Thalangara Noorudheen v. State of Kerala 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. 19401 OF 2021** ## **PETITIONER:** **THALANGARA NOORUDHEEN, AGED 67 YEARS, S/O. LATE T. ABDULLA KUNHI, RESIDING AT THALANGARA VILLA, CHOUKI KUNNIL, KUDLU P.O, KASARGOD-671 124.** **BY ADVS.K.SHIBILI NAHA A.LOWSY** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, (THE ARBITRATOR UNDER THE NATIONAL HIGHWAYS ACT 1956) KASARGOD-671 121.** - **2 THE NATIONAL HIGHWAY AUTHORITY OF INDIA (NHAI), NEW DELHI, REPRESENTED BY THE PROJECT DIRECTOR, (NATIONAL HIGHWAY AUTHORITY OF INDIA), KASARGOD-671 121.** - **3 THE DEPUTY COLLECTOR AND SPECIAL LAND ACQUISITION OFFICER, LAND ACQUISITION (NATIONAL HIGHWAY), KASARGOD-671 121.** - **4 THE SPECIAL DEPUTY COLLECTOR AND COMPETENT AUTHORITY, LA (NH)/CALA, KASARGOD-671 121.** **SMT.K.AMMINIKUTTY .SR.G.P. SRI.MATHEWS K.PHILIP, SC** **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. 19401 OF 2021** **-2-** ## **JUDGMENT** The petitioner impugns Ext.P6 order of the competent Arbitrator/District Collector, operating under the provisions of the National Highways Act, 1956 ('NH Act', for short); as also Ext.P7 consequential order, issued by the said Authority, as being illegal, unlawful and without jurisdiction. 2. Shorn of all unnecessary details, the petitioner is a person from whom a property has been acquired for the purpose of National Highway, and he says that Ext.P1 Award was issued in his favour by the Competent Authority for Land Acquisition ('CALA'), appointed under the provisions of the 'NH Act'. He says that this Award was challenged by the National Highway Authority of India ('NHAI'), by preferring a request for arbitration before the competent ## **WP(C) NO. 19401 OF 2021** **-3-** Arbitrator, under the provisions of Section 3G(5) of the 'NH Act'; but that instead of disposing it of in terms of the said 'Act', the Arbitrator issued Ext.P6 order remitting the matter to the 'CALA' and directing them to 'reassess' the Award. The petitioner says that, consequently, Ext.P7 has been issued by the Arbitrator, which is also without any basis, but merely on the strength of the 'reassessment' done by the 'CALA'. **==> picture [391 x 13] intentionally omitted <==** counsel for the petitioner; Sri.Mathews K.Philip – learned Standing Counsel for the NHAI and Smt.K.Amminikutty – learned Senior Government Pleader, appearing for the official respondents. **==> picture [391 x 13] intentionally omitted <==** the petitioner, vehemently argued that, going by Section 3G(5) of the 'NH Act', the District Collector - who is the competent Arbitrator, does not obtain any right or jurisdiction to dictate to ## **WP(C) NO. 19401 OF 2021** **-4-** the 'CALA' or to remit the matter to the said Authority, asking them to 'reassess' an Award. He contended that the Arbitrator ought to have considered every aspect and made his own order, taking into account all relevant and germane inputs, including the fact that, in analogous cases, the findings of the 'CALA' _akin_ to those which are rendered in Ext.P1 Award, have been upheld and confirmed. He argued that, therefore, Ext.P6 and the consequential Ext.P7 orders, are egregiously improper and illegal; and thus prayed that this writ petition be allowed. 5. Sri.Mathews K.Philip – learned Standing Counsel for the NHAI, submitted that his client had invoked their right under Section 3G(5) of the 'NH Act' to challenge Ext.P1 Award before the Arbitrator; and that he has correctly found that assessment of the value made by the 'CALA' was in error, thus issuing Ext.P6 order directing the ## **WP(C) NO. 19401 OF 2021** **-5-** said Authority to 'reassess' the Award. However, to a pointed question from this Court, Sri.Mathews K.Philip conceded that, going by the Scheme of 'NH Act', the District Collector could not have remanded the matter to the 'CALA' and ought to have issued an order on his own, after considering all relevant aspects. – 6. Smt.K.Amminikutty learned Senior Government Pleader, submitted that the District Collector, in having issued Ext.P6, was not 'dictating' to the 'CALA' to act in a particular manner; but only that he had recorded his views and ordered the said Authority to 'reassess' the Award in the manner shown therein. She submitted that, therefore, Ext.P6 cannot be seen to be an order of remand as alleged by the petitioner, but is only a direction issued to the 'CALA' to take note of his observations and to issue an appropriate Award. ## **WP(C) NO. 19401 OF 2021** **-6-** 7. When I hear Smt.K.Amminikutty and Sri.Mathews K.Philip on the afore lines, it is indubitable that, going by the statutory Scheme of the 'NH Act', once the 'CALA' issues an Award, it is rendered ' _functus officio'_ which has been affirmed by this Court in _**Usman Arif v. The National Highway Authority of India**_ [2022 (1) KLT 35]; and consequently, therefore, the competent Arbitrator was obligated to issue a decision on his own, without making a 'remand', as has been purportedly done in Ext.P6. The Arbitrator is enjoined under the Act, to evaluate all relevant aspects and then decide whether Ext.P1 Award, issued by the 'CALA', requires to be interfered with on the application of the 'NHAI', but he could not have directed the matter to be reconsidered by the said Authority, to issue a 'revised Award'. 8. In the afore perspective, I am certain ## **WP(C) NO. 19401 OF 2021** **-7-** that Ext.P6 and the consequential Ext.P7 order of the District Collector cannot find my favour and that it will certainly require to be set aside. This is also because the learned Senior Government Pleader, to a specific question from this Court, was unable to inform me under what authority of law the District Collector has made the 'remand', as has been done by him. In the afore circumstances, I order this writ petition and set aside Exts.P6 and P7; with a consequential direction to the 1[st] respondent – Arbitrator/District Collector, to reconsider the arbitration request made by the NHAI, after affording them, as also to the petitioner, an opportunity of being heard and after adverting to every document that may be presented before him by the rival parties, including orders which are stated to have been issued by the said Authority in favour of various other persons in identical **WP(C) NO. 19401 OF 2021** **-8-** matters. The afore exercise shall be completed by the Arbitrator after following due procedure, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. Needless to say, if, consequent to Exts.P6 and P7, the 'CALA' has issued a 'new Award', the same shall be treated as being without force; and the afore exercise shall be completed without adverting to the same. **Sd/DEVAN RAMACHANDRAN JUDGE** akv **-9-** ## **WP(C) NO. 19401 OF 2021** ## **APPENDIX OF WP(C) 19401/2021** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE AWARD IN LAC NO. 85/KASARGOD DATED 12.12.2019.** - **EXHIBIT P2 TRUE COPY OF THE NOTICE/REF. A2.LAC NO. 85/KASARGOD VILLAGE DATED 12.2.2019.** - **EXHIBIT P3 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 28.10.2020.** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN W.P.C NO. 27621 OF 2020 DATED 17.12.2020.** - **EXHIBIT P5 TRUE COPY OF THE STATEMENT FILED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT DATED 2.2.2021.** - **EXHIBIT P6 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT IN CASE NO. NH/ARBT/KSD/52/2020 AND LAC NO. 85/KASARGOD DATED 20.04.2021.** - **EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS NO. DCKSGD/9398/2020-L4 DATED 08.09.2021 PASSED BY THE 1ST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE GAZETTE NOTIFICATION NO. 515 PUBLISHING THE FAIR VALUE OF THE LAND IN TERMS OF SEC. 28 A OF THE KERALA STAMP ACT 1959 R/W RULE 3 AND 4 OF THE FIXATION OF FAIR VALUE OF LAND RULES 1995 DATED 6.3.2010.** **RESPONDENT'S/S EXHIBITS : NIL.** **//TRUE COPY// P.A. TO JUDGE**