R. Raju vs National Highway Authority Of ...
2021 Latest Caselaw 21995 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
                       WP(C) NO. 22852 OF 2021
PETITIONER:

          R. RAJU, AGED 53 YEARS, S/O.V.K.RAJAN, THUYYATH HOUSE,
          NEAR EDAKKADU POLICE STATION, MUZHAPPILANGADU VILLAGE,
          KANNUR DISTRICT,PIN-670662.

          SRI.K.SIJU
          SRI.S.ABHILASH
          SMT.ANJANA KANNATH



RESPONDENTS:

    1     NATIONAL HIGHWAY AUTHORITY OF INDIA
          G5 AND 6, SECTOR-10, DWARAKA,
          NEW DELHI, PIN:110075, REPRESENTED BY ITS CHAIRMAN.

    2     THE DEPUTY GENERAL MANAGER (T) & PROJECT DIRECTOR,
          NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT
          IMPLEMENTATION UNIT, 34/1487A, 'LOTUS', PROVIDENCE
          WOMEN'S COLLEGE ROAD, KOZHIKODE,PIN-673009.

    3     THE DISTRICT COLLECTOR,
          CIVIL STATION,COLLECTORATE ROAD, KANNUR, PIN-670002.

    4     THE SPECIAL TAHSILDAR,
          LAND ACQUISITION OFFICER, LA(NH) UNIT-II, COLLECTORATE,
          KANNUR, PIN-670002.

          SMT. SURYA BINOY - SR. G.P
          SRI.E.C.KURIAKOSE, SC.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 22852 OF 2021
                               2


                            JUDGMENT

The petitioner says that a portion of his property has

been acquired for the purposes of a highway, by the

National Highway Authority of India (NHAI); and asserts

that the building standing thereon need not be demolished

fully, because the public purpose can be subserved by

removing only a portion of it. The petitioner says that,

however, in spite of this, the respondents are now trying to

demolish the entire building and therefore, prays that they

be directed not to do so.

2. However, the learned Senior Government Pleader,

Smt.Surya Binoy, appearing for the Competent Authority for

Land Acquisition (CALA), submitted that the attempt of the

petitioner is extremely mala fide because he himself had

approached the NHAI and the CALA seeking that the entire

building be demolished, saying that a partial demolition of it

would render it valueless in future. She added that it is,

therefore, that the CALA has awarded a large amount of

Rs.65,57,440/- as the value of the full building, along with

the other entitlements of the petitioner; and thus asserted

that the present attempt of the petitioner is wholly WP(C) NO. 22852 OF 2021

confutative. She, therefore, prayed that this writ petition

be dismissed.

3. Sri.E.C.Kuriakose, learned standing counsel for the

NHAI, also affirmed the afore submissions of Smt.Surya

Binoy, adding that it is solely because the petitioner said

that the partial demolition of the building would render it

valueless, that he has been awarded its full value in Ext.P1

Award. He then added that, in any event of the matter, a

building cannot be allowed to stand so close to the National

Highway, on account of safety and regulatory restrictions;

and thus prayed that this writ petition be dismissed.

4. When I evaluate the afore rival contentions, it is

without doubt that, on one hand, the respondents maintain

that it is on the request of the petitioner that the entire

building was valued and also because it was found that it

cannot be allowed to remain on account of the close

proximity of the Highway; while on the other, the petitioner

maintains that he did not seek so, but only conceded to the

demolition of the requisite portion of the building in

question.

5. The disputation afore is certainly in the realm of

facts, which this Court cannot adjudicate or evaluate, while WP(C) NO. 22852 OF 2021

acting under Article 226 of the Constitution of India.

6. That apart, if there is no statutory or regulatory

restrictions in maintaining the remaining portion of the

building in the area in question, I fail to understand why the

respondents should insist on the same be demolished; but,

of course, if there are any such restrictions, then certainly

they will be entitled to remove it for the benefit of the public

at large and for the safety of the users of the Highway.

7. I am, therefore, of the firm view that this issue must

be considered by the jurisdictional Project Officer of the

NHAI, after hearing the petitioner, so that if there are no

regulatory or safety requirements for demolishing the

building, it can be allowed to stand; but if, on the other

hand, it is found to be contrary to it, then certainly steps for

demolition of the same must be taken forward.

8. For the afore purpose, I direct the petitioner to mark

appearance before the Project Officer, Calicut of the first

respondent - NHAI, at 11 a.m. on 15.11.2021; on which day,

the said Authority will either hear him or fix another date

for hearing and then decide whether there are any statutory

or safety or regulatory restrictions in maintaining the

building in question, leading to the issue of an appropriate WP(C) NO. 22852 OF 2021

order and to communicate the same to the petitioner. If the

Project Officer is to find that the building can be allowed to

continue, then steps for demolition shall be deferred; but if,

on the contrary, it is found that the building cannot be

allowed to stand for the afore reasons, then steps be taken

for demolition of the same, after following due procedure.

9. At this time, Smt.Surya Binoy, learned Senior

Government Pleader, intervened to say that if the Project

Officer is to find that the remaining portion of the building

can be allowed to continue, then the petitioner must be

directed to refund the value of the entire building as made

in Ext.P1 Award. Though I do not propose to speak on this

affirmatively - it being not within the jurisdiction of this

Court in this writ petition - I leave liberty to the competent

Authority to take necessary action in terms law, in such

eventuality.

This writ petition is thus ordered.

Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 22852 OF 2021

APPENDIX OF WP(C) 22852/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF PROCEEDINGS PASSED BY THE 4TH RESPONDENT DATED 01.03.2021 IN LAC NO.5050/A.

Exhibit P2 TRUE COPY OF THE LETTER DATED 24.8.2015 ISSUED BY THE DEPUTY GENERAL MANAGER (LA & COORD) OF NHAI.

Exhibit P3 TRUE COPY OF PHOTOGRAPHS SHOWING THE REMAINING PORTION OF THE RESIDENTIAL PROPERTY OF THE PETITIONER AFTER CUTTING AND REMOVING THE ACQUIRED PORTION

Exhibit P4 THE COPY OF LETTER DATED 26.07.2021 ISSUED BY THE 2ND RESPONDENT.