High Court of KeralaSingle Judge2022-04-08Writ petition disposed of with liberty to the p...

Moideen Kutty Kannayilkkal v. National Highways Authority of India and Others

Case / Petition Number:WP(C) NO. 13607 OF 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: The Hon. Justice Devan Ramachandran
Judgment Date: 2022-04-08
Court Decision / Holding: Writ petition disposed of to the limited extent that the petitioner is allowed liberty to approach the competent Statutory Arbitrator under Section 3G(5) of the NH Act within one month from the date of this judgment. The Statutory Arbitrator is to consider the petitioner's application, hear the officials of NHAI as necessary, and pass appropriate orders expeditiously. The petitioner may raise any valuation contention before the Arbitrator. The petitioner may return to this Court after eight months from the date of filing the 3G(5) application if final orders have not been issued, so that the Court can consider appropriate steps. The judgment also notes that the petitioner can raise any contentions available in law before the District Collector during the arbitration process and that no further orders are required beyond this process.
Final Disposition: Writ petition disposed of with liberty to the petitioner to approach the Statutory Arbitrator under NH Act Section 3G(5) within one month. The Arbitrator is to hear the parties including NHAI officials as necessary and decide expeditiously, with the option for the petitioner to approach the Court again after eight months if no final orders are issued. The petitioner may raise valuation contentions before the Arbitrator; no further direct relief is granted in the present petition. The court clarifies CALA’s scope and conveys that any supplementation or additional Award within the NH Act remains permissible.

Parties to the Case

Appellants / Petitioners

Moideen Kutty Kannayilkkal

Respondents

National Highways Authority of India (NHAI) / Ministry of Road Transport and Highways, New Delhi
Project Director, National Highways Authority (NHAI), NH Division Office, Kozhikode-673001
Deputy Collector LA(NH) & Competent Authority, Office of the Deputy Collector, LA(NH), Kozhikode- 676 501
District Collector, Malappuram Collectorate, Malappuram-676 505
Special Tahsildar LA-NH (Unit-3), Pannani, Ponnani, Malappuram-679 583

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Shoby K. Francis

Counsels for Respondents

• Sri Bidan Chandran
• Smt. K. Amminikutty (Sr. G.P.)

Case Synopsis & Summary

This writ petition challenges Ext. P4 Award under the National Highways Act (NH Act) regarding land acquired for the National Highway project. The petitioner alleges that 6% salvage was unfairly deducted from compensation and that, despite informing CALA that he would not remove the remnants of the building, the Salvage deduction was maintained in the award. He seeks setting aside of the impugned portion of Ext. P4 and directs CALA to include salvage in the final compensation. The respondents argue that once CALA issues an Award, its role is functus officio, with the remedy lying in Section 3G(5) of the NH Act before the Statutory Arbitrator; this position is anchored in Usman Arif v. Project Director (2022(1) KLT 35). The court agrees that CALA cannot reconsider the award in a writ petition, but notes that the petitioner seeks modification, not a fresh challenge, and therefore should be directed to pursue the Statutory Arbitrator under 3G(5). The judge directs that the petitioner be given liberty to file before the Statutory Arbitrator within one month, with the Arbitrator to afford hearing to the NHAI officials if required, and to consider the matter expeditiously. The judgment also references Mohammad Salahuddin and another vs. Special Deputy Collector for guidance on salvage and timelines. The court leaves room for the petitioner to raise valuation concerns at the time of such reference, and to approach the Court again after eight months if no final orders are issued.

Provisions of Law Cited

National Highways Act (NH Act) – Section 3G(5)

Legal Doctrines & Maxims

Fuctus officio ( functus officio )

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the Ext. P4 Award wrongly deducts 6% salvage, despite his clear indication that he would not remove the building remnants. He seeks setting aside the impugned salvage deduction and inclusion of salvage in the final compensation; he asserts that the remedy is modification of the award through the Statutory Arbitrator under Section 3G(5) of the NH Act, not a writ petition. He also seeks liberty for the District Collector’s proceedings and to present valuation objections in the arbitration process.

Contentions of Respondents

The respondents submit that once CALA issues an Award, it becomes functus officio except to issue a supplemental award; remedy lies in Section 3G(5) before the Statutory Arbitrator. They rely on Usman Arif v. Project Director to justify this position and request dismissal of the petition, while suggesting that the Arbitrator may hear NHAI officials as part of the process.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Usman Arif v. Project Director	2022(1) KLT 35	Positive	The Court relies on this decision to hold that CALA awards are functus officio except for supplemental awards within the NH Act; this underpins directing the petitioner to approach the Statutory Arbitrator under Section 3G(5).
Mohammad Salahuddin and another v. Special Deputy Collector and others	WP(C) No.23142/2021	Mentioned Only	Cited for guidance on salvage deductions and related timing, but not as a binding precedent for the present remedy; used to illustrate parallel considerations and timelines.

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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 DEVAN RAMACHANDRAN** **FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944** ## **WP(C) NO. 13607 OF 2022** ## **PETITIONER:** MOIDEEN KUTTY KANNAYILKKAL AGED 63 YEARS S/O ALI MUHAMMAD HAJI, KANNAYIKKAL HOUSE, BIYYAM.P.O, EASWARAMANGALAM AMSOM, PUZHAMBRAM DESOM, PONNANAI TALUK, MALAPPURAM-679589 BY ADV SHOBY K.FRANCIS ## **RESPONDENTS:** 1 NATIONAL HIGHWAY AUTHORITY OF INDIA, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, HEAD QUARTERS, 5 & 6, SECTOR10, DWARAKA, NEW DELHI-110075 REPRESENTED BY ITS CHAIRMAN. 2 PROJECT DIRECTOR, NATIONAL HIGH AUTHORITY, NH DIVISION OFFICE, KOZHIKODE-673001 3 DEPUTY COLLECTOR LA(NH) & COMPETENT AUTHORITY, OFFICE OF THE DEPUTY COLLECTOR, LA (NH), KOZHICHENA.P.O, MALAPPURAM-676 501 4 DISTRICT COLLECTOR, COLLECTORATE, MALA.P.O, MALAPPURAM676 505 5 SPECIAL TAHSILDAR LA-NH (UNIT-3), PANNANI.P.O, PONNANI, MALAPPURAM-679 583. SRI.BIDAN CHANDRAN SC SMT.K.AMMINIKUTTY.SR.G.P. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 13607 OF 2022** **2** ## **JUDGMENT** The petitioner alleges that when Ext.P4 Award has been settled by the Competent Authority for Land Acquisition (CALA), appointed under the provisions of the National Highways Act (NH Act), with respect to the property acquired from him for the purposes of the National Highway Authority of India (NHAI), an amount equivalent to 6% has been unfairly deducted as “salvage”, even though he had made it clear – through Ext.P5 to the CALA – that he does not intend to take away the remnants of the building standing in the property acquired. 2. The petitioner thus prays that Ext.P4 Award be set aside, to the extent to which it is impugned herein, and the CALA be directed to include the deducted amounts in the final **WP(C) NO. 13607 OF 2022** **3** compensation, within a time frame to be fixed by this Court . 3. The afore submissions of Sri.Shoby K.Francis – learned counsel for the petitioner, were, however, opposed by the – learned Senior Government Pleader Smt.K.Amminikutty, arguing that it has been now well settled by this Court in _**Usman Arif v.Project Director**_ [ _**2022(1)KLT 35]**_ that once the CALA has issued an Award, it is rendered _functus officio_ and that the remedy of the petitioner against it is to approach the statutory Arbitrator, under the provisions of Section 3G(5) of the “NH Act”. 4. The learned Standing Counsel for the NHAI – Sri.Bidan Chandran, adopted the afore submissions of the learned Senior Government Pleader and prayed that this writ petition be dismissed. He then added that, in event the ## **WP(C) NO. 13607 OF 2022** **4** petitioner is to move an application under Section 3G(5) of the “NH Act” before the competent Statutory Arbitrator, said Authority may be directed to hear the concerned officials of the NHAI also during such process. 5. I must say that I find substantial force in the afore submissions of the learned Senior Government Pleader because, as rightly stated by her, this Court has declared in _**Usman Arif** (supra)_ that once Ext.P4 Award has been issued by the CALA, it is rendered _funcuts officio_ except for the purpose of issuing a supplemental or additional Award within the mandate of the “NH Act”. 6. However, since the petitioner seeks no such, but modification of the Award already issued on the ground that it is in error, I am certain that the only remedy now available to ## **WP(C) NO. 13607 OF 2022** **5** the petitioner is to approach the Statutory Arbitrator under Section 3G(5) of the “NH Act”. For the reasons above, I order this writ petition to the limited extent of leaving liberty to the petitioner to approach the competent Statutory Arbitrator under the aforementioned provisions of the “NH Act”; and if this is done within a period of one month from the date of receipt of a copy of this judgment, said Authority will consider the same, adverting to the judgment of this Court in _**Mohammad Salahuddin and another vs. Special**_ _**Deputy Collector and others**_ [WP(C) No.23142/2021], which has already dealt with the question of deduction of “salvage”, and after affording him an opportunity of being heard to the petitioner, as also to the competent official of the NHAI; thus **WP(C) NO. 13607 OF 2022** **6** culminating in an appropriate order and necessary action thereon, as expeditiously as is possible. I also leave liberty to the petitioner to approach this Court after a period of eight months from the date on which his application under Section 3G(5) is preferred before the District Collector and if final orders are not issued thereon, so that this Court can then consider fixing a time frame appositely, taking note of the germane circumstances at the relevant time. After I dictated this part of the judgment, Sri.Shoby.K.Francis, submitted that his client also has an objection regarding the valuation adopted by the CALA and prayed that his client be given liberty to raise this also when his application is preferred before the Statutory Arbitrator. When I hear the learned ## **WP(C) NO. 13607 OF 2022** **7** counsel for the petitioner as afore, it is needless to say that petitioner will be at liberty to raise any contention available to him in law before the District Collector which will certainly have to be considered by the said Authority in terms of the “NH Act”; and it would not require any specific orders from this Court for such purpose. Sd/- ## **DEVAN RAMACHANDRAN** **JUDGE** SAS **WP(C) NO. 13607 OF 2022** **8** ## **APPENDIX OF WP(C) NO. 13607 OF 2022** PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF BASIC TAX RECEIPT DATED 11.4.2018 ISSUED BY THE VILLAGE OFFICER Exhibit P2 TRUE BLACK AND WHITE PHOTOGRAPH OF THE BUILDING AND CHAMMRAVOTTOM JUNCTION Exhibit P3 TRUE COPY OF JUDGMENT IN WP(C) NO.7276/2021 DATED 24.9.2021 Exhibit P4 TRUE COPY OF THE AWARD DATED 26.2.2022 ISSUED BY THE 3RD RESPONDENT IN NO.5981/2021/PNI/253 Exhibit P5 TRUE COPY OF WRITTEN UNDERTAKING GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT DATED 10.2.2022 Exhibit P6 TRUE COPY OF JUDGMENT IN WP(C) NO.23142/2021 DATED 30.12.2021