Yasar vs District Collector
2021 Latest Caselaw 16431 Ker

WP(C) NO. 15732 OF 2021         1


            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
 THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943
                    WP(C) NO. 15732 OF 2021
PETITIONER/S:

    1      YASAR,
           AGED 38 YEARS,
           S/O. ENIKUTTY, PILATHOTTATHIL HOUSE, P.O.,
           VALAVANNOOR, MALAPPURAM DISTRICT-676 551.
           (PETITIONER IS REPRESENTED BY POWER OF ATTORNEY
           HOLDER VIDE P.O.A, DATED 23.3.2019) MUHAMMED
           SHAFI, AGED 39 YEARS, S/O. THULANADAN KOYA HAJI,
           KALPAKANCHERY AMSOM, PARAVANNOOR DESOM, P.O
           KALPAKANCHERY TIRUR, MALAPPURAM DISTRICT-676 551)

    2      RAMLA,
           AGED 48 YEARS,
           W/O. KADAYIL ALI, VALAVANNOR, P.O., VALAVANNOR,
           MALAPPURAM-676 551. (PETITIONER IS REPRESENTED BY
           POWER OF ATTORNEY HOLDER VIDE P.O.A, DATED
           23.3.2019) MUHAMMED SHAFI, AGED 39 YEARS, S/O.
           THULANADAN KOYA HAJI, KALPAKANCHERY AMSOM,
           PARAVANNOOR DESOM, P.O KALPAKANCHERY TIRUR,
           MALAPPURAM DISTRICT-676 551)

    3      HUSSAIN,
           AGED 62 YEARS,
           S/O. POOKKAYIL MOIDEENKUTTY, CHERIYAMUNDAM AMSOM
           AND DESOM, TIRUR TALUK (PETITIONER IS REPRESENTED
           BY POWER OF ATTORNEY HOLDER VIDE P.O.A, DATED
           23.3.2019) MUHAMMED SHAFI, AGED 39 YEARS, S/O.
           THULANADAN KOYA HAJI, KALPAKANCHERY AMSOM,
           PARAVANNOOR DESOM, P.O KALPAKANCHERY TIRUR,
           MALAPPURAM DISTRICT-676 551)

           BY ADVS.
           K.SUJAI SATHIAN
           MARY LIYA SABU
 WP(C) NO. 15732 OF 2021          2


RESPONDENT/S:

    1       DISTRICT COLLECTOR,
            MALAPPURAM/ARBITRATOR UNDER THE NATIONAL HIGHWAY
            ACT, COLLECTORATE, CIVIL STATION, MALAPPURAM-676
            505.

    2       COMPETENT AUTHORITY & DEPUTY COLLECTOR
            LAND ACQUISITION (N.H), MALAPPURAM COLLECTORATE,
            CIVIL STATION, MALAPPURAM-676 505.

    3       NATIONAL HIGHWAY AUTHORITY OF INDIA
            REPRESENTED BY ITS PROJECT DIRECTOR, VII/511-B,
            NEYTHELI-MAVELIPURAM ROAD, KAKKANAD, ERNAKULAM-
            682 030.

    4       UNION OF INDIA,
            MINISTRY OF ROAD TRANSPORT AND HIGHWAYS,
            REPRESENTED BY SECRETARY, MINISTRY OF ROAD
            TRANSPORT & HIGHWAYS, TRANSPORT BHAVAN, 1,
            PARLIAMENT STREET, NEW DELHI-110 001.

            BY ADVS.
            K.P.SATHEESAN (SR.)
            SMT.MINI GOPINATH, CGC
            P.MOHANDAS (ERNAKULAM)
            K.SUDHINKUMAR
            SABU PULLAN
            GOKUL D. SUDHAKARAN

            SRI MATHEWS K PHILIP, SC

            SRI SAYED M THANGAL, GP




     THIS     WRIT   PETITION   (CIVIL)   HAVING    COME    UP    FOR
ADMISSION    ON   05.08.2021,   THE    COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 15732 OF 2021               3




                            JUDGMENT

The petitioners state that they are the absolute owners in title and

possession of property having an extent of about 4.05 Ares in

Re.Sy.No.5/1E(5/7), 15/3 (15/6) and 15/3(15/6) of Athavanad Amsom

and Desom of Tirur Taluk, which was acquired by virtue of Kanam

assignment deed No.625/2017, SRO Kuttippuram. They contend that out

of the total extent of 4.05 Ares, an extent of 3.15 Ares together with a

building situated therein was acquired invoking the provisions of the

National Highways Act, 1956 for the purpose of constructing the National

Highway No.66. Ext.P1 award was passed and the property was taken

possession of under Section 3E of the Act. Being aggrieved by the

quantum of compensation awarded, the petitioners filed Ext.P3

application for enhancement of compensation before the Arbitrator, the

1st respondent herein. They state that for a fair determination of the

value of the building, the petitioners submitted Ext.P4 application before

the Arbitrator seeking to appoint a competent expert to inspect the

building and to value the same. The grievance of the petitioners is that

the 1st respondent is refusing to take up Ext.P4 application and pass

orders thereon. It is in the afore circumstances that the petitioners have

approached this Court seeking the following reliefs:

" a) Issue a writ of mandamus, or any other appropriate writ, order or direction directing the 1st respondent to appoint an expert for properly assessing the value of the building situated in 4.05 Ares of property in Re.Survey No.5/1E(5/7), 15/3 (15/6) and 15/3(15/6) of Athavanad Amsom and Desom of Tirur Taluk in the interest of justice.

b) Issue a writ of mandamus, or any other appropriate writ, order or direction directing the 1st respondent to consider Exhibit-P4 prior to demolition of the acquired building as per Exhibit-P1 award and to pass orders thereon expeditiously.

c) Issue a writ of mandamus, or any other appropriate writ, order or direction directing the 1st respondent to consider Exhibit-P3 and pass orders thereon immediately within the time frame fixed by this Hon'ble Court."

2. Sri.Sujai Sathian K., the learned counsel appearing for the

petitioners, submitted that though possession of the property was taken,

the portion of the building has not been demolished to date.

3. The learned Government Pleader on instructions submitted

that if the property has not been demolished, there cannot be any

impediment in considering the said application on its merits.

4. Sri.Mathews K. Philip, the learned Standing Counsel

appearing for the National Highway submitted that in Exts.P3 and P4, the

requisitioning authority has not been made a party. He submitted that

the requisitioning authority may also be heard at the time of consideration

of the application.

5. I have considered the submissions advanced. I find that the

petitioners herein have preferred Ext.P3 application before the Arbitrator

seeking enhancement. He has also filed Ext.P4 application for appointing

a competent expert to assess the value of the building. The learned

counsel submits that the building is still intact and has not been

demolished. In that view of the matter, necessary directions can be

issued to consider Ext.P4 application and take a decision on its merits in

an expeditious manner.

6. Resultantly, this Writ Petition will stand disposed of with a

direction to the 1st respondent to take up Ext.P4 application and take a

decision, with notice to the petitioners, the requisitioning authority as well

as the affected parties if any, expeditiously, in any event within a period

of three weeks from the date of production of a copy of this judgment.

The directions issued as above shall be operative only if the building

which is the subject matter of Ext.P4 application has not been demolished

as on the date of pronouncement of this judgment.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE PS/7/8/2021

APPENDIX OF WP(C) 15732/2021

PETITIONER(S) EXHIBITS

Exhibit P1 A TRUE COY OF THE AWARD NO.D.1124/2021/TIR/560 DATED 31.3.2021 ISSUED BY THE 2ND RESPONDENT.

Exhibit P2         A TRUE COPY OF THE MAHAZAR DATED
                   9.4.2021.

Exhibit P3         A TRUE COPY OF THE APPLICATION
                   SUBMITTED BY THE PETITIONER FOR HIMSELF
                   AND ON BEHALF OF OTHER CO-OWNERS BEFORE
                   THE IST RESPONDENT DATED 2.5.2021.

Exhibit P4         A TRUE COPY OF THE APPLICATION
                   SUBMITTED BY THE PETITIONER FOR HIMSELF
                   AND ON BEHALF OF OTHER CO-OWNERS BEFORE
                   TEH IST RESPONDENT DATED 29.7.2021.

Exhibit P5         A TRUE COPY OF JUDGMENT DATED 7.7.2021
                   IN WPC NO.13452 OF 2021.

RESPONDENT(S) EXHIBITS :   NIL