Fathima C. @ Pathummu v. Special Deputy Collector, Land Acquisition (NH 17), Malappuram; State of Kerala, represented by its Secretary, Public Works Department; Project Director, Project Implementation Unit - Kozhikode National Highways Authority of India; Union of India, represented by Secretary, Ministry of Road Transport & Highways; Director General (Road Development) & Special Secretary, Ministry of Road Transport & Highways; Project Director, National Highways Authority of India (Head Office); Chairman, NHAI

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944 WP(C) NO. 30520 OF 2021`** ## **`PETITIONER:`** ``` FATHIMA C. @ PATHUMMU, AGED 66 YEARS W/O. ABDURAHIMAN C., ZAINA MANZIL, PALAKKAL, VELLIMUKKU SOUTH P. O., MALAPPURAM - 676 317. ``` ``` BY ADVS. P.SATHISAN DONA AUGUSTINE ``` ## **`RESPONDENTS:`** - `1 SPECIAL DEPUTY COLLECTOR, LAND ACQUISITION (NH 17), 23QH+R42, UP HILL, MALAPPURAM, KERALA – 676505.` - `2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM P. O., PIN - 695 001.` - `3 PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT - KOZHIKODE NATIONAL HIGHWAYS AUTHORITY OF INDIA, HOUSE NO.2/2175-B, KRISHNAKRIPA, AISWARYA ROAD, CIVIL STATION P. O., KOZHIKODE, KERLAA - 673 020.` - `4 UNION OF INDIA, REP. BY SECRETARY, MINISTRY OF ROAD TRANSPORT & HIGHWAYS, GOVERNMENT OF INDIA, CENTRAL DELHI P. O., NEW DELHI - 110 001.` - `5 DIRECTOR GENERL (ROAD DEVELOPMENT) & SPECIAL SECRETARY ROOM NO.213, MINISTRY OF ROAD TRANSPORT & HIGHWAYS, TRANSPORT BHAVAN, 1 PARLIAMENT STREET, CENTRAL DELHI P. O., NEW DELHI - 110 001.` - `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 - 110 075.` WPC 30520/21 2 ``` BY ADVS. VISHNU PRADEEP E.C.KURIAKOSE LEJO JOSEPH GEORGE PRAVEEN K.V., CGC SMT.MABLE.C.KURIAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC 30520/21 3 ## **`JUDGMENT`** The petitioner alleges that even though a building, situated in the land owned by her and which has been now acquired for the purposes of the National Highway Authority of India (NHAI), has been taken over, she has not been given the eligible compensation, particularly because the statutory scheme under Section 94 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the Fair Compensation Act' for short) mandatorily provides that no such acquisition can be made when a part of the building is acquired. 2. Sri.P.Sathisan – learned counsel for the petitioner, however, conceded that a Final Award under Section 3G(1) of the National Highways Act (‘NH Act’ for short) has already been issued by the Competent Authority for Land Acquisition (CALA for short) and that, therefore, his client has preferred Ext.P7 application under the provisions of under Section 3G(5) of the ‘NH Act’ against the same. He submitted that, therefore, if this WPC 30520/21 4 Court is inclined to direct the competent Arbitrator under the ‘NH Act’ to consider the said application as per the provisions of Section 3G(5) thereof, she is confident of obtaining necessary relief. 3. In response, Smt.Mable C. Kurian – learned Senior Government Pleader, submitted that Ext.P7 cannot be construed to be a valid application under Section 3G(5) of the ‘NH Act’ and therefore, that if the petitioner requires any relief, she will have to make a proper one, under the statutory format. She submitted that if this is done, the competent Arbitrator can consider the same in terms of law without any further delay. 4. Sri.Bidan Chandran – learned Standing Counsel for the NHAI, adopted the submissions of the learned Senior Government Pleader, however, adding that as and when the petitioner moves an application before the competent Arbitrator, the concerned official of the NHAI may also be directed to be heard. 5. I have evaluated the afore submissions on the touchstone of various materials available on record. 6. This Court has already declared that once the CALA WPC 30520/21 5 issues an Award under the provisions of Section 3G(1) of the ‘NH Act’, he is rendered functus officio. [See Usman Arif v. The Project Director, NHAI (2022(1) KLT 35)]. Obviously, therefore, this Court cannot direct the CALA to consider Ext.P7 or any such other representation and the petitioner will certainly have to pursue her remedies before the competent Arbitrator as per the statutory scheme. 7. That said, since the learned Senior Government Pleader says that Ext.P7 cannot be construed to be a proper application, especially because there are various other representations of such nature already made by the petitioner, I deem it appropriate to grant her sufficient latitude, so that she can prefer a proper application, which can then be considered by the competent Arbitrator without any avoidable delay. Resultantly, I order this Writ Petition to the limited extent of directing the petitioner to prefer a proper application under Section 3G(5) of the ‘NH Act’ before the District Collector, who is also the competent Arbitrator under the provisions of the said Act; and if this is done within a period of two weeks from the WPC 30520/21 6 date of receipt of a copy of this judgment, same shall be considered by the said Authority, after hearing the petitioner, as also the competent official of the NHAI, thus culminating in an appropriate order and necessary action thereon as expeditiously as is possible. I make it clear that this Court has not considered the contentions of Sri.P.Sathisan – learned counsel for the petitioner, regarding the application of Section 94 of the ‘Fair Compensation Act’ on its merits, but I am certainly of the view that this must be considered specifically by the District Collector/statutory Arbitrator while the afore exercise is completed. It is so clarified. Finally, if the application of the petitioner under Section 3G(5) of the ‘NH Act’ is not disposed of by the District Collector within a period of eight months from the date on which it is so made, the petitioner will be at liberty to approach this Court for fixing a time frame for such purpose, which shall then be considered, taking into account the circumstances at the relevant time. At this time, Sri.P.Sathisan intervened to pray that Ext.P6 WPC 30520/21 7 be also directed to be taken into account by the District Collector since it contains the directives of the Central Government covering the field. It is needless to say that the District Collector will have to make a proper enquiry and assessment of all the relevant facts, for which purpose, Ext.P6, as also the binding precedents of this Court, will be kept in mind implicitly while the afore exercise is completed. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN JUDGE ``` WPC 30520/21 8 ## **`APPENDIX OF WP(C) 30520/2021`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE RELEVANT EXTRACT OF THE TAX RECEIPT NO.KL10060510022/2021 DATED 25.08.2021. ``` ``` Exhibit P2TRUE COPY OF THE PROPERTY TAX RECEIPT NO.A9084380 DATED 19.08.2020. ``` - `Exhibit P3 TRUE COPY OF THE SECTION 3G AWARD NO.D.3522/2021/TGI/291 DATED 07.09.2021.` - `Exhibit P4 TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 07.09.2021.` - `Exhibit P5 TRUE COPY OF THE PLAN SHOWING THE EXTEND OF DEMOLITION AND THE LEFT OVER CONSTRUCTION.` - `Exhibit P5(a) TRUE COPY OF THE SKETCH SHOWING THE EXTEND OF DEMOLITION AND THE LEFT OVER CONSTRUCTION.` ``` Exhibit P6TRUE COPY OF THE GAZETTE NOTIFICATION DATED 28.08.2015. ``` - `Exhibit P7 TRUE COPY OF THE REQUEST LETTER SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR (LA), MALAPPURAM DATED 15.12.2021.` - `Exhibit P7(a) TRUE COPY OF THE REQUEST LETTER SUBMITTED BY THE PETITIONER BEFORE THE PROJECT DIRECTOR, NHA OF INDIA DATED 15.12.2021.` - `Exhibit P7(b) TRUE COPY OF THE REQUEST LETTER SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS DATED 15.12.2021.` ``` Exhibit P8TRUE COPY OF THE DETAILED VALUATION PREPARED BY AMOD CONSULTANTS. ```