Sathyanandan M.G. v. National Highways Authority of India & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 26[TH] DAY OF JULY 2023 / 4TH SRAVANA, 1945 ``` ## **`WP(C) NO. 29150 OF 2022`** ## **`PETITIONER/S:`** ``` SATHYANANDAN M.G AGED 75 YEARS S/O GOVINDAN, IYYANIMANDABULLI HOUSE, NATTIKA, THRISSUR DISTRICT, PIN - 680566 BY ADVS. THAREEQ ANVER K. MEENA.A. M.R.MINI M.DEVESH ASHWIN SATHYANATH ANISH ANTONY ANATHAZHATH ``` ## **`RESPONDENT/S:`** ``` 1THE PROJECT DIRECTOR NATIONAL HIGHWAY AUTHORITY OF INDIA, KOCHI, PIN - 673001 2THE DISTRICT COLLECTOR AND ARBITRATOR NHAI, THRISSUR, PIN - 680001 3THE SPECIAL DEPUTY COLLECTOR LAND ACQUISITION (NH 17), OFFICE OF THE SPECIAL DEPUTY COLLECTOR (LA), NH 17, KODUNGALLUR, THRISSUR DISTRICT, PIN - 680664 4THE SPECIAL TAHSILDAR (LA) UNIT 4, OFFICE OF THE SPECIAL DEPUTY COLLECTOR (LA), NH 17, KODUNGALLUR, THRISSUR DISTRICT, PIN - 680664 5GOURI DEVI PARAPARAMBIL HOUSE, NATTIKA. P.O., THRISSUR DISTRICT, PIN - 680566 6SATHYAPRABHA GOVINDAN FLAT NO. 101, SREE BHAGAVAN ELITE MANIPPAL COUNTRY ROAD, BANGALORE, PIN - 560068 ``` 2 W.P.(C)No.29150/2022 ``` 7REJU NANDAN M.G. MANDAMBULLY HOUSE, THRITHALOOR P.O., THRISSUR DISTRICT, PIN - 680619 BY ADVS. C.E.UNNIKRISHNAN M.P.PRABHAKARAN (PALAKKAD) SRI. LEJO JOSEPH GEORGE (FOR NHAI), SMT. DEEPA V (GP) ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.07.2023, THE COURT ON 26.07.2023 DELIVERED THE FOLLOWING: ``` W.P.(C)No.29150/2022 3 ## **C.R.** ## **J U D G M E N T** The petitioner has approached this Court being aggrieved by the fact that the 3rd respondent (the competent authority for land acquisition under the National Highways Act, 1956) has determined that the petitioner, as well as respondents 5, 6 and 7 and late Mukundan, are entitled to share the amount of compensation awarded for acquisition of certain lands under the National Highways Act, 1956 (hereinafter referred to as ‘the 1956 Act’). 2. The facts relevant for the adjudication of the _lis_ may be briefly noticed. The writ petitioner and respondents 5, 6 and 7 are siblings. Late Govindan had seven children, including the petitioner and respondents 5, 6 and 7. In terms of Ext.P1 Will executed by late Govindan, the right of administration of a school, which belonged absolutely to late Govindan, was given exclusively to the writ petitioner. There is a clause in Ext.P.1 Will that if the petitioner were to sell the school or part with W.P.(C)No.29150/2022 4 the property, the amount received by the petitioner shall be shared between the petitioner and all his siblings, including respondents 5, 6 and 7. While the petitioner contends that the amount received as compensation for the compulsory acquisition of land need not be distributed to any of his siblings, respondents 5, 6 and 7 contend that they are entitled to a share in terms of Ext.P.1 Will. The parties do not dispute that if the terms of the Will require the distribution of the compensation amount to all the children of late Govindan, the claim of respondents 5, 6 and 7 cannot be more than 3/7 shares jointly or 1/7 shares individually. 3. Sri.T.Krishnan Unni, the learned counsel appearing for the petitioner, would submit that the terms of the Will clearly indicate that the rights of respondents 5, 6 and 7 would arise only in the event of a sale of the school as such and not in a situation where the property is the subject matter of acquisition by the State in exercise of the power of eminent domain. It is submitted that, in any event, the claim of respondents 5, 6 and 7 could not have been adjudicated by the 3rd respondent and should have been referred for adjudication by the competent civil court under Section 3H(4) of the 1956 W.P.(C)No.29150/2022 5 Act. It is his submission that even if the claim of respondents 5, 6 and 7 is accepted, each of the legatees under Ext.P.1 Will would be entitled to 1/7 shares in the amount of compensation as children of Late Govindan and therefore the share of compensation payable to the petitioner and other legatees who have agreed that the petitioner is entitled to the compensation can be paid to the petitioner. It is submitted that since a portion of the school building has also been acquired, funds are urgently required for the purpose of repair and construction of new buildings for the use of the school. 4. Sri. C.E Unnikrishnan, the learned counsel appearing for respondents 5, 6 and 7, would vehemently contend that even in a case of acquisition, respondents 5, 6 and 7 are entitled to payment of compensation together with the petitioner and even where compensation is received owing to the acquisition of land, the same must be treated as a case where the stipulations in clause (3) of Ext.P1 Will will apply. It is submitted that while respondents 5, 6 and 7 have no objection to the matter being referred for adjudication under Section 3H(4) of the 1956 Act, no portion of the compensation can be paid to the petitioner at present. It is submitted that the W.P.(C)No.29150/2022 6 provisions of Section 3H(4) do not permit the reference of a part of the dispute. Reliance is also placed on the judgment of the Supreme Court in _**Vinod Kumar & ors v. District Magistrate, Mau & ors, 2023 SCC Online SC 787**_ in support of this contention. 5. Having heard the learned Senior counsel appearing for the petitioner, the learned Government Pleader appearing for the official respondents and the learned Standing Counsel appearing for the National Highways Authority of India, I am of the view that the dispute between the petitioner and respondents 5, 6 and 7 is to be referred for adjudication under the provisions contained in Section 3H(4) of the National Highways Act, 1956. In _**Vinod Kumar (supra),**_ the Supreme Court was concerned with the question as to whether the District Magistrate (who was the competent arbitrator under Section 3G(5) of the 1956 Act in that case) could decide on an issue of apportionment as opposed to an adjudication of the quantum of compensation to be paid for the acquisition. After considering the provision of Section 3H(4) of the 1956 Act it was held:- _**“26.** There is a fine distinction between determining the_ W.P.(C)No.29150/2022 7 _amount to be paid towards compensation and the apportionment of the amount. The legislature has thought fit to confer powers upon the Principal Civil Court of original jurisdiction to determine the dispute arising as to the apportionment of the amount. There is a reason, why the legislature has thought fit to confer such power to the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction is land is situated. We shall try to explain hereinafter._ _**27.** The question of apportionment of compensation is not free from difficulties. In apportioning the compensation, the Court has to give to each claimant the value of the interest which he has lost by compulsory acquisition. So stated, the proposition may appear simple, but in its practical application numerous complicated problems arise in apportioning the compensation awarded. The difficulty experienced is due to the nature of a variety of interests, rights and claims to land which have to be valued in terms of money. The compensation awarded for compulsory acquisition is the value of all the interests which are extinguished and that compensation has to be distributed equitably amongst persons having interest therein and the Court must proceed to apportion the compensation so that the aggregate value of all interests is equal to the amount of compensation awarded. But in the valuation of competing interests, which from its very nature is dependent upon indefinite factors and uncertain data, considerable difficulty is encountered. Indisputably, in apportioning compensation the Court cannot proceed upon hypothetical considerations but must proceed as far as possible to make an accurate determination of the value of the respective interests which are lost. The Court must, in each case, having regard to the circumstances and the possibility of a precise determination of the value having regard to the materials available, adopt that method of valuation which equitably distributes the compensation between the persons entitled thereto. [See : Dossibai Nanabhoy Jeejeebhoy v. P.M. Bharucha, (1956) 60 Bom LR 1208]_ _**28.** Thus, the only general principle one could state is that apportionment under sub-clause (4) of Section 3H of the Act, 1956 is not a revaluation but a distribution of the value already fixed among the several persons interested in the land_ W.P.(C)No.29150/2022 8 _acquired in accordance with the nature and quantum of the respective interests. In ascertainment of those interests, the determination of their relative importance and the manner in which they can be said to have contributed to the total value fixed are questions to be decided in the light of the circumstances of each case and the relevant provisions of law governing the rights of the parties. The actual rule for apportionment has to be formulated in each case so as to ensure a just and equitable distribution of the total value or compensation among the persons interested in the land._ _**29.** In the circumstances referred to above, the legislature thought fit to assign such function to none other than the Principal Civil Court of original jurisdiction.”_ From the decision in _**Vinod Kumar (supra)**_ it is clear that the dispute in this case has to be referred under Section 3H(4) of the National Highways Act, 1956. 6. The contention of the learned counsel for respondents 5, 6 and 7 that the provisions of Section 3H (4) of the National Highways Act, 1956 do not contemplate the reference of a part of the dispute does not appeal to this Court. Section 3H(4) of the 1956 Act reads as follows: _“(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated.”_ W.P.(C)No.29150/2022 9 The judgment in _**Vinod Kumar (supra)**_ is itself authority for the proposition that while construing a legal provision, the first and foremost rule of construction is the rule of literal construction, and other rules of construction are called into aid only when the legislative intent is not clear. A reading of Section 3H(4) makes it clear that any dispute regarding the “.... _**apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable….”**_ can be referred under that provision. In the facts of the present case, the claim of the party respondents is clearly that each of the children of late Govindan is entitled to a share in the compensation. It is not disputed before me that the sharers in such an event will be the seven children of the late Govindan or their legal representatives. The petitioner has filed the notarized affidavits of two of his brothers, which indicate that they have no objection to the amount of compensation being disbursed to the petitioner. Thus the dispute boils down to this question - Is the petitioner entitled to the entirety of the compensation in terms of Ext P.1 Will, or are the other children of late Govindan also entitled to such compensation? In other words, the fact that the petitioner is entitled to 1/7 shares of W.P.(C)No.29150/2022 10 the compensation (even if the claim of respondents 5, 6 and 7 is accepted) is not disputed. The two brothers of the petitioner who have executed affidavits as above are also entitled to 1/7 shares (each) of the compensation even if the claim of respondents 5, 6 and 7 is accepted. Therefore no prejudice whatsoever will be caused to respondents 5, 6 and 7 if the 3rd respondent is directed to release to the petitioner a total of 3/7 shares of the compensation (compensation that will be payable to the petitioner and his two brothers who have executed affidavits as above). In other words, respondents 5, 6 and 7 cannot be aggrieved if the amount of compensation payable to them (if their claim is allowed by the competent civil court) is not disbursed to any person. Accordingly, this writ petition will stand disposed of in the following manner:- - A. Exts. P.4, P.5, P.6 and P.7 awards will stand quashed - to the extent they apportion the amount of compensation between the petitioner, respondents 5, 6 and 7 and any other person; - B. An amount equivalent to 3/7 shares of the compensation payable in terms of Exts. P.4, P.5, P.6 W.P.(C)No.29150/2022 11 and P.7 awards shall be disbursed to the petitioner by the 3rd respondent after obtaining no-objection certificates in such form as the 3rd respondent may insist from the two brothers of the petitioner (Achudanandan s/o late Govindan, Mandampully House, Nattika, Thrissur and Raghunandanan s/o late Govindan, Mandampully House, Nattika, Thrissur) in respect of their share. If the aforesaid persons do not give the necessary no-objection certificates, an amount equivalent to 1/7th of the compensation payable in terms of Exts. P.4, P.5, P.6 and P.7 awards alone shall be disbursed to the petitioner; C. The claim of respondents 5, 6 and 7 and any other claimant (son/daughter of late Govindan or their legal representatives) shall be referred for adjudication under Section 3H(4) of the 1956 Act. The amount to which they might be entitled (if their claim is allowed) shall also be deposited as contemplated by the law. It will be open to the petitioner or respondents 5, 6, 7 or any other claimant as aforesaid to seek for deposit of the amount in a fixed W.P.(C)No.29150/2022 12 deposit with any nationalized Bank and if such application is filed, the competent Court may allow that application on appropriate terms. - D. The competent civil court to which reference is made, as directed above, will decide the matter untrammelled by any observation contained in this judgment. Sd/- **GOPINATH P., JUDGE** rkj W.P.(C)No.29150/2022 13 ## **`APPENDIX OF WP(C) 29150/2022`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE REGISTERED WILL DATED`| ||`01.01.1969 EXECUTED BY THE FATHER OF THE`| ||`PETITIONER`| |`Exhibit P2`|`TRUE COPY OF THE JUDGMENT DATED 01/07/2022`| ||`IN W.P. (C) 11350/2022`| |`Exhibit P3`|`TRUE COPY OF THE CLAIM PETITION DATED`| ||`08/07/2022 SUBMITTED BEFORE THE DEPUTY`| ||`COLLECTOR`| |`Exhibit P4`|`TRUE COPY OF AWARD DATED 29/08/2022 PASSED`| ||`BY THE 3RD RESPONDENT WITH RESPECT TO THE`| ||`PROPERTY LYING IN SY.NO 181/13`| |`Exhibit P5`|`TRUE COPY OF THE AWARD DATED 29/08/2022`| ||`PASSED BY THE 3RD RESPONDENT WITH RESPECT`| ||`TO THE PROPERTY LYING IN SY.NO 181/11`| |`Exhibit P6`|`TRUE COPY OF THE AWARD DATED 29/08/2022`| ||`PASSED BY THE 3RD RESPONDENT WITH RESPECT`| ||`TO THE PROPERTY LYING IN SY.NO 202/8`| |`Exhibit P7`|`TRUE COPY OF THE AWARD DATED 02/08/2022`| ||`PASSED BY THE 3RD RESPONDENT WITH RESPECT`| ||`TO THE PROPERTY LYING IN SY.NO 181/12`| |`Exhibit P8`|`TRUE COPY OF THE AFFIDAVIT DATED`| ||`10.07.2023 SWORN BY ACHUTHANANDAN`| |`Exhibit P9`|`TRUE COPY OF THE AFFIDAVIT DATED`| ||`10.07.2023 SWORN BY REGHUNANDANAN`|