P.A. Nishaf and others v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 5[TH] DAY OF JANUARY 2022 / 15TH POUSHA, 1943** ## **WP(C) NO. 3805 OF 2021** ## **PETITIONERS:** 1 P.A.NISHAF, AGED 48 YEARS, S/O. P.B. ABDUL MAJEED, POTTAKKATT HOUSE, EDAYUMKUNNAM KARA, SOUTH CHITTOOR P.O., CHERANELLORE, ERNAKULAM,PIN-682 027, REPRESENTED BY HIS FATHER AND POWER OF ATTORNEY HOLDER P.B.ABDUL MAJEED) 2 SMT.SABEENA, AGED 47 YEARS, W/O.SHAJAHAN, PULIKKAL HOUSE, KALLOOR, VADAKKUMMURI VILLAGE, MUKUNDAPURAM TALUK, ERNAKULAM PIN-680 321 3 SMT. JASEENA, AGED 45 YEARS, W/O. MUHAMMED ALI, MULLAPPALLY HOUSE, MARAMPALLY VILLAGE, MARAMPALLY P.O., ERNAKULAM,PIN-683 105 SRI.SHAFIK M.A. SRI.M.ALFRED LIONEL WINSTON SRI.RAMAKRISHNAN D. SRI.P.V.SALEEM ## **RESPONDENTS:** 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS (MORTH) TRANSPORT BHAWAN, 1, PARLIAMENT STREET, NEW DELHI-110 001 2 THE PROJECT DIRECTOR, OFFICE OF THE NATIONAL HIGHWAY AUTHORITY OF INDIA, KAKKANAD, KOCHI,PIN-682 030 3 THE SPECIAL DEPUTY COLLECTOR (LA), NH-66 AND COMPETENT AUTHORITY, NORTH PARAVUR, ERNAKULAM,PIN-683 513 SMT.MINI GOPINATH, CGC SRI.RIYAL DEVASSY, G.P. SRI MATHEWS K.PHILIP, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 3805 OF 2021 2 ## **JUDGMENT** The petitioners challenge Ext.P1 order issued by the Competent Authority for Land Acquisition (CALA), appointed under the provisions of the National Highways Act (NH Act), which has rejected their objections to Ext.P2 notification issued by the Central Government under Section 3A of the “NH Act” and they assert that the findings and holdings therein are illegal and unlawful. 2. The petitioners say that the acquisition of their property, on which a six storied new building is situated, without giving them a “legible sketch” and without acquiring the entire building and the property, would prejudice them irreparably since if only a portion of it is acquired and demolished, the remaining would be rendered to no use. They thus pray that Ext.P1 series, as also the various notifications issued under the “NH Act”, be quashed and that the second respondent be directed to change the alignment of the proposed Highway, so that their building can be saved. 3. I have heard Sri.P.V.Saleem, learned counsel for the petitioners; Sri.Mathews K.Philip, learned standing counsel for WP(C) NO. 3805 OF 2021 3 the NHAI and Sri.Riyal Devasy, learned Government Pleader. 4. Sri.Mathews K.Philip, learned standing counsel for the NHAI, submitted that, for all practical purposes, this writ petition has become The learned counsel for the petitioner submits that this writ petition has become infructuous. Hence, this writ petition is dismissed as infructuous., because the final notification under Section 3D of the “NH Act” has already been issued. He argued that the law is now well settled that once such notification is made, the alignment of the Highway cannot be changed by any Authority including the CALA or any other. He then added that the process of settlement of the Awards to the various land owners is now being taken forward by the CALA and that the petitioners must co-operate with the same, so that they will at least get their compensation without any further delay. 5. After saying as afore, Sri.Mathews K.Philip submitted that, in terms of the interim order of this Court dated 26.11.2021, a site inspection of the petitioners' property was done by the NHAI, who, however, has reported before this Court that a change of alignment is now impossible to save the building of the petitioners, because it would have serious WP(C) NO. 3805 OF 2021 4 repercussions on the technical and safety aspects of the Highway. He concluded his submissions by saying that the petitioners cannot have any cause for apprehension because, if their property is acquired only in part and a portion of the building will require to be demolished, then they will certainly be entitled to claim eligible compensation under the provisions of Section 3G(7) of the “NH Act” and that they will, therefore, be fully compensated for any loss of prejudice on account of the severance of their property. 6. Sri.Riyal Devasy, learned Government Pleader, confirmed that the Award with respect to the petitioners' property has not been yet settled and that if they approach the CALA with all their documents and such other germane inputs, the same can be issued without any avoidable delay. He submitted that this is the best course available to the petitioners at this time, because as earlier noticed by this Court, the final notification under Section 3D of the “NH Act” has been published and a change of alignment at this stage is impossible. 7. When I consider the afore submissions, it is without doubt that this Court has declared unequivocally in **Salini V.S.** WP(C) NO. 3805 OF 2021 5 **v. Union of India** [2021 (6) KLT 446] that once the Section 3D Notification is issued under the provisions of “NH Act”, the CALA or any other Authority operating thereunder obtains no jurisdiction to alter the alignment in any manner whatsoever. 8. Since it is undisputed that the final notification under Section 3D of the “NH Act” has already been issued, I cannot find any locus for the petitioners to now seek further reliefs, as have been prayed for in this writ petition, including for change of alignment, which in any case, this Court cannot accede to. 9. Therefore, as rightly stated by Sri.Riyal Devasy - learned Government Pleader, the best course available to the petitioners would be to now seek the issuance of Award in their favour at the earliest, so that they can take recourse to Section 3G(7) of the “NH Act” appropriately. 10. Presumably being aware of the mind of this Court as afore, Sri.P.V.Saleem - learned counsel for the petitioners, submitted that if this Court is not inclined to allow his clients' request for change of alignment at this stage, then liberty may be reserved to them to approach the CALA with their documents, so that eligible Awards can be settled and further recourse in law can be taken by them. WP(C) NO. 3805 OF 2021 6 11. In the afore circumstances and recording the submissions of Sri.Mathews K.Philip, that the final notification under Section 3D of the “NH Act” has already been issued with respect to the properties in question, I close this writ petition; however, leaving full liberty to the petitioners to approach the CALA with all their documents, so as to have their Awards issued without any avoidable delay; for which purpose, I further order that if they do so within a period of one month from the date of receipt of a copy of this judgment, the CALA will finalise the Awards, leading to the disbursement of the eligible amount of compensation to them, within a period of two months thereafter. It is needless to say that the petitioners will obtain full liberty under the various provisions of the “NH Act”, including under Section 3G(5) and Section 3G(7) thereof, as per law and all their contentions with respect to the same are left open. ## **Sd/- DEVAN RAMACHANDRAN** **JUDGE** stu WP(C) NO. 3805 OF 2021 7 ## **APPENDIX OF WP(C) 3805/2021** PETITIONER EXHIBITS EXHIBIT P1 NIL EXHIBIT P1A TRUE COPY OF ORDER NO.A2144/2020/07/CHNR/P.A NISHAF ISSUED BY THE 3RD RESPONDENT ALONG WITH ENGLISH TRANSLATION - EXHIBIT P1B TRUE COPY OF ORDER NO.A2144/2020/08/CHNR/JASEENA ISSUED BY THE 3RD RESPONDENT ALONG WITH ENGLISH TRANSLATION - EXHIBIT P1C TRUE COPY OF ORDER NO.A2- - 144/2020/06/CHNR/SABINA ISSUED BY THE 3RD RESPONDENT ALONG WITH ENGLISH TRANSLATION - EXHIBIT P2 TRUE COPY OF NOTIFICATION NO.A2-15/2021 DATED 21.01.2021 PUBLISHED IN MALAYALA MANORAMA DAILY DATED 28.01.2021 ALONG WITH ENGLISH TRANSLATION - EXHIBIT P3 NIL - EXHIBIT P3A TRUE COPY OF THE LAND TAX RECEIPT DATED 18.05.2020 ALONG WITH ENGLISH TRANSLATION - EXHIBIT P3B TRUE COPY OF THE BUILDING TAX RECEIPT DATED 02.06.2020 - EXHIBIT P4 TRUE COPY OF THE 3A(1) NOTIFICATION REF 616 DATED 13.2.2020 IN MALAYALA MANORAMA ISSUED BY 1ST RESPONDENT ALONG WITH ENGLISH TRANSLATION - EXHIBIT P5 TRUE COPY OF THE LETTER DATED 20.4.2020 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P6 NIL WP(C) NO. 3805 OF 2021 8 - EXHIBIT P6A TRUE COPY OF THE NOTICE NO.A2.144/2020/7/CHNR DATED 19.6.2020 ISSUED TO THE 1ST PETITIONER ALONG WITH ENGLISH TRANSLATION - EXHIBIT P6B TRUE COPY OF THE NOTICE NO.A2.144/2020/8/CHNR DATED 19.6.2020 ISSUED TO THE 2ND PETITIONER ALONG WITH ENGLISH TRANSLATION - EXHIBIT P6C TRUE COPY OF THE NOTICE NO.A2.144/2020/6/CHNR DATED 19.6.2020 ISSUED TO THE 3RD PETITIONER ALONG WITH ENGLISH TRANSLATION - EXHIBIT P7 TRUE COPY OF THE OBJECTION DATED 1.7.2020 SUBMITTED BY THE 1ST PETITIONER - EXHIBIT P8 TRUE COPY OF THE LETTER DATED 28.10.2020 TO THE PUBLIC INFORMATION OFFICER OF THE 3RD RESPONDENT BY ADBUL MAJEED P.B - EXHIBIT P9 TRUE COPY OF THE LETTER DATED 3.11.2020 TO THE 3RD RESPONDENT FOR SITE VISIT AND COPY OF SKETCH ISSUED BY THE 1ST PETITIONER - EXHIBIT P10 TRUE COPY OF THE LETTER NO.A2144/2020/08/CHNR DATED 11.11.2020 OF THE 3RD RESPONDENT WITH ENGLISH TRANSLATION - EXHIBIT P11 TRUE COPY OF THE LETTER AND SKETCH NO.A2/1612/2020 DATED 30.11.2020 RECEIVED FROM PUBLIC INFORMATION OFFICER ALONG WITH ENGLISH TRANSLATION - EXHIBIT P12 TRUE COPY OF THE LETTER DATED 3.11.2020 SUBMITTED BEFORE THE 2ND RESPONDENT - EXHIBIT P13 TRUE COPY OF THE LETTER NO.NHAI/COCHIN/NH17/007/2012/135 DATED 13.6.2012 ISSUED BY THE 2ND RESPONDENT - EXHIBIT P14 TRUE COPY OF THE AGREEMENT DATED 15.05.2012 SIGNED BY THE PETITIONER WP(C) NO. 3805 OF 2021 9 |EXHIBIT P15|TRUE COPY OF THE BUILDING PERMIT NO.C7-| |---|---| ||8261/11 DATED 23.6.2012 ISSUED BY THE| ||CHERANALLORE PANCHAYATH| |EXHIBIT P16|TRUE COPY OF THE APPROVED BUILDING PLAN| ||DATED 23.6.2012 ISSUED BY THE| ||CHERANALLORE PANCHAYATH| |EXHIBIT P17|TRUE COPY OF THE EXPERT OPINION AND| ||SKETCH DATED 8.12.2020 FROM ARCHITECT| |Exhibit P18|TRUE COPY OF 2ND 3(A) 1 NOTIFICATION| ||DATED 24TH MARCH 2021 AND ITS TRUE| ||ENGLISH TRANSLATION| |Exhibit P19|TRUE COPY OF THE OBJECTION DATED| ||10/4/2021 SUBMITTED BY THE PETITONERS| |Exhibit P20|TRUE COPY OF THE ORDER DATED 26/7/2021| ||ISSUED BY THE 3RD RESPONDENT AGAINST| ||PETTIIONERS OBJECTIONS AND ITS TRUE| ||ENGLISH TRANSLATION| |Exhibit P21(A)|TRUE COPY OF THE NOTICE DATED 25/9/2021| ||ISSUED BY THE SPECIAL TAHSILDAR AND THE| ||3RD RESPONDENT AND ITS TRUE ENGLISH| ||TRANSLATION| |Exhibit P21(b)|TRUE COPY OF THE NOTICE DATED 25/9/2021| ||ISSUED BY THE SPECIAL TAHSILDAR AND THE| ||3RD RESPONDENT AND ITS TRUE ENGLISH| ||TRANSLATION| |Exhibit P21(c)|TRUE COPY OF THE NOTICE DATED 25/9/2021| ||ISSUED BY THE SPECIAL TAHSILDAR AND THE| ||3RD RESPONDENT AND ITS TRUE ENGLISH| ||TRANSLATION| |Exhibit P22|TRUE COPY OF THE CLAIM PETITION DATED| ||16/10/2021 SUBMITTED BY THE PETITIONERS &| ||ITS TRUE ENGLISH TRANSLATION| |Exhibit P23(A)|TRUE COPY OF THE REPLY DATED 23/10/2021| ||AND ITS TRUE ENGLISH TRANSLATION| WP(C) NO. 3805 OF 2021 10 SUBMITTED BY THE 1ST PETITIONER Exhibit P23(B) TRUE COPY OF THE REPLY DATED 23/10/2021 AND ITS TRUE ENGLISH TRANSLATION SUBMITTED BY THE 2ND PETITIONER Exhibit P23(c) TRUE COPY OF THE REPLY DATED 23/10/2021 AND ITS TRUE ENGLISH TRANSLATION SUBMITTED BY THE 3RD PETITIONER