Nelloli Kunhalan vs State Of Kerala
2022 Latest Caselaw 3428 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
                      WP(C) NO. 28120 OF 2021
PETITIONER:
           NELLOLI KUNHALAN, AGED 69 YEARS
           S/O. MOHAMMED, VELIMUKKU P. O.,
           MONNIYUR, MALAPPURAM DISTRICT - 676 317.

          BY ADVS.
          K.K.SAIDALAVI
          K.K.NASRUL HAQUE


RESPONDENTS:
     1     STATE OF KERALA, REPRESENTED BY THE SECRETARY,
           PUBLIC WORKS DEPARTMENT (ROADS), SECRETARIAT,
           THIRUVANANTHAPURAM - 695 001.

    2     UNION OF INDIA, REPRESENTED BY THE MINISTRY
          OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT
          BHAVAN -1, PARLIAMENT STREET, NEW DELHI - 110 001.

    3     THE NATIONAL HIGHWAYS AUTHORITY OF INDIA
          REPRESENTED BY ITS PROJECT DIRECTOR, PIU,
          NATIONAL HIGHWAYS AUTHORITY OF INDIA, NO.8/1187,
          ARUMUGHAM COLONY, CHANDRA NAGAR, PALAKKAD DISTRICT,
          PIN - 678 007.

    4     THE DEPUTY COLLECTOR & COMPETENT AUTHORITY
          OFFICE OF THE DEPUTY COLLECTOR (LA), (NH - 66),
          KOTTAKKAL, MALAPPURAM DISTRICT, PIN - 676 503.

    5     THE ASSISTANT EXECUTIVE ENGINEER, PUBLIC WORKS
          DEPARTMENT (NH), OFFICE OF THE EXECUTIVE ENGINEER,
          PWD, CIVIL STATION, MALAPPURAM - 676505.

          BY ADVS.
          SRI.VISHNU PRADEEP
          SRI.MATHEWS K.PHILIP S.C.
          SMT. MABLE .C .KURIAN SR.G.P


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 28120/21
                                        2

                           JUDGMENT

The petitioner alleges that when the Competent Authority

for Land Acquisition (CALA for short) appointed under the

provisions of the National Highways Act ('NH Act'), measured

his property situated in the land acquired for the purposes of

the National Highway Authority of India (NHAI), there has been

a shortfall of 359.99 square metres. He says that, he, therefore,

approached the said Authority for remeasuring the property, but

that instead of doing so, an Award has now been issued. He,

therefore, prays that the 5th respondent - Assistant Executive

Engineer be directed to remeasure the area of the building, so

that a Supplementary Award can be issued by the CALA with

respect to the same.

2. In response to the afore submissions made by

Sri.K.K.Saidalavi - learned counsel for the petitioner, Smt.Mable

C. Kurian - learned Senior Government Pleader, submitted that

since the petitioner admits that an Award has been issued, his

remedy would be to challenge the same - which, she asserts she WPC 28120/21

has specific instructions - he has already done, by preferring an

application under Section 3G(5), before the jurisdictional District

Collector, who is the Statutory Arbitrator. She argued that,

therefore, the petitioner must now move the Statutory Arbitrator

for any relief because going by the judgment of this Court in

Usman Arif v. The Project Director [2022(1) KLT 35], the CALA

has now become functus officio.

3. I must say that I find substantial force in the

submissions of the learned Senior Government Pleader because,

as rightly stated by her, on Ext.P1 Award being issued, the

CALA has been rendered functus officio, except for issuing a

Supplementary or Additional Award as is permitted under the

'NH Act'.

4. In the case at hand, the petitioner's claim is that

Ext.P1 Award is wrong, since it is based on an incorrect

calculation of the area of the building. Therefore, it is clear

that it is not a case where an Additional or Supplementary

Award can be issued by the CALA, but that the Award itself

will have to be challenged before the Statutory Arbitrator. WPC 28120/21

5. Since the learned Senior Government Pleader submits

that the petitioner has already challenged the Award before the

Arbitrator, I am certain that all his contentions must be

considered by the said Authority in terms of law.

6. Sri.Mathews K. Philip - learned Standing Counsel for

the NHAI, submitted that the building in question may not have

already been demolished, but prayed that if this Court is

inclined to direct the Statutory Arbitrator to hear the petitioner,

then his client may also be given an opportunity of being

heard.

In the afore circumstances, I order this Writ Petition to

the limited extent of leaving liberty to the petitioner to move

the jurisdictional Statutory Arbitrator in the pending 3G(5)

application and seek remeasurement of the building in question;

and if it is done within a period of one week from the date of

receipt of a copy of this judgment, the said Authority will

consider such application, after affording him as also the

concerned official of the NHAI, an opportunity of being heard

and issue appropriate orders thereon, either acceding to such WPC 28120/21

request or citing the reasons why it cannot be acceded to and

communicate it to the petitioner without any avoidable delay

thereafter.

Needless to say, if the petitioner approaches the District

Collector in terms of the afore directions, all action to demolish

the building - if it has not already been done - shall be

deferred until the resultant order as per the afore directions is

communicated to him.

Sd/-

RR                                       DEVAN RAMACHANDRAN
                                              JUDGE
 WPC 28120/21


               APPENDIX OF WP(C) 28120/2021

PETITIONER EXHIBITS
Exhibit P1         TRUE COPY OF THE PROCEEDINGS

NO.D.5307/2021/TGI/333 DATED 28.09.2021 SHOWING THE COMPENSATION DETAILS.

Exhibit P2 TRUE COPY OF THE COMPARATIVE STATEMENT OF THE AREA UNDER ACQUISITION ALONG WITH SITE PLAN PREPARED BY THE LICENSED ENGINEER.