Rajan Mathew vs Union Of India
2021 Latest Caselaw 22856 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
                       WP(C) NO. 25097 OF 2021
PETITIONERS:

    1     RAJAN MATHEW,
          AGED 74 YEARS
          S/O. MATHAI VARGHESE, 'USHUS', PATHIRAPPALLY P.O.,
          ALAPPUZHA DISTRICT-688521.

    2     ANNAKUTTY,
          AGED 68 YEARS
          W/O. RAJAN MATHEW, 'USHUS', PATHIRAPPALLY P.O.,
          ALAPPUZHA DISTRICT-688521.

          BY ADVS.
          P.A.MOHAMMED SHAH
          ABDUL RASAK A.
          ASWIN KUMAR M J
          HELEN P.A.
          ARUN ROY
          SHAHIR SHOWKATH ALI



RESPONDENTS:

    1     UNION OF INDIA,
          REPRESENTED BY SECRETARY, MINISTRY OF ROAD TRANSPORT
          AND HIGHWAYS, NEW DELHI-110001.

    2     STATE OF KERALA
          REPRESENTED BY SECRETARY, PUBLIC WORKS DEPARTMENT,
          SECRETARIAT, THIRUVANANTHAPURAM-695001.

    3     THE PRINCIPAL SECRETARY,
          REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-
          695001.

    4     NATIONAL HIGHWAY AUTHORITY OF INDIA,
          G-586, SECTOR-10, DWARAKA, NEW DELHI-110075,
          REPRESENTED BY ITS CHAIRMAN.

    5     THE PROJECT DIRECTOR,
          NATIONAL HIGHWAY AUTHORITY OF INDIA, TC 29/1539/1,
          REJASREE KAIRALI, PERUMTHANNI, VALLAKKADAVU P.O.,
 [WP(C) Nos.25097 OF 2021 & 26209 OF 2021]
                                   2

          THIRUVANANTHAPURAM-695008.

    6     SPECIAL DEPUTY COLLECTOR AND COMPETENT AUTHORITY,
          LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA,
          ALAPPUAZHA-688001.

          BY ADV SHRI.S.MANU, CGC, DIRECTORATE OF REVENUE
          INTELLIGENCE KERALA REGIONAL UNIT


          SR GP SMT AMMINIKKUTTY




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.11.2021, ALONG WITH WP(C).26209/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 [WP(C) Nos.25097 OF 2021 & 26209 OF 2021]
                                   3



               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
                       WP(C) NO. 26209 OF 2021
PETITIONER:

          M.ABOOBACKER,
          AGED 68 YEARS
          S/O. MUHAMMED KUNJU, VELLALIL, KEERIKKAD P.O.,
          KAYAMKULAM, ALAPPUZHA DISTRICT 690 502.

          BY ADVS.
          P.A.MOHAMMED SHAH
          MUNAS K.P
          ABDUL RASAK A.
          HELEN P.A.
          MUHAMMED JANAISE V.
          C.R.SYAMKUMAR
          ASWIN KUMAR M J
          ARUN ROY



RESPONDENTS:

    1     UNION OF INDIA,
          REPRESENTED BY SECRETARY, MINISTRY OF ROAD TRANSPORT
          AND HIGHWAYS, TRANSPORT BHAVAN I, PARLIAMENT SREET, NEW
          DELHI 110 001.

    2     PRINCIPAL SECRETARY,
          REVENUE DEPARTMENT , SECRETARIAT, THIRUVANANTHAPURAM
          695 001.

    3     NATIONAL HIGHWAY AUTHORITY OF INDIA,
          G-586, SECTOR -10, DWARAKA, NEW DELHI 110075,
          REPRESENTED BY ITS CHAIRMAN,

    4     THE PROJECT DIRECTOR,
          NATIONAL HIGHWAY AUTHORITY OF INDIA, TC-29/1539/1,
          RAJASREE KAIRALI, PERUMTHANNI, VALLAKKADAVU P.O.,
          THIRUVANANTHAPURAM 695 008.
 [WP(C) Nos.25097 OF 2021 & 26209 OF 2021]
                                4

    5     SPECIAL DEPUTY COLLECTOR AND COMPETENT AUTHORITY,
          LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA
          ALAPPUZHA 688 001.



          SRI. S.MANU.S.C




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.11.2021, ALONG WITH WP(C).25097/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 [WP(C) Nos.25097 OF 2021 & 26209 OF 2021]
                                    5

                             JUDGMENT

The petitioners in these two cases - which

have been heard together on account of the

analogues factual circumstances presented and

the similar nature of the reliefs sought - are

stated to be the owners of properties which

have been acquired for the purpose of the

National Highway Authority of India (NHAI for

short).

2. The specific allegation of the

petitioners is that, on account of the

acquisition, the buildings standing on their

properties have been partially demolished; and

consequently, that they are eligible to have

the balance property and building properly

evaluated by the Competent Authority for Land

Acquisition (CALA), appointed under the

provisions of the National Highways Act ("NH [WP(C) Nos.25097 OF 2021 & 26209 OF 2021]

Act" for short), as per the terms of Section

3G(7) of the "NH Act". They say that, however,

the CALA appears to be not adverting to Section

3G(7), while issuing the Awards in their favour

and therefore, pray that the said Authority be

directed to do so without fail.

3. I have heard Sri.P.A.Mohammed Shah -

learned counsel appearing for the petitioners;

Sri.Mathews K.Philip - learned Standing Counsel

appearing for the NHAI and Smt.K.Amminikutty -

learned Senior Government Pleader appearing for

the other official respondents.

4. Sri.P.A.Mohammed Shah valiantly tried to

argue that, as per Section 3G(7) of the "NH

Act", the damage mentioned in Sub Clauses (b)

and (c) thereof will have to be interpreted to

mean the value of the building or the land, as

the case may be, since, by the partial

acquisition or partial demolition of the land

and building respectively, the balance would [WP(C) Nos.25097 OF 2021 & 26209 OF 2021]

become completely useless in future. He

submitted that, therefore, while the Awards are

finalised, the CALA be directed by this Court

to keep this in mind and issue necessary

compensation with respect to the balance

property and building, as is mandated under

Section 3G(7) of the "NH Act".

5. In response, Sri.Mathews K.Philip -

learned Standing Counsel for the NHAI,

submitted that petitioners have approached this

Court with a speculative cause of action

because the CALA has not yet issued Awards with

respect to the acquired lands and buildings. He

submitted that, while the CALA takes further

action with respect to the same, they are

certainly obligated to act under the mandate of

Section 3G of the "NH Act" and that petitioners

need not have any apprehension that it will not

be so.

6. Smt.K.Amminikutty - learned Senior [WP(C) Nos.25097 OF 2021 & 26209 OF 2021]

Government Pleader, adopted most of the afore

submissions of Sri.Mathews K.Philip, saying

that when the CALA completes the proceedings to

settle the Awards in favour of the petitioners,

the provisions of Section 3G(7) of the "NH Act"

will certainly be kept in mind.

7. When I evaluate the afore submissions,

there can be no doubt that petitioners have

approached this Court under an apprehension

that, while the Awards in their favour are to

be issued by the CALA, he will not grant them

necessary compensation or damage, as is

mandated under Section 3G(7) of the "NH Act".

8. Apart from the fact that there is

nothing on record to substantiate the afore

apprehension, I am certain that since it is a

statutory mandate to the CALA to award damages

as per Section 3G(7) of the Act, they will

certainly to do so.

In the afore circumstances, without [WP(C) Nos.25097 OF 2021 & 26209 OF 2021]

entering into the merits of the rival

contentions of the parties, I close these writ

petitions; however, with a direction to the

CALA to specifically advert to and comply with

the provisions of Section 3G(7) of the "NH

Act", while the Awards in favour of the

petitioners are settled.

Ofcourse, while the afore exercise is

completed, the CALA will certainly give

necessary opportunities of being heard to the

petitioners; in which event, they will be at

full liberty to impel the contentions they have

raised in these writ petition before the said

Authority.

Sd/-

DEVAN RAMACHANDRAN JUDGE SAS/23/11/2021 [WP(C) Nos.25097 OF 2021 & 26209 OF 2021]

APPENDIX OF WP(C) 26209/2021

PETITIONER'S EXHIBITS

Exhibit P1 THE TRUE COPY OF THE TAX RECEIPT IN SURVEY NO. 38/8-2, AND 38/3 OWNED BY THE PETITIONER DATED 02.09.2021.

Exhibit P2 THE TRUE COPY OF THE TAX RECEIPT IN SY.NO.38/1, 38/14, 38/15, AND 38/2 OWNED BY THE PETITIONER DATED 02.09.2021.

Exhibit P3 THE TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE PATHIYOOR PANCHAYATH DATED 02.02.2021 WITH RESPECT TO BUILDING NO. 26 IN WARD 3.

Exhibit P4 THE TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE PATHIYOOR PANCHAYATH DATED 02.02.2021 WITH RESPECT TO BUILDING NO. 25 IN WARD 3.

Exhibit P5 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE PATHIYOOR PANCHAYATH DATED 27.10.2021.

Exhibit P6 THE TRUE COPY OF THE NOTICE NO. LAC.1813/19 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER DATED 28/7/21.

Exhibit P7 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 5TH RESPONDENT DATED 15.11.2021.

Exhibit P8 THE TRUE COPY OF THE SKETCH SHOWING THE ACQUISITION OF THE RESIDENTIAL BUILDING DATED NIL.

[WP(C) Nos.25097 OF 2021 & 26209 OF 2021]

APPENDIX OF WP(C) 25097/2021

PETITIONERS' EXHIBITS

Exhibit P1 THE TRUE COPY OF THE TAX RECEIPT WITH RESPECT TO THE PROPERTY OWNED BY THE 1ST PETITIONER DATED 09/08/2021.

Exhibit P2 THE TRUE COPY OF THE TAX RECEIPT WITH RESPECT TO THE PROPERTY OWNED BY THE 2ND PETITIONER DATED 09/08/2021.

Exhibit P3 THE TRUE COPY OF THE OWNERSHIP CERTIFICATE NO.5044601/2074/2021 ISSUED BY THE MARARIKULAM PANCHAYATH DATED 25/08/2021.

Exhibit P4 THE TRUE COPY OF THE NOTICE DATED 23/2020/PTPLY/BL-02 ISSUED TO THE 1ST PETITIONER DATED NIL.

Exhibit P5 THE TRUE COPY OF THE NOTICE NO.

23A/2020/PTPLY/BL-02 ISSUED TO THE 2ND PETITIONER.

Exhibit P6 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE DISTRICT COLLECTOR DATED 14/07/2021.

Exhibit P7 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 6TH RESPONDENT DATED 01/11/2021.