Kerala High Court
Kunhammad @ Tharaka Ammad vs Government Of India on 10 February, 2021
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WA.No.1710 OF 2020
AGAINST THE JUDGMENT IN WP(C) 11347/2020(P) OF HIGH COURT
OF KERALA DATED 10.6.2020
APPELLANT/PETITIONER:
KUNHAMMAD @ THARAKA AMMAD
AGED 60 YEARS
S/O.POCKER, THARAKA HOUSE,
KAKKAMVELLY, POST NADAPURAM,
KOZHIKODE DISTRICT.
BY ADVS.
SRI.R.K.MURALEEDHARAN
SRI.AMAL S KUMAR
RESPONDENTS/RESPONDENTS:
1 GOVERNMENT OF INDIA
REPRESENTED BY SECRETARY TO MINISTRY OF
PETROLEUM AND NATURAL GAS,
NEW DELHI-110 001.
2 GAIL INDIA LTD.,
GAIL BHAVAN, 16 BHIKAJI CAMA PALCE,
R K PURAM, NEW DELHI-110 006,
REPRESENTED BY ITS GENERAL MANAGER.
3 COMPETENT AUTHORITY FOR KERALA,
GAIL INDIA LTD., REVENUE TOWER,
PARK AVENUE ROAD, KOCHI-682 011.
4 DEPUTY GENERAL MANAGER (CONSTRUCTION),
BLUE NILE HOTEL, 6TH FLOOR, KANNUR,
KANNUR DISTRICT-670 001.
W.A.1710/2020
2
5 DEPUTY GENERAL MANAGER,
KALPATARU POWER TRANSMISSION LTD.,
CAMP OFFICE, LOKNATH ROAD, CHOVA,
KANNUR DISTRICT-670 006.
SRI.S.MOHAMMED AL RAFI FOR R2,
SRI.AJITH KRISHNAN FOR R3
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.1710/2020
3
JUDGMENT
Dated this the 10th day of February, 2021 S. Manikumar, CJ.
Being aggrieved by the judgment in W.P(C). No.11347 of 2020 dated 10.6.2020, by which a learned Single Judge has directed the petitioner to approach the competent civil court for claiming damages to his property, caused on account of laying of pipeline by the respondents herein, instant writ appeal is filed.
2. Before the writ court, petitioner has sought for a direction to respondents therein to compensate the petitioner for the loss, which is estimated as per Ext.P3 within a time frame or in the alternative direct respondents 2, 4 and 5 to consider and issue appropriate orders on Ext.P4 series of notices issued on behalf of the petitioner within a time frame.
3. Short facts leading to filing of writ appeal are as hereunder:
Petitioner is the owner of a house in Survey Nos.16/7, 28/1 of Nadapurm Village of Vatakara Taluk. The 1st respondent issued a Panchanama by invoking the powers under Section 3(1) of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962. The respondents by using Horizontal Directional Drilling Technology, attempted to lay the pipeline underneath the residential W.A.1710/2020 4 house, which was not successful and later on removed by the respondents. However, the residential building was damaged heavily and as per the estimate, an amount of Rs.42 Lakhs is required for rectifying the damage. The petitioner sent notices to the respondents to ascertain their response since they have totally neglected to visit the site or to rectify this complaint.
4. Appellant has further contended that the learned Single Judge ought to have considered the fact that the damage caused to the house was a direct result of the illegal conduct of the respondents, whereby they removed the pipeline laid underneath the house of the appellant despite the warning of the appellant. The competent authority has failed to consider the grievance of the appellant even after Ext.P4 series of notices claiming damages and the learned Single ought to have directed the respondents to consider the notices issued by the appellant. It is also submitted that the decision that the writ petition is not maintainable is incorrect.
5. When the matter came up for hearing, we directed Mr.S. Mohammed Al Rafi, learned Counsel for GAIL, New Delhi (respondent No.2) to take notice.
6. Reverting, Mr. S. Mohammed Al Rafi, learned counsel submitted that alleged damage to the property of the petitioner appears W.A.1710/2020 5 to have been caused after the passing of the Award. He also submitted that compensation has been paid on estimation of loss to the property, which includes land and trees as evident from Ext.P1.
7. According to learned counsel for GAIL, case of the petitioner would fall under Section 10 (3)(iii) of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962. On instructions, he further submitted that so far, no application has been made by the writ petitioner. However, if any claim is submitted, the same would be considered.
8. However, from the material on record, it could be deduced that through a lawyer the petitioner is stated to have made a request, for compensation of Rs.42 Lakhs, for the damages caused to the house, by laying the pipes. Lawyer's notice has been acknowledged and that the writ petitioner has enclosed the same as Ext.P5 (a).
8. Placing on record the submission of learned counsel for GAIL, writ petitioner is permitted to make a claim for compensation in terms of Section 10 (3)(iii) of Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962, to the Competent Authority for Kerala, GAIL India Ltd., Kochi/respondent No. 3, within two weeks from the date of receipt of a copy of this judgment. Petitioner is permitted to enclose all necessary documents to substantiate his claim. W.A.1710/2020 6
On receipt of the said claim stated supra, the Competent Authority for Kerala, GAIL India Ltd., Kochi/respondent No.3 is directed to consider the claim in accordance with law, and on the basis of any orders issued, pass final orders within one month from the date of receipt of such claim, after providing an opportunity of hearing.
With the above directions writ appeal is disposed of.
Sd/-
S. Manikumar, Chief Justice Sd/-
Shaji P. Chaly, Judge sou.
W.A.1710/20207
APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPIES OF ADDITIONAL PHOTOGRAPHS.