Kerala High Court
Vijayan K.K vs National Highways Authority Of India - ... on 27 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
MONDAY, THE 27TH DAY OF MAY 2024 / 6TH JYAISHTA, 1946
WP(C) NO. 18359 OF 2023
PETITIONER:
VIJAYAN K.K., S/O KRISHNAN, KRISHNAVILASM( KARTHIKA),
PADINJATTUKARA,THEKKUMURI, THURAVOOR P.O.,
ALAPPUZHA, PIN - 688532
BY ADVS.
S.KRISHNAMOORTHY
SNEHA ROSE
P.S.ARUNA
RESPONDENTS:
1 NATIONAL HIGHWAYS AUTHORITY OF INDIA
REP BY DY GENERAL MANAGER CUM PROJECT DIRECTOR,
NO.36/414(III), NEAR NSS HIGHER SECONDARY SCHOOL,
PALKULANGARA, TRIVANDRUM, PIN - 695024
2 THE DISTRICT COLLECTOR
COLLECTORATE, ALAPPUZHA, PIN - 688001
3 DEPUTY COLLECTOR(SPL)
LA(NH), COMPETENT AUTHORITY COLLECTORATE,
ALAPPUZHA, PIN - 688001
4 SPECIAL TAHASILDAR
O/OSPECIAL TAHASILDAR LANH, CHERTHALA,
ALAPPUZHA, PIN - 688524
5 VILLAGE OFFICER
THURAVOOR SOUTH VILLAGE, CHERTHALA,
ALAPPUZHA, PIN - 688532
BY ADV MATHEWS K.PHILIP KALAPPURACKAL PHILIPOSE
SR.GP DEEPA NARAYANAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.05.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.18359 of 2023 2
VIJU ABRAHAM, J.
.................................................................
W.P.(C) No.18359 of 2023
.................................................................
Dated this the 27th day of May, 2024
JUDGMENT
The above writ petition is filed seeking to quash Ext.P4 to the extent it
treats the property of the petitioner in survey no.154/2-2 of Thuravoor South
Village as wet land instead of dry land and pass a fresh award treating the
land as dry land. Petitioner has also sought for a direction to the 3 rd
respondent CALA to conduct a re-survey of the particular land and ascertain
the actual land in possession of the petitioner in survey no.154/2-2 of
Thuravoor South Village as well as in survey no.21/20 of Pattanakkad Village.
2. It is averred in the writ petition that petitioner is the owner in possession
of 27 cents of land in survey no.154/2 obtained as per the partition deed
no.1168/1957 of Aroorkutty Sub Registrar Office executed on 24.04.1957.
Earlier certain extent of the property was notified for acquisition in the year
1971 and 5 cents of the property was acquired for the widening of NH 47.
After the acquisition of 5 cents of land, the remaining extent of land in survey
no.154/2 of Thuravoor South Village is nearly 22 cents. Petitioner submits
that out of the 22 cents of land, an extent of 2 Cents of land is lying in
Pattanakkad Village because of boundary demarcation during the re-survey
conducted in the year 1991. Petitioner has a contention that the property was
reclaimed even prior to the partition deed of the year 1957 and is lying as
garden land for decades together. Petitioner's residential building was
constructed in the said land in the year 1975 along with other structures
situated therein. Petitioner in fact has submitted an application as early as in
the year 2018 for conversion of the land, only after intervention of this Court
as per judgment in W.P (C) No.12608 of 2018 the application was considered
and as per Ext.P2 dated June 2022 the land was excluded from the data
bank and mutation has been effected as converted dry land. The National
Highway authorities had notified an extent of 1.29 Ares of property (3.188
cents) in survey no.154/2-2 of Thuravoor South Village for acquisition for the
widening of NH vide notification dated 24.01.2020; however instead of dry
land, the same is wrongly notified as wetland and the value for wet land has
been awarded as compensation as evident from Ext.P3. Petitioner submits
that aggrieved by the amount of compensation awarded he has preferred an
Arbitration Appeal before the 2nd respondent and the same is pending
consideration. Petitioner relies on Ext.P4 judgment wherein relief has been
granted in similar circumstances. Petitioner has also raised another grievance
that an extent of 2 cents of land in survey no.154/2-2 of Thuravoor South
Village, due to the boundary fixation by the revenue authorities, is now lying
in Pattanakkad Village in survey no.21/20 and that 2 cents of land in survey
no.21/20 of the Pattanakkad Village is also coming under the alignment of
acquisition, but no compensation was awarded for the said extent of land.
Petitioner submits that he is entitled to get compensation for the above
extent of 2 cents of land also, which has in physical possession of the
petitioner. Petitioner relies on Ext.P5 order in W.P.(C) No.24339 of 2022
wherein this Court has directed the respondents to disburse the
compensation amount to the claimants therein, provided there are no other
counter claimants for the amount.
3. A detailed statement has been filed by the 3 rd respondent wherein it is
contended that an extent of 0.0129 hectares of land in survey no.154/2 (LA
Subdivision no.154/73) has been notified and acquired for widening of NH 66.
As per the settlement register maintained at Thuravoor South Village the
nature of the land in survey no.154/2-2 in respect of the petitioner is wet land
and the same is also notified. What was the nature of land in the village
records is shown in Section 3A notification. The rectification report submitted
by the petitioner is dated August 2022, ie., a date later than the notification
date. Though the above land is wet land the market value of the land is fixed
by taking land value of dry land and deducted 20% value from it and
determined such land value. Therefore it is contended that since the land
value was fixed taking the land value of dry land the contention of the
petitioner is only to be rejected. As regard the grievance raised by the
petitioner regarding 2 cents of land in survey no.154/2-2 of Thuravoor South
Village which is now lying in survey no.21/20 of Pattanakkad Village because
of the boundary fixation by the revenue authorities, it is submitted that as per
the 3D notification no land in respect of the petitioner has been acquired in
survey no.21/20 of Pattanakkad Village though it is lying adjacent to the land
in survey no.154/2-2 and that the petitioner has not submitted any document
to prove his title over the land in survey no.21/20 of Pattanakkad Village.
4. I have heard the rival contentions of both sides.
One of the contentions raised by the petitioner is regarding the fixation
of value of the land acquired treating the same as wet land. It is seen from the
statement filed by the 3rd respondent that though at the time of notification the
land was a wet land, due to the subsequent change in the nature of land as
per Ext.P2 the market value of the land is fixed by taking the land value of dry
land and deducting 20% value from it. Petitioner contends that the deduction
of 20% value from the land value fixed is absolutely arbitrary and unjust. It is
seen that an award has been passed in this case and aggrieved by the award
petitioner has already moved the Arbitrator under Section 3G(5) of the
National Highways Act, 1956. A perusal of Section 3G would reveal that while
determining the amount of compensation, the Arbitrator is bound to look into
the market value of land on the date of publication of the notification under
Section 3A of the National Highways Act, 1956. Therefore if the nature of the
property has been changed to dry land as per Ext.P2, the petitioner can
raised all his contentions before the 2 nd respondent Arbitrator who shall take
into consideration the specific contention of the petitioner based on Ext.P2.
As regard the claim of the petitioner regarding 2 cents, the specific case of
the 3rd respondent in the statement is that no land in respect of the petitioner
has been acquired in survey no.21/20 of Pattanakkad Village and that the
petitioner has not submitted any document to prove his right over the said
land. If the petitioner has a case that an extent of 2 cents of land was also
taken over as part of the acquisition proceedings without giving any land
value, the petitioner can agitate his claim before the 2 nd respondent Arbitrator
and can request the Arbitrator to take necessary steps to determine the exact
extent of land taken over from the possession of the petitioner and verify
whether such an anomaly has been happened due to the erroneous
boundary fixation by the revenue authorities inasmuch as though the land is
lying adjacent it is in two Villages, ie., Pattanakkad Village and Thuravoor
South Village. If the petitioner submits appropriate application in this regard
for determination of the issues involved in the matter, the 2 nd respondent
Arbitrator shall duly consider the same and pass appropriate orders thereon
in accordance with law. Leaving open the right of the petitioner to adjudicate
all his claims including the deduction of 20% value from the value of land
fixed to be agitated before the 2 nd respondent, the above writ petition is
disposed of.
Sd/-
VIJU ABRAHAM
JUDGE
cks
APPENDIX OF WP(C) 18359/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE TAX RECEIPT DATED
26.10.2022
Exhibit P2 TRUE COPY OF THE ORDER NO.
D.DIS.J1.2664/2022 DATED JUNE 2022
Exhibit P3 TRUE COPY OF THE PROCEEDINGS IN LAC
NO.22/2020/THURAVOOR
SOUTH/SO4348(E)301/2021/A2 DATED
11.11.2021
Exhibit P4 TRUE COPY OF THE JUDGMENT IN WRIT PETITION
NO 3562/2021 DATED 24.9.2021 OF THIS
HON'BLE COURT
Exhibit P5 TRUE COPY OF THE ORDER DATED 1/9/2022 IN
APPENDIX OF WP(C) 34638/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF SETTLEMENT DEED NO. 7219 OF
2006 OF SRO MANNARKKAD DATED 23.11.2006
Exhibit P2 TRUE COPY OF THE SALE DEED NO. 5288 OF
2003 OF SRO MANNARKKAD DATED 09.10.2003
Exhibit P3 TRUE COPY OF THE SURVEY-SKETCH OF THE
PROPERTY PREPARED BY LAND SURVEYOR
Exhibit P4 TRUE COPY OF THE PROCEEDINGS NO. B1-
411/2023 OF THE DEPUTY COLLECTOR (LA NH)
AND CALA, PALAKKAD DATED 20.05.2023
Exhibit P5 TRUE COPY OF THE PROCEEDINGS NO. B1-
411/2023 OF THE DEPUTY COLLECTOR (LA NH)
AND CALA, PALAKKAD DATED 07.06.2023
