High Court of KeralaSingle Judge2021-12-21Writ petition disposed of in part with liberty ...

Abdurahiman and Others v. Special Deputy Collector, Land Acquisition (NH17) and Others

Case / Petition Number:WP(C) NO. 29860 OF 2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2021-12-21
Court Decision / Holding: The writ petition is ordered with liberty to the petitioners to approach the competent Arbitrator under Section 3G(5) NH Act against the Awards; the Arbitrator will consider the claims, particularly as to salvage compensation, in light of Ext.P2 judgments after hearing the parties; final orders to be issued by the Arbitrator following NH Act procedures.
Final Disposition: Writ petition disposed of in part with liberty granted to approach competent Arbitrator under NH Act Section 3G(5); Arbitrator to determine salvage compensation after hearing; final orders to be issued by the Arbitrator.

Parties to the Case

Appellants / Petitioners

ABDURAHIMAN
AYISHA
ABDUL KHADER
ABDUL RAHMAN
MUHAMMED KUTTY HAJI
KUNHIMMU M.V.
AYAMMADU
RADHA E.V.
ABDUL AZEEZ
SAFIYA C.
MOHAMMED JABIR K.M.
VELAYUDHAN
AYISHABY.K.
MUHAMMEDKUTTY A.
ABDUL LATHEEF
KADAR
ABOOBACKER
SHAREEFA
ABDUL LATHEEF (2)
ABDUL SAMAD
MOIDUTTY N.P.
FATHIMA C.

Respondents

SPECIAL DEPUTY COLLECTOR, LAND ACQUISITION (NH17)
STATE OF KERALA, REP. BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT
THE PROJECT DIRECTOR NATIONAL HIGHWAYS AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT KOZHIKODE LOTUS HOUSE 34 1487 A, PROVIDENCE WOMENS COLLEGE ROAD, MALAPARAMBA P.O., KOZHIKODE - 673 009
UNION OF INDIA, REP. BY SECRETARY, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, GOVERNMENT OF INDIA, CENTRAL DELHI P.O., NEW DELHI-110001
DIRECTOR GENERAL, (ROADS DEVELOPMENT) AND SPECIAL SECRETARY, ROOM NO. 213, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN, 1, PARLIAMENT STREET, CENTRAL DELHI P.O., NEW DELHI - 110001
PROJECT DIRECTOR, NATIONAL HIGHWAYS AUTHORITY OF INDIA (HEAD OFFICE), DWARAKA SECTOR 10, SOUTH WEST DELHI P.O., NEW DELHI - 110 075
CHAIRMAN, NHAI, G-5 & 6, SECTOR-10, DWARAKA, SOUTH WEST DELHI P.O., NEW DELHI - 110075
DISTRICT COLLECTOR, MALAPPURAM, 23QH+R42, UP HILL, CIVIL STATION P.O., MALAPPURAM - 676 505

Legal Representation & Advocates

Counsels for Petitioners

• S. Sathisan
• Dona Augustine

Counsels for Respondents

• Mathews K. Philip
• Surya Binoy

Case Synopsis & Summary

This writ petition challenges an award under the National Highways Act for land acquired for NH-17, specifically contesting a 6% salvage deduction from the compensation for remnants of a building left on the property. The petitioners contend the deduction is illegal since the salvage had not been removed, and they rely on Ext.P2, the judgment in W.P.(C) No.23142 of 2021 (dated 30.11.2021), which they claim answers the issues raised. They also invoke Usman Arif v. The Project Director and Others to argue that once the Award is issued, the CALA becomes functus officio. During arguments, the petitioners sought liberty to approach the competent Arbitrator under Section 3G(5) of the NH Act to have the Award reconsidered consistent with the declarations in Ext.P2, after giving them a hearing. The respondents, including NHAI and government counsel, did not oppose the request for arbitration and urged that the Arbitrator be given full liberty to handle the arbitration proceedings. The Court acknowledges the published authorities and the settled position, and accordingly allows the writ petition in part, granting the petitioners liberty to approach the competent Arbitrator under NH Act Section 3G(5) to pursue relief on salvage. The Arbitrator shall consider the claims expeditiously and issue final orders in accordance with the NH Act after hearing the parties. The order directs that final orders shall be issued by the Arbitrator expeditiously, following due processes under the NH Act.

Provisions of Law Cited

National Highways Act, Section 3G(5)

Legal Doctrines & Maxims

functus officio

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners challenge the CALA award on the ground that 6% salvage deduction from compensation for remnants of the building is illegal since salvage was not removed. They rely on Ext.P2 ( judgement in W.P.(C) No.23142 of 2021) and Usman Arif v. The Project Director and Others to contend that, once an Award is issued, the CALA is functus officio and that relief must be obtained through arbitration. They seek liberty to approach the competent Arbitrator under Section 3G(5) NH Act to have the Award reconsidered consistent with the declarations in Ext.P2, after giving them a hearing.

Contentions of Respondents

The respondents did not oppose the petitioners' request for arbitration and contended that the competent Arbitrator should be given full liberty to deal with the arbitration proceedings, ensuring compliance with NH Act procedures.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Usman Arif v. The Project Director and Others	W.P.(C) No.1996 of 2021	Positive	Cited to support the proposition that once an Award is issued, CALA becomes functus officio.
Ext.P2 judgment in W.P.(C) No.23142 of 2021	W.P.(C) No.23142 of 2021	Positive	Ext.P2 is relied upon as having answered the issues; used to align with prior decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943** ## **WP(C) NO. 29860 OF 2021** ## **PETITIONERS:** - **1 ABDURAHIMAN, AGED 48 YEARS, S/O. MOITHEENKUTTY, THOMMANGADAN, PULIKKATHODE, THIRURANGADI, MALAPPURAM - 676 306.** - **2 AYISHA, AGED 58 YEARS, W/O. ABU MUKKAN, MUKKAN HOUSE, P.O. VENNIYOOR, THIRURANGADI, MALAPPURAM-676 508.** - **3 ABDUL KHADER, AGED 68 YEARS, S/O. ABDULLAH, KOORIYADAN HOUSE, KAKKAD, THIRURANGADI, MALAPPURAM-676 306.** - **4 ABDUL RAHMAN, AGED 62 YEARS, S/O. MOIDEEN, THIRUTHIYIL CHANAKATHI, CHERIYATHU, A.R.NAGAR, ABDU RAHIMAN NAGAR, MALAPPURAM - 676 305.** - **5 MUHAMMED KUTTY HAJI, S/O. FAZALU HAJI, CHERRANGAN HOUSE, VENGARA P.O., MALAPPURAM - 676 304.** - **6 KUNHIMMU M.V., AGED 65 YEARS, S/O. MAMMADU M.V., MUKHAM VEETTIL HOUSE, AREETHODE, MAMPURAM P.O., TIRURANGADI, MALAPPURAM - 676 306.** - **7 AYAMMADU, AGED 65 YEARS, S/O. MOHAMMED, CHETTIYAMMAL HOUSE, KOVILAPPARA, KANNAMANGALAM, MALAPPURAM-676 304.** - **8 RADHA E.V., AGED 74 YEARS, W/O. SREEDHARAN E.V., ELAYADATH VALAPPIL, MARAVANCHERY, KADANCHERY, TAVANUR, KALADY, MALAPPURAM-679 582.** - **9 ABDUL AZEEZ, AGED 54 YEARS, S/O. ALASSAN, MATTATH HOUSE, KODINHI P.O., NANNAMBRA, MALAPPURAM-676 309.** - **10 SAFIYA C., AGED 58 YEARS, W/O. ABDU RAHIMAN, KOZHIPARAMBATH HOUSE, PALAKKAI, MOONNIYUR, VELIMUKKU SOUTH, MALAPPURAM - 676 317.** - **11 MOAHMMED JABIR K.M., AGED 39 YEARS, S/O. MOOSA, KARIMBILMIKACHA, KACHADI, THIRURANGADI, VENNIYOOR P.O., MALAPPURAM - 676 508.** - **12 VELAYUDHAN, AGED 55 YEARS, S/O. APPUTTI, ONATHARA HOUSE, P.O., CHELAMBRA, MALAPPURAM - 673 604.** **-2-** ## **WP(C) NO. 29860 OF 2021** - **13 AYISHABY.K., AGED 43 YEARS, W/O. ABDUL MAJEED, KAITHON HOUSE, THENHIPPALAM P.O., MALAPPURAM - 673 636.** - **14 MUHAMMEDKUTTY A., AGED 66 YEARS, S/O. MUHAMMED, ALUKKAL HOUSE, KALLUR, AYANKALAM P.O., THAVANUR, AYANKALAM, MALAPPURAM - 679 573.** - **15 ABDUL LATHEEF, AGED 57 YEARS, S/O. MOHAMMED, CHANGARANCHOLA, MARAKKARA, RANDARATHONI, THOZHANNUR, MALAPPURAM-676 510.** - **16 KADAR, AGED 68 YEARS, S/O. ALAVI, PUTHUPARAMBIL HOUSE, ATHIRUMADA, KALPAKANCHERI, RANDATHANI, MALAPPURAM-676 510.** - **17 ABOOBACKER, AGED 62 YEARS, S/O.E.T.BEERAVU, E.T.HOUSE, VELIYANKODE, MALAPPURAM-679 579.** - **18 SHAREEFA, AGED 47 YEARS, W/O. MOIDEENKUTTY, CHOLARI HOUSE, KAKKATHADAM ROAD, PARAMBIPEEDIKA PERUVALLUR, MALAPPURAM - 676 317.** - **19 ABDUL LATHEEF, AGED 36 YEARS, S/O. MUHAMMEDKUTTY, KAITHON HOUSE, ARIYALLUR, KODAKKAD P.O., MALAPPURAM - 676 319.** - **20 ABDUL SAMAD, AGED 50 YEARS, S/O. HASSAN, PANGINIKKADAN THADATHIL HOUSE, KAKKAD P.O., THIRURANGADI, MALAPPURAM-676 306.** - **21 MOIDUTTY N.P., AGED 68 YEARS, S/O. MODIUNNI, NALAKKATH PUTHOTHAN, P.O.GRAMAM, MALAPPURAM - 679 579.** - **22 FATHIMA C., AGED 66 YEARS, W/O. ABDURAHIMAN C., ZAINA MANZIL, PALAKKAL, VELIMUKKU SOUTH P.O., MOONNIYUR, MALAPPURAM-676 317.** **BY ADVS.P.SATHISAN DONA AUGUSTINE** ## **WP(C) NO. 29860 OF 2021** **-3-** ## **RESPONDENTS:** - **1 SPECIAL DEPUTY COLLECTOR, LAND ACQUISITION (NH17), 23QH+R42, UP HILL, CIVIL STATION P.O., MALAPPURAM, KERALA - 676 505.** - **2 STATE OF KERALA, REP. BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM P.O., PIN-695 001.** - **3 THE PROJECT DIRECTOR NATIONAL HIGHWAYS AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT KOZHIKODE LOTUS HOUSE 34 1487 A, PROVIDENCE WOMENS COLLEGE ROAD, MALAPARAMBA P.O., KOZHIKODE - 673 009.** - **4 UNION OF INDIA, REP. BY SECRETARY, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, GOVERNMENT OF INDIA, CENTRAL DELHI P.O., NEW DELHI-110001.** - **5 DIRECTOR GENERAL, (ROADS DEVELOPMENT) AND SPECIAL SECRETARY, ROOM NO. 213, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN, 1, PARLIAMENT STREET, CENTRAL DELHI P.O., NEW DELHI - 110001.** - **6 PROJECT DIRECTOR, NATIONAL HIGHWAYS AUTHORITY OF INDIA (HEAD OFFICE), DWARAKA SECTOR 10, SOUTH WEST DELHI P.O., NEW DELHI - 110 075.** - **7 CHAIRMAN, NHAI, G-5 & 6, SECTOR-10, DWARAKA, SOUTH WEST DELHI P.O., NEW DELHI - 110075.** - **8 DISTRICT COLLECTOR, MALAPPURAM, 23QH+R42, UP HILL, CIVIL STATION P.O., MALAPPURAM - 676 505.** **SMT.SURYA BINOY.SR.G.P. SRI.MATHEWS K.PHILIP SRI.S.MANU, ASGI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **21.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 29860 OF 2021** **-4-** ## **JUDGMENT** The petitioners have approached this Court impugning the Award issued by the Competent Authority for Land Acquisition (CALA), appointed under the provisions of the National Highways Act, (“NH Act”, for short), saying that the withholding 6% of the determined compensation towards “salvage” for the remnants of the building, earlier standing in the property acquired, is illegal, because they have not removed the same from it. 2. The petitioners say that the issues in this case have already been answered by this Court in Ext.P2 judgment in W.P.(C) No.23142 of 2021 dated 30.11.2021; and, therefore, pray that the CALA be directed to reconsider the Award in terms of the declarations therein. 3. Even when I hear Smt.Dona Augustine – learned counsel for the petitioners, on the afore lines, the fact remains that this Court has already declared in ## **WP(C) NO. 29860 OF 2021** **-5-** _**Usman Arif v. The Project Director and Others**_ [W.P. (C)No.1996 of 2021] that once the Award has been issued, the CALA is rendered _functus officio._ Obviously, therefore, the petitioners will have to approach the competent Arbitrator under the provisions of Section 3G(5) of the “NH Act”, if they want any further relief. 4. In fact, Smt.Dona Augustine – learned counsel for the petitioners, also conceded to the afore; and prayed that her clients be given liberty to approach the competent Arbitrator under the afore provisions and that the said Authority be directed to consider their claims based on the declarations in Ext.P2 judgment. 5. Sri.Mathews K.Philip – learned Standing Counsel for National Highway Authority of India (NHAI) and learned Senior Government Pleader – Smt.Surya Binoy, did not oppose the afore request of the petitioners; but submitted that the competent Arbitrator be allowed full liberty to deal with the ## **WP(C) NO. 29860 OF 2021** **-6-** request for arbitration in terms of law. Taking note of the afore submissions, I order this writ petition and leave liberty to the petitioners to approach the competent Arbitrator under the provisions of Section 3G(5) of the “NH Act” against the Awards in question; in which event, the said Authority will consider the same, adverting implicitly to the declarations in Ext.P2 judgment, particularly as to the compensation relating to the “salvage” of the building, after affording them an opportunity of being heard. Needless to say, the final orders shall be issued by the competent Arbitrator following the provisions of the “NH Act”, as expeditiously as is possible. **Sd/DEVAN RAMACHANDRAN JUDGE** akv ## **WP(C) NO. 29860 OF 2021** **-7-** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE 3G AWARD NO.D. 685/2021/TGI/1470 DATED 18/03/2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (A) TRUE COPY OF THE RELEVANT EXTRACT OF 3G AWARD NO. D. 5146/2021/GI/1245 DATED 05.08.2021 ISSUED BY THE IST RESPONDENT.** - **EXHIBIT P1 (B) TRUE COPY OF THE 3G AWARD NO.D. 1096/2021/TGI/1923 DATED 27.07.2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (C) TRUE COPY OF THE 3G AWARD NO.D. 4013/2021/KDY/93 DATED 26/07/2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (D) TRUE COPY OF THE 3G AWARD NO.D. 2888/2021/KDY/130 DATED 23/06/2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (E) TRUE COPY OF THE 3G AWARD NO.D. 526/2021/TGI/1459 DATED 06.03.2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (F) TRUE COPY OF THE 3G AWARD NO.D. 2627/2021/TGI/1443 DATED 21/06/2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (G) TRUE COPY OF THE 3G AWARD NO.D. 3327/2021/PNI/746 DATED 07/09/2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (H) TRUE COPY OF THE 3G AWARD NO.D. 1788/2021/TGI/568 DATED 15/06/2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (I) TRUE COPY OF THE 3G AWARD NO.D. 3970/2021/TGI/310 DATED 18.08.2021** **-8-** ## **WP(C) NO. 29860 OF 2021** ## **ISSUED BY IST RESPONDENT.** **EXHIBIT P1 (J)** **TRUE COPY OF THE 3G AWARD NO.D. 2366/2021/TGI/1302 DATED 15.06.2021 ISSUED BY IST RESPONDENT.** ## **EXHIBIT P1(K)** **TRUE COPY OF THE 3G AWARD NO.D. 841/2021/KDY/227 DATED 20.03.2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (L) TRUE COPY OF THE 3G AWARD NO.D. 709/2021/TGI/1629 DATED 17.03.2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (M) TRUE COPY OF THE 3G AWARD NO.D. 2847/2021/PNI/1320 DATED 31.08.2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (N) TRUE COPY OF THE 3G AWARD NO.D. 1621/2021/TIR/1068 DATED 24.04.2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (O) TRUE COPY OF THE 3G AWARD NO.D. 2193/2021/TIR/921 DATED 1.06.2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (P) TRUE COPY OF THE 3G AWARD NO.D. 3788/2021/PNI/1126 DATED 20.03.2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (Q) TRUE COPY OF THE 3G AWARD NO.D. 711/2021/TGI/1627 DATED 17.03.2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (R) TRUE COPY OF THE 3G AWARD NO.D. 771/2021/TGI/1620 DATED 18.03.2021 ISSUED BY IST RESPONDENT.** - **EXHIBIT P1 (S) TRUE COPY OF THE 3G AWARD NO.D. 710/2021/TGI/1625 DATED 17.03.2021 ISSUED BY IST RESPONDENT.** ## **WP(C) NO. 29860 OF 2021** **-9-** **EXHIBIT P1 (T) TRUE COPY OF THE 3G AWARD NO.D. 3506/2021/TGI/999 DATED 06.07..2021 ISSUED BY IST RESPONDENT.** **EXHIBIT P1 (U) TRUE COPY OF THE 3G AWARD NO.D. 2822/2021/PNI/1132 DATED 24.06.2021 ISSUED BY IST RESPONDENT.** **EXHIBIT P1 (V) TRUE COPY OF THE 3G AWARD NO. D. 3522/2021/TGI/291 DATED 07.09.2021 ISSUED BY IST RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WPC NO. 23142 OF 2201 DATED 30.11.2021.** **EXHIBIT P3 TRUE COPY OF THE RELEVANT EXTRACT OF THE NOTIFICATION DATED 28.08.2015.** - **EXHIBIT P4 TRUE COPY OF THE NOTIFICATION ISSUED BY THE 7TH RESPONDENT DATED 04.0.2019.** **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION FROM IST RESPONDENT TO 3RD RESPONDENT DATED 16.04.2021.** ## **RESPONDENT'S/S EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JUDGE**