High Court of KeralaSingle Judge2022-10-20Writ petitions allowed; Ext.P4 Award set aside;...

Mohammed Kunhi Haji and Others v. National Highways Authority of India and Others

Case / Petition Number:WP(C) NO. 30496 & 30636 OF 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T.R.Ravi
Judgment Date: 2022-10-20
Court Decision / Holding: Writ petitions allowed. Ext.P4 Award issued pursuant to the Arbitrator’s remand is declared to be without force of law. The 2nd respondent is directed to reconsider the arbitration petition in accordance with law and to pass fresh orders after notice to the petitioners and the 1st respondent within three months.
Final Disposition: Writ petitions allowed; Ext.P4 Award set aside; 2nd respondent to reconsider arbitration petition; fresh orders to be passed within three months with notice to parties.

Parties to the Case

Appellants / Petitioners

MOHAMMED KUNHI HAJI
ABDULLA KUNHI TA
AYSHA TA
TA ABOOBACKER HAJI
SULAIMAN TA
SAFIYA
TA AYSHATH THAHIRA
NASIYA SHAREEF
TA Abdul Rahiman

Respondents

National Highways Authority of India represented by its Project Director Kozhikode
The District Collector, Kasaragod (Arbitrator appointed under Section 3G(5) of the National Highways Act, 1956)
The Special Deputy Collector Competent Authority, LA (NH)/CALA, Kasaragod

Legal Representation & Advocates

Counsels for Petitioners

• K. Shibili Naha
• A. Lowsy
• Nivea K.G.

Counsels for Respondents

• Bimal K. Nath

Case Synopsis & Summary

These writ petitions challenge the order directing fresh consideration and possible enhancement of compensation under Section 3G(5) of the National Highways Act, 1956, in a sequence of acquisition proceedings affecting lands in Kasaragod. The petitioners, nine individuals represented by their power of attorney holders, seek a direction to the 2nd respondent to consider and pass orders on Ext.P5 appeal under the National Highways Act, and to enhance compensation as done in similar cases, relying on a dictum from Usman Arif and Another v. Project Director, National Highway Authority of India (2022 (1) KLT 32). The core dispute concerns whether the Arbitrator’s remand to the CALA and the CALA’s subsequent award can stand. The court examines Ext.P6 judgment in a prior writ petition (WP(C) No. 19401 of 2021) and notes that the District Collector did not have the power to issue a remand order; it concludes that remand cannot be sustained and that an award passed after remand would be without jurisdiction. Ultimately, the court holds Ext.P4 Award issued pursuant to the remand as void and directs the 2nd respondent to reconsider the arbitration petition in accordance with law, with fresh orders to be issued after due notice within three months. The decision emphasizes adherence to lawful procedure and equity in compensation, aligning with earlier jurisprudence that scopes of remand are limited and subject to lawful scrutiny.

Provisions of Law Cited

Section 3G(5) of the National Highways Act, 1956Section 3E of the National Highways Act, 1956National Highways Act, 1956

Legal Doctrines & Maxims

Functus officio

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners urged that Ext.P5 appeal be considered under Section 3G(5) of the NH Act, 1956, and that the 2nd respondent enhance compensation in line with similar cases. They relied on Usman Arif (2022 (1) KLT 32) to challenge the CALA remand and argued that the CALA’s fresh award, issued after remand, lacks legal validity. They sought quashing of Ext.P4 Award and a direction to reconsider in accordance with law, with appropriate notices.

Contentions of Respondents

The respondents contended that the Arbitrator’s remand order and the CALA’s subsequent award were within the lawful scope; the challenge should be to the Arbitrator’s order, not the CALA’s order. The Government Pleader emphasized due process and the appropriate channels to challenge any remand-based award, and argued that Ext.P4 could not be treated as void without proper challenge to the underlying orders.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Usman Arif and Another v. Project Director, National Highway Authority of India	2022 (1) KLT 32	Positive	Cited as the controlling authority supporting non-viability of the remand order and for the necessity to reconsider the award in light of due process.
Judgment in WP(C) No. 19401/2021	WP(C) No. 19401/2021 (dated 05.01.2022)	Positive	Cited for Ext.P6 judgment's dictum that remand and subsequent awards under such remand are not sustainable; used to reject the validity of the CALA remand in the present case.

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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 T.R.RAVI THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** ## **WP(C) NO. 30496 OF 2022** ## **PETITIONERS:** **1 MOHAMMED KUNHI HAJI AGED 65 YEARS RESIDING AT SAINABA MANZIL THURUTHI , KASARGOD POST. (REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE 9TH PETITIONER), PIN - 671351 2 ABDULLA KUNHI. T.A AGED 63 YEARS FATHIMA MANZIL THURUTHI , KASARGOD POST. (REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE 9TH PETITIONER), PIN - 671351 3 AYSHA. T.A AGED 60 YEARS W/O MUHAMMED HABEEBULLAH RESIDING AT SARFEENA MANZIL PACKAKKAD, ANANGOOR, KASARGOD POST. (REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE 9TH PETITIONER), PIN - 671351 4 T.A. ABOOBACKER HAJI AGED 56 YEARS PADINHAPURAM THURUTHI , KASARGOD POST. (REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE 9TH PETITIONER), PIN - 671351 5 SULAIMAN .T.A. AGED 55 YEARS SAMEEMA MANZIL THURUTHI , KASARGOD POST. (REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE 9TH PETITIONER), PIN - 671351** ## **WP(C) NO. 30496 & 30636 OF 2022 2** - **6 SAFIYA AGED 53 YEARS W/O AHAMMED BASHEER. C.M. RESIDING AT MUNDAMKULAM HOUSE, CHEMNAD, KALANAD, KASARGOD TALUK (REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE 9TH PETITIONER), PIN - 671121** - **7 T.A. AYSHATH THAHIRA AGED 49 YEARS W/O M.A RAFEEK AHMMED RESIDING AT NALAM MAIL, MUTTATHODY, ALAMPADY. (REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE 9TH PETITIONER) KASARGOD TALUK., PIN - 671123** - **8 NASIYA SHAREEF AGED 47 YEARS W/O MOHAMMED SHAREEF PADHOOR RESIDING AT PADHOOR HOUSE, NEAR G.H.S. CHATTANCHAL , THEKKIL POST, CHENGALA KASARGOD TALUK. (REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE 9TH PETITIONER), PIN - 671121** **9 T.A.ABDUL RAHIMAN AGED 50 YEARS SAMEENA MANZIL , THURUTHI, KASARGOD POST , PIN - 671351** **BY ADVS. K.SHIBILI NAHA A.LOWSY NIVEA K.G.** ## **RESPONDENTS:** - **1 NATIONAL HIGHWAYS AUTHORITY OF INDIA REPRESENTED BY ITS PROJECT DIRECTOR KOZHIKODE, PIN - 673001** - **2 THE DISTRICT COLLECTOR,KASARGOD (ARBITRATOR APPOINTED U/S 3G (5) OF THE NATIONAL HIGHWAYS ACT 1956) COLLECTORATE KASARGOD, PIN - 671121** ## **WP(C) NO. 30496 & 30636 OF 2022 3** - **3 THE SPECIAL DEPUTY COLLECTOR COMPETENT AUTHORITY, LA (NH)/CALA CIVIL STATION KASARGOD PIN - 671123** **SRI. BIMAL K. NATH, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.10.2022, ALONG WITH WP(C).30636/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 30496 & 30636 OF 2022 4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944 WP(C) NO. 30636 OF 2022** |**WP(C) NO. 30636 OF 2022**|**WP(C) NO. 30636 OF 2022**| |---|---| |**PETITIONERS:**|| |**1**|**MOHAMMED KUNHI HAJI**| ||**AGED 65 YEARS**| ||**RESIDING AT SAINABA MANZIL**| ||**THURUTHI , KASARGOD POST**| ||**(REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE**| ||**9TH PETITIONER),PIN - 671351**| |**2**|**ABDULLA KUNHI. T.A**| ||**AGED 63 YEARS**| ||**RESIDING AT FATHIMA MANZIL**| ||**THURUTHI , KASARGOD POST**| ||**(REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE**| ||**9TH PETITIONER), PIN - 671351**| |**3**|**AYSHA. T.A**| ||**AGED 60 YEARS**| ||**RESIDING AT SARFEENA MANZIL**| ||**PACKAKKAD, ANANGOOR, KASARGOD POST**| ||**(REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE**| ||**9TH PETITIONER), PIN - 671351**| |**4**|**T.A. ABOOBACKER HAJI**| ||**AGED 56 YEARS**| ||**RESIDING AT PADINHAPURAM**| ||**THURUTHI , KASARGOD POST**| ||**(REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE**| ||**9TH PETITIONER), PIN - 671351**| |**5**|**SULAIMAN .T.A**| ||**AGED 55 YEARS**| ||**RESIDING AT SAMEEMA MANZIL**| ||**THURUTHI , KASARGOD POST**| ||**(REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE**| ||**9TH PETITIONER), PIN – 671351**| ## **WP(C) NO. 30496 & 30636 OF 2022 5** - **6 SAFIYA AGED 53 YEARS RESIDING AT MUNDAMKULAM HOUSE, CHEMNAD, KALANAD, KASARGOD TALUK (REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE 9TH PETITIONER), PIN - 671121** - **7 T.A. AYSHATH THAHIRA AGED 49 YEARS NALAM MAIL, MUTTATHODY, ALAMPADY KASARGOD TALUK (REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE 9TH PETITIONER), PIN - 671123** - **8 NASIYA SHAREEF AGED 47 YEARS RESIDING AT PADHOOR HOUSE, NEAR G.H.S. CHATTANCHAL , THEKKIL POST, CHENGALA KASARGOD TALUK (REPRESENTED BY THE POWER OF ATTORNEY HOLDER/THE 9TH PETITIONER), PIN - 671121** - **9 T.A.ABDUL RAHIMAN AGED 50 YEARS SAMEENA MANZIL , THURUTHI, KASARGOD POST , PIN - 671351** **BY ADVS. K.SHIBILI NAHA A.LOWSY NIVEA K.G.** ## **RESPONDENTS:** - **1 NATIONAL HIGHWAYS AUTHORITY OF INDIA REPRESENTED BY ITS PROJECT DIRECTOR KOZHIKODE , PIN - 673001** - **2 THE DISTRICT COLLECTOR, KASARGOD (ARBITRATOR APPOINTED U/S 3G (5) OF THE NATIONAL HIGHWAYS ACT 1956), COLLECTORATE, KASARGOD , PIN – 671121** ## **WP(C) NO. 30496 & 30636 OF 2022 6** **3 THE SPECIAL DEPUTY COLLECTOR COMPETENT AUTHORITY, LA (NH)/CALA CIVIL STATION KASARGOD, PIN - 671123** **SRI.BIMAL K. NATH, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.10.2022, ALONG WITH WP(C).30496/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 30496 & 30636 OF 2022 7** ## **T.R. RAVI, J.** ## **--------------------------------------------** W.P.(C).Nos.30496 & 30636 of 2022 -------------------------------------------Dated this the 20[th] day of October, 2022 ## **JUDGMENT** Admit. Government Pleader takes notice for respondents 2 and 3. Standing Counsel takes notice for the 1[st] respondent. These writ petitions have been filed praying for a direction to the 2[nd] respondent to consider and pass orders on Ext.P5 appeal preferred by the petitioners in terms of Section 3G (5) of the National Highways Act, 1956 adverting to Ext.P6 judgment and for a direction to the 2[nd] respondent to enhance the compensation as is done in similar cases. There is also a prayer that the 3[rd] respondent CALA becomes 'functus officio' going by the dictum laid down **Usman Arif and Another v. Project Director, National Highway Authority of** **India [2022 (1) KLT 32].** Reliance is placed on Ext.P6 judgment in W.P(C).No.19401 of 2021 relating to acquisition of lands in the same area. This Court considered the question whether the Arbitrator could remand a case to the CALA to issue a fresh award. This Court specifically found that the District Collector did not have the power to issue such an order and set aside the order remanding the matter to the CALA and directed the Arbitrator to pass fresh orders. It is also ## **WP(C) NO. 30496 & 30636 OF 2022 8** observed that, if as a consequence of remand order CALA has passed an Award, the same shall be treated as being without jurisdiction. In the case on hand, the Government Pleader points out that unlike a case of open remand, this is a case where the Arbitrator even stated that after remand the CALA should pass a fresh award without exceeding a particular amount. He hence submitted that if the petitioners have a grievance regarding the said order they have to challenge the order of the Arbitrator rather than challenging the subsequent order which has been issued by the CALA. Even though the argument appears good at the first blush, I do no think that this Court can ignore the fact that the very order whereby the CALA was directed to pass fresh awards cannot be sustained in the eyes of law. As such, there is no necessity to relegate the petitioner to challenge the initial order of the Arbitrator in other proceedings. In view of the dictum laid down in Ext.P6 judgment and in **Usman Arif** (Supra), this Court cannot accept the contention that the order of District Collector remanding the matter, should be treated as valid for the limited extent of the fixation of compensation to be awarded by CALA, since the order of remand itself cannot be sustained. As a result, these writ petitions are allowed. Ext.P4 Award which has been issued pursuant to the order dated 17.02.2021, passed by the 2[nd] respondent is declared to be an order without any ## **WP(C) NO. 30496 & 30636 OF 2022 9** force of law. The 2[nd] respondent shall reconsider the arbitration petition filed by the 1[st] respondent in accordance with law and dispose of the same. The order dated 17.02.2021 issued by the 2[nd] respondent is set aside to facilitate the 2[nd] respondent to reconsider the issue. Fresh orders shall be passed after notice to the petitioners and the 1[st] respondent at the earliest, at any rate, within a period of three months from the date of receipt of a copy of this judgment. **Sd/T.R.RAVI JUDGE** LEK **WP(C) NO. 30496 & 30636 OF 2022 10** ## **APPENDIX OF WP(C) 30496/2022** ## **PETITIONER EXHIBITS** **Exhibit P1** **NOTARIZED COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED ON 31.03.2021 IN FAVOUR OF THE 9TH PETITIONER** **Exhibit P2 TRUE COPY OF THE NOTICE DATED 05.12.2019 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 3 E OF THE ACT 48** **Exhibit P3 TRUE COPY OF THE PROCEEDINGS/ REVISED AWARD ISSUED BY THE 3RD RESPONDENT AS LAC. NO. 68/KASARGOD VILLAGE, DATED 27.04.2021** **Exhibit P4 A TRUE COPY OF THE APPEAL ALONG WITH ITS RECEIPT DATED 17.01.2022** **Exhibit P5 A TRUE COPY OF THE JUDGMENT IN WP(C) NO. 19401/2021 DATED 05.01.2022** **WP(C) NO. 30496 & 30636 OF 2022 11** ## **APPENDIX OF WP(C) 30636/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 NOTARIZED COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED ON 31.03.2021 IN FAVOUR OF THE 9TH PETITIONER** **Exhibit P2 TRUE COPY OF THE AWARD DATED 20.12.2019 ISSUED BY THE 3RD RESPONDENT IN LAC 64/ KASARGOD VILLAGE** - **Exhibit P3 A TRUE COPY OF THE NOTICE DATED 20.12.2019 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 3 E OF THE ACT 48** **Exhibit P4** - **A TRUE COPY OF THE PROCEEDINGS/ REVISED AWARD ISSUED BY THE 3RD RESPONDENT AS LAC. NO. 64/KASARGOD VILLAGE, DATED 28.07.2021** **Exhibit P5 A TRUE COPY OF THE APPEAL ALONG WITH ITS RECEIPT DATED 17.01.2022** **Exhibit P6 A TRUE COPY OF THE JUDGMENT IN WP(C) NO. 19401/2021 DATED 05.01.2022**