Maimu vs National Highway Authority Of ...
2021 Latest Caselaw 23254 Ker

                                                               CR
                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                          WP(C) NO. 26502 OF 2021


PETITIONER:

              MAIMU, AGED 52 YEARS, W/O.KASIM HAJI,
              SARVATHINTAVIDA, BEACH ROAD, VADAKARA,
              KOZHIKODE-673103.

              BY ADVS.
              BABU KARUKAPADATH
              M.A.VAHEEDA BABU
              P.U.VINOD KUMAR
              ARYA REGHUNATH
              VAISAKHI V.
              T.M.MUHAMMED MUSTHAQ
              MOHAMED HISHAM P
              KARUKAPADATH WAZIM BABU


RESPONDENTS:

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

     2        ASSISTANT ENGINEER, PWD NATIONAL HIGHWAY SECTION,
              KOZHIKODE, PIN-673020.

     3        THE COMPETENT AUTHORITY AND SPECIAL DEPUTY COLLECTOR,
              LAND ACQUISITION (NHAI), KOZHIKODE, PIN-673020.


              SMT. SURYA BINOY- SR. G.P


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 26502/21
                                       2



                                                           CR
                            JUDGMENT

The petitioner has approached this Court impugning the

Award issued by the Competent Authority for Land Acquisition

(CALA for short) appointed under the provisions of the National

Highways Act ('NH Act' for short) with respect to certain extents

of property acquired from her.

2. The petitioner says that even though a portion of her

property, along with portions of a building thereon has been

acquired, the CALA has not taken into account the loss suffered by

her on account of the fact that the balance portion of the building

has become useless; and therefore, that she has preferred Ext.P7

request before the said Authority to correct the Award

appropriately. She, therefore, prays that 3rd respondent be directed

to take up and consider Ext.P7 and further that until such time as

the proceedings are completed, demolition of the building be WPC 26502/21

directed to be deferred.

3. I have heard Smt.M.A.Vaheeda Babu - learned counsel

for the petitioner; Sri.Mathews K. Philip - learned Standing

Counsel for the National Highway Authority of India (NHAI) and

Smt.Surya Binoy - learned Senior Government Pleader appearing on

behalf of respondents 2 and 3.

4. Sri.Mathews K. Philip submitted that this Writ Petition

is not maintainable because, once the Award has been issued, the

CALA became functus officio. He relied on the judgment of this

Court in Usman Arif v. The Project Director [WP(C) No.1996/2021]

in support and contended that, therefore, the petitioner must

approach the competent Arbitrator under the provisions of Section

3G(5) of the 'NH Act' by filing proper application.

5. Smt.Surya Binoy - learned Senior Government Pleader,

adopted the afore submissions of Sri.Mathews K. Philip, adding

that CALA has taken into account all germane and relevant inputs

while issuing the Award. She submitted that, therefore, the WPC 26502/21

petitioner cannot seek correction of the said Award, as she has

sought for in Ext.P7 - there being no error in it; and that she will

have to invoke other appropriate statutory remedies, if she requires

enhancement of the compensation awarded.

6. In reply, Smt.Vaheeda Babu submitted that her client

has approached this Court because, going by Section 3G(7) of the

'NH Act', the damage for severance appears to be confined only

for the land and not qua the building thereon. She submitted that,

therefore, it is necessary that this Court direct the CALA itself to

correct the Award.

7. It is ineluctable from the afore submissions that the

petitioner's apprehension is that since Section 3G(7) specifies only

determination of the damage on account of severance of the

acquired land from the balance, she would not be able to claim it

qua the building standing thereon. However, the manner of

Section 3G(7) of the NH Act, particularly clause (b) thereof, does

not constrain the scenario as feared by the petitioner. The said WPC 26502/21

provision reads as under:

7. The competent Authority of the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration -

(a) the market value of the land on the date of publication of the notification under Section 3-A;

(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;

8. The afore extracted statutory mandate render it refutable

that what is being assessed is the damage sustained by the person

interested in the acquired property on account of the severance of

a portion from it. Hence, the question is not whether there is

damage to the land or the building, but that which is sustained by

the owner, or the person interested, on account of its severance.

Apodictically, merely because the words 'by reason of the severing

of such land from the other land' is used in Section 3G(7)(b), one

cannot render an interpretation that the consequences caused to the

building on account of such cannot be assessed or granted to the

owner or the person interested in the same. WPC 26502/21

9. I am, therefore, left without any shred of doubt that

when damages under Section 3G(7) is assessed by the CALA, or by

the Arbitrator, as the case may be, they are enjoined and

expected to consider other aspects, including the impact to the

building or such other structures on the property, on account of

the severance of a portion of it, acquired under the notification.

10. In fact, the afore is expressly admitted to by the NHAI

and by the learned Senior Government Pleader and I do not,

therefore, see any reason for the petitioner to be apprehensive that

her contention regarding the total damage caused her on account

of the severance of the acquired land from the balance, will not be

considered by the competent Authority under Section 3G(5), if an

application for the same is made.

In the afore circumstances, I order this Writ Petition, granting

liberty to the petitioner to move an appropriate application before

the District Collector - who is also the competent Arbitrator -

under the provisions of Section 3G(5) of the 'NH Act'; and if this WPC 26502/21

is done within a period of two weeks from the date of receipt of a

copy of this judgment, the said Authority will consider the same,

after affording her an opportunity of being heard, adverting

specifically to the provisions of Section 3G(7)(b) of the said Act,

leading to an assessment of the damage on account of the

severance of the land and portion of the building from the

acquired portion; thus culminating in an appropriate

order/necessary action thereon, as expeditiously as is possible but

not later than four months from the date of receipt of the

application of the petitioner.

Needless to say, since the value of the building may require

to be assessed under the ambit of Section 3G(7)(b) of the 'NH Act',

I direct the District Collector to decide whether such a course is

necessary, before the demolition of the same is permitted.

It goes without saying that if the petitioner does not

approach the competent Authority within the time as ordered

above, all further action based on the Award can be taken WPC 26502/21

forward.

Sd/-

RR             DEVAN RAMACHANDRAN
                     JUDGE
 WPC 26502/21


                APPENDIX OF WP(C) 26502/2021

PETITIONER EXHIBITS
Exhibit P1          A TRUE COPY OF THE PROCEEDINGS NO.LAC

NO.62(II)(VDK) DATED 12.04.2021 OF THE 3RD RESPONDENT AWARDING COMPENSATION OF RS.44,24,206/- FOR THE LAND MEASURING 0.0107 HECTORS ACQUIRED FROM THE PETITIONER.

Exhibit P2 A TRUE COPY OF THE PROCEEDINGS DATED 12.04.2021 IN LAC NO.62(I)(VDK) OF THE 3RD RESPONDENT, IN THE CASE OF THE PORTION OF THE RESIDENTIAL BUILDING OF THE PETITIONER AND THE LAND MEASURING 0.0110 HECTORS IN WHICH THE SAID PORTION OF THE BUILDING IN SITUATED.

Exhibit P3 TRUE COPY OF THE PROCEEDINGS DATED 15.07.2021 IN LAC NO.63(I)(VDK) OF THE 3RD RESPONDENT IN THE CASE OF THE NEARBY BUILDING ACQUIRED FOR THE VERY SAME PURPOSE, AWARDING COMPENSATION TAKING THE VALUE OF THE FULL STRUCTURE.

Exhibit P4 TRUE COPIES OF THE PHOTOGRAPHS OF THE RESIDENTIAL BUILDING OF THE PETITIONER PARTLY ACQUIRED WHICH WOULD LOOSE ITS STRUCTURAL STABILITY ON DEMOLISHING THE ACQUIRED PORTION OF THE SAID BUILDING AND ALSO THE PARTLY ACQUIRED NEARBY RESIDENTIAL BUILDING FOR WHICH FULL VALUE OF THE STRUCTURE HAS BEEN TAKEN FOR AWARDING COMPENSATION.

Exhibit P5 A TRUE COPY OF THE VALUATION REPORT ALONG WITH THE PHOTOGRAPH OF THE PORTION OF THE RESIDENTIAL ACQUIRED SHOWING THE LINE OF IMPACT, AREA ACQUIRED ETC. IN ITS LAST PAGE, SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 3RD RESPONDENT, A COPY OF WHICH WAS OBTAINED BY THE PETITIONER UNDER THE RTI ACT ON 01.11.2021.

Exhibit P6 A TRUE COPY OF THE CERTIFICATE DATED 05.11.2021 ISSUED BY VADAKARA MUNICIPALITY, SHOWING THE PLINTH AREA OF THE RESIDENTIAL BUILDING OF THE PETITIONER AS 182 M2(1820 SQ.FT).

WPC 26502/21

Exhibit P7 A TRUE COPY OF THE REQUEST/REPRESENTATION DATED 16.11.2021 WITHOUT ANNEXURES, SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ALONG WITH ITS RECEIPT.