Asha P.K. and A. Suresh v Union of India and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943** **WP(C) NO. 17369 OF 2021** ## **PETITIONERS:** - **1 ASHA.P.K, AGED 57 YEARS, W/O. A.SURESH, RESIDING AT ARAMTHOTTIL (H), PONNANI SOUTH P.O., MALAPPURAM-679 586.** - **2 A.SURESH, AGED 57 YEARS, S/O. A.JANARDHANAN, RESIDING AT ARAMTHOTTIL (H), PONNANI SOUTH P.O., MALAPPURAM-679 586.** **BY ADVS.K.SALMA JENNATH ARUN CHAND RASSAL JANARDHANAN A. THAREEQ ANVER K. SHAHNOY SHAJI BHARAT VIJAY P. NEVIL ZACHARIA MATHEW GOVIND G. NAIR KRISHNAPRASAD SANKARANARAYANAN MUNDAYOOR SHINTO MATHEW ABRAHAM ROSHEN KURIAN SEBI ARAVIND.M** ## **RESPONDENTS:** - **1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY (ROAD TRANSPORT AND HIGHWAYS), MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, MINISTRY OF ROAD TRANSPORT & HIGHWAYS, TRANSPORT BHAVAN, 1, PARLIAMENT STREET, NEW DELHI-110 001.** - **2 MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, REPRESENTED BY ITS SECRETARY, MINISTRY OF ROAD TRANSPORT & HIGHWAYS, TRANSPORT BHAVAN, 1, PARLIAMENT STREET, NEW DELHI-110 001.** - **3 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **4 NATIONAL HIGHWAY AUTHORITY OF INDIA, REPRESENTED BY ITS PROJECT DIRECTOR, VII/511B, NEITHELI-MAVELIPURAM ROAD,** **WP(C) NO. 17369 OF 2021** **-2-** ## **MAVELIPURAM, KAKKANAD, KERALA-682 030.** **5 THE COMPETENT AUTHORITY AND DEPUTY COLLECTOR, LAND ACQUISITION (N.H.) COLLECTORATE, CIVIL STATION, MALAPPURAM-676 505.** **BY ADVS.K.P.SATHEESAN (SR.) P.MOHANDAS (ERNAKULAM) SRI.MATHES K.PHILIP, K.SUDHINKUMAR, SC SABU PULLAN SMT.RESMI THOMAS, G.P. SRI.P.VIJAYAKUMAR, ASGI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2022, THE COURT ON THE SAME DAY** **DELIVERED THE FOLLOWING:** ## **WP(C) NO. 17369 OF 2021** **-3-** ## **JUDGMENT** The petitioners have approached this Court aggrieved by Ext.P2, to the extent to which the 1[st] respondent – Union of India have issued guidelines as to the manner in which the Competent Authority for Land Acquisition (CALA) and the statutory Arbitrator, appointed under the provisions of the National Highways Act ('NH Act', for short), are to consider the applications of owners of land and buildings under Schedules II and III of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ( the 'Fair Compensation Act', for short). 2. The petitioners say that since Ext.P2 instructs the CALA and the competent Arbitrator that Schedule II of the 'Fair Compensation Act' would apply only when the acquisition leads to dislocation and displacement of an affected ## **WP(C) NO. 17369 OF 2021** **-4-** family, and not otherwise; and further that, in such event, III Schedule will not apply at all, the CALA has now issued an Award declining them the benefits under the said Schedules, even though a portion of their property has been admittedly acquired for the purposes of the National Highway Authority of India (NHAI). 3. The petitioners say that, therefore, they have been left without any other option, but to challenge Ext.P2 to the afore extent and prays that it be set aside and the CALA be directed to reconsider the Award, strictly in terms of Schedules II and III of the 'Fair Compensation Act'. 4. The afore submissions of Sri.K.Thareeq Anver - learned counsel for the petitioner, were answered by Sri.Sudhin Kumar – learned Standing Counsel for the NHAI, saying that Ext.P2 is only the guidelines issued by the 1[st] respondent and ## **WP(C) NO. 17369 OF 2021** **-5-** that it will have to be understood in the context of the statutory Scheme of the 'Fair Compensation Act'. He added that, in fact, the position of law has been declared by a learned Judge of this Court in _**Sreejith S v. Union Of India**_ [2020 (4) KHC 398] that the competent Authority or the Arbitrator, under the 'NH Act', is obligated to determine the compensation in terms of Schedule I and the benefits of rehabilitation and resettlement on the edifice of Schedules II and III thereof, on a case to case basis. He argued that therefore, that the petitioners have no cause for apprehension at all because if they have any challenge against the Award now issued by the CALA, they can move the competent Arbitrator under Section 3G(5) of the 'NH Act' seeking that the benefits of rehabilitation and resettlement, as applicable under Schedules II and III, be made available to them. He, therefore, prayed that this writ ## **WP(C) NO. 17369 OF 2021** ## **-6-** petition be dismissed. 5. I must say that there is great force in the afore submissions of Sri.Sudhin Kumar, because whatever be the contents of Ext.P2, it can only construe the character of guidelines and nothing more. It is also ineluctable that the terms of Ext.P2 cannot override the statutory prescriptions in Schedules II and III of the 'NH Act'; and that the competent Authority - be that the CALA or the Arbitrator – will have to act as per the statutory prescriptions, though they can be guided by Ext.P2 guidelines to the extent to which they are not in conflict with each other. In the event of any such conflict, it is needless to say that the statutory provisions will prevail and Ext.P2 will have to give way. 6. In the case at hand, it is the specific case of the petitioners that they are entitled to the full benefits under Schedule II of the 'Fair ## **WP(C) NO. 17369 OF 2021** **-7-** Compensation Act', because a portion of their property has been concededly acquired for the purpose of the NHAI. 7. Obviously, therefore, they are at full liberty to impel the afore contentions, by making an apposite application under Section 3G(5) of the 'NH Act' before the competent Arbitrator, who will have to consider the same, under the _umbra_ of the statutory prescriptions and without being constrained by anything contained in Ext.P2 guidelines contrary to it. 8. To paraphrase, if the competent Arbitrator is to find, from the facts and materials available, that petitioners are entitled to the benefits under II Schedule to the 'Fair Compensation Act', he shall award them the same in the resultant order, without being trammeled by Ext.P2 guidelines, since they are only intended to supplement the statutory provisions and not to ## **WP(C) NO. 17369 OF 2021** **-8-** attenuate it, in any manner. 9. I, however, clarify that my observations above may not be construed to mean that this Court has, in any manner, affirmatively declared that petitioners are entitled to the benefits under II Schedule to the 'Fair Compensation Act'; but only that the competent Arbitrator is now enjoined to consider if they are so and to grant them eligible benefits, if so found. In order to obtain an expeditious compliance of the afore directions, I leave liberty to the petitioners to move the competent Arbitrator under Section 3G(5) of the 'NH Act', within a period of three weeks from the date of receipt of a copy of this judgment; in which event, said Authority will consider the same and issue appropriate orders thereon, as expeditiously as is possible, but not later than four months thereafter. **WP(C) NO. 17369 OF 2021** **-9-** This writ petition is thus ordered. **Sd/DEVAN RAMACHANDRAN JUDGE** akv **WP(C) NO. 17369 OF 2021** ## **-10-** ## **APPENDIX OF WP(C) 17369/2021** ## **PETITIONER EXHIBITS** ## **EXHIBIT P1** **TRUE COPY OF THE ORDER DATED 27.03.2021 BEARING NO.D.1014/2021/PNI/1202 PASSED BY THE 5TH RESPONDENT AS REGARDS THE LAND HELD BY THE 1ST AND 2ND PETITIONER JOINTLY** - **EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF A MANUAL O GUIDELINES ON LAND ACQUISITION FOR NATIONAL HIGHWAYS UNDER THE NATIONAL HIGHWAYS ACT, 1956 ISSUED IN DECEMBER 2018 BY THE 2ND RESPONDENT** **EXHIBIT P3** - **TRUE COPY OF A DRAFT REPORT DATED 11.05.2021 FOR REHABILITATION AND RESETTLEMENT SCHEME COMPILED BY THE CONCERNED ADMINISTRATOR APPOINTED WITH REGARD TO ACQUISITION OF LAND IN DADRA AND NAGAR HAVELI** **EXHIBIT P4** **TRUE COPIES OF RELEVANT PAGES OF RESETTLEMENT AND REHABILITATION PLAN FOR DEVSARI HYDRO ELECTRICAL PROJECT** **RESPONDENT'S/S EXHIBITS : NIL.** **//TRUE COPY// P.A. TO JUDGE**