WA 679/23

1 WA 679/23 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE ACTING CHIEF JUSTICE MR.S.V.N.BHATTI ``` ``` & ``` ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` THURSDAY, THE 25[TH] DAY OF MAY 2023 / 4TH JYAISHTA, 1945 ``` ## **`WA NO. 679 OF 2023`** ## **`WP(C) 41255/2022 OF HIGH COURT OF KERALA`** ## **`APPELLANT/S:`** ``` 1 MAMMAD P.K AGED 77 YEARS TRADER, CHERUVATH KANDI HOUSE, P.O. MUDADI NORTH, KOYILANDY, KOZHIKODE, PIN - 673307 2 RAZAK KURULI KUNI AGED 51 YEARS S/O. MARIYAM, KURULI KUNI HOUSE, NANDI, KOYILANDY, KOZHIKODE -, PIN - 673529 BY ADVS. B.KRISHNAN R.PARTHASARATHY ``` ## **`RESPONDENT/S:`** ``` 1 COMPETENT AUTHORITY AND SPECIAL DEPUTY COLLECTOR LAND ACQUISITION (NHAI), KOZHIKODE -, PIN - 673020 2 THE SPECIAL TAHSILDAR (L.A.) NATIONAL HIGHWAY AUTHORITY OF INDIA (NHAI), VATAKARA, KOZHIKODE - 673020 3 NATIONAL HIGHWAY AUTHORITY OF INDIA (MINISTRY OF ROAD TRANSPORT & HIGHWAYS), OFFICE OF THE PROJECT DIRECTOR, NHAI, PROJECT IMPLEMENTATION UNIT, REPRESENTED BY PROJECT DIRECTOR, 34/743-B, VAISHNAVAM, CIVIL STATION P.O., KOZHIKODE -, PIN - 673020 4 M. SHANAVAS S/O. MAHAMOOD HAJI, 'ARAFA', P.O. KATALUR, KOYILANDY ``` 2 WA 679/23 ``` TALUK, KOZHIKODE -, PIN - 673529 ``` ``` 5 JAFFERKHAN S/O. MAHAMOOD HAJI, 'ARAFA', P.O. KATALUR, KOYILANDY TALUK, KOZHIKODE -, PIN - 673529 BY ADV B.G.BIDAN CHANDRAN, SC, NATIONAL HIGHWAYS AUTHORITY OF INDIA ``` ## **`OTHER PRESENT:`** ``` ADV SRINATH GIRISH., SC E.C. KURIAKOSE ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 WA 679/23 ## JUDGMENT (Dated 25[th] day of May 2023) ## Basant Balaji J., Aggrieved by the dismissal of the Writ Petition No.41255 of 2022 by the learned Single Judge, the petitioners therein filed this Appeal. They have challenged Ext.P12 proceedings of the 1[st] respondent refusing to refer the LAC Nos.621 of 20 and 621 of 20A to the Civil Court for adjudication of the ownership regarding the property under acquisition. There was an original suit, as O.S.No. 84 of 1986 before the Munsiff court Payyoli for partition. In the said suit, a preliminary decree of partition was ordered on 24.1.1987, and a final decree was passed on 30.9.1997. The petitioners were defendants Nos.11 and 19 in the final decree. The said final decree has not been challenged by any of the petitioners. 4 WA 679/23 2. The contention raised by the petitioners is that there was a partition in 1981 and it was not brought to the notice of the court, which issued the preliminary decree as well as the final decree owing to a collusion between the mother of the petitioners and one of her brothers. Therefore, the preliminary and final decree are not binding on the petitioners. The petitioners were also minors at the time of passing of the prelim- inary decree for partition. It was further contended that even without filing a separate suit, they are armed to contend that respondent Nos.4 and 5 cannot claim the compensation exclusively. As there is a dispute, the matter has to be referred to the civil court under section 3-H(4) of the National Highways Act 1956 (for short, ‘the Act’). 3. The learned counsel for respondent Nos. 4 and 5 argues that the petitioners are bound by the final decree in O.S 84 of 1986. As disclosed in the writ petition, they were not minors as on the date on which the final decree was passed. The Limitation 5 WA 679/23 Act provides only three years to file a suit to nullify the decree and since no suit was filed the final decree has become final and they are bound by the decree. Based on the final decree, the property was delivered to defendant Nos.24 to 26 as early as in 1988 in E.P.No.177 of 1998, and respondent Nos.4 and 5 obtained the property from defendant Nos. 24 to 26 in 2002. Therefore, they are entitled to claim the compensation exclusively. 4. The question that was to be considered in the Writ Petition was whether the competent authority was obliged to refer the matter to the civil court for adjudication of the dispute regarding the property. Under section 3-H(4) of the Act, only 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 principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated. 6 WA 679/23 5. Respondent Nos.4 and 5 are relying on Ext.R4(a) final decree, which has become final. Respondent Nos. 4 and 5 have also obtained properties under the final decree and as per the delivery note in execution proceedings. It is to be noted that the final decree was passed in 1997 and the Limitation Act provides only three years for filing a suit against the final decree. Moreover, the property was delivered to the predecessor-in-interest of respondent Nos.4 and 5 as early as in 1998 and respondents 4 and 5 obtained the property through a registered deed in 2002. The learned Single Judge had relied on the decisions of this court in **Kesava Bhat v. Subraya Bhat (1979 KLT 766)** as well as in **Kaprat Family Trust v. Union of India (2022(2) KLT Online 1220)** , for the proposition that reference under section 3-H(4) of the Act can only be made if a dispute arises. Merely because a person raised an objection regarding the title, it cannot be termed as a dispute unless and until he proves before the competent authority that the claim raised is 7 WA 679/23 genuine and _bonafide_ . The competent authority, in Ext.P12, has clearly stated that respondent Nos. 4 and 5 have absolute right over the property which was delivered to their predecessor as per the final decree and delivery note, and therefore, it was ordered to disburse the compensation to the parties concerned in LAC 621/20 and LAC 620/20A. 6. The counsel for the appellants submits that since the competent authority had already found that there is no dispute regarding the property under issue between the petitioners and respondents Nos. 4 and 5, he does not have a remedy under law and the only remedy is to approach this court under Article 226 of the Constitution of India. We are afraid the said argument will not hold good in law as the petitioners have a remedy under law to approach the Civil Court independently claiming title over the property where respondents Nos.4 and 5 claim absolute right. 8 WA 679/23 7. The learned Single Judge had in-depth gone through the records produced and, relying on the judgments of the Supreme Court and this court, held that the Writ Petition fails and was dismissed accordingly. It is worth noting that in its wisdom, the competent authority has found that no dispute regarding the title over the property arises in view of the preliminary and final decree in O.S.No.84 of 1986. If the finding is incorrect, the aggrieved party must approach the Civil Court. We have already held that the appellants have a right before the civil court for a declaration of the title in respect of the property in issue, The counsel for the appellant submits that because of the dismissal of this Writ Petition, the findings entered by the competent authority by Ext.P12 and findings entered by the learned Single Judge in the impugned judgment, will stand in their way for a declaration as to the title over the property. Hence, we clarify that the findings and observations in judgment of the learned Single Judge shall not stand in the way of the appellants in 9 WA 679/23 claiming their independent right over the property by way of a suit before the Civil Court. Though we confirm the judgment of the learned Single Judge, we give liberty to the appellants to raise all contentions to prove their title over the property before the competent civil court. With these observations, the Writ Appeal stands dismissed. SD/- ## **S.V.N.BHATTI** ## **ACTING CHIEF JUSTICE** SD/- **BASANT BALAJI** **JUDGE** **dl/-**