SOSAMMA KAVANAMATTATHIL v. District Collector, Thrissur; Special Deputy Collector Land Acquisition NHDP; ADDL.R3 THE NATIONAL HIGHWAYS AUTHORITY OF INDIA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 ``` ``` WP(C) NO. 28426 OF 2014 ``` ## **`PETITIONER:`** ``` SOSAMMA KAVANAMATTATHIL HOUSE, VANIAMPARA P.O., TRICHUR-680 652. ``` ``` BY ADVS. SRI.P.SREEKUMAR SMT.P.M.MAZNA MANSOOR SRI.B.PRASANTH SRI.T.S.SARATH SMT.UMA ``` ## **`RESPONDENTS:`** ``` 1DISTRICT COLLECTOR COLLECTORATE, THRISSUR PIN - 680 020. 2SPECIAL DEPUTY COLLECTOR LAND ACQUISITION NHDP, OFFICE OF THE SPECIAL DEPUTY COLLECTOR,CHEMBUKAVU, THRISSUR, PIN - 680 020. ADDL.R3.THE NATIONAL HIGHWAYS AUTHORITY OF INDIA PROJECT IMPLEMENTATION UNIT PALAKKAD NO.310 - 1, CHANDRANAGAR EXTENSION, CHANDRANAGAR POST PALAKKAD, KERALA REPRESENTED BY ITS PROJECT DIRECTOR. ``` ``` ADDL.R3 IS IMPLEADED AS PER ORDER DATED 15/10/2017 IN I.A.NO.1/2019 IN WPC.28426/2014. ``` ``` BY ADVS. GOVERNMENT PLEADER K.A.SALIL NARAYANAN ``` ## **`OTHER PRESENT:`** ## **`SRI BS SYAMANTAK, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ``` ``` ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.28426/2014 **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.28426 of 2014** **---------------------------------------------Dated this the 27[th] day of February, 2024** ## **JUDGMENT** This writ petition is filed with following prayers: - i. Issue a writ of certiorari or any other writ or order calling for the records relating to Exhibit P3 and to quash the same. - ii. Issue a writ of mandamus or any other writ or order directing the 1[st] respondent to consider Exhibit P2 application on merit and dispose of the same. - iii. Declare that Exhibit P2 application is well within time and is not time barred as stated in exhibit P3 order. - iv. Issue a writ of mandamus or any other writ or order directing the 1[st] respondent to permit the petitioner to rectify the defect by filing an application to condone the delay, if any, in Exhibit P2 application as provided under section 5 of the Limitation Act and to decide the issue afresh. - v. Issue any other writ or order as is deemed fit by this Hon’ble Court in the greater interest of justice. (SIC) WP(C).No.28426/2014 **3** 2. A portion of the land belonging to the petitioner was acquired for the purpose of widening the National Highway under the provisions of the National High Ways Act, 1956. It is submitted that in terms of Section 3 of the Act, the land value was fixed and disbursed to the petitioner. According to the petitioner, the land value fixed was very low and the provision contained in Section 3G(5) empowers the affected party to approach the Arbitrator for higher compensation. It is submitted that no period of limitation is mentioned in the Act for filing such an application. The petitioner submitted an application before the 1[st] respondent who is the arbitrator and the same was rejected on the ground that the period of limitation mentioned in the Limitation Act is over and hence the same could not be considered. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel for National Highway. I also heard the learned Government Pleader. 4. Ext.P3 is the impugned order in this case. Admittedly the application submitted by the petitioner is time barred. The counsel for the petitioner relied on the judgment WP(C).No.28426/2014 **4** of the Madras High Court in Writ Appeal Nos.308 to 312 of 2016. The Standing Counsel for National Highway relied on the Division Bench judgment of this Court in **Leela K. v. District Collector and Arbitrator, Thrissur and Another [** 2015 (2) KHC 813]. 5. This Court considered the Division Bench judgment of this Court in **Leela's case** (supra). The Division Bench of this Court considered the matter in detail and held that the right to sue accrues when the amount is determined by the competent authority under Section 3G(1) of the National Highways Act. The Division Bench also observed that if the parties decide to proceed for arbitration, they have to file an application for referring the dispute for arbitration within three years from the date when the amount is determined by the competent authority and inform to the land owner. It is also observed by the Division Bench that application filed beyond the period of three years is barred by limitation. The relevant portion is extracted hereunder: “19. While considering the question of limitation, what will be the period for making a claim for higher compensation under the NH Act is also WP(C).No.28426/2014 **5** germane for consideration. As there is no specific period provided for making such a claim necessarily the residuary clause under Article 113 has to be applied, which is three years from the date when the right to sue accrues. In this case, right to sue accrued when the amount is determined by the competent authority under Section 3G(1) of the NH Act, i.e. on 16/04/2010 . If the parties desire to proceed for arbitration, they have to file an application for referring the dispute for arbitration in terms of sub-section (5) which is akin to filing a suit within three years from the date when the amount is determined by the competent authority and informed to the land owner. If no such steps are taken within the said period, the Arbitrator is entitled to reject the claim as barred by limitation. 20. Though Arbitration under the NH Act is statutory, in so far as the 1996 Act is made applicable to such Arbitration, the Limitation Act equally applies and if under normal circumstances, a request to refer the dispute to Arbitration is filed beyond time, that is after a period of three years from the date on which the right to sue accrued, the Arbitration has to be held to be beyond the period of limitation. The Apex Court has held that even in a petition filed under Section 11 of the 1996 Act, it shall be open for the Chief Justice or the designated Judge to verify whether the claim is hopelessly barred by limitation. Under such WP(C).No.28426/2014 **6** circumstances, it cannot be contended by the appellant that Limitation Act has no application at all.” 6. From the above it is clear that the application for referring the dispute for arbitration should be filed within three years from the date when the amount is determined by the competent authority and inform to the land owner. Admittedly the petitioner submitted the application beyond this period. Therefore the decision of this Court in **Leela's case** (supra) is squarely applicable. 7. The counsel for the petitioner relied on the judgment of the Madras High Court in Writ Appeal Nos.308 to 312 of 2016 and takes me through the relevant paragraphs in that judgment. The counsel submitted that **Leela's case** (supra) was also considered by Madras High Court. 8. It is submitted by the counsel that this Court did not consider Section 2(4) of the Arbitration and Conciliation Act. According to the petitioner, the Supreme Court judgment referred in the Madras High Court judgment exclude the operation of the Limitation Act in the statutory arbitration. It is also submitted that there is a finding to the effect that the WP(C).No.28426/2014 **7** Limitation Act is not applicable in an arbitration under Section 3G(5) of the National Highways Act. It is true that there is some observation in the Madras High Court judgment that the Limitation Act is not applicable. But judicial discipline dictate me to follow the Division Bench judgment of this Court in **Leela’s case** (supra). In the light of the dictum laid down in **Leela’s case** (supra), I am of the considered opinion that there is nothing to interfere with Ext.P3. Therefore there is no merit in this case. Hence the writ petition is dismissed. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** WP(C).No.28426/2014 **8** ## **`APPENDIX OF WP(C) 28426/2014`** ## **`PETITIONER EXHIBITS`** ``` EXT.P-1: TRUE COPY OF THE NOTICE DATED 22.4.2010 INTIMATING THE DETERMINATION OF COMPENSATION FOR THE PROPERTY ISSUED BY THE 2ND RESPONDENT ``` ``` EXT.P-2: TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE IST RESPONDENT ON 10.5.2013 ``` ``` EXT.P-3: TRUE COPY OF THE ORDER DATED 4.11.2013 ISSUED BY THE IST RESPONDENT ```