K.Moideen Kutty vs Special Deputy Collector
2022 Latest Caselaw 6555 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR. JUSTICE T.R.RAVI
     THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
                       WP(C) NO. 13334 OF 2022
PETITIONERS:

    1     K.MOIDEEN KUTTY
          AGED 74 YEARS, S/O. UMMER,
          RESIDING AT SHAMEER HOUSE,
          TRICHAMBARAM, TALIPARAMBA AMSOM DESOM,
          P.O. TALIPARAMBA, TALIPARAMBA TALUK,
          KANNUR DISTRICT, PIN - 670141.

    2     P. SHAJI
          AGED 37 YEARS, S/O. MOIDEEN KUTTY,
          RESIDING AT SHAMEER HOUSE,
          TRICHAMBARAM, TALIPARAMBA AMSOM DESOM,
          P.O. TALIPARAMBA, TALIPARAMBA TALUK,
          KANNUR DISTRICT, PIN - 670141.

          BY ADVS.
          M.V.AMARESAN
          S.S.ARAVIND


RESPONDENTS:

    1     SPECIAL DEPUTY COLLECTOR
          OFFICE OF THE SPECIAL DEPUTY COLLECTOR,
          LAND ACQUISITION, (NATIONAL HIGHWAY),
          KASARAGOD, PIN - 671121.

    2     PROJECT DIRECTOR
          NATIONAL HIGHWAYS AUTHORITY OF INDIA(HEAD OFFICE),
          DWARAKA SECTOR 10, SOUTH WEST DELHI,
          NEW DELHI, PIN - 110075.

    3     K. ABDULLAKUNHI, AGED 61 YEARS, S/O. K.M. ABDULKHADER,
          RESIDING AT SABRINA MANZIL,
          WEST BEVOORI ROAD, UDMA VILLAGE, HOSDURG TALUK,
          KASARAGOD DISTRICT, PIN - 671317.

          SRI.K.A.SALIL NARAYANA, SC


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 13334 OF 2022
                                   2




                             T.R. RAVI, J.
              --------------------------------------------
                     W. P. (C). No. 13334 of 2022
               --------------------------------------------
                 Dated this the 9th day of June, 2022

                             JUDGMENT

Admit. Government Pleader takes notice for the 1 st

respondent. Adv.Sri.K.A.Salil Narayanan, standing counsel, takes

notice for the 2nd respondent. In view of the order that I propose to

pass, notice to the 3rd respondent is dispensed with.

2. The petitioners claim to be the tenants of a building which

belonged to the 3rd respondent and which is subject matter of

acquisition proceedings initiated by the 2nd respondent. It is

submitted that the competent authority has already passed an award

as LAC No.277/Kasaragod and while calculating the compensation,

the building where the petitioners are conducting their business has

not been properly valued. According to the petitioners, there are

several improvements made in the building both in the interior and

the exterior and without a proper valuation being done, they will

suffer huge loss. It is stated that the petitioners have preferred a

suit as O.S.253/2021 before the Munsiff Court, Kasaragod. The WP(C) NO. 13334 OF 2022

petitioners have preferred Ext.P6 application before the 1 st

respondent, who is the competent authority, requesting to recall the

compensation determined in LAC No.277/Kasaragod and to pass a

fresh award after ascertaining the value of the improvements made

by the petitioners in the building as well and apportioning

compensation between the landlord and the petitioners. Reliance is

placed on the judgment in Sasidharan V. Union of India reported

in 2020 (4) KLT 329 to submit that notice is contemplated to all

interested persons and the petitioners have not been put on notice

of the acquisition proceedings. The Standing counsel for the 2 nd

respondent on instructions submits that once the award is passed,

the competent authority becomes functus officio and the remedy of

any person aggrieved by the award is to move the Arbitrator, who is

the District Collector in this case. The Arbitrator has not been made

a party in these proceedings. It is further submitted that Section 3G

of the National Highways Act does not contemplate personal notice

to the interested persons and all that is contemplated is a public

notice, based on which claims are to be submitted by all persons

who are interested. The competent authority is bound to consider

such claims at the time of passing of the award. It is submitted that WP(C) NO. 13334 OF 2022

the petitioners have not preferred any claim subsequent to the

notifications issued and hence there was no question of the

competent authority adjudicating such claims. It is pointed out that

award was passed as early as in 2021 and Ext.P6 application has

been preferred on 30.03.2022, much after the award. Learned

counsel for the petitioners submits that even if the petitioners have

to approach the Arbitrator, they will be prejudiced since a proper

valuation of the building has not so far been done and once the

building is demolished there will be no manner in which value can be

ascertained. The standing counsel for the 2 nd respondent submits

that once the issue is referred for arbitration, the powers available

under the Arbitration and Conciliation Act, 1996 will apply and under

Section 17 of the said Act, the Arbitrator has power to issue interim

orders also.

In such circumstances, I deem it appropriate that the

petitioners are relegated to their remedy before the Arbitrator since

this Court cannot decide on the issue at this stage. To facilitate the

petitioners to move the Arbitrator, the following directions are

issued.

(i) The petitioners shall file appropriate application WP(C) NO. 13334 OF 2022

before the Arbitrator appointed under Section 3G of the

National Highways Act, 1956 within 10 days from today

along with an application for interim relief regarding the

valuation.

(ii) On receipt of such application, the Arbitrator shall

take a decision on the interim application within one week

from the date of receipt of the application.

(iii) The demolition of the building shall be kept in

abeyance for a period of 20 days from today.

The writ petition is disposed of with the above directions.

Sd/-

T.R. RAVI JUDGE

Pn WP(C) NO. 13334 OF 2022

APPENDIX OF WP(C) 13334/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF PLAINT IN O.S. NO. 253/2021 DATED 30.09.2021 FILED BY THE PETITIONERS BEFORE MUNSIFF COURT, KASARAGOD.

Exhibit P2 TRUE COPY OF WRITTEN STATEMENT DATED 23.10.2021 IN O.S .NO. 253/2021 BEFORE MUNSIFF COURT, KASARAGOD SUBMITTED BY THE LANDLORDS.

Exhibit P3 TRUE COPY OF JUDGMENT PASSED BY THIS HON'BLE HIGH COURT DATED 31.01.2022 IN WP(C) NO. 3102/2022.

Exhibit P4 TRUE COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS BEARING REF. NO. LAC 277/KASARAGOD DATED 8.3.2022.

Exhibit P5 TRUE COPY OF CLAIM IN REF. NO. LAC 277/KASARAGOD DATED 23.03.2022 SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.

Exhibit P6 TRUE COPY OF REPRESENTATION DATED 30.03.2022 SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.