Kerala High Court
Sri.Bijoy vs Union Of India on 22 July, 2021
WP(C) NO. 1853 OF 2019 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
WP(C) NO. 1853 OF 2019
PETITIONER/S:
1 SRI.BIJOY,
AGED 41 YEARS
S/O.SURENDRAN, 1A, CENTER HOMES, NANGIYARKULANGARA
P.O., ALAPPUZHA DISTRICT- 690513.
2 SRI.SREEKUMAR,
5B, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
3 SMT.SINDHU,
2A, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
4 SRI.S.RAMKUMAR,
9A, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
5 SRI.SAJITH GOPALAKRISHNAN,
4A, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
6 SRI.SURAJ RAJAN,
6A, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
7 SRI.JITHIN RAJAN,
6B, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
8 SMT.APARNA,
3A, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
9 BRIJESH SURENDRAN,
3B, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
10 SRI.BIJUMON.B.,
5A, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
WP(C) NO. 1853 OF 2019 2
DISTRICT- 690513.
11 SIVASWAMI PILLAI,
2B, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
12 SULUKUMAR V.S.,
8B, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
13 BINCY VIJI,
7B, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
14 VIJI THANJACHAN,
7A, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
15 NEELIMA S.K.,
8A, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
16 K.V.RAJAN
4B, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
17 SRI.AJITHKUMAR C.V.,
9B, CENTER HOMES, NANGIYARKULANGARA P.O., ALAPPUZHA
DISTRICT- 690513.
BY ADVS.
P.A.MOHAMMED SHAH
V.A.HARITHA
SIDHARTH B PRASAD
R.NANDAGOPAL
RESPONDENT/S:
1 UNION OF INDIA,
REPRESENTED BY SECRETARY MINISTRY OF ROAD TRANSPORT AND
HIGHWAYS, NEW DELHI- 110 001.
2 NATIONAL HIGHWAY AUTHORITY OF INDIA,
G-586, SECTOR-10, DWARAKA, NEW DELHI-110075,
REPRESENTED BY ITS CHAIRMAN.
3 PROJECT DIRECTOR,
NATIONAL HIGHWAY AUTHORITY OF INDIA, TC-29/1539/1,
RAJASREE KAIRALI, PERUMTHANNI, VALLAKKADAVU P.O.,
WP(C) NO. 1853 OF 2019 3
THIRUVANANTHAPURAM- 695008.
4 STATE OF KERALA,
REPRESENTED BY SECRETARY, PUBLIC WORKS DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM- 695001.
5 SPECIAL DEPUTY COLLECTOR AND COMPETENT AUTHORITY,
LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA,
COLLECTORATE, ALAPPUZHA- 688001.
BY ADVS.
SMT.I. SHEELA DEVI, CGC
SRI.K.A.SALIL NARAYANAN
SHRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL
BY GOVERNMENT PLEADER, SRI.Y.JAFAR KHAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 1853 OF 2019 4
P.V.KUNHIKRISHNAN, J
--------------------------------------------
W.P.(C.) No.1853 of 2019
--------------------------------------
Dated this the 22nd day of July, 2021
JUDGMENT
The above writ petition is filed with the following
prayers :
i) "To issue a wit of certiorari quashing Ext.P5
ii) To declare that the respondents are not having
authority to initiate any action against the petitioners
building situated in resurvey No.178/14/2, 178/8/2,
178/10/2, 178/19/2, 178/14/3/2 and 178/13/4 of Chingoly
Village, Karthikappally Taluk under Section 3A to 3G of
the National Highway Act, 1956.
iii) To declare that the acquisition steps initiated
without carrying out the realignment of the property as
proposed by the consultant named SMEC as per letter
No. NHAI/HQ/Kerala/NH-17&47/2015-16/42 dated
27.06.2016 is illegal.
iv) To issue a writ of mandamus directing the
respondents 2 to 5 not to issue notification under Sec.3D
of the National Highway Act 1956 with respect to the
property and building situated in resurvey No.178/14/2,
178/8/2, 178/10/2, 178/19/2, 178/14/3/2 and 178/13/4 of
Chingoly Village, Karthikappally Taluk
v) Pass such any other order, direction or reliefs as
this Hon'ble Court may deem fit in the interest of justice,
equity and good conscience"
2. Ext.P9 is the photograph of the flat, which is the
subject matter of acquisition in this case. According to the
petitioners, there are 18 separate residential apartments in
this structure. Admittedly, only a portion of the building will
be taken possession as per notifications under Secs. 3A and
3D of the National Highway Act, 1956. According to the
petitioners, the competent authority or arbitrator has to
decide whether the acquisition injuriously affect the other
part of the property, in accordance to Secs.3G(7)(c) and
3G(7)(d) of National Highways Act, 1956. The apprehension
of the petitioners is that they will be dispossessed even
without getting any compensation, because, the competent
authority or the arbitrator has to decide whether the
remaining property is injuriously affected by the acquisition
for getting compensation to that part. In such
circumstances, this Court directed the Government Pleader
to get instructions. The 5th respondent filed a statement. The
relevant portion of the statement is extracted hereunder :
"5. It is submitted that in the sub divisions 178/14-2 and
178/8-2 mentioned above, an apartment is constructed named
as 'Centre Homes'. For the purpose of optimum use of the
said property the vendor had obtained building permit in
respect of the apartment complex. Consequently, the vendor
has conveyed the right of undivided share equal to 0.0056
Hectares of the land to each purchaser. The name of
apartment purchasers are given below.
Sl.No. Name Apartment
No.
1 Bijoy Surendran 1A
2 Bijoy Surendran 1B
3 Sindhu Jayakumar 2A
4 Sivaswami Pillai & Sharma S Pillai 2B
5 Renjith V and Aparna 3A
6 Brijesh Surendran 3B
7 Sajith Gopalakrishnan 4A
8 K.V.Rajan and P Sherly 4B
9 Bijumon B 5A
10 Sreekumar and Parvathy 5B
11 Sooraj Rajan and Preetha Sooraj 6A
12 Jithin Rajan 6B
13 Nellimoottil Viji Thankachan 7A
14 Bincy Viji Nellimoottil 7B
15 Anu Prabhakaran and Neelima 8A
16 Sulukumar V.S. 8B
17 Ramkumar and Anila Ramkumar 9A
18 C.V.Ajithkumar 9B
6. It is submitted that under Sec.3(G)3, the competent
authority shall give a public notice published in two local
newspapers one of which will be in a vernacular language
inviting claims from all persons interested in the land to be
acquired. Hence it is seen that issuance of individual notice
is not seen necessary as per Section 3G(3) of NH Act.
7. It is noted that out of 18 apartments, 9 apartments are
within the alignment. All the 18 apartment purchasers has
undivided share of the land equal to 0.0056 Hectares. If the
petitioner have any right over the property it will be filed
before the Special Deputy Collctor and competent authority
LA(NH), Alappuzha will consider the claim at the time of
awarding compensation.
Hence, in view of the facts and circumstances stated above,
the Writ petition is devoid of any merits and is liable to be
dismissed."
3. In the statement, it is clearly stated that out of 18
apartments, 9 apartments are within the alignment. It is also
stated that all the 18 apartment owners have undivided
share of the land equal to 0.0056 hectares. It is also clearly
stated in the statement that if the petitioners have any right
over the property, they can approach the Special Deputy
Collector, who is the competent authority LA(NH),
Alappuzha. In the light of such statement, the petitioners are
at liberty to approach the Special Deputy Collector and
competent authority, LA(NH) Alappuzha with their
grievance. The petitioners can narrate the details including
their grievance about the injuriously affecting the other
portion of the building. According to the petitioners, while
taking possession under Sec.3E of National Highway Act,
1956 the competent authority cannot take possession of the
portion of the apartment building. The petitioners are free to
raise that contention also before the authority. If such a
representation is received by the competent authority, there
can be a direction to dispose the same, before passing the
award by the competent authority.
Therefore, this writ petition is disposed in the following
manner :
1) The petitioners are at liberty to file a detailed
representation narrating their grievance mentioned in the
writ petition, before the Special Deputy Collector and
competent authority, LA(NH) Alappuzha within three
weeks from the date of receipt of a copy of this judgment.
2) If such a representation is received, the competent
authority will consider the same and pass appropriate
orders, before passing the award in this case. If the
competent authority found that the petitioners are entitled
compensation for the other portion of the apartment which
is not in the alignment, that will also included in the
award.
3) The petitioners are free to file a copy of the writ
petition and counter affidavit, along with this judgment
before the competent authority.
SD/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
APPENDIX OF WP(C) 1853/2019
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE SALE DEED EXECUTED IN
FAVOUR OF THE 1ST PETITIONER WITH RESPECT TO
FLAT NO.IA DATED 24.03.2018.
EXHIBIT P2 THE TRUE COPY OF THE TAX RECEIPTS ISSUED IN
FAVOUR OF THE 4TH PETITIONER AND HIS WIFE
DATED 25.02.2017.
EXHIBIT P3 THE TRUE COPY OF THE BUILDING PERMIT DATED
10.12.2014.
EXHIBIT P4 THE TRUE COPY OF THE OCCUPANCY CERTIFICATE
DATED 31.05.2017.
EXHIBIT P5 THE TRUE COPY OF THE NOTIFICATION PUBLISHED
ON 10.03.2018.
EXHIBIT P6 THE TRUE COPY OF THE REPLY SUBMITTED BY THE
PETITIONERS DATED 31.03.2018 BEFORE THE 5TH
RESPONDENT.
EXHIBIT P7 THE TRUE COPY OF THE COMPLAINT FILED BEFORE
THE 5TH RESPONDENT DATED 07.12.2018.
EXHIBIT P8 THE PHOTOGRAPH OF THE BUILDING DATED NIL.
EXHIBIT P9 THE TRUE PHOTOGRAPHS SHOWING THE BUILDING
DATED NIL
EXHIBIT P10 TRUE COPY OF THE BUILDING PERMIT ISSUED BY
THE SECRETARY CHINGOLI GRAMA PANCHAYAT DATED
26.3.2014
EXHIBIT P11 TRUE COPY OF THE OCCUPANCY CERTIFICATE
ISSUED BY THE SECRETARY CHINGOLI GRAMA
PANCHAYAT DATED 31.5.2017
EXHIBIT P12 TRUE COPY OF THE COMPLETION PLAN DATED
22.9.2016
RESPONDENT'S EXHIBITS :
EXHIBIT R3A TRUE COPY OF THE SKETCH SHOWING THE LAND
ACQUISITION PLAN FROM CH 445/000 TO CH 449/000
EXHIBIT R3B TRUE COPY OF THE LETTER ISSUED BY THE THIRD
RESPONDENT
EXHIBIT R3C TRUE COPY OF THE LETTER ISSUED BY THE THIRD
RESPONDENT ON 28TH NOVEMBER, 2018
EXTHIBIT R3D TRUE COPY OF THE RELEVAN PORTION OF THE
NOTIFICATION SHOWING THAT ENVIRONMENTAL CLEARANCE IS NOT REQUIRED
FOR THE PRESENT WORK.
EXTHIBIT R3E TRUE COPY OF THE DECISION TAKEN BY THE THIRD
RESPONDENT PURSUANT TO THE DIRECTIONS ISSUED BY THIS HONOURABLE
COURT ON 9TH OF JULY 2019
//TRUE COPY//
PA TO JUDGE
SKS
