WP(C) Nos.2342/2022 & 10171/2022: Nizarudeen v. National Highways Authority of India; Simson A Fernandez v. National Highways Authority of India

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944** **WP(C) NO. 2342 OF 2022** **PETITIONER:** **NIZARUDEEN, AGED 49 YEARS, S/O.KOYAKUTTY, VETTOLIPARAMBIL HOUSE, PROPRIETOR, KALAVARA HOTEL, KADATHOOR MURI, THAZHAVA VILLAGE, KARUNAGAPPALLY TALUK, K.S.PURAM PO, KOLLAM DISTRICT, PIN: 690544.** ## **BY ADV.SRI.ARUN MATHEW VADAKKAN** ## **RESPONDENTS:** - **1 NATIONAL HIGHWAYS AUTHORITY OF INDIA-NHAI, REPRESENTED BY ITS PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM DISTRICT, PIN:695001.** - **2 THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM DISTRICT, PIN:695001.** - **3 DEPUTY COLLECTOR (L.A), NATIONAL HIGHWAY 66, COLLECTORATE, KOLLAM, PIN:681013.** - **4 SPECIAL TAHSILDAR (L.A), NATIONAL HIGHWAYS, UNIT NO.4, KARUNAGAPPALLY, KOLLAM DISTRICT, PIN:686141.** - **5 SIMZON A.FERNANDEZ, S/O.FERNANDEZ, REETHA DALE, CHIRAYINKEEZHU, SARKKARA VILLAGE, KADAKAM PO, THIRUVANANTHAPURAM DISTRICT, PIN – 695304.** **BY ADVS.S.SREEKUMAR (SR.), R.GITHESH, P.MARTIN JOSE, P.PRIJITH, THOMAS P.KURUVILLA, AJAY BEN JOSE, MANJUNATH MENON, SACHIN JACOB AMBAT, HANI P.NAIR, ANNA LINDA V.J, HARIKRISHNAN S., SMT.MABLE.C.KURIAN, SR.GP, SRI.BIDAN CHANDRAN, SC.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ALONG WITH WP(C)NO.10171/2022 ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C)Nos.2342 & 10171/2022** **-2-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944 WP(C) NO. 10171 OF 2022** ## **PETITIONER:** **SIMSON A FERNANDEZ, AGED 55 YEARS, S/O ALEXANDER FERNANDEZ, MANAGING DIRECTOR, M/S FAMILY SHOPPING ARCADES PVT.LTD, REETA DALE, SARKARA CHIRAYANKEEZHU, TRIVANDRUM, NOW RESIDING AT TC NO.95/1128(1), SHANGRILA, KUMARAPURAM, MEDICAL COLLEGE (P.O), TRIVANDRUM-695011.** **BY ADVS.P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA AJAY BEN JOSE R.GITHESH MANJUNATH MENON SACHIN JACOB AMBAT ANNA LINDA V.J HARIKRISHNAN S. S.SREEKUMAR (SR.)** ## **RESPONDENTS:** - **1 NATIONAL HIGHWAY AUTHORITY OF INDIA, REPRESENTED BY PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT, TRIVANDRUM – 695001.** - **2 THE DEPUTY COLLECTOR (LAND ACQUISITION), NATIONAL HIGHWAY AND COMPETENT AUTHORITY KOLLAM – 691013.** - **3 THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT TRIVANDRUM – 695001.** **WP(C)Nos.2342 & 10171/2022** **-3-** **4 NIZARUDHEEN, AGED 49, S/O KOYAKUTTY, VETTOLIPARAMBIL HOUSE, KLAVARA HOTEL, KADATHOOR MURI, K.S PURAM, KOLLAM – 690544.** **SMT.MABLE.C.KURIAN, SR.GP, SRI.BIDAN CHANDRAN, SC, SRI.ARUN MATHEW VADAKKAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ALONG WITH WP(C)NO.2342/2022 ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C)Nos.2342 & 10171/2022** **-4-** ## **JUDGMENT** ## **[WP(C)No.2342/2022, WP(C)No.10171/2022]** I have heard these two writ petitions together since the factual factors pleaded therein are similar, if not identical; while the reliefs sought for are interdependent. 2. The owner of a property – which has now been acquired for the purposes of the National Highway Authority of India (NHAI) - has filed W.P. (C)No.10171/2022, wherein, he only seeks that the amount determined as compensation for the same and the building thereon, under the provisions of Section 3G(1) of the National Highways Act, ('NH Act', for short), be disbursed to him without any further delay. **==> picture [390 x 11] intentionally omitted <==** building mentioned above has filed W.P. (C)No.2342/2022, asserting that the Award in question excludes a construction of 1246 sq.ft. in area and therefore, that it need not be demolished and he be allowed to continue his business in it. ## **WP(C)Nos.2342 & 10171/2022** **==> picture [22 x 9] intentionally omitted <==** 4. I have heard Sri.S.Sreekumar – learned Senior Counsel, instructed by Sri.Martin Jose – learned counsel for the petitioner in W.P.(C)No.10171/2022; Sri.Arun Mathew Vadakkan – learned counsel for the petitioner in W.P.(C)No.2342/2022; Sri.B.G.Bidan Chandran – learned Standing Counsel for the NHAI and the learned Senior Government Pleader – Smt.Mable C.Kurian, for the official respondents. 5. Sri.S.Sreekumar – learned Senior Counsel, pertinently, submitted that his client is fully satisfied with the Award in question and thus asserted that there is no legal impediment in the amounts under it being disbursed to him. He explained that the area now claimed by the petitioner in W.P.(C)No.2342/2022 is an unauthorized one, which is not covered by the Award and therefore, that the claim of the petitioner therein is without any basis. He added that he has been instructed to say that, with respect to the said portion, civil disputes are also pending. 6. Sri.Arun Mathew Vadakkan – learned counsel ## **WP(C)Nos.2342 & 10171/2022** **-6-** for the petitioner in W.P.(C)No.2342/2022, alleges that since the owner of the property – the petitioner in W.P.(C)No.10171/2022 - admits that the building with an area of 1246 sq.ft. is not covered by the Award, the prayers sought for by his client are tenable and therefore, deserving to be allowed. 7. Sri.B.G.Bidan Chandran – learned Standing Counsel for the NHAI, submitted that the project is already underway and that no interdiction may be ordered against his client in continuing with the same, merely because of the internecine disputes between the petitioners in both these cases. He added that, as long as the building is included in the Award, the NHAI is enjoyed to demolish it, particularly in view of the declarations of a learned Division Bench of this Court in _**National Highway**_ _**Authority of India v. Raju** [2022 (1) KLT 154]_ . 8. The learned Senior Government Pleader – Smt.Mable C.Kurian, adopted the afore submissions of Sri.B.G.Bidan Chandran, saying that since there is no ## **WP(C)Nos.2342 & 10171/2022** **-7-** challenge to the Award, the compensation thereunder can be disbursed to the petitioner in W.P. (C)No.10171/2022, on him producing all relevant documents in substantiation of his title; while the claim of the petitioner in W.P.(C)No.2342/2022 is not something that the Competent Authority for Land Acquisition (CALA), appointed under the provisions of the 'NH Act', requires to consider, because the area, which he is now claiming, appears to be outside the purview of the Award. 9. In reply, Sri.S.Sreekumar – learned Senior Counsel, submitted that his client has already produced all title documents before the CALA and he showed me, in substantiation, Ext.P2 Award. 10. When I consider the afore submissions, it is without doubt that any portion of the building which has been taken into account in the Award and for which the compensation has been determined, cannot be kept away from demolition, because same is required for the project, as per the safety and other requirements of ## **WP(C)Nos.2342 & 10171/2022** **==> picture [22 x 9] intentionally omitted <==** the NHAI. This has been so declared by this Court in _**Raju**_ (supra) and I cannot, therefore, concede to any argument to the contrary. 11. That said, the assertions of Sri.Arun Mathew Vadakkan is, however, that the area occupied by his client is outside the purview of the Award and that said building has not been granted any compensation under it. If this be so, certainly, the competent Authority of the NHAI must consider this aspect, while the demolition is ordered. Resultantly, I order these writ petitions in the following manner: **==> picture [277 x 12] intentionally omitted <==** ordered and the CALA is directed to disburse the eligible amount of compensation - determined under Ext.P2 Award - to the petitioner, after verifying and examining his documents of title, as expeditiously as is possible, but not later than one month **WP(C)Nos.2342 & 10171/2022** **-9-** from the date of receipt of a copy of this judgment. (2) W.P.(C)No.2342/2022 is disposed of, leaving liberty to the 2[nd] respondent - Project Director, to verify if the area now claimed by the petitioner herein is part of the Award; and if so, to demolish it and if not so, to allow him to continue there, subject to any condition that may be imposed, taking into account the safety Regulations and such other imperative requirements. I make it reiteratingly clear that the NHAI or its competent Authority will be at full liberty to seek eviction of every portion of the land, as also the building, which is covered by the Award, _de hors_ any claim that may be made by the petitioner in W.P. (C)No.2342/2022; and it is only with respect to any portion of the building left out from the same will **WP(C)Nos.2342 & 10171/2022** **-10-** obtain the benefit of the afore directions. akv **Sd/DEVAN RAMACHANDRAN JUDGE** **WP(C)Nos.2342 & 10171/2022** **-11-** ## **APPENDIX OF WP(C) 2342/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE LICENSE ISSUED BY THE KULASEGHARAPURAM GRAMA PANCHAYATH TO THE PETITIONER DATED 06.08.2021** **EXHIBIT P2** - **TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 10.02.2010 ISSUED UNDER KERALA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT,1960 ISSUED TO PETITIONER** **EXHIBIT P3** - **TRUE COPY OF THE RENT AGREEMENT DATED 17.01.1998 ENTERED INTO BETWEEN THE PETITIONER AND ALIKUNJU** - **EXHIBIT P4** - **TRUE COPY OF THE ORDER DATED 15.12.2021 IN I.A.NO.1/2021 IN O.S.NO.375/2021 BY THE MUNSIFF’S COURT, KARUNAGAPPALLY** **EXHIBIT P5** - **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 06.01.2022** **RESPONDENT'S/S EXHIBITS : NIL.** **//TRUE COPY// P.A. TO JUDGE** **WP(C)Nos.2342 & 10171/2022** **-12-** ## **APPENDIX OF WP(C) 10171/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF AGREEMENT FOR LEASE DATED 31/08/1996 EXECUTED BY THE 4TH RESPONDENT EXHIBIT P2 TRUE COPY OF AWARD NO: ADND 0120 DATED 3/02/2022 PASSED BY THE 2ND RESPONDENT** **RESPONDENT'S/S EXHIBITS : NIL.** **//TRUE COPY// P.A. TO JUDGE**