Muhammed Kunhi Kadavath 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. 6014 OF 2022** ## **PETITIONER:** **MUHAMMED KUNHI KADAVATH, SECRETARY, BEVINJE PALLI (BEVINJE JUMA MASJID), THEKKIL FERRY (P.O.), KASARAGOD, PIN-671 541.** **BY ADVS.JAWAHAR JOSE CISSY MATHEWS EDWIN JOSEPH JAISON ANTONY** **RESPONDENTS:** - **1 THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN, PARLIAMENT STREET, NEW DELHI, PIN-110001.** - **2 NATIONAL HIGHWAYS AUTHORITY OF INDIA,REPRESENTED BY ITS CHAIRMAN, G-5 & 6, SECTOR 10, DWARAKA, NEW DELHI, PIN-110075.** - **3 THE REGIONAL OFFICER, NATIONAL HIGHWAYS AUTHORITY OF INDIA, AMBILY ARCADE, PETTAH (P.O.), THIRUVANANTHAPURAM, PIN-695 024.** - **4 THE PROJECT DIRECTOR, (IMPLEMENTATION UNIT), NATIONAL HIGHWAYS AUTHORITY OF INDIA, VAISHNAVAM, BEHIND POPULAR VEHICLE MARUTHI SHOWROOM, CIVIL STATION (P.O.), KOZHIKODE, PIN-673 020.** - **5 THE DISTRICT COLLECTOR, KASARAGOD, VIDYA NAGAR (P.O.), KASARAGOD, PIN-671 121.** - **6 THE SPECIAL DEPUTY COLLECTOR (LA-NH), OFFICE OF THE LAND ACQUISITION OF NATIONAL HIGHWAYS, ANANGOOR, KASARAGOD, PIN-671 123.** **BY ADVS.E.C.KURIAKOSE LEJO JOSEPH GEORGE(KAR/74/2017) SMT. MABLE .C .KURIAN, SR.G.P SRI.B.G.BIDAN CHANDRAN, SC SRI.S.MANU, ASGI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 6014 OF 2022** **-2-** ## **JUDGMENT** The petitioner impugns Ext.P1 Award issued by the Competent Authority for Land Acquisition (CALA), appointed under the provisions of the National Highways Act (the 'NH Act', for short), with respect to a property acquired from him for the purposes of the National Highway Authority of India (NHAI) and a building standing thereon, owned by a 'Juma Masjid', of which he is the Secretary. 2. The petitioner asserts that deduction of 6% from the compensation eligible under the Award, towards 'salvage' of the remnants of the building, is grossly improper since it has now been settled by this Court in _**Mohammad Salahuddin v. Special**_ _**Deputy Collector and Others**_ [W.P.(C)No.23142 of 2021] that it is only if the owner of the land takes away the said remnants from the property in ## **WP(C) NO. 6014 OF 2022** **-3-** question can it be attracted. He says that the Juma Masjid has specifically informed the CALA, through Ext.P2, that they do not intend to take away the remnants of the building and therefore, that deduction of 6% 'salvage' from the Award is grossly improper and illegal. He, therefore, prays that said Award, to the extent to which it is impugned,be set aside and the CALA be directed to issue a supplementary Award, restoring the said amounts. 3. The afore requests of the petitioner, as made by his learned counsel – Sri.Jawahar Jose, were answered by the learned Standing Counsel for the NHAI – Sri.B.G.Bidan Chandran, contending that since the Award has already been issued, the CALA has been rendered _functus officio,_ going by the judgment of this Court in _**Mohammad Salahuddin**_ (supra). He submitted that, therefore, if the petitioner has any cause against the Award, his ## **WP(C) NO. 6014 OF 2022** **-4-** remedy is to challenge it before the Statutory Arbitrator, under the provisions of Section 3G(5) of the 'NH Act' and thus prayed that this writ petition be dismissed. 4. The learned Senior Government Pleader – Smt.Mable C.Kurian, also supported the afore submissions of Sri.B.G.Bidan Chandran, further arguing that this writ petition is not maintainable. She submitted that since the petitioner has already invoked his remedies under Section 3G(5) of the 'NH Act' before the competent Arbitrator, which is evident from Ext.P4, no further orders may be issued in this writ petition. 5. When I evaluate and assess the afore rival submissions on the touchstone of the various materials available on record, it is evident that the sole case of the petitioner is that, in spite of the Juma Masjid having informed the CALA that ## **WP(C) NO. 6014 OF 2022** **-5-** they do not intend to take away the remnants of the building from the acquired property, through Ext.P2, 6% has been deducted in the Award unfairly. This Court has already dealt with this issue in _**Mohammad Salahuddin**_ (supra), wherein, the admissions made on behalf of the NHAI have been recorded that it is only in cases where a person or entity takes away the remnants of the building will the deduction of 6% of 'salvage' come into play. 6. That said, however, since the Award has already been issued and the CALA thus rendered _functus officio_ , I am certain that petitioner must pursue his remedies before the Statutory Arbitrator on this aspect also. Resultantly, I order this writ petition and leave liberty to the petitioner to pursue Ext.P4 application before the Statutory Arbitrator, specifically on the question of the deduction of ## **WP(C) NO. 6014 OF 2022** **==> picture [22 x 9] intentionally omitted <==** 'salvage' from the Award in question. It is needless to say that the Statutory Arbitrator will deal with Ext.P4 as per law, after affording the petitioner, as also the authorized official of the NHAI, an opportunity of being heard; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible. Sri.B.G.Bidan Chandran, at this time, prayed that merely because Ext.P4 application is pending before the District Collector, the NHAI may not be interdicted from removing the rubble and remnants of the building from the acquired property. Since Sri.Jawahar Jose – learned counsel for the petitioner, makes it abundantly clear that his client is not interested in the remnants or in removing it, it is certainly upto the NHAI to do so without any interdiction even though Ext.P4 is pending before the District Collector. ## **WP(C) NO. 6014 OF 2022** **-7-** It is also without requirement to restate that the District Collector shall act in terms of law and as per the provisions of the 'NH Act' _de hors_ the contents of Ext.P6 communication and I record that this is agreed to by Sri.B.G.Bidan Chandran also. **Sd/DEVAN RAMACHANDRAN JUDGE** akv **WP(C) NO. 6014 OF 2022** **-8-** ## **APPENDIX OF WP(C) 6014/2022** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE PROCEEDINGS DATED 6.10.2021 BEARING NUMBER L.A.C. 224 ISSUED BY THE 6TH RESPONDENT.** **EXHIBIT P2** **TRUE COPY OF THE LETTER DATED 13.12.2021 SUBMITTED BY THE PETITIONER TO THE 6TH RESPONDENT.** **EXHIBIT P3** - **TRUE COPY OF THE REPLY DATED 4.1.2022 ISSUED BY THE 6TH RESPONDENT.** - **EXHIBIT P4** - **TRUE COPY OF THE APPLICATION DATED 13.12.2021 SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT.** - **EXHIBIT P5** - **TRUE COPY OF THE LETTER DATED 19.2.2022 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER AND OTHERS.** **EXHIBIT P6** **TRUE COPY OF THE ORDERS/ DIRECTIONS DATED 4.10.2019 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.** **RESPONDENT'S/S EXHIBITS : NIL.** **//TRUE COPY// P.A. TO JUDGE**