Radhakrishnan Nair vs Union Of India
2023 Latest Caselaw 2687 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
    WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944
                        WP(C) NO. 36100 OF 2022
PETITIONER/S:

    1       RADHAKRISHNAN NAIR
            AGED 78 YEARS
            S/O.CHELLAPPAN NAIR AND MAHESWARI AMMA, HINDU NAIR,
            DOCTOR, VAZHOTTU HOUSE, LAKSHMI NADA, KOLLAM WEST
            VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT., PIN - 691015

    2       LEELABHAI AMMA
            AGED 73 YEARS
            D/O.CHELLAPPAN NAIR AND MAHESWARI AMMA, HINDU NAIR,
            DIVAKARA PRABHU HOUSE, PULLAMCODE P.O., NILAMBOOR
            TALUK, MALAPPURAM DISTRICT., PIN - 679329

    3       SARALAKUMARI AMMA ALSO KNOWN AS SARALAAMMA
            AGED 71 YEARS
            D/O.CHELLAPPAN NAIR AND MAHESWARI AMMA, INDIRA SADANAM
            HOUSE, ATTINGAL P.O., ATTINGAL VILLAGE, CHERAYINKEEZHU
            TALUK, THIRUVANTHAPURAM DISTRICT ., PIN - 695101

    4       LATHIKA
            AGED 65 YEARS
            D/O.CHELLAPPAN NAIR AND MAHESWARI AMMA, KODUMAN,
            SOUPARNIKA HOUSE, ATTINGAL P.O., ATTINGAL VILLAGE,
            CHIRAYINKEEZHU TALUK, THRIUVANTHAPPURAM DISTRICT., PIN
            - 695101

    5       C.MOHANAKUMARAN NAIR ALSO KNOWN AS BALAKRISHNAN NAIR,
            AGED 68 YEARS
            S/O. CHELLAPPAN NAIR AND MAHESWARI AMMA, SAKALYAM,
            VIKRAM SARABAI ROAD, MARADU, KANAYANNUR TALUK,
            ERNAKULAM., PIN - 682304

            BY ADVS.
            C.HARINDRAMOHAN NAIR
            SEBASTIAN JOSEPH (KURISUMMOOTTIL)



RESPONDENT/S:

        1   UNION OF INDIA
            REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY
            OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN-1,
 W.P.(C)No.36100/2022                       2

             PARLIAMENT STREET, NEW DELHI, PIN - 110001

       2     SPECIAL DEPUTY COLLECTOR L.A. (NH) AND
             COMPETENT AUTHORITY
             COLLECTORATE, THIRUVANTHAPURAM, PIN - 695001

       3     THE PROJECT DIRECTOR,
             NATIONAL HIGHWAY AUTHORITY OF INDIA,
             THIRUVANTHAPURAM, PIN - 695001

       4     THE DISTRICT COLLECTOR AND ARBITRATOR
             APPOINTED UNDER THE NATIONAL HIGHWAYS ACT,
             COLLECTORATE, THIRUVANTHAPPURAM, PIN - 695001


OTHER PRESENT:

            SRI. BIMAL K NATH (SR GP), SRI. S MANU (DSGI)




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   01.03.2023,       THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C)No.36100/2022                    3

                             JUDGMENT

The petitioners in this writ petition claim to be legal heirs of one

Chellappan Nair and Maheswari Amma, who died intestate. The

aforesaid Chellappan Nair owned 3.95 Ares of land and the aforesaid

Maheswari Amma owned another 7.43 Ares of land. These lands have

been acquired for the purposes of widening of the NH-66. The 1 st

petitioner had filed a suit for partition as O.S.No.209/2009 before the

Sub Court, Attingal where a preliminary decree was passed regarding

the partition of the aforesaid items of property. Aggrieved by the

preliminary decree, petitioners 3 and 5 had taken up the matter in

appeal as A.S.No.163/2015 before the Additional District Court-III,

Thiruvananthapuram where the trial Court decree was modified in so

far as it relates to the 7.43 Ares of land belonging to late Maheswari

Amma is concerned. The said order of the Appellate Court has

become final.

2. At present, the petitioners appear to have no dispute

between them regarding the manner in which the properties in

question are to be partitioned or to the share which each of them are

entitled to in the property of late Chellappan Nair and Maheswari

Amma. The 2nd respondent competent authority has issued Ext.P3

communication to the petitioners stating that since no final decree has

been passed in terms of the judgment and decree of the Appellate

Court, it is not possible at present to pay compensation to the

petitioners. It is aggrieved by the said communication that the

petitioners have approached this Court.

3. Having heard the learned counsel appearing for the

petitioners, the learned senior Government Pleader appearing for the

competent authority and the learned Deputy Solicitor General

appearing for the National Highways Authority of India, I am of the

view that the fact that there is no final decree passed on the basis of

the Appellate Court decree need not in any manner delay the payment

of compensation to the petitioners as it appears that, at present, there

is no dispute amongst them as to the manner in which they will

succeed to the properties of late Chellappan Nair and late Maheswari

Amma. This may be in terms of the Appellate Court decree or

otherwise. If the petitioners are the only legal heirs of the late

Chellappan Nair and late Maheswari Amma, the petitioners can be

paid the compensation provided they execute a notarized affidavit

before the competent authority regarding the manner in which they

are entitled to claim compensation in respect of the land acquired. I

am of this view on account of the fact that even de-hors the partition

suit, it is open to the petitioners to decide between themselves as to

the manner in which they would take share in the properties of their

late parents.

Accordingly, this writ petition will stand disposed of directing

that on the petitioners executing a duly notarized affidavit before the

competent authority setting out the manner in which they will take

share in the compensation to be awarded in respect of the acquisition

of the land in question, together with proof that they are the only legal

heirs of late Chelllappan Nair and Maheswari Amma, the competent

authority shall take into consideration the said affidavit and shall

order for the payment of compensation in the manner set out in the

affidavit. This shall be done within a period of one month from the

date of receipt of a certified copy of this judgment.

GOPINATH P.

JUDGE acd

APPENDIX OF WP(C) 36100/2022

PETITIONER EXHIBITS

Exhibit-P1 TRUE COPY OF THE NOTICE OF AWARD NO.1245/A/2020, DATED 08/11/2021, ISSUED BY THE 2ND RESPONDENT.

Exhibit-P2 TRUE COPY OF THE NOTICE OF AWARD NO.1245/E/2020, DATED 20/10/2021, ISSUED BY THE 2ND RESPONDENT.

Exhibit-P3 TRUE COPY OF THE REPLY DATED 19-04-2022 BEARING NO.L.A.C.1245/2020 A.

Exhibit-P4 TRUE COPY OF THE JUDGMENT DATED 25/3/2015 IN O.S.209/2009 ON THE FILE OF SUB COURT, ATTINGAL.

Exhibit-P5 TRUE COPY OF THE DECREE DATED 25/3/2015 IN O.S.209/2009 ON THE FILE OF SUB COURT, ATTINGAL.

Exhibit-P6 TRUE COPY OF THE JUDGMENT DATED 28/11/2017 IN A.S.163/2015 ON THE FILE OF ADDL. DISTRICT JUDGE-III, THIRUVANANTHAPURAM.

Exhibit-P7 TRUE COPY OF THE DECREE DATED 28/11/2017 IN A.S.163/2015 ON THE FILE OF ADDL.

DISTRICT JUDGE-III, THIRUVANANTHAPURAM.