Kerala High Court
Sareena Ibrahim Khaleel vs National Highways Authority Of ... on 31 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
WP(C) NO. 40017 OF 2022
PETITIONER:
T.H. MOHAMMED GANI
AGED 64 YEARS
S/O. T. M. HASSANKUTTY, DARUL FALAH,
THALANGARA CLUSTER, NULLIPPADY,
KASARGODE, PIN - 671121
BY ADVS.
K.SHIBILI NAHA
A.LOWSY
NIVEA K.G.
RESPONDENTS:
1 NATIONAL HIGHWAYS AUTHORITY OF INDIA (NHAI)
REPRESENTED BY ITS PROJECT DIRECTOR,
KASARGODE, PIN - 671121
2 THE DISTRICT COLLECTOR/ARBITRATOR
(ARBITRATOR APPOINTED U/S 3G (5) OF THE NATIONAL
HIGHWAYS ACT 1956) COLLECTORATE KASARGODE,
PIN - 671121
3 THE SPECIAL DEPUTY COLLECTOR COMPETENT AUTHORITY
LA (NH)/CALA CIVIL STATION,
KASARGODE, PIN - 671121
BY ADVS.
E.C.KURIAKOSE
LEJO JOSEPH GEORGE(K/357-C/2017)
SMT. C S SHEEJA (SR GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.03.2023, ALONG WITH WP(C).40047/2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WPC NOS.40017 and 40047 of 2022
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
WP(C) NO. 40047 OF 2022
PETITIONER:
SAREENA IBRAHIM KHALEEL
AGED 51 YEARS
W/O. IBRAHIM KHALEEL
THALANGARA BANGALAVU, THALANGARA,
KASARGODE, PIN - 671121
BY ADVS.
K.SHIBILI NAHA
A.LOWSY
NIVEA K.G.
RESPONDENTS:
1 NATIONAL HIGHWAYS AUTHORITY OF INDIA (NHAI)
REPRESENTED BY ITS PROJECT DIRECTOR
KASARGODE, PIN - 671121
2 THE DISTRICT COLLECTOR/ARBITRATOR
(ARBITRATOR APPOINTED U/S 3G (5) OF THE
NATIONAL HIGHWAYS ACT 1956)
COLLECTORATE KASARGODE, PIN - 671121
3 THE SPECIAL DEPUTY COLLECTOR COMPETENT AUTHORITY,
LA (NH)/CALA CIVIL STATION KASARGODE, PIN - 671121
BY ADVS.
E.C.KURIAKOSE
LEJO JOSEPH GEORGE(K/357-C/2017)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 31.03.2023, ALONG WITH WP(C).40017/2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WPC NOS.40017 and 40047 of 2022
3
JUDGMENT
Lands belonging to the petitioners in these writ
petitions were acquired for the purpose of development of the
National Highway 66 (old NH 17). The award passed by the
competent authority determining the compensation payable to
the petitioners in these cases were taken up before the
Arbitrator under Section 3G (5) of the National Highways Act,
1956. The Arbitrator disposed of the Arbitration Case by
awarding higher compensation. However, while passing the
order, he directed that 50% of the enhanced amount of
compensation shall be withheld till the time for challenging the
order of the Arbitrator under Section 34 of the Arbitration and
Conciliation Act, 1996 expires or and till the disposal of such
petition, if such petition is filed within the time prescribed. It is
this condition that is under challenge in both these writ
petitions.
2. The learned counsel appearing for the
petitioners would submit that the Arbitrator had no jurisdiction
whatsoever to impose such a condition after determining the
WPC NOS.40017 and 40047 of 2022
amount of compensation payable to the petitioners in respect of
the land acquired from them. It is submitted that, if at all any
orders regarding the withholding of the whole or portion of the
enhanced compensation was to be obtained, it is for the
National Highways Authority to obtain such orders from the
Principal District Court before which an application under
Section 34 of the Arbitration and Conciliation Act, 1996 has
been filed challenging the award of the Arbitrator.
3. Heard the learned Standing Counsel appearing
for the National Highways Authority of India and the learned
Government Pleader appearing for the other official
respondents.
4. Having regard to the provisions of the National
Highways Act, 1956, I am convinced that the Arbitrator could
not have issued an order directing that the enhanced amount of
compensation awarded by him in proceeding under Section 3-G
of the aforesaid Act or portion of that need not be paid, pending
appeal etc. as indicated above. There is considerable merit in
the contention taken by the learned counsel for the petitioners
in these cases. The scheme of adjudication under the National
Highways Act, 1956 does not authorize to empower the
WPC NOS.40017 and 40047 of 2022
Arbitrator acting under Section 3G (5) of the National Highways
Act, 1956 to direct that the whole or any part of the enhanced
compensation awarded in arbitration shall not be paid to the
land owner from whom the land was acquired. The provisions
of Section 3H(2) of the Act indicate that as soon as the amount
is deposited, the same has to be disbursed to the land owner.
Therefore, these writ petitions are allowed. It is
directed that the enhanced amount of compensation awarded in
the arbitration proceedings shall be released to the petitioner,
subject, however, to any order that the National Highways
Authority may obtain in pending proceedings under Section 34
of the Arbitration and Conciliation Act, 1996 before the
competent court.
Sd/-
GOPINATH P., JUDGE
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WPC NOS.40017 and 40047 of 2022
APPENDIX OF WP(C) 40017/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE AWARD/PROCEEDINGS OF THE
3RD RESPONDENT IN LAC NO.253/KASARGODE
VILLAGE DATED 02.08.2021
Exhibit P2 TRUE COPY OF THE ORDER PASSED BY THE 2ND
RESPONDENT DATED 14.07.2022 REJECTING THE
APPEAL PREFERRED BY THE 1ST RESPONDENT
Exhibit P3 TRUE COPY OF THE PROCEEDINGS NO.
DCKSGD/7648/2022/L4 DATED 22.09.2022
WPC NOS.40017 and 40047 of 2022
APPENDIX OF WP(C) 40047/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTICE DATED 05.02.2021
ISSUED BY THE 3RD RESPONDENT IN TERMS OF
SEC.3E OF THE ACT CALLING UPON THE
PETITIONER TO FURNISH DOCUMENTS IN
SUPPORT OF HER CLAIM AND SURRENDER
POSSESSION
Exhibit P2 TRUE COPY OF THE AWARD IN LAC NO.
132/KASARAGODE VILLAGE DATED 05.02.2021
ISSUED BY THE 3RD RESPONDENT
Exhibit P3 TRUE COPY OF THE ORDER PASSED BY THE 2ND
RESPONDENT DATED 14.07.2022 REJECTING THE
APPEAL PREFERRED BY THE 1ST RESPONDENT
