Point of Law: 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

JUDGMENT :

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 state-respondent at the rate of Rs.805/-per sq. meter is much below the rate prescribed in the area as market value of residential and 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, il