M.K. Yousaf and others v Union of India and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` MONDAY, THE 28[TH] DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943 ``` ## **`WP(C) NO. 28263 OF 2021`** ## **`PETITIONERS:`** - `1 M.K.YOUSAF, AGED 50 YEARS, S/O. MUHAMMAD KUNJU, AYANTEKALAM (MKY MANZIL), THOTTAPPALLY, PURAKKAD, AMABALAPUZHA P.O., ALAPPUZHA, KERALA-688561.` - `2 CHANDRAMOHANAN K.C., AGED 50 YEARS S/O. CHELLPPAN PILLAI K., INDEEVARAM, ERUVA WEST, PATHIYOOR PART, ERUVA P.O., ALAPPUZHA, KERALA-690572.` - `3 B SUDHARMA, AGED 71 YEARS, W/O. N. SURENDRAN, EZHUKULANGARA, PATHIYOOR KALA, KEERIKAD P.O., PATHIYOOR, ALAPPUZHA, KERALA-690508.` - `4 M.E. GEORGE, AGED 71 YEARS, S/O. M.C. IDUKKULA, MAAKKATTU, THEKKETHARAYIL, EVOOR THEKKU, MEERIKAD P.O., PATHIYOOR, ALAPPUZHA, KERALA-690508.` ``` BY ADV P.SATHISAN ``` ## **`RESPONDENTS:`** - `1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, NEW DELHI P.O., PIN-110001.` - `2 THE NATIONAL HIGHWAY AUTHORITY OF INDIA, G-586, SECTOR-10, DWARAKA P.O., NEW DELHI-110075, REPRESENTED BY ITS CHAIRMAN.` - `3 THE PROJECT DIRECTOR, NHAI, TC 29/1539/1, RAJASREE KAIRALI, PERUMTHANNI, VALLAKKADAVU P.O., THIRUVANANTHAPURAM-695008.` - `4 THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, NH DIVISION, PUSHPA NAGAR P.O., PMG ROAD, THIRUVANATHAPURAM-695033.` WPC 28263/21 2 - `5 SPECIAL DEPUTY COLLECTOR AND COMPETENT AUTHORITY, LAND ACQUISITION, NHAI, COLLECTORATE, ALAPPUZHA COLLECTORATE P.O., PIN-688001.` - `6 THE PRINCIPAL SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM P.O., PIN-695001.` - `7 THE DISTRICT COLLECTOR, ALAPPUZHA, COLLECTORATE, BESIDE ZILLA PANCHAYATH OFFICE, CIVIL STATION WARD, ALAPPUZHA, KERALA-688001.` ``` BY ADVS SRI.K.A.SALIL NARAYANAN SMT.K.AMMINIKUTTY SR.G.P. SRI. MATHEWS K. PHILIP.S.C. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC 28263/21 3 ## **`JUDGMENT`** The petitioners are stated to be the owners of certain buildings standing on the property which has now been acquired for the purposes of the National Highway Authority of India (NHAI). They say that, as per Ext.P4 Government Order, they were entitled to an additional amount of 12.5% and 4% respectively in the case of commercial buildings and 12.5% and 12% respectively in the case of residential buildings, towards compensation against ‘electrification’ and ‘plumbing’ but that this has been denied to them by the Competent Authority for Land Acquisition (CALA for short), appointed under the provisions of the National Highways Act (hereinafter referred to as ‘the NH Act’ for short). They, therefore, pray that CALA be directed to grant them these amounts, in addition to the sums due to them under the provisions of the said Act. 2. I have heard Sri.P.Sathisan – learned counsel for the petitioners; Sri.Salil Narayanan – learned Standing Counsel WPC 28263/21 4 appearing for the NHAI and Smt.K.Amminikutty – learned Senior Government Pleader appearing on behalf of the official respondents. 3. I must record upfront that the learned Senior Government Pleader submitted that even before this Writ Petition had been filed, the Awards with respect to the buildings and properties of the petitioners had been settled and issued by the CALA as early as on 13.11.2021. She argued that, therefore, this Writ Petition is not maintainable because law has been now well settled by this Court that once the Awards are issued, the CALA is rendered functus officio and that the petitioners must, therefore, invoke their alternative remedies under Section 3G(5) of the ‘NH Act’. 4. Sri.Salil Narayanan – learned Standing Counsel for the NHAI, argued based on a statement filed on behalf of the 3[rd] respondent, saying that CALA is bound to act as per the provisions of the ‘NH Act’ while computing the compensations WPC 28263/21 5 eligible and that since the Awards have already been issued, the petitioners will have to challenge the same in terms of law, if they are so interested, under the mandate of Section 3G(5) of the ‘NH Act’. He also, therefore, contended that this Writ Petition is not maintainable and prayed that it be dismissed. 5. It is indubitable that, whatever be the dialectical contentions of the rival parties, once Awards have been issued by the CALA, it is now settled by this Court in Usman Arif v. The Project Director [2022(1) KLT 35] that the said Authority is rendered functus officio, except for the purpose of issuing supplementary or additional Awards, as is permitted under the ‘NH Act’. 6. In the case at hand, the petitioners do not seek for a supplementary or additional Awards, but say that computation with respect to the compensation payable to them against the ‘electrification and plumbing’ of the buildings standing in the acquired properties has been done incorrectly. Inexorably, WPC 28263/21 6 therefore, they have to invoke their alternative remedies under Section 3G(5) of the ‘NH Act’, by assailing the Awards appropriately. 7. That said, I certainly must address the argument of Sri.P.Sathisan that the CALA has acted incorrectly while interpreting Ext.P4 Government Order. He pointed out that in the last page of Ext.P4, ‘electrification’ and ‘plumbing’ have been shown to be deserving an extra payment in the percentages mentioned therein and therefore, prayed that if his clients are directed to approach the competent Arbitrator under the ‘NH Act’, this issue may be ordered to be considered specifically. I find force in this submission since Ext.P4 does enumerate various heads under which compensation is to be paid and ‘electrification’ and ‘plumbing’ are included therein. In the afore circumstances and since the Awards with respect to the properties of the petitioners are stated to have been already issued on 13.11.2021, I order this Writ Petition; however, WPC 28263/21 7 leaving full liberty to them to challenge the same, invoking the provisions of Section 3G(5) of the ‘NH Act’, for which purpose, all their contentions and that of the respondents are left open. Needless to say, if the petitioners are to invoke their statutory remedies as afore, the competent Arbitrator will consider the same, particularly taking note of Ext.P4, as also the contention of Sri.P.Sathisan that except in Aleppey, the CALA in every other District has been granting benefits for ‘electrification’ and ‘plumbing’ as per the percentages mentioned in the said Government Order. It also goes without saying that if the petitioners approach the competent Arbitrator, said Authority will hear them, as also the authorised official of the NHAI, while completing the exercise, in terms of law. After I dictated this part of the judgment, Sri.P.Sathisan intervened to say that his clients have not received the copy of the Awards. This assertion, of course, is vehemently opposed by WPC 28263/21 8 Smt.K.Amminikutty saying that a copy of the same has been produced in the Writ Petition itself. Nevertheless, if the petitioners approach the CALA for a copy of the Awards, same shall be issued to them without any avoidable delay, so that they can invoke their statutory remedies in terms of the afore liberty. ``` Sd/- ``` ``` DEVAN RAMACHANDRAN JUDGE ``` ``` RR ``` WPC 28263/21 9 ## **`APPENDIX OF WP(C) 28263/2021`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE RELEVANT EXTRACT OF 3D NOTIFICATION DATED 12/02/2019. Exhibit P1(A)TRUE COPY OF THE RELEVANT EXTRACT OF 3D NOTIFICATION DATED 03/12/2020. Exhibit P1(B)TRUE COPY OF THE RELEVANT EXTRACT OF 3D NOTIFICATION DATED 31/12/2020. Exhibit P2TRUE COPY OF THE GAZETTE NOTIFICATION DATED 28/08/2015. ``` ``` Exhibit P3TRUE COPY OF THE GOVERNMENT ORDER NO.GO(P) NO.470/2015/RD DATED 19/09/2015. Exhibit P3(A)TRUE COPY OF THE GAZETTE NOTIFICATION DATED 14/08/2020. ``` - `Exhibit P4 TRUE COPY OF THE DO LETTER NO. PWD H3/09/2021 PWD DATED 08/01/2021.` - `Exhibit P5 TRUE COPY OF THE VALUATION STATEMENT ISSUED IN MALAPPURAM DISTRICT BY ASSISTANT ENGINEER, NATIONAL HIGHWAY, KUTTIPPURAM.` ``` Exhibit P6TRUE COPY OF THE RTI APPLICATION SUBMITTED BY THE 2ND PETITIONER DATED 06/07/2021. ``` - `Exhibit P6(A) TRUE COPY OF ANSWER FROM THE RTI FOR EXT.P6 DATED 14.07.2020.` - `Exhibit P7 TRUE COPY OF THE VALUATION REPORT OF KOLLAM DISTRICT DATED 20/3/2021` - `Exhibit P8 TRUE COPY OF THE VALUATION REPORT FOR STRUCTURE OF ERNAKULAM DISTRICT DATED 13/01/2021` - `Exhibit P9 TRUE COPY OF THE VALUATION REPORT FOR STRUCTURE OF THRISSUR DISTRICT DATED 01/11/2021` ``` Exhibit P10TRUE COPY OF THE DETAILED VALUATION REPORT OF MALAPPURAM DISTRICT ``` ``` Exhibit P11TRUE COPY OF THE INFORMATION OBTAINED UNDER RTI DATED 17/11/2021 ```