Kerala High Court
M.M.Paily vs Union Of India on 5 March, 2020
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941
WP(C).No.16227 OF 2011(C)
PETITIONERS:
1 M.M.PAILY
VAZHUKKUMPARA ,CHUVANNAMANNU P.O.,PATTIKKAD,,
THRISSUR-680652
2 M.M.GEORGE SO.MATHAI
MEKKATTIL HOUSE, VAZHUKKUMPARA ,CHUVANNAMANNU
P.O.,PATTIKKAD,, THRISSUR-680652
3 K.MADHAVAN NAIR ANIYAN NAIR
KOTHOTTIL HOUSE,CHEMUTHARA,, P.O.PATTIKKAD, THRISSUR-
680652
4 GEORGE SO.DEVASSYMUTTOMTHOTTIL HOUSE
VAZHUKKUMPARA,CHUVANNAMANNU P.O.,PATTIKKAD,,
THRISSUR-680652
5 SHEELA ANTONY CHAKKATHARA HOUSE
KAIRALY NAGAR, PATTIKKAD,THRISSUR-680652
6 SEBASTIAN P.O.SO.OUSEPH
PADIKKALATH HOUSE, PATTIKKAD P.O.,, THRISSUR-680652
7 K.U.YOHANNAN
S/O.ULAHANNAN, KIZHAKKEKUTTIKKATTIL HOUSE,,
CHUVANNAMANNU P.O.,CHUVANNAMANNU, PATTIKKAD P.O.,
THRISSUR-680652
8 PAULOSE P.MPOOTHANKUZHI HOUSE
VAZHUKKUMPARA P.O.,, CHUVANNAMANNU, PATTIKKAD,,
THRISSUR-680652
9 K.U.PAULOSE SO.ULAHANNAN
KAROTTUKURUVELIL, AALPARA P.O.,, KANNARA, PATTIKKAD,
THRISSUR-680652
10 JOY CHALIYELIL HOUSE
CHUVANNAMANNU, PATTIKKAD,THRISSUR-680652
WP(C).No.16227 OF 2011(C)
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11 SHAJU C.RSO.RAPPAI CHALISSERY HOUSE
ERAVIMANGALAM, THRISSUR-680751
12 ANNAMMA MATHAIWO.M.P.MATHAI
MEKKATTIL HOUSE, VAZHUKKUMPARAM,P.O.CHUVANNAMANNU,
PATTIKKAD, THRISSUR-680652
13 M.K.VARGHESE MEKKATTIL HOUSE
VVAZHUKKUMPARA,THONIKKAL,P.O.CHUVANNAMANNU,,
PATTIKKAD, THRISSUR-680652
14 K.RAMAKRISHNANSO.K.RAMAN MENON
KARAPPURATHU HOUSE, VAZHUKKUMPARA,,
P.O.CHUVANNAMANNU, PATTIKKAD, THRISSUR-680652
15 V.P.FRANCISSO.V.P PAULOSE
VALLURAN HOUSE,P.O.CHUVANNAMANNU,, PATTIKKAD,
THRISSUR-680652
16 A.M.UMMER SO.ABDUL RAHIMAN
AMBALATH HOUSE,VAHZUKKUKMPARAM,, P.O.CHUVANNAMANNU,
PATTIKKAD,, THRISSUR-680652
17 JOY T.VSO.VARGHESE THURUTHEL HOUSE
P.O.CHUVANNAMANNU, PATTIKKAD,THRISSUR-680652
18 K.C.JOSEPH SO.CHACKO
KAINIKKARA HOUSE, P.O.CHUVANNAMANNU,, PATTIKKAD,
THRISSUR-680652
19 PAUL MANISO.MANI
THERUVANKUNNEL HOUSE VAZHUKKUMPARA,
P.O.CHUVANNAMANNAU,PATTIKKAD, THRISSUR-680652
20 JOSE K.DSO.DEVASSY
KALAN HOUSE,, P.O.CHUVANNAMANNAU,PATTIKKAD,
THRISSUR-680652
21 VARGHESE P.CSO.CHERIAN
PATTAYIL HOUSE,P.O.CHUVANNAMANNAU,PATTIKKAD,,
THRISSUR-680652
22 L.U.PAULOSE SO.K.I.ULAHANNAN
KOLLIYOTTIL HOUSE,, VAZHUKKUMPARA,,
P.O.CHUVANNAMANNAU,PATTIKKAD, THRISSUR-680652
23 K.CPAPPACHANSO.CHACKO
KAINIKKARA HOUSE,, P.O.CHUVANNAMANNAU,PATTIKKAD,
WP(C).No.16227 OF 2011(C)
3
THRISSUR-680652
24 K.BALACHANDRAN SO.RAMAN NAIR
AANTHOOR HOUSE,VAZHUKKUMPARA,
P.O.CHUVANNAMANNAU,PATTIKKAD, THRISSUR-680652
25 M.P.GEORGE SO.PAULOSE
MEKKATTIL HOUSE,VAZHUKKMPARA,
P.O.CHUVANNAMANNAU,PATTIKKAD, THRISSUR-680652
26 SALY GEORGE WO.GEORGE
KOORUVELIL HOUSE, P.O.CHUVANNAMANNU,, PATIKKAD,
THRISSUR-680652
BY ADVS.
SRI.M.A.FIROZ
SRI.GEORGE MECHERIL
RESPONDENTS:
1 UNION OF INDIA
SECREARY TO GOVERNMENT,MINISTRY OF SHIPPING,, ROAD
TRANSPORT AND HIGHWAYS, (DEPARTMENT OF RAOD
TRANSPORT AND HIGHWAYS), NEW DELHI-1
2 THE NATIONAL HIGHWAY AUTHORITY OF INDIA
G-5 & 6,SECTOR 10, DWARAKA,NEW DELHI-110075, REP.BY
ITS CHAIRMAN
3 THE STATE OF KERALA
REP.BY ITS CHIEF SECRETARY TO GOVERNMENT,,
SECRETARIAT,THIRUVANANTHAPURAM-695001
4 THE DEPUTY COLLECTOR AND THE SPECIAL
LAND ACQUISITION, OFFICER AND THE COMPETENT
AUTHORITY UNDER THE, NATIONAL HIGHWAYS ACT, NHDP
OFFICE, CHEMPUKAVU, THRISSUR,PIN-680003
5 THE DISTRICT COLLECTOR THRISSUR
PIN-680003
6 THRISSUR EXPRESSWAY LTD PORJECT OFFICE
BEHIND APPLLO TYRES, PERAMBRA,, THRISSUR, PIN-
680689,REP.BY ITS PROJECT DIRECTOR
R1, R6 BY ADV. SMT.M.M.DEEPA
R1 BY ADV. SRI.V.A.JOHNSON VARIKKAPPALLIL
R1 BY ADV. SRI.THOMAS ANTONY
WP(C).No.16227 OF 2011(C)
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R1-2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
R2 BY ADV. SRI.K.A.SALIL NARAYANAN
GOVERNMENT PLEADER, SMT.A C VIDHYA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.16227 OF 2011(C)
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JUDGMENT
Dated this the 5th day of March 2020 The short issue in this case whether interest and solatium can be claimed by the parties whose land have been acquired under the National Highways Act, 1956 without the same being raised in arbitration proceedings under the National Highways Act.
2. The dispute is essentially regard to interest and solatium as applicable to the compensation amount to be awarded under the Land Acquisition Act, 1894.
3. Under the National Highways Act, a different procedure is contemplated for acquisition and award of compensation. Section 3J of the National Highways Act states that, nothing in the Land Acquisition Act shall apply to an acquisition under the National Highways Act. Treating that interest and solatium is statutorily conferred, that it is not awarded under the National Highways Act as there is no similar provision under the National Highways Act. This writ petition was filed in the WP(C).No.16227 OF 2011(C) 6 year 2011, challenging the statutory provisions of the National Highways Act.
4. Some of the petitioners who were not satisfied with the award of compensation raised a dispute. That was referred to arbitration as contemplated under Section 3G(5) of the National Highways Act. It appears that the arbitration award was passed while this writ petition was pending. It is pointed out by the learned Standing Counsel for the National Highway Authority of India, that the award was passed as early as in the year 2017.
5. The Apex Court, in Union of India v. Tarsem Singh 2019 (9) SCC 304 struck down Section 3J to the extent the non grant of solatium and interest in respect of the land acquired under the National Highways Act. This judgment was rendered on 19/09/2019. The challenge therefore become an academic interest in as much as that it has already been sustained by the Apex Court. Now, the only dispute is regard to the relief to be given to the petitioners.
6. The learned Standing Counsel would submit that the petitioners could have very well pursued their remedy under arbitration and without prosecuting their remedy, foreclosed their rights to claim interest and solatium. WP(C).No.16227 OF 2011(C) 7
7. The arbitrator is having only limited jurisdiction and competency to entertain a dispute. There is a complete embargo in application of Land Acquisition Act, 1984 under Section 3J. A waiver would arise when there is an established right. A waiver is understood as voluntary relinquishment of a known right. If such a right is not available under statutory provisions as then stood. That could not have been persuaded before an arbitrator. It is only when the Apex Court declared the law by striking down Section 3J to the extend as above the right came to be recognized. That means it is much after the award passed in the matter such right came into being acknowledged.
8. The petitioners are pursuing their remedy before this Court in 2011 onwards. This Court alone can decide the issue in regard to the virus of the statutory provision. It is also to be noted that the petitioners had not slept over their right. They pursued the challenge before this Court, much before the arbitration award was passed. So there is no delay on their part. In such circumstances, the relief cannot be denied to the petitioners based on the Apex Court judgment in regard to interest and solatium. Accordingly, the writ petition is WP(C).No.16227 OF 2011(C) 8 allowed. The competent authority is directed to grant the interest and solatium in the light of Apex Court judgment in Tarsem Singh's (supra) case within a period of two months after notice to the petitioners.
Ordered accordingly. The writ petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE JUDGE AJ WP(C).No.16227 OF 2011(C) 9 APPENDIX PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RELEVANT NOTIFICATION DATED 21/10/2005 PUBLISHED ON THE MALAYALA MANORAMA DAILY DATED 24/11/2005.
EXHIBIT P2 TRUE COPY OF THE RELEVANT PORTION OF SECTION 3D NOTIFICATION ISSUED ON 20/10/2006.
EXHIBIT P3 TRUE COPY OF THE NOTIFICATION ISSUED UNDER SEC.3. A OF THE N.H. ACT ON 16/03/2007.
EXHIBIT P4 TRUE COPY OF THE SEC. 3A NOTIFICATION DATED 16/11/2007.
EXHIBIT P5 TRUE COPY OF THE RELEVANT PORTION OF THE AGREEMENT EXECUTED BETWEEN THE 2ND AND 6TH RESPONDENT ON 24/08/2009.
EXHIBIT P6 TRUE COPY OF THE NOTICE ISSUED UNDER SEC.3G(3) DATED 04/12/2009.
EXHIBIT P7 TRUE COPY OF THE 3G(3) NOTICE DATED 05/12/2009.
EXHIBIT P8 TRUE COPY OF THE 3G(3) NOTICE DATED 07/12/2009.
EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT IN RESPECT OF THE FIRST PETITIONER.
EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 25/03/2011 IN WPC NO.8380/2011.
EXHIBIT P11 TRUE COPY OF THE INFORMATION FURNISHED BY THE N.H.AUTHORITIES, PROJECT IMPLEMENTATION UNIT, MALDA DATED 04-07-2017 AND 01-06- 2017.
EXHIBIT P12 TRUE COPY OF THE COMMUNICATION WAS OBTAINED FROM THE OFFICE OF THE DISTRICT MAGISTRATE & COLLECTOR, MURSHIDABAD ON 13-07-2017.
EXHIBIT P13 TRUE COPY OF THE ORDER DATED 03-08-2017 IN WP(C).No.16227 OF 2011(C) 10 I.A.NO.2/2017 AND 3/2017 IN C.A.NO.10767/2017.
EXHIBIT P14 TRUE COPY OF THE ORDER DATED 21-07-2016 IN C.A.NOS.129-159/2014 OF THE HON'BLE SUPREME COURT OF INDIA.
EXHIBIT P15 TRUE COPY OF THE COMMON JUDGMENT IN ARB.
APPEAL NO.18/18, 21/18 AND 22/18.