Kerala High Court
Shamim S.M vs The Union Of India on 18 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942
WP(C).No.3315 OF 2021(L)
PETITIONER:
SHAMIM S.M.
AGED 66 YEARS
S/O. ABUBACKER.A.P., RESIDING AT 'FIRDOUS MANZIL',
EDAKKAD P.O., KANNUR TALUK, KANNUR DISTRICT
BY ADVS.
SRI.JOBY JACOB PULICKEKUDY
SRI.ANIL GEORGE
RESPONDENTS:
1 THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF LAW & JUSTICE,
SASTHRI BHAVAN, NEW DELHI-110 115
2 THE SPECIAL TAHSILDAR LA (NH),
NO.11, (COMPETENT AUTHORITY), KANNUR-670 101
3 THE DISTRICT COLLECTOR, KANNUR DISTRICT,
(ARBITRATOR), UNDER THE NATIONAL HIGHWAYS ACT,
KANNUR-670 002
ADDL. THE PROJECT DIRECTOR,
R4 PROJECT IMPLEMENTATION UNIT,
NATIONAL HIGHWAY AUTHORITY OF INDIA,
CIVIL STATION, KOZHIKODE-673020.
(IS SUO-MOTU IMPLEADED AS ADDITIONAL 4TH RESPONDENT.
R1 BY SMT.MINI GOPINATH, CGC
R2 & R3 BY SMT AMMINIKUTTY K, SR GOVERNMENT PLEADER
R4 BY SRI MATHEWS K PHILIP - SC ,NHAI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.3315 OF 2021(L)
2
JUDGMENT
The petitioner, who is a co-owner of 0.0108 and 0.0040
hectares of garden land with a residential building in Re-
Sy.No.67/8A and 67/18, a portion of which has been acquired for
the construction of Pappinissery-Muzhappillangadi N.H.Bye-pass,
has filed this writ petition under Article 226 of the Constitution of
India, seeking a writ of mandamus commanding the 3 rd respondent
District Collector to consider and pass orders on Ext.P3 application
and thereafter, pass the award on Ext.P2 Arbitration Proceedings in
accordance with law, as expeditiously as possible. The petitioner
has also sought for a writ of mandamus commanding the 2 nd
respondent to disburse the awarded amount to the petitioner
without prejudice to his right to get compensation for the remaining
part of the building and claim raised in the Reference Application.
The document marked as Ext.P1 is the award passed by the 2 nd
respondent Special Tahsildar (LA) dated 04.07.2018, under the
provisions of the National Highways Act, 1956. As per that that
award, a portion of the residential building in property in question
has been acquired. Dissatisfied with the compensation awarded in
Ext.P1, the petitioner preferred Ext.P1 application under Section
WP(C).No.3315 OF 2021(L)
3G(5) of the National Highways Act, 1956, before the 3 rd
respondent Arbitrator, which has already been numbered as
A.P.No.743 of 2020. In that application, the petitioner has filed
Ext.P3 interlocutory application, i.e., I.A.No.7 of 2020, seeking an
order to appoint an Advocate Commissioner to submit the
structural valuation of the residential house with the assistance of
an expert. The document marked as Ext.P4 is another interlocutory
application, i.e., I.A.No.6 of 2020, seeking emergent consideration
of I.A.No.7 of 2020.
2. Heard the learned counsel for the petitioner, the learned
Central Government Counsel for the 1st respondent, the learned
Government Pleader for respondents 2 and 3, and also the learned
Standing Counsel for National Highway Authority of India (NHAI)
for the additional 4th respondent.
3. In this writ petition, the petitioner is seeking an early
disposal of Ext.P3 interlocutory application filed in A.P.No.743 of
2020 pending before the 3rd respondent, which is one for appointing
an Advocate Commissioner to submit the structural valuation of the
residential house with the assistance of an expert.
4. The learned Senior Government Pleader, on instructions,
WP(C).No.3315 OF 2021(L)
would submit that the 3rd respondent Arbitrator will consider and
pass appropriate orders on Ex.P3 interlocutory application filed by
the petitioner, within a time limit to be fixed by this Court.
5. The learned counsel for the petitioner would submit that
consideration of Ex.P3 interlocutory application may be with notice
to the petitioner and after affording him a reasonable opportunity
of being heard.
6. Having considered the submissions made by the learned
counsel on both sides, this writ petition is disposed of directing the
3rd respondent to consider and pass appropriate orders on Ex.P3
interlocutory application, with notice to the petitioner and and also
the additional 4th respondent Project Director of NHAI, and after
affording them an opportunity of being heard, within a period of
one month from the date of receipt of a certified copy of this
judgment.
7. In State of U.P. v. Harish Chandra [(1996) 9 SCC
309] the Apex Court held that no mandamus can be issued to
direct the Government to refrain from enforcing the provisions of
law or to do something which is contrary to law. In Bhaskara Rao
A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated that,
WP(C).No.3315 OF 2021(L)
generally, no Court has competence to issue a direction contrary to
law nor can the Court direct an authority to act in contravention of
the statutory provisions. The courts are meant to enforce the rule
of law and not to pass the orders or directions which are contrary
to what has been injected by law.
8. Therefore, in terms of the direction contained in this
judgment, the 3rd respondent shall take an appropriate decision in
the matter, strictly in accordance with law, taking note of the
relevant statutory provisions and also the law on the point.
No order as to costs.
Sd/-
ANIL K.NARENDRAN
JV JUDGE
WP(C).No.3315 OF 2021(L)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF PROCEEDINGS OF THE 2ND
RESPONDENT
EXHIBIT P2 TRUE PHOTOCOPY OF APPLICATION FILED UNDER
SECTION 3G (5) OF THE NATIONAL HIGHWAYS
ACT 1956 AS AP NO.743/2020
EXHIBIT P3 TRUE PHOTOCOPY OF IA NO.7/2020 FILED BY
THE PETITIONER FOR APPOINTING A
COMMISSIONER TO SUBMIT THE STRUCTURAL
VALUATION OF THE RESIDENTIAL HOUSE WITH
THE ASSISTANCE OF AN EXPERT
EXHIBIT P4 TRUE PHOTOCOPY OF IA NO.6/2020 FILED BY
THE PETITIONER
