Kerala High Court

Usman Arif vs The Project Director on 24 September, 2021

                                                                     CR
                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
         FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
                          WP(C) NO. 1996 OF 2021
PETITIONER:

              USMAN ARIF, AGED 48 YEARS, S/O. ABDUL KHADER HAJI,
              THAHIRA MANZIL, 10TH MILE, UDYAVARA,
              KASARAGOD DISTRICT, PIN-671 323.

              BY ADVS.
              PUSHPARAJAN KODOTH
              SRI.K.JAYESH MOHANKUMAR
              SMT.VANDANA MENON
              SRI.VIMAL VIJAY


RESPONDENTS:

     1        THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF
              INDIA, KOZHIKODE-673 001.

     2        THE DISTRICT COLLECTOR, KASARGOD AND ARBITRATOR
              NATIONAL HIGHWAY AUTHORITY OF INDIA, KASARAGOD,
              PIN-671 121.

     3        SPECIAL DEPUTY COLLECTOR, LAND ACQUISITION (NH),
              KASARAGOD AND COMPETENT AUTHORITY, PIN-671 121.

     4        THE SPECIAL TAHSILDAR, LAND ACQUISITION (NH),
              UNIT-1, KASARAGOD, PIN-671 121.

              BY ADVS.
              SRI.MATHEWS K.PHILIP

              SMT. RESMI THOMAS - GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.09.2021, ALONG WITH WP(C).12458/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 WPC 1996&12458/21
                                             2

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
                        WP(C) NO. 12458 OF 2021
PETITIONER:

               JAMEELA, AGED 43 YEARS
               W/O LATE ABDUL AZEES,RESIDING AT HANAAFI
               NAZAR,UPPALA,MANGALPADDY GRAMA PANCHAYATH,WARD
               NO.XX111,DOOR NO.288-C,MANJESWAR TALUK,KASARAGOD
               DISTRICT-671322.

               BY ADVS.
               PUSHPARAJAN KODOTH
               K.JAYESH MOHANKUMAR


RESPONDENTS:

    1          THE PROJECT DIRECTOR,
               NATIONAL HIGHWAY AUTHORITY OF INDIA
               KOZHIKODE-673001.

    2          THE DISTRICT COLLECTOR,KASARAGOD AND
               ARBITRATOR, NATIONAL HIGHWAY AUTHORITY OF
               INDIA, KASARAGOD-671121.

    3          SPECIAL DEPUTY COLLECTOR, LAND ACQUISITION (NH),
               KASARAGOD AND COMPETENT AUTHORITY,
               KASARAGOD-671121.

    4          THE SPECIAL TAHSILDAR,
               LAND ACQUISITION (NH),UNIT-1,KASARAGOD-671121.

               BY ADVS.
               SMT.RESHMI THOMAS - GP
               SRI.MATHEWS K PHILIP - SC


        THIS     WRIT   PETITION     (CIVIL)     HAVING   COME   UP   FOR
ADMISSION ON 24.09.2021, ALONG WITH WP(C).1996/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 1996&12458/21
                                       3


                                                           CR
                             JUDGMENT

A terse issue, but which can have

ramifications in matters relating to acquisitions

under the National Highways Act, 1956, is placed

for resolution in these matters; being if the

Competent Authority for Land Acquisition, under

the aforesaid Act, can review or modify an Award

issued by it earlier.

2. I will first explain how this issue has

been presented in these two cases which require

to be disposed of together, since the reliefs to

be granted in one will certainly have a bearing

on the reliefs to be granted in the other.

3. The petitioners in these cases are stated

to be the owners of properties which were

acquired by the National Highway Authorities of

India (NHAI) and with respect to which, Awards

have been issued by the Competent Authority for

Land Acquisition (CALA). They have produced the

Awards as Ext.P2 in both cases.

WPC 1996&12458/21

4. The petitioner in W.P(C)No.1996/2021,

however, alleges that even after Ext.P2 Award had

been issued as early as on 27.12.2019, the CALA,

thereafter, modified it through Ext.P6, reducing

the value of structures and land therein and

asserts that this is illegal and unlawful.

5. As far as the petitioner in

W.P(C)No.12458/2021 is concerned, she appears to

have approached this Court because, after Ext.P2

Award was made in her favour, Ext.P3 notice has

been issued on 21.10.2020, asking her to produce

certain documents for the purpose of modifying

the said Award.

6. The petitioners in these cases,

therefore, contend that the afore action of the

CALA - in having modified the Award, as far as

W.P(C)No.1996/2021 is concerned; and in

attempting to do so in W.P(C)No.12458/2021 - is

illegal and unlawful and thus pray that Ext.P6 in

the former Writ Petition and Ext.P3 in the latter

be quashed.

WPC 1996&12458/21

7. The learned Government Pleader -

Smt.Reshmi Thomas, in response, submitted that

the impugned proceedings have been issued by the

CALA on account of certain subsequent

instructions issued by the NHAI to its Project

Director. She submitted that, therefore, the CALA

had no other option but to issue the impugned

proceedings and therefore, prayed that these Writ

Petitions be dismissed.

8. Sri.Mathews K. Philip - learned Standing

Counsel for the NHAI, conceded that the Project

Director had received certain Instructions from

the NHAI on 11.08.2020 - a copy of which has been

placed on record as Annexure R1(a) - in which,

the assessment and quantification of the

compensation has been suggested to be done in a

particular manner. He submitted that since Ext.P2

Awards in these cases had been settled prior to

Annexure R1(a), the CALA was justified in having

issued the impugned proceedings.

9. However, to a pointed question from this WPC 1996&12458/21

court, Sri.Mathews K. Philip conceded that there

are no specific statutory provisions enabling the

CALA to review or modify settled Awards, except

to correct patent errors.

10. I have evaluated the afore submissions

and have also gone through the materials

available on record.

11. The powers and competence of the CALA are

clearly specified, enumerated and detailed in the

N.H.Act. As per Section 3G thereof, where any

land is acquired under the Act, there shall be

paid an amount to be determined by the CALA. The

said Authority is empowered and authorised to

make such determination with respect to the value

of the acquired land in terms of Section 3G(7) of

the Act and then Section 3G(5) provides that if

either of the parties is dissatisfied with the

amount so arrived at by the CALA, they can seek

it to be determined by the Arbitrator to be

appointed by the Central Government.

12. It is thus incontestable that upon the WPC 1996&12458/21

CALA determining the amount under Section 3G of

the Act and issuing the resultant Award, he is

rendered functus officio and cannot, thereafter,

assume any further Statutory jurisdiction with

respect to the same. The CALA can, at the best,

correct patent typographical or clerical errors,

but is proscribed from dealing with the published

Award on its merits, in any manner, thereafter.

Therefore, by no means can the CALA modify his

earlier Award or attempt to do so and any step in

such direction by it will have to be declared as

being without legal competence.

13. That being so said, there is no doubt -

it being admitted - that the Awards in question

were settled on 27.12.2019; while Annexure R1(a)

instructions were issued by the NHAI only on

11.08.2020. Therefore, even if it is taken for

the sake of argument that the CALA is bound by

the same, I fail to understand how the said

Authority could have reviewed or attempted to

review the Awards passed prior to it, as has been WPC 1996&12458/21

done through the impugned proceedings. This is

more so because, as is also admitted by

Sri.Mathews K. Philip, the competent Authority of

the NHAI could have challenged the Awards, dated

27.12.2019, under the provisions of Section 3(G)

(5) of the National Highways Act; and I fail to

understand why and under what authority the CALA

has suo motu reviewed the Awards or attempted to

do so.

14. Before I conclude, I must also record

that, when this matter was earlier considered by

this Court, I had directed the learned Government

Pleader to obtain instructions on the competence

of the CALA to have modified the Awards or in

attempting to do so. However, even today, the

learned Government Pleader has not been able to

show me any enabling statutory provision and I

can only therefore, conclude that the said

Authority has acted without sanction of law.

In the afore circumstances, I allow these

Writ Petitions and set aside Ext.P6 in WPC 1996&12458/21

direction to the competent Authority to ensure

that the compensation eligible to the petitioners

under the Awards dated 27.12.2019 is disbursed to

them without any avoidable delay, but not later

than two months from the date of receipt of a

copy of this judgment.

Needless to say, the right of the NHAI to

challenge the Awards, dated 27.12.2019, under the

provisions of Section 3(G)(5) of the National

Highways Act, has not been spoken by me in this

judgment and they are at liberty to do so,

subject to their entitlement in law and the

prescriptions of limitation, without being

trammelled or hampered by any of my observations

above.

Sd/-

RR                                             DEVAN RAMACHANDRAN
                                                       JUDGE
 WPC 1996&12458/21


                    APPENDIX OF WP(C) 1996/2021


PETITIONER EXHIBITS

EXHIBIT P1             TRUE COPY OF NOTICE UNDER SECTION 3E OF

THE NATIONAL HIGHWAY ACT, 1956 DATED 27.12.2019 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE AWARD ISSUED BY THE 3RD RESPONDENT DATED 27.12.2019 UNDER SECTION 3G OF THE NATIONAL HIGHWAY ACT, 1956.

EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT ON 9.11.2020.

EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 18.12.2020 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 6.1.2021 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE MODIFIED ORDER DATED 11.1.2021, MODIFYING EXT.P2 AWARD DATED 27.12.2019.

RESPONDENT ANNEXURE

Annexure R1(A) TRUE COPY OF THE LETTER NO. NHAI/RO-

KERALA/28019/LAC/14/2020/0787 DATED 11/08/2020.

WPC 1996&12458/21

APPENDIX OF WP(C) 12458/2021

PETITIONER EXHIBITS