# Mahandra Kumar & Anr v. Union of India & Ors

- **Citation:** (2020) 11 ILRA 361
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-25
- **Case number:** WRIT - C No. 12138 of 2020
- **Bench:** Naheed Ara Moonis, Deepak Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahandra-kumar-anr-v-union-of-india-ors-45408
- **Pages:** 7

## Headnote

A. Civil Law - Central Railway Act, 1989 -
Section
20F
(6)
-
Arbitration
and
Conciliation Act, 1996 - Section 34 -
Acquisition of land - Award by the
Arbitrator
-
Maintainability
of
writ
petition - Alternative Remedy to file Civil
Suit - No violation of Natural Justice - No
plausible reason disclosed why the Court
by-pass
the
remedy
provided
under
Section 34 of the Act, 1996 - Held, the
petitioners
are
required
to
adduce
documentary evidence in support of their
case - They could have raise their
grievances
adequately
before
the
appropriate forum available under the
law. (Para 12, 13, 18 and 19)
B. Constitution of India - Article 14 and
226 - Scope of Writ - Alternative Remedy
- Interference, when warranted - High
Court must not interfere if there is an
adequate efficacious alternative remedy
available to the petitioners and he has
approached
the
High
Court
without
availing the same unless he has made out
an exceptional case warranting such
interference or if there is sufficient ground
to invoke the extraordinary jurisdiction
under Article 226 of the Constitution of
India - High Court may still exercise its
362 INDIAN LAW REPORTS ALLAHABAD SERIES
writ
jurisdiction
in
at
least
three
contingencies: (a) Where the writ petition
seeks
enforcement
of
any
of
the
fundamental rights; (b) Where there is a
failure of principles of natural justice; (c)
Where the orders or proceedings are
wholly without jurisdiction or the virus of
an Act is challenged. (Para 14)
Writ Petition dismissed (E-1)
Cases relied on :-

## Text

11 All. Mahandra Kumar & Anr. Vs. Union of India & Ors.
361
discretionary equitable relief under Article
226 and 136 of the Constitution of India. In
the aforesaid case the Hon'ble Apex Court
was of the view that non compliance of sub
Section 3A of Section 13 cannot be of any
avail to the debtor whose conduct has been
merely to seek time and not repay the loan
as promised on several occasions, while
relying in the case of State of Maharashtra
Vs. Digambar, 1995 (4) SCC 683 wherein
the Hon'ble Court observed as follows;

"19. Power of the High Court to
be exercised under Article 226 of the
Constitution, if is discretionary, its exercise
must be judicious and reasonable, admits
of no controversy. It is for that reason, a
person's entitlement for relief from a High
Court under Article 226 of the Constitution,
be it against the State or anybody else, even
if is founded on the allegation of
infringement of his legal right, has to
necessarily depend upon unblameworthy
conduct of the person seeking relief, and
the court refused to grant the discretionary
relief to such person in exercise of such
power, when he approaches it with unclean
hands or blameworthy conduct."

28. Thus from the above prolix and
verbose discussion, in our considered
opinion the Possession Notice dated
13.3.2020 issued under Sections 4 and 12
of Section 13 read with Rule 8 (1) and the
demand notice dated 4.2.2019 issued under
Section 13 (2) of the SARFAESI Act do
not suffer from any error or irregularity,
which may require any interference, hence
we are not inclined to exercise our
extraordinary jurisdiction.

29. The writ petition is accordingly
dismissed.

30. No order as to costs.
----------
(2020)11ILR A361
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2020

BEFORE
THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE DEEPAK VERMA, J.

WRIT - C No. 12138 of 2020

Mahandra Kumar & Anr. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ramesh Chandra, Sri Neeraj Kumar

Counsel for the Respondents:
Sri C.L. Chaudhary, C.S.C.

A. Civil Law - Central Railway Act, 1989 -
Section
20F
(6)
-
Arbitration
and
Conciliation Act, 1996 - Section 34 -
Acquisition of land - Award by the
Arbitrator
-
Maintainability
of
writ
petition - Alternative Remedy to file Civil
Suit - No violation of Natural Justice - No
plausible reason disclosed why the Court
by-pass
the
remedy
provided
under
Section 34 of the Act, 1996 - Held, the
petitioners
are
required
to
adduce
documentary evidence in support of their
case - They could have raise their
grievances
adequately
before
the
appropriate forum available under the
law. (Para 12, 13, 18 and 19)
B. Constitution of India - Article 14 and
226 - Scope of Writ - Alternative Remedy
- Interference, when warranted - High
Court must not interfere if there is an
adequate efficacious alternative remedy
available to the petitioners and he has
approached
the
High
Court
without
availing the same unless he has made out
an exceptional case warranting such
interference or if there is sufficient ground
to invoke the extraordinary jurisdiction
under Article 226 of the Constitution of
India - High Court may still exercise its
362 INDIAN LAW REPORTS ALLAHABAD SERIES
writ
jurisdiction
in
at
least
three
contingencies: (a) Where the writ petition
seeks
enforcement
of
any
of
the
fundamental rights; (b) Where there is a
failure of principles of natural justice; (c)
Where the orders or proceedings are
wholly without jurisdiction or the virus of
an Act is challenged. (Para 14)
Writ Petition dismissed (E-1)
Cases relied on :-
1. Kerala State Electricity Board Vs Kurien E.
Kalathil, (2000) 6 SCC 293: AIR 2000 SC 2573:
2000 AIR SCW 2647
2. Whirlpool Corporation Vs Registrar of Trade
Marks, Mumbai & ors., (1998) 8 SCC
3. Nivedita Sharma Vs Cellular Operators
Association of India, (2011) SCC (14) 337
4. Commissioner of Income Tax & ors. Vs
Chhabil Dass Agrawal, SCC 2014 (1) 603
5. Harvansh Lal Sahnia Vs India Oil Corporation
Ltd., SCC 2003 (2) 107
6. Than Singh Vs Superintendent of Taxes,
Dhubri & ors., AIR 1964 SC 1419
7. Mohan Pandey Vs Usha Rani, 2003 (6) 230
8. Dwarka Prasad Agarwal Vs B. D. Agrawal,
1992 (4) SCC 61

(Delivered by Hon'ble Naheed Ara Moonis, J.
& Hon'ble Deepak Verma, J.)

1. Heard Sri Ramesh Chandra, learned
counsel for the petitioners, Sri C. L.
Chaudhary,
learned
counsel
for
the
respondent Nos.1, 4 and 5 as well as Sri B. P.
Singh Kachhwah, learned Standing Counsel
appearing on behalf of the State and perused
the record.

2. The instant writ petition has been
filed on behalf of the petitioners against the
order dated 17.10.2019 where by the
respondent
No.2-Arbitrator/Commissioner,
Meerut Division, Meerut has passed the
award on the ground that the land which has
been acquired by the authority and that
amount paid as compensation is inadequate
the market value as well as acquired plot is
not submerged under water. Petitioners being
aggrieved against the order dated 17.10.2019
have filed the instant writ petition with the
following relief:

(a) issue a writ, order or direction
in the nature of certiorari quashing the
impugned order dated 17.10.2019 passed by
respondent No.2/arbitrator and order dated
05.08.2015 passed by respondent No.3
(Annexure No.4 and 1 to the writ petition).

(b) issue a writ, order or direction
in the nature of mandamus commanding the
respondent
concerned
to
pay
the
compensation amount according to Abadi
Land to the petitioners.

3. It is submitted by learned counsel for
the petitioners that Union of India, Ministry
of Railways has acquired the land for the
purpose of Special Freight Corridor project
known
as
Western
Dedicator
Freight
Corridor. The petitioners, who are owner of
land measuring 167.22 sq. meters of plot
No.23 area 0.0602 hec. which, is situated in
Village Dalelpur, Pargana Dankaur, Tehsil
Sadar, District Gautam Buddha Nagar out of
0.0620 hec. land 167.22 sq. meter land of the
petitioner was proposed for acquisition.
Petitioners land in dispute is being used for
residential purposes and in the surrounding
area commercial activities are continuing, as
such, disputed land falls in commercial area
and compensation ought to have been
calculated at the rate of commercial rate as
applicable to commercial property. Market
value of the land fixed by the staterespondent at the rate of Rs.805/- per sq.
meter is much below the rate prescribed in
the area as market value of residential and
11 All. Mahandra Kumar & Anr. Vs. Union of India & Ors.
363
commercial is about Rs.12,000/- sq. meter.
The petitioners vide Annexure-2 to the writ
petition has filed Misc. Case No.36 of 2019
under Section 20F (6) of Central Railway
Act, 1989 (Amendment Act, 2008). The
Chief General Manager, DFCCIL/NOIDA
Unit (respondent No.4) has filed objection
vide Annexure-3 to writ petition in which it
has been stated that petitioners should have
approached the authority under Section 20F
(6) within a period of three years but they had
filed petition/application under Section 20F
(6) of the Act after about four years which is
a time barred application and award dated
05.08.2015 is just and proper hence, requires
no amendment/correction as the arbitrator
decided the case on the merit. The
publication for acquiring the land was made
on 16.05.2013 and 20.05.2013 and final
award
was
published
on
05.08.2015.
Petitioners claimed that they are the owner of
the acquired land and land situate near
residential area but award has been made
without considering these aspects and rate for
making award and compensation are below
the rate running in that year. Petitioners
aggrieved against the award hence, moved an
application under Section 20F (6) of the
Railways (Amendment) Act, 2008. The
arbitrator/respondent no.2 on 17.10.2019
modified the award dated 05.08.2015 passed
by the respondent No.3.

4. Further, the learned counsel for the
petitioners contended that no notice had been
served upon them before passing the order
dated 17.10.2019. He submitted that land
acquired is being used for residential purposes
and in the surrounding areas commercial
activities are continuing hence land in dispute is
of commercial nature and the market value of
the land in question is Rs.12,000/- per sq. meter.
The respondent No.2 without considering the
ground taken by the petitioners, illegally
rejected the claim in an arbitrary manner.

5. The respondents counsel appearing for
the respondent Nos.1, 4 and 5 raised a
preliminary
objection
regarding
the
maintainability of this writ petition on the
ground that against the impugned award the
petitioners have a statutory alternative remedy
available under Section 34 of the Arbitration
and Conciliation Act, 1996 (hereinafter referred
to as "the Act, 1996") in view of the fact by
virtue of Section 20F (6) of the Railways
(Amendment) Act, 2008 (Hereinafter referred
to as "the Act, 2008") as such the petitioners are
not entitled to invoke the writ jurisdiction. The
co-ordinate Bench of this Court in a similar
case refused to entertain the petition on the
ground of alternative remedy vide order dated
17.03.2020 in Writ-C No.8771 of 2020
(Mawasi Vs. Union of India and 3 others).

6. The learned Standing Counsel has
submitted that the Hon'ble Apex Court and this
Hon'ble Court have passed various orders in
which it has been held that the Courts will not
interfere under Article 226 of the Constitution
of India until all normal remedies available to
petitioners have been exhausted. The existence
of alternative remedy is not a absolute bar. In
case an alternative efficacious remedy is
available, the High Court may not interfere
straightaway under Section 226 of the
Constitution of India and the petitioners would
have been expected to pursue the remedies of
appeal or revision.

7. The Hon'ble Apex Court in the case
of Kerala State Electricity Board Vs.
Kurien E. Kalathil, (2000) 6 SCC 293:
AIR 2000 SC 2573: 2000 AIR SCW 2647,
has held that the writ petition should not be
entertained unless the party exhausted the
alternative/statutory efficacious remedy.

8. Now the question before us is that
order passed under Section 20F (6) of the
Act, 2008 against which an application for
364 INDIAN LAW REPORTS ALLAHABAD SERIES
setting aside such award before competent
civil court is provided under Section 34 of
the Act, 1996 can be challenged before
High Court without availing remedy
provided under the Act, 1996.

9. The provisions of the Act, 1996
have been made applicable to all arbitral
proceedings taken under the Act, 2008. To
appreciate this objection it is necessary to
extract Section 34 of the Act, 1996 and
Section 20F (6) of the Act, 2004. Section
34 of the Arbitration and Conciliation Act,
1996 is quoted below:

"34 Application for setting aside
arbitral award -

(1) Recourse to a Court against
an arbitral award may be made only by an
application for setting aside such award in
accordance with sub-section (2) and subsection (3).

(2) An arbitral award may be set
aside by the Court only if--

(a)
the
party
making
the
application furnishes proof that--

(i) a party was under some
incapacity, or

(ii) the arbitration agreement is
not valid under the law to which the parties
have subjected it or, failing any indication
thereon, under the law for the time being in
force; or

(iii)
the
party
making
the
application was not given proper notice of
the appointment of an arbitrator or of the
arbitral proceedings or was otherwise
unable to present his case; or

(iv) the arbitral award deals with
a dispute not contemplated by or not falling
within the terms of the submission to
arbitration, or it contains decisions on
matters beyond the scope of the submission
to arbitration:

Provided that, if the decisions on
matters submitted to arbitration can be
separated from those not so submitted, only
that part of the arbitral award which
contains decisions on matters not submitted
to arbitration may be set aside; or

(v) the composition of the arbitral
tribunal or the arbitral procedure was not
in accordance with the agreement of the
parties, unless such agreement was in
conflict with a provision of this Part from
which the parties cannot derogate, or,
failing such agreement, was not in
accordance with this Part; or

(b) the Court finds that--

(i) the subject-matter of the
dispute is not capable of settlement by
arbitration under the law for the time being
in force, or

(ii) the arbitral award is in
conflict with the public policy of India.

(3) An application for setting
aside may not be made after three months
have elapsed from the date on which the
party making that application had received
the arbitral award or, if a request had been
made under section 33, from the date on
which that request had been disposed of by
the arbitral tribunal: Provided that if the
Court is satisfied that the applicant was
prevented by sufficient cause from making
the application within the said period of
three
months
it
may
entertain
the
application within a further period of thirty
days, but not thereafter.

(4) On receipt of an application
under sub-section (1), the Court may,
where it is appropriate and it is so
requested
by
a
party,
adjourn
the
proceedings
for
a
period
of
time
determined by it in order to give the
arbitral tribunal an opportunity to resume
the arbitral proceedings or to take such
other action as in the opinion of arbitral
11 All. Mahandra Kumar & Anr. Vs. Union of India & Ors.
365
tribunal will eliminate the grounds for
setting aside the arbitral award."

10. Section 20F (6) of the Railways
(Amendment) Act, 2008 is quoted below:

"20F. Determination of amount
payable as compensation:

(6) 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."

11. It is established principle of law of
that self restrained is exercised by the High
Court in dealing with such matters which
otherwise can be looked into by the special
forums or statutory authorities. Merely, the
ban in granting any interim relief by special
forum or Tribunal, created for the purpose
of adjudicating of such disputes, would also
not be a ground in itself to permit the
aggrieved person to by-pass an alternative
remedy and to file the petition straightaway
in writ jurisdiction unless there are some
cogent reasons for permitting such a
challenge straightaway in writ jurisdiction.
The exceptions, however, have been well
defined by the Apex Court in the case of
Whirlpool Corporation Vs. Registrar of
Trade Marks, Mumbai and others, 1998
(8) SCC, the Supreme Court has laid down
certain principles for the guidance and has
observed
that
the
High
Court
in
determining the forum in a matter where
efficacious remedy is available has the
power to issue prerogative writs under
Article 226 of the Constitution of India, is
plenary in nature and is not limited by any
other provisions of the Constitution. This
power can be exercised by the High Court
not only for issuing writs, for the
involvement of any of the fundamental
rights
contained
in
Part-III
of
the
Constitution of India but also for any other
purpose. The Apex Court came to the
conclusion that writ should not generally be
entertained if statute provide for remedy of
appeal and even if it is admitted, parties
should be relegated to the appellate forum.

12. Herein instant circumstances
where factual disputes and calculation are
involved and no violation of natural justice
we should refrain to exercise the power of
writ jurisdiction.

13. In the instant writ petition the
petitioners have not disclosed any plausible
reason why this Court by-pass the remedy
provided under Section 34 of the Act, 1996.
It is established principle that when the
proceedings are taken before the forum
under a provision of law which is ultra
vires or fundamental right Part-III of the
Constitution and principles of natural
justice have inviolated then a party
aggrieved thereby to move to the High
Court for quashing the proceedings on the
ground that they are in competent, without
a party being obliged to wait until those
proceedings run their full course and
doctrine of alternative remedy could have
no application.

14. In the case of Nivedita Sharma
Vs. Cellular Operators Association of
India, reported in 2011 SCC (14) 337, the
Supreme Court has held that petitioners
must exhaust its alternative remedy before
State Commission and should not directly
come to the High Court for challenging the
judgment of District Forum. In the case of
Commissioner of Income Tax and others
Vs. Chhabil Dass Agrawal, reported in
SCC 2014 (1) 603, the Supreme Court has
366 INDIAN LAW REPORTS ALLAHABAD SERIES
held that when the statutory forum is
created by law for redressal of grievances,
the writ petition should not be entertained
ignoring statutory remedy available in law
subject to certain exception. The Apex
Court further opined that non entertainment
of writ under the writ jurisdiction by the
High Court where efficacious alternative
remedy is available, is a rule of self impose
limitation. It is essentially a rule of policy,
convenience and discretion rather than a
rule of law. The Apex Court has also
opined that undoubtedly, it is within the
jurisdiction of the High Court to grant relief
under Article 226 of the Constitution of
India despite existence of alternative
remedy. However, the High Court must not
interfere if there is an adequate efficacious
alternative
remedy
available
to
the
petitioners and he has approached the High
Court without availing the same unless he
has
made
out
an
exceptional
case
warranting such interference or if there is
sufficient
ground
to
invoke
the
extraordinary jurisdiction under Article 226
of the Constitution of India. The Supreme
Court in the case of Harvansh Lal Sahnia
Vs. India Oil Corporation Ltd., SCC
2003 (2) 107, it has been held that rule of
exclusion of writ jurisdiction by availability
of an alternative remedy is a rule of
discretion and not one of compulsion. In an
appropriate case in spite of availability of
the remedy, the High Court may still
exercise its writ jurisdiction in at least three
contingencies:

(a) Where the writ petition
seeks enforcement of any of the
fundamental rights.

(b) Where there is a failure of
principles of natural justice.

(c)
Where
the
orders
or
proceedings
are
wholly
without
jurisdiction or the virus of an Act is
challenged.

15. In the instant petition factual
disputes are involved which is clear
from the perusal of the record and the
argument advanced by the learned
counsel for the petitioners the dispute
requires documentary evidence to prove
the case that acquired property does not
lie under water as has been held by
arbitrator. The Hon'ble Apex Court by
various judgment has restrained the
High Court where factual disputes
require
documentary
evidences
for
adjudication
of
case
for
which
alternative remedy is available under
the law.

16. The Supreme Court in the case
of Than Singh Vs. Superintendent of
Taxes, Dhubri and others, AIR 1964
SC 1419, Mohan Pandey Vs. Usha
Rani, 2003 (6) 230 and Dwarka Prasad
Agarwal Vs. B. D. Agrawal, 1992 (4)
SCC 61, has held that the remedy under
Article 226 of the Constitution of India
shall not be available except where
violation of some statutory duty on the
part of statutory authority is alleged. In
such cases, the Court has jurisdiction to
issue
appropriate
directions
to
the
authority concerned. It is held that the
High Court cannot allow its constitutional
jurisdiction to be used for deciding
disputes, for which remedies under the
general
law,
civil
or
criminal
are
available. This Court has held that it is
not intended to replace the ordinary
remedies by way of a civil suit or
application available to an aggrieved
person. The jurisdiction under Article 226
of the Constitution of India being special
and extraordinary, it should not be
11 All. Vibhor Vaibhav Infrahomes Pvt. Ltd., Delhi Vs. Union of India & Ors.
367
exercised casually or lightly on mere
asking by the litigant.

17. The following principles emerge
from the aforesaid decisions:

(i) Writ petition is a public law
remedy and cannot be invoke for resolution
of private law dispute therefore, writ
petition is not maintainable for resolution
of a property or for declaration of title.

(ii) Where there is an alternative,
effective and efficacious remedy under law,
the High Court will not exercise its
jurisdiction under Article 226 of the
Constitution of India but rule of such
exclusion is a rule of discretion and where
the
matter
involves
enforcement
of
fundamental right or failure to follow
principles of natural justice discretion may
be exercise to entertain to under Article 226
of the Constitution of India. The writ
petition is not an appropriate remedy where
the matter required determination of
disputed
question
of
fact
involving
elaborate examination of evidence and
where the fundamental rights are infringed.

18. In view of the aforesaid discussions
as well as submissions made on behalf of the
petitioners we are of the opinion that in the
instant writ petition disputed question of facts
are involved and the petitioners are required
to adduce documentary evidence in support
of their case. The petitioners have been given
opportunity of hearing before passing
impugned order and their case do not fall in
any of the category discussed above as such
we exercising jurisdiction under Article 226
of the Constitution of India cannot exercise
the power of appellate court to reappreciate
the evidence.

19. With reference to the facts and
circumstances of the present case and in view
of the aforesaid prolix discussion, we are of
the opinion that the petitioners could have
raise their grievances adequately before the
appropriate forum available under the law, as
such, we find no merit in this writ petition
and the same is accordingly, dismissed.

20. No order as to costs.
----------
(2020)11ILR A367
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

WRIT - C No. 13904 of 2020

Vibhor Vaibhav Infrahomes Pvt. Ltd., Delhi
 ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Swapnil Rastogi, Sri Siddhartha Singhal

Counsel for the Respondents:
A.S.G.I., C.S.C., Sri Vinay Kumar Pathak,
Sri Wasim Masood, Sri Jagdish Prasad

A. Civil Law -Real Estate (Regulation and
Development) Act, 2016 - Sections 2(zk),
18, 43 and 71 - Violation of Builder-Buyer
Agreement - Failure in handing over the
Flat
-
Award
of
Compensation
and
Interest
claimed
-
Jurisdiction
of
Adjudicating Officer - Section 71 confers
power upon an Adjudicating Officer to
adjudge compensation under Sections 12,
14, 18 and 19 - Held, the impugned order
awarding compensation and interest for
breach of provisions of Section 18 is not
without jurisdiction - Petition dismissed
leaving it open for the petitioner to avail
remedy of appeal under Section 43(5).
(Para 11 and 16)