M.M. PAILY VAZHUKKUMPARA and others v. UNION OF INDIA and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **WP(C).No.16227 OF 2011(C)** ## **PETITIONERS:** - **1 M.M.PAILY VAZHUKKUMPARA ,CHUVANNAMANNU P.O.,PATTIKKAD,, THRISSUR-680652** - **2 M.M.GEORGE SO.MATHAI MEKKATTIL HOUSE, VAZHUKKUMPARA ,CHUVANNAMANNU P.O.,PATTIKKAD,, THRISSUR-680652** - **3 K.MADHAVAN NAIR ANIYAN NAIR KOTHOTTIL HOUSE,CHEMUTHARA,, P.O.PATTIKKAD, THRISSUR680652** - **4 GEORGE SO.DEVASSYMUTTOMTHOTTIL HOUSE VAZHUKKUMPARA,CHUVANNAMANNU P.O.,PATTIKKAD,, THRISSUR-680652** - **5 SHEELA ANTONY CHAKKATHARA HOUSE KAIRALY NAGAR, PATTIKKAD,THRISSUR-680652** - **6 SEBASTIAN P.O.SO.OUSEPH PADIKKALATH HOUSE, PATTIKKAD P.O.,, THRISSUR-680652** - **7 K.U.YOHANNAN S/O.ULAHANNAN, KIZHAKKEKUTTIKKATTIL HOUSE,, CHUVANNAMANNU P.O.,CHUVANNAMANNU, PATTIKKAD P.O., THRISSUR-680652** - **8 PAULOSE P.MPOOTHANKUZHI HOUSE VAZHUKKUMPARA P.O.,, CHUVANNAMANNU, PATTIKKAD,, THRISSUR-680652** - **9 K.U.PAULOSE SO.ULAHANNAN KAROTTUKURUVELIL, AALPARA P.O.,, KANNARA, PATTIKKAD, THRISSUR-680652** - **10 JOY CHALIYELIL HOUSE CHUVANNAMANNU, PATTIKKAD,THRISSUR-680652** WP(C).No.16227 OF 2011(C) 2 - **11 SHAJU C.RSO.RAPPAI CHALISSERY HOUSE ERAVIMANGALAM, THRISSUR-680751** - **12 ANNAMMA MATHAIWO.M.P.MATHAI MEKKATTIL HOUSE, VAZHUKKUMPARAM,P.O.CHUVANNAMANNU, PATTIKKAD, THRISSUR-680652** - **13 M.K.VARGHESE MEKKATTIL HOUSE VVAZHUKKUMPARA,THONIKKAL,P.O.CHUVANNAMANNU,, PATTIKKAD, THRISSUR-680652** - **14 K.RAMAKRISHNANSO.K.RAMAN MENON KARAPPURATHU HOUSE, VAZHUKKUMPARA,,** - **P.O.CHUVANNAMANNU, PATTIKKAD, THRISSUR-680652** - **15 V.P.FRANCISSO.V.P PAULOSE VALLURAN HOUSE,P.O.CHUVANNAMANNU,, PATTIKKAD, THRISSUR-680652** - **16 A.M.UMMER SO.ABDUL RAHIMAN AMBALATH HOUSE,VAHZUKKUKMPARAM,, P.O.CHUVANNAMANNU, PATTIKKAD,, THRISSUR-680652** - **17 JOY T.VSO.VARGHESE THURUTHEL HOUSE P.O.CHUVANNAMANNU, PATTIKKAD,THRISSUR-680652** - **18 K.C.JOSEPH SO.CHACKO KAINIKKARA HOUSE, P.O.CHUVANNAMANNU,, PATTIKKAD, THRISSUR-680652** - **19 PAUL MANISO.MANI THERUVANKUNNEL HOUSE VAZHUKKUMPARA,** - **P.O.CHUVANNAMANNAU,PATTIKKAD, THRISSUR-680652** - **20 JOSE K.DSO.DEVASSY KALAN HOUSE,, P.O.CHUVANNAMANNAU,PATTIKKAD, THRISSUR-680652** - **21 VARGHESE P.CSO.CHERIAN PATTAYIL HOUSE,P.O.CHUVANNAMANNAU,PATTIKKAD,, THRISSUR-680652** - **22 L.U.PAULOSE SO.K.I.ULAHANNAN KOLLIYOTTIL HOUSE,, VAZHUKKUMPARA,, P.O.CHUVANNAMANNAU,PATTIKKAD, THRISSUR-680652** - **23 K.CPAPPACHANSO.CHACKO KAINIKKARA HOUSE,, P.O.CHUVANNAMANNAU,PATTIKKAD,** WP(C).No.16227 OF 2011(C) 3 ## **THRISSUR-680652** - **24 K.BALACHANDRAN SO.RAMAN NAIR AANTHOOR HOUSE,VAZHUKKUMPARA, P.O.CHUVANNAMANNAU,PATTIKKAD, THRISSUR-680652** - **25 M.P.GEORGE SO.PAULOSE MEKKATTIL HOUSE,VAZHUKKMPARA, P.O.CHUVANNAMANNAU,PATTIKKAD, THRISSUR-680652** - **26 SALY GEORGE WO.GEORGE KOORUVELIL HOUSE, P.O.CHUVANNAMANNU,, PATIKKAD, THRISSUR-680652** - **BY ADVS. SRI.M.A.FIROZ SRI.GEORGE MECHERIL** ## **RESPONDENTS:** - **1 UNION OF INDIA SECREARY TO GOVERNMENT,MINISTRY OF SHIPPING,, ROAD TRANSPORT AND HIGHWAYS, (DEPARTMENT OF RAOD TRANSPORT AND HIGHWAYS), NEW DELHI-1** - **2 THE NATIONAL HIGHWAY AUTHORITY OF INDIA G-5 & 6,SECTOR 10, DWARAKA,NEW DELHI-110075, REP.BY ITS CHAIRMAN** - **3 THE STATE OF KERALA REP.BY ITS CHIEF SECRETARY TO GOVERNMENT,, SECRETARIAT,THIRUVANANTHAPURAM-695001** - **4 THE DEPUTY COLLECTOR AND THE SPECIAL LAND ACQUISITION, OFFICER AND THE COMPETENT AUTHORITY UNDER THE, NATIONAL HIGHWAYS ACT, NHDP OFFICE, CHEMPUKAVU, THRISSUR,PIN-680003** - **5 THE DISTRICT COLLECTOR THRISSUR PIN-680003** - **6 THRISSUR EXPRESSWAY LTD PORJECT OFFICE BEHIND APPLLO TYRES, PERAMBRA,, THRISSUR, PIN680689,REP.BY ITS PROJECT DIRECTOR** - **R1, R6 BY ADV. SMT.M.M.DEEPA R1 BY ADV. SRI.V.A.JOHNSON VARIKKAPPALLIL R1 BY ADV. SRI.THOMAS ANTONY** WP(C).No.16227 OF 2011(C) 4 **R1-2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R2 BY ADV. SRI.K.A.SALIL NARAYANAN** **GOVERNMENT PLEADER, SMT.A C VIDHYA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.16227 OF 2011(C) 5 ## **JUDGMENT** ## **Dated this the 5th day of March 2020** The short issue in this case whether interest and solatium can be claimed by the parties whose land have been acquired under the National Highways Act, 1956 without the same being raised in arbitration proceedings under the National Highways Act. 2. The dispute is essentially regard to interest and solatium as applicable to the compensation amount to be awarded under the Land Acquisition Act, 1894. 3. Under the National Highways Act, a different procedure is contemplated for acquisition and award of compensation. Section 3J of the National Highways Act states that, nothing in the Land Acquisition Act shall apply to an acquisition under the National Highways Act. Treating that interest and solatium is statutorily conferred, that it is not awarded under the National Highways Act as there is no similar provision under the National Highways Act. This writ petition was filed in the WP(C).No.16227 OF 2011(C) 6 year 2011, challenging the statutory provisions of the National Highways Act. 4. Some of the petitioners who were not satisfied with the award of compensation raised a dispute. That was referred to arbitration as contemplated under Section 3G(5) of the National Highways Act. It appears that the arbitration award was passed while this writ petition was pending. It is pointed out by the learned Standing Counsel for the National Highway Authority of India, that the award was passed as early as in the year 2017. 5. The Apex Court, in **Union of India v. Tarsem Singh** 2019 (9) SCC 304 struck down Section 3J to the extent the non grant of solatium and interest in respect of the land acquired under the National Highways Act. This judgment was rendered on 19/09/2019. The challenge therefore become an academic interest in as much as that it has already been sustained by the Apex Court. Now, the only dispute is regard to the relief to be given to the petitioners. 6. The learned Standing Counsel would submit that the petitioners could have very well pursued their remedy under arbitration and without prosecuting their remedy, foreclosed their rights to claim interest and solatium. WP(C).No.16227 OF 2011(C) 7 7. The arbitrator is having only limited jurisdiction and competency to entertain a dispute. There is a complete embargo in application of Land Acquisition Act, 1984 under Section 3J. A waiver would arise when there is an established right. A waiver is understood as voluntary relinquishment of a known right. If such a right is not available under statutory provisions as then stood. That could not have been persuaded before an arbitrator. It is only when the Apex Court declared the law by striking down Section 3J to the extend as above the right came to be recognized. That means it is much after the award passed in the matter such right came into being acknowledged. 8. The petitioners are pursuing their remedy before this Court in 2011 onwards. This Court alone can decide the issue in regard to the virus of the statutory provision. It is also to be noted that the petitioners had not slept over their right. They pursued the challenge before this Court, much before the arbitration award was passed. So there is no delay on their part. In such circumstances, the relief cannot be denied to the petitioners based on the Apex Court judgment in regard to interest and solatium. Accordingly, the writ petition is WP(C).No.16227 OF 2011(C) 8 allowed. The competent authority is directed to grant the interest and solatium in the light of Apex Court judgment in **Tarsem Singh** 's (supra) case within a period of two months after notice to the petitioners. Ordered accordingly. The writ petition is disposed of as above. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** AJ WP(C).No.16227 OF 2011(C) 9 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE RELEVANT NOTIFICATION**| |---|---| ||**DATED 21/10/2005 PUBLISHED ON THE MALAYALA**| ||**MANORAMA DAILY DATED 24/11/2005.**| |**EXHIBIT P2**|**TRUE COPY OF THE RELEVANT PORTION OF**| ||**SECTION 3D NOTIFICATION ISSUED ON**| ||**20/10/2006.**| |**EXHIBIT P3**|**TRUE COPY OF THE NOTIFICATION ISSUED UNDER**| ||**SEC.3. A OF THE N.H. ACT ON 16/03/2007.**| |**EXHIBIT P4**|**TRUE COPY OF THE SEC. 3A NOTIFICATION DATED**| ||**16/11/2007.**| |**EXHIBIT P5**|**TRUE COPY OF THE RELEVANT PORTION OF THE**| ||**AGREEMENT EXECUTED BETWEEN THE 2ND AND 6TH**| ||**RESPONDENT ON 24/08/2009.**| |**EXHIBIT P6**|**TRUE COPY OF THE NOTICE ISSUED UNDER**| ||**SEC.3G(3) DATED 04/12/2009.**| |**EXHIBIT P7**|**TRUE COPY OF THE 3G(3) NOTICE DATED**| ||**05/12/2009.**| |**EXHIBIT P8**|**TRUE COPY OF THE 3G(3) NOTICE DATED**| ||**07/12/2009.**| |**EXHIBIT P9**|**TRUE COPY OF THE PROCEEDINGS OF THE 4TH**| ||**RESPONDENT IN RESPECT OF THE FIRST**| ||**PETITIONER.**| |**EXHIBIT P10**|**TRUE COPY OF THE JUDGMENT DATED 25/03/2011**| ||**IN WPC NO.8380/2011.**| |**EXHIBIT P11**|**TRUE COPY OF THE INFORMATION FURNISHED BY**| ||**THE N.H.AUTHORITIES, PROJECT IMPLEMENTATION**| ||**UNIT, MALDA DATED 04-07-2017 AND 01-06-**| ||**2017.**| |**EXHIBIT P12**|**TRUE COPY OF THE COMMUNICATION WAS OBTAINED**| ||**FROM THE OFFICE OF THE DISTRICT MAGISTRATE**| ||**& COLLECTOR, MURSHIDABAD ON 13-07-2017.**| |**EXHIBIT P13**|**TRUE COPY OF THE ORDER DATED 03-08-2017 IN**| WP(C).No.16227 OF 2011(C) 10 ||**I.A.NO.2/2017 AND 3/2017 IN**| |---|---| ||**C.A.NO.10767/2017.**| |**EXHIBIT P14**|**TRUE COPY OF THE ORDER DATED 21-07-2016 IN**| ||**C.A.NOS.129-159/2014 OF THE HON'BLE SUPREME**| ||**COURT OF INDIA.**| |**EXHIBIT P15**|**TRUE COPY OF THE COMMON JUDGMENT IN ARB.**| ||**APPEAL NO.18/18, 21/18 AND 22/18.**|