbitrator became
functus
officio,
having
no
power/jurisdiction to make changes in his
decision. The defence taken by N.H.A.I. in
relation to the order dated 03.11.2023 has
been made a ground of challenge by it in
the connected Writ C No.42177 of 2023.
Reference to certain Authorities of the
3 All. Dr. Rajeev Sinha Vs. U.O.I. & Ors.
2013
Hon'ble Supreme Court has been made to
contend that writ jurisdiction cannot be
invoked once the matter arises from arbitral
award. The Authorities would be referred to
at appropriate place in this judgement.

8. On merits of the order dated
28.07.2023, impugned in the present writ
petition, it has been pleaded that as per
Section
26
of
the
Right
to
Fair
Compensation and Transparency in Land
Acquisition,
Rehabilitation
and
Resettlement
Act,
2013
(hereinafter
referred to as 'Act of 2013'), read with
Section 3G(7)(a) of the Act, 1956, the
criteria that shall be adopted by the
Collector would be referable to the market
value of the property acquired as specified
in the Indian Stamp Act, 1899 for
registration of the sale deeds or agreements
to sell and it is further pleaded that the
Arbitrator had considered the sale deeds of
three years prior to the date of notification
issued under Section 3A of the Act of 1956
and, therefore, even on merits, the writ
petition has no force.

REJOINDER AFFIDAVIT

9. The petitioner has filed a rejoinder
affidavit against the counter affidavit of
N.H.A.I. and, by placing reliance upon
certain judgements of the Apex Court (that
shall be referred to herein-later), it has been
pleaded that the petitioner had already
availed the statutory remedy provided
under the Act by approaching the District
Judge against the award of the Collector,
however, since the directions issued by the
District Judge in the order of remand dated
27.04.2022 have been given a complete goby, it would not be a case of by-passing the
statutory remedy under Section 34 of the
Act of 1996. Further stand is that when the
Authority fails to adopt the judicial
procedure required for taking a decision,
the existence of alleged alternative remedy
would not be a bar in entertainment of writ
petition. On merits of the impugned award
dated 28.07.2023, it has been pleaded that
the Arbitrator has failed to consider the sale
deeds for the purposes of determination of
market
value
and
has
violated
the
provisions of Section 3G(7)(a) of the Act of
1956 read with Section 26 of the Act, 2013
and not only the documents placed on
record but also the directions issued by the
District
Judge
in
her
order
dated
27.04.2022 were ignored. Further stand is
that mere revenue entries cannot be
construed to determine the market value of
the land.

COUNSEL HEARD

10. Heard Shri Navin Sinha, learned
Senior Counsel assisted by Shri Utkarsh
Srivastava,
learned
counsel
for
the
petitioner, Shri Raghav Dwivedi, learned
counsel
for
respondent
No.2-National
Highways Authority of India and Shri Rajiv
Gupta, learned Additional Chief Standing
Counsel on behalf of State-respondent
No.3-the
District
Magistrate/Collector/Arbitrator, Jhansi.

SUBMISSIONS OF THE PETITIONER

11. Shri Navin Sinha, learned Senior
Counsel appearing for the petitioner has
made following submissions:-

(a) Once the District Judge, in her
order dated 27.04.2022, particularly in
paragraph Nos.14, 15, 16 and 18 thereof,
clearly observed that the Arbitrator who
had passed the award dated 30.09.2010 had
not proceeded to independently assess the
market value of the land and had given the
award only on the basis of there being no
2014 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration under Section 143 of the U.P.
Z.A. L.R. Act and had refrained himself
from going through the sale deeds filed as
exemplars and had also ignored the
potentiality
of
land
ignoring
certain
judgements, the Collector/Arbitrator, being
an Authority sub-ordinate to the District
Judge, was bound in law to declare an
award strictly in consonance with the
observations made and guidelines issued by
the Superior Court/Authority i.e. the
District Judge;

(b) the remand order passed by
the District Judge being not a subject
matter of challenge before any superior
forum, was binding upon sub-ordinate
authority, i.e. the Collector and, hence, he
was supposed to decide the matter strictly
in accordance with the directions contained
in the earlier order;

(c) the test for determining the
compensation is as to what price a
prospective buyer is willing to pay to the
prospective seller in an open market and
the utility of land would not be judged
merely on the basis of its entry in the
revenue records;

(d)
the
petitioner's
land
is
adjoining to the existing Highway and just
near to the boundary of Maharani Laxmibai
Medical
College,
Jhansi
and
within
proximity of about 1 to 1.5Kms, there are
number of schools, nursing homes and
Government Engineering College and also
towards Gwalior at a distance of half kms,
there is Government Para-Medical College
and, further, all around the petitioner's
land, commercial activities are going on
and as per the circle rates notified by the
District Magistrate/Collector, the land falls
in the commercial category. Even for the
purposes of levy of stamp duty, certain
rates
applicable
in
the
area
w.e.f.
07.01.2008 to 01.02.2010 have been
referred to and it is submitted that the
market value of the petitioner's land, at the
time of notifications in reference, was
about Rs.18,000/- per square mtrs. It is
further argued that in view of the special
location of the petitioner's land adjoining to
the National Highway, a further 10 % was
required to be added and, hence, the market
value of the petitioner's land would become
about Rs.19,800/- per sq. mtrs. Various
other facts and circumstances justifying the
market value towards higher side have been
pointed out to the Court;

(e) As regards the objection
raised
by
N.H.A.I.
with
regard
to
maintainability of writ petition on the
ground of remedy available under Section
34 of the Act of 1996, reference to the
decision of the Apex Court in the case of
(State of Himachal Pradesh & Ors. v.
Gujarat Ambuja Cement Ltd & Anr.)
(2005)
6
SCC
499
and
another
judgement in the Commercial of Income
Tax and Ors. v. Chhabil Dass Agarwal
(2014) 1 SCC 603 has been made and it
has been argued that when the Authority
fails to adopt judicial procedure required
for passing a decision, the writ petition
would be maintainable, even if, there is any
alternative remedy; and

(f)
since
the
Collector
has
recalled
the
order
impugned
dated
28.07.2023 by his subsequent order dated
03.11.2023, in any case, there has to be a
fresh adjudication by the Collector on
merits as per directions contained in the
order dated 27.04.2022 passed by the
District Judge.

SUBMISSIONS OF THE STATE
RESPONDENTS

12. Shri Rajiv Gupta, learned
Additional Chief Standing Counsel for the
State-respondents, though initially justified
passing of the order impugned by referring
3 All. Dr. Rajeev Sinha Vs. U.O.I. & Ors.
2015
to certain aspects, which according to the
State, were rightly discussed by the
Collector in the order impugned, however,
later on, it was argued that since the
Collector, in furtherance of the orders
issued by this Court in the present writ
petition, has already recalled the order
dated 28.07.2023, the challenge made to
the order impugned does not survive and
the writ petition should be dismissed as
infructuous but in any case, the StateAuthorities are ready to comply with the
directions issued by this Court or any other
court of law.

SUBMISSIONS OF THE N.H.A.I.

13. Shri Raghav Dwivedi, learned
counsel
appearing
for
N.H.A.I.
has
vehemently opposed the writ petition and
by emphatically pressing the stand taken in
the counter affidavit, it has been argued that
the legislative intent enshrined under
Section 34(1) of the Act of 1996 is clear to
the effect that challenge to the arbitral
award can be made only by filing an
application for setting aside such award
before the principal Civil Court of original
jurisdiction, i.e. the District Judge and,
once the petitioner earlier approached the
District Judge against the award declared
on a previous occasion, the same recourse
should be taken this time also. Learned
counsel has referred to the decision of
Supreme Court in the case of Bhawan
Constructions v. Executive Engineer,
(2022) 1 S.C.C. 75 in support of his
contention. He further submits that even on
merits,
the
order
impugned
dated
28.07.2023 is perfectly in accordance with
law as the Collector has exercised his
powers as per Section 3G(7)(a) of the Act,
1956 read with Section 26 of the Act of
2013 and, hence, no interference is
required.
ANALYSIS OF RIVAL CONTENTIONS

14. Having heard learned counsel for
the parties, the first question that arises for
consideration by this Court is as to whether,
in view of a remedy provided under Section
34 of the Act of 1996 against an award
passed by the Arbitrator under Section
3G(5) of the Act of 1956, the challenge
made to the order dated 28.07.2023,
impugned in the present writ petition, filed
under Article 226 of the Constitution of
India can be turned down.

15. Admittedly, in the present case, an
award was made by the Special Land
Acquisition Officer, Joint Organisation,
Jhansi on 30.09.2010, against which, the
petitioner availed remedy under Section
3G(5) of the Act of 1956 by approaching
the Arbitrator/District Magistrate, Jhansi
where the dispute was registered as
Arbitration Case No. 521 of 2012 (Dr.
Rajeev Sinha v. N.H.A.I & Others). The
said Arbitrator declared his award on
15.09.2017 on merits which was set aside
by the District Judge, Jhansi in exercise of
powers under Section 34 of the Act of 1996
by order dated 27.04.2022 and following
findings were recorded:-

(a). The Arbitrator
did
not
consider any material on record, which
could go to show the market value of the
land in question. He rather took into
consideration the valuation done on behalf
of N.H.A.I., who is one of the opposite
sides. The Arbitrator did not proceed to
independently assess market value;

(b). The Arbitrator, while coming
to a conclusion that there had not been any
declaration of change of land use under
Section 143 of the U.P. Z.A.L.R. Act,
completely ignored the provisions of
Section 3G(7) of the Act of 1956 which
2016 INDIAN LAW REPORTS ALLAHABAD SERIES
mandates taking into consideration various
parameters while determining the amount
under sub-section (1) of Section 5 of
Section 3(G);

(c). The Arbitrator was bound to
take into consideration the market value on
the date of publication of notification;

(d). As per the judgements of the
High Court in Shiv Ram Singh v. State of
U.P., (2019) 6 ADJ 741 read with P.P.
Buildcon Pvt. Ltd. v. Chief Controlling
Revenue & Ors., 2014 (7) ADJ 663, as
well as judgements of the Apex Court in
the case of O.N.G.C. Ltd. v. Western
GECO International Ltd. (2014) 9 SCC
263 and Union of India & Anr. v. Tarsem
Singh & Ors. (2019) 9 SCC 304, the
principles
for
determination
of
compensation had not been considered;

(e). The view of the Arbitrator
that
sale
deeds
executed
between
04.10.2008 and 05.10.2009, as recorded by
the Special Land Acquisition Officer, were
examined by the Sub Registrar, Jhansi,
however, the Arbitrator, before observing
that the sale deeds were not found to be of
any utility by the said officials as they did
not match the local conditions of the land
acquired, committed a patent error in not
examining the sale deeds himself;

(f). The Arbitrator, who was
expected to embark on the inquiry by
himself in the matter, was not justified in
ignoring the potentiality of land and, hence,
his order is a non-speaking one;

(g). The market value of the land
is to be assessed on the basis of factors like
situation,
surroundings
and
other
topographical traits as well as its probable
use.

16. The District Judge, in the
operative portion of the order dated
27.04.2022, while setting aside the arbitral
award dated 15.09.2017, issued a clear
direction to the Arbitral Tribunal, i.e. the
Arbitrator/Collector, Jhansi to decide the
case afresh, in the light of observations
given in the body of the order after
affording opportunity of hearing to both the
sides.
Therefore,
the Arbitrator
was
certainly bound by the directions issued
and all the observations recorded in the
order of the District Judge, however, the
Court finds from perusal of the order
impugned
dated
28.07.2023 that the
Arbitrator/Collector, in one and half page,
has considered absolutely nothing, except
what had been recorded by the Special
Land Acquisition Officer in the initial
award dated 30.09.2010. The so-called
reasoning recorded in the order impugned
reads as follows:-

"मैंने सक्षम प्राविकारी की पत्रावली िलब कर उसका
गहनिा से अध्ययन वकया गया। प्रकरण में िथ्ज्य वनम्न प्रकार है। वािी
द्वारा अपनी भूवम को न िो िारा-143 ज०उ० एक्ट के अन्िगाि
आवासीय घोवर्ि कराया गया और न ही कोई इस आर्शय का साक्ष्य
वािी द्वारा प्रस्िुि वकया गया। वजससे यह स्पष्ट हो सके वक उक्त भूवम
अकृर्क भूवम है और इसका उपयोग अकृर्क भूवम के रूप में होिा
रहा।

यह वक ग्राम-कोिाभावर की अवजाि भूवम के बाजारू
मूजय की जानकारी हेिु िारा 3ए की अविसूचना विनाांक 03-092009 भारि के राजपत्र असािारण विनाांक 03-09-2009 के
प्रकार्शन के एक वर्ा पूवा विनाांक 04-10-2008 से 05-102009 िक की अबवि में वनष्पाविि ववक्रय पत्रों का सांकलन सब
रवजस्ट्रार कायाालय, झााँसी से कराया गया। उक्त ववक्रय पत्रों के
आिार पर आने वाली भूवम के बाजार िर के अनुरूप न होने के
कारण उक्त ववक्रय पत्रों को अस्वीकार करने के उपरान्ि अब मात्र
स्टाम्प ड्यूटी हेिु वजलाविकारी द्वारा वनिााररि बाजार िर पर ववचार
करना न्यायोवचि समझा। ििनुसार अवजाि भूवम में वनवहि समस्ि
गाटा सांख्याओ के वलए मु०15,00,000=00 रूपया प्रवि
हैक्टेयर एवां पररसम्पवि की नाप-जोख पररयोजना वनिेर्शक, भारिीय
राष्ट्रीय राजमागा प्राविकरण, झााँसी द्वारा अविकृि सुगम इांटर नेर्शनल
सांस्थान (एन०जी०ओ०) द्वारा की गयी वजसे पररयोजना वनिेर्शक,
भारिीय राष्ट्रीय राजमागा प्राविकरण, झााँसी द्वारा सत्यावपि वकया
3 All. Dr. Rajeev Sinha Vs. U.O.I. & Ors.
2017
गया। उक्त प्राप्त वववरण पत्र को सहायक अवभयन्िा, प्रान्िीय खण्ड,
लोक वनमााण ववभाग, झााँसी द्वारा प्रविहस्िाक्षररि वकया गया। सक्षम
प्राविकारी द्वारा भूवम एवां पररसम्पवि के सम्बन्ि में विनाांक 30-092010 को एवाडा पाररि वकया गया। राष्ट्रीय राजमागा अविवनयम
की िारा-3जी(2) के अनुसार 10 प्रविर्शि अविररक्त िनरावर्श भी
िी गयी है।

आर०डी० 2020 (147) पेज 199 पर मा०
उच्चिम न्यायालय, नई विजली ने भी वसववल अपील सांख्या-
7346 सन् 2010 अपर आयुक्त राजस्व व अन्य बनाम अखलाक
हुसैन व अन्य में स्पष्ट रूप से अविाररि वकया गया है वक उ०प्र०
जमींिारी ववनार्श एवां भूवम व्यवस्था अविवनयम, 1950 िारायें
143 एवां 3(14) भूवम की प्रकृवि क्या कृवर्कीय है या
अकृवर्कीय वनिााररि की जायेगी। अविवनयम की िारा-143 के
अन्िगाि वनिाारण के अभाव में भूवम अविवनयम की िारा-3(14)
के प्रावविानों के अन्िगाि कृवर्सीय मानी जायेगी।

भूवम की वास्िववक भौविक वस्थवि जो भूवम
अविग्रहण के समय होगी उसी के आिार पर मूजयाांकन वकया जाना
ही ववविक व्यवस्थाओां के अनुरूप होिा है। इसवलए एवाडा विनाांक
30-09-2010 में भूवम कृर्कीय थी इसवलए िारा-3(14)
जमीिारी ववनार्श अविवनयम के अन्िगाि अविग्रहीि भूवम कृर्कीय
मानी जायेगी।

यह वक वािी द्वारा भूवम की िरों के वनिाारण के
सम्बन्ि में िौरान मुकिमा प्रस्िुि वकये गये अवभलेखों, भूवम
अविग्रहण सम्बन्िी मूल वाि पत्रावली पर उपलब्ि अवभलेखों
इत्यावि, बहस में प्रस्िुि िको एवां मा० न्यायालय वजला न्यायािीर्श,
झााँसी द्वारा पाररि आिेर्श विनाांक 27-04-2022 को सांञान में
रखकर प्रकरण में अन्िावनवहि समस्ि वबन्िुओां पर ववचारोपरान्ि मेरा
यह स्पष्ट मि है वक सक्षम प्राविकारी / ववर्शेर् भूवम अध्यावप्त
अविकारी, झााँसी ने एवाडा आिेर्श विनाांक 30-09-2010 के
अन्िगाि भूवम / पररसम्पवि का जो मूजय वनिााररि वकया है वह सही
है। वजसे यथावि रखना उवचि प्रिीि होिा है और उसे वनरस्ि वकया
जाना न्यायोवचि नही है। ववद्वान सक्षम प्राविकारी / ववर्शेर् भूवम
अध्यावप्त अविकारी, झााँसी ने एवाडा के अन्िगाि प्रविकर रावर्श के
अविररक्त 10 प्रविर्शि अविररक्त िनरावर्श भी अनुमन्य की है।
उपरोक्त समीक्षा के फलस्वरूप वािी अवजाि भूवम / पररसम्पवि के
प्रविकर के रूप में कोई अविररक्त िनरावर्श पाने का अविकारी नही
है।
आिेर्श

यह वक वािी को अवजाि भूवम / पररसम्पवि का
एवाडा विनाांक 30-09-2010 द्वारा विया गया प्रविकर
वनयमानुसार है। अिः वािी प्रविकर के रूप में कोई अविररक्त
िनरावर्श पाने का अविकारी नही है। प्रस्िुि वािपत्र ििनुसार वनणीि
वकया जािा है। पत्रावली िावखल िफ्िर की जाये। "

17. It is apparently clear from the
order impugned that not even a single
direction issued by the District Judge in the
order of remand dated 27.04.2022 has been
obeyed and, in fact, the Arbitrator/Collector
has not even discussed any of the directions
in the entire order impugned. This Court
seriously deprecates the approach of the
Arbitrator/Collector who is vested with
statutory powers to determine lawful
compensation as per the scheme of the Act
of 1956 and, therefore, once the Court
superior to him analyzed each and every
aspect of the initial award dated 30.09.2010
as well as the arbitral award dated
15.09.2017 and set aside the same after
recording findings on merits of the
petitioner's claim as regards market value
of the land on the date of notifications
acquiring the land, the Arbitrator/Collector
was bound to follow the quasi-judicial
discipline and record finding on each of the
parameters
discussed
by
the
learned
District Judge. The Court finds that the
Arbitrator/Collector has simply referred to
the non-declaration under Section 143 U.P.
Z.A. L.R. Act and swept away the sale
deeds produced by the petitioner in a single
line that only the stamp duty determined by
the Collector has to be considered. In the
considered opinion of this Court, the
Arbitrator/ Collector has expressly violated
the directions issued by the District Judge
in order dated 27.04.2022.

18. As regards the discretion of the
High Courts to entertain writ petition under
Article 226 of the Constitution of India,
2018 INDIAN LAW REPORTS ALLAHABAD SERIES
despite a remedy provided under any
statute, law in this regard needs reiteration.

19. The Constitution Bench of
Supreme Court, in the case of State of U.P.
v. Mohammad Nooh, AIR 1958 Supreme
Court 86, has held that there is no rule
with regard to Certiorari as there is with
Mandamus, that it will lie only where there
is no other equally effective remedy. A Writ
of Certiorari will lie, provided the requisite
grounds exist, although a right of appeal
has been conferred by Statute. It was
observed that the fact that the aggrieved
party had another adequate remedy may be
taken into consideration by the superior
court in arriving at a conclusion as to
whether it should, in exercise of its
discretion, issue a Writ of Certiorari to
quash the proceedings and decisions of
inferior courts subordinate to it and,
ordinarily, the superior court will decline to
interfere until the aggrieved party has
exhausted other statutory remedies, if any.
This rule requiring the exhaustion of
statutory remedies before the writ will be
granted is a rule of policy, convenience and
discretion rather than a rule of law.

20. Another Constitution Bench of the
Supreme Court, in the case of K.S. Rashid
& Son v. Income Tax Investigation
Commission & Ors., AIR 1954 SC 207,
observes that there are only two limitations
placed upon the exercise of the powers by a
High Court under Article 226 of the
Constitution; one is that the power is to be
exercised "throughout the territories in
relation to which it exercises jurisdiction",
that is to say, the writs issued by the Court
cannot run beyond the territories subject to
its jurisdiction. The other limitation is that
the person or authority to whom the High
Court is empowered to issue writs "must be
within those territories" and this implies
that they must be amenable to its
jurisdiction either by residence or location
within those territories. It is with reference
to these two conditions thus mentioned that
the jurisdiction of the High Courts to issue
writs under Article 226 of the Constitution
is to be determined.

21. The Supreme Court, in the case of
Ram and Shyam Company v. State of
Haryana and Others, (1985) 3 S.C.C.
267, laid down that ordinarily it is true that
the court has imposed a restraint in its own
wisdom on its exercise of jurisdiction under
Article 226 where the party invoking the
jurisdiction has an effective, adequate
alternative remedy. More often, it has been
expressly stated that the rule which requires
the exhaustion of alternative remedies is a
rule of convenience and discretion rather
than rule of law. At any rate, it does not
oust the jurisdiction of the Court.

22. The three judges Bench of the
Supreme Court, in the case of Sangram
Singh v. Election Tribunal Kotah And
Another, A.I.R. 1955 S.C. 425, observed
that the jurisdiction which Articles 226 and
136 confer, entitles the High Courts and the
Supreme Court to examine the decisions of
all Tribunals to see whether they have acted
illegally. That jurisdiction cannot be taken
away by a legislative device that purports
to confer power on a tribunal to act
illegally by enacting a statute that its illegal
acts shall become legal the moment the
tribunal chooses to say they are legal. The
legality of an act or conclusion is
something that exists outside and apart
from the decision of an inferior tribunal. It
is a part of the law of the land which cannot
be finally determined or altered by any
tribunal of limited jurisdiction. The High
Courts and the Supreme Court alone can
determine what the law of the land is vis-a-
3 All. Dr. Rajeev Sinha Vs. U.O.I. & Ors.
2019
vis all other courts and tribunals and they
alone can pronounce with authority and
finality on what is legal and what is not. All
that an inferior tribunal can do is to reach a
tentative conclusion which is subject to
review under Articles 226 and 136.

23. The Supreme Court, in the case of
Commissioner of Income Tax and Others
v. Chhabil Dass Agarwal, (2014) 1 S.C.C.
603, spelt out at least five illustrative and
non-exhaustive exceptions to the rule of
exhaustion of remedies as follows:-

(i) Where remedy available under
statute is not effective but only mere
formality with no substantial relief; or

(ii) Where statutory authority not
acted in accordance with provisions of
enactment in question, or ;

(iii) Where statutory authority
acted in defiance of fundamental principles
of judicial procedure, or;

(iv) Where statutory authority
resorted to invoke provisions which are
repealed, or;

(v) Where statutory authority
passed an order in total violation of
principles of natural justice.

24. A Constitution Bench of the
Supreme Court, in State of Madhya
Pradesh and Anr. Bhailal Bhai, AIR 1964
SC 1006, held that the power to give relief
under Article 226 of the Constitution is a
discretionary power. Similar view has been
reiterated in N.T. Veluswami Thevar v. G.
Raja Nainar and Others, AIR 1959 SC
422; Municipal Council, Khurai and
Anr. v. Kamal Kumar and Another, AIR
1965 SC 1321; Siliguri Municipality and
Others v. Amalendu Das and Others,
AIR 1984 SC 653; S.T. Muthusami v. K.
Natarajan, AIR 1988 SC 616; Rajasthan
SRTC v. Krishna Kant, AIR 1995 SC
1715; Kerala State Electricity Board and
Anr. v. Kurien E. Kalathil and Others,
AIR 2000 SC 2573; A. Venkatasubbiah
Naidu v. S. Chellappan, (2000) 7 SCC
695; and L.L. Sudhakar Reddy and
Others v. State of Andhra Pradesh and
Others, (2001) 6 SCC 634; Shri Sant
Sadguru Janardan Swami (Moingiri
Maharaj) Sahakari Dugdha Utpadak
Sanstha
and
Anr.
v.
State
of
Maharashtra and others, (2001) 8 SCC
509; Pratap Singh and Anr. v. State of
Haryana, (2002) 7 SCC 484 and G.K.N.
Driveshafts (India) Ltd. v. Income Tax
Officer and Others, (2003) 1 SCC 72.

25. In Harbans Lal Sahnia v. Indian
Oil Corporation Ltd., (2003) 2 SCC 107,
the Supreme Court held that the rule of
exclusion of writ jurisdiction by availability
of alternative remedy is a rule of discretion
and not one of compulsion and the Court
must consider the pros and cons of the case
and then may interfere if it comes to the
conclusion
that
the
petitioner
seeks
enforcement of any of the fundamental
rights; where there is failure of principles
of natural justice or where the orders or
proceedings are wholly without jurisdiction
or the vires of an Act is challenged.......
But normally, the High Court should not
entertain writ petitions unless it is shown
that there is something more in a case,
something going to the root of the
jurisdiction of the officer, something which
would show that it would be a case of
palpable injustice to the writ petitioner to
force him to adopt the remedies provided
by the statute. Reference to another
judgement of Supreme Court in the case of
Harbanslal Sahnia & Anr. v. Indian Oil
Corpn. Ltd. & Ors., JT 2002 (10) SC 561
can be made, in which also the view taken
by the Supreme Court is that the rule of
exclusion
of
Writ
Jurisdiction
by
2020 INDIAN LAW REPORTS ALLAHABAD SERIES
availability of alternative remedy is the rule
of discretion and not one which is
compulsory.

26. In view of the above discussion,
the argument of learned counsel for NHAI
that the writ petition should be dismissed
on the ground of availability of alternative
remedy under Section 34 of the Act of
1996, does not have any force in the facts
and circumstances of the present case and
this Court is satisfied that the instant case
falls within the well recognised exceptions
to the general rule of exhaustion of
alternative remedies, as held above by the
Supreme Court and, therefore, the present
writ petition is not liable to the dismissed
on this ground.

27. As regards the duty of a Court to
which matter is remanded by its superior
court/authority, a learned Single Judge of
this Court, in a case arising out of U.P.
Imposition of Ceiling of Land Holdings
Act, 1961, reported as Ram Nagina
Chaudhary v. State of U.P. and Others,
1978 AWC 610, deprecated the approach of
the
Prescribed
Authority
acting
in
ignorance of the directions issued by its
superior court that had remanded the matter
to it. This Court referred to the remand
order which observed that the Prescribed
Authority should have made inquiries to
find out as to what was share of the
appellant in the concerned plots and that
the case should go back to the Prescribed
Authority for fresh decision after inquiry in
that respect. While referring to the
operative portion of the remand order
which directed the Prescribed Authority to
take a fresh decision in the light of the
observations made in the body of the order,
this Court observed that by not following
the directions contained in the remand
order, not only the Prescribed Authority but
also, subsequently, the Appellate Authority
committed the errors and mistakes that
were apparent on the face of the record and
set aside the said illegal orders.

28. A learned Single Judge of the
Calcutta
High
Court,
in
Scientific
Instruments Company Ltd. v.