Allowed

Shaju P.K., v. the Union of India

Kerala HC3 Jan 2019WP(C)/33356/2018

Case brief

AI extract

What is this about?

The High Court of Kerala directed that land acquisition and declaration under Section 3D should be strictly limited to the area notified under Section 3A. Any further acquisition requires a fresh notification, and compensation must follow the 2013 Land Acquisition Act schedules.

What did the court decide?

Direction to finalize declaration under Section 3D only per Section 3A notification; fresh Section 3A notification required for additional land; compensation per 2013 Act schedules.

Shaju P.K., Vs the Union of India — Land Acquisition | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THURSDAY ,THE 03RD DAY OF JANUARY 2019 / 13TH POUSHA, 1940

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WP(C).No. 33356 of 2018

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PETITIONER/S:

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SHAJU P.K.,AGED 48 YEARS S/O PEETHAMBHARAN, SHA NIVAS, PANMANA, KOLLAM DISTRICT 691 583.

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BY ADVS. SRI.R.RAJESH(PULLIKADA) SRI.G.GANGADETHAN

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RESPONDENT/S:

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1 THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN, PARLIAMENT STREET, NEW DELHI 110 001.

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2 THE NATIONAL HIGHWAYS AUTHORITY OF INDIA, REPRESENTED BY ITS CHAIRMAN, G5 AND G6 SECTOR 10, DWARAKA, NEW DELHI-110875.

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3 THE PROJECT DIRECTOR, NATIONAL HIGHWAYS AUTHORITY OF INDIA, (MINISTRY OF ROAD TRANSPORT AND HIGHWAYS), TC36/414(5), KOYIKALVEEDU, KAVU LANE, PALKULANGARA, THIRUVANANTHAPURAM-695024.

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4 THE SPECIAL DEPUTY COLLECTOR AND COMPETENT AUTHORITY,(LAND ACQUISTION), NATIONAL HIGHWAYS, COLLECTORATE, KOLLAM-691013.

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OTHER PRESENT:

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SMT.SMT.C.G.PREETHA,CGC FOR R1, SRI.B.G.BIDHAN CHANDRAN, SC FOR R2 AND R3, SMT.A.C.VIDHYA,GOVT.PLEADER FOR R4

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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==================

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W.P.(C).No. 33356 of 2018

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==================

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Dated this the 3^rd day of January, 2019 J U D G M E N T

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The prayers in the above Writ Petition (Civil) are as follows:

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“(i) Issue a Writ of Mandamus or any other appropriate writ, order or direction prohibiting the respondents from dispossessing the petitioner from any area of his property in excess of the area notified for acquisition as per Ext. P1 under Survey Nos. 107/21 and 107/12 of Chavara Village.

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(ii) issue a Writ of Mandamus or any other appropriate writ, order or direction to respondents prohibiting them from issuing declaration under 3D for any area of his property in excess of the area notified for acquisition as per Ext. P1 under Survey Nos. 107/21 and 107/12 of Chavara Village.

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And

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iii) such other relief as may prayed for or deemed fit and proper in the facts and circumstances of the case including the cost.”

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Heard Sri.Rajesh Pullikada, learned counsel appearing for

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the petitioner, Sri.B.G.Bidhan Chandran, learned Standing Counsel for the NHAI appearing for R-2 & R-3, Smt.A.C.Vidhya, learned Govt. Pleader appearing for R-4 (competent authority) and C.G.Preetha, learned Central Government Counsel appearing for R-1 (Union Government).

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According to the petitioner, steps are being taken by the respondents to acquire lands which are not covered by Sec.3A notification issued under the National Highway Act, 1956, etc. It is in

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the light of these facts averment that the petitioner has filed the instant Writ Petition (Civil) with the aforementioned prayers.

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W.P.(C)33356/18 - : 3 :-

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The 3^rd respondent NHAI authority has filed counter affidavit in which it has been stated in para 19 on page 5 thereof that no additional land over and above what has been notified under Sec. 3A will be acquired and that in case such additional land which is over and above Sec. 3A notification is required, then fresh Sec. 3A notification for such additional lands will be issued under the provisions of the National Highway Act, etc.

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The matter in issue is covered by a series of judgments of this Court as in common judgment dated 15.10.2018 rendered by this Court in W.P.(C).Nos.29657/2018 and connected cases, which reads as follows:

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“These writ petitions are filed seeking the following prayers:-

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“ a) To issue a writ of mandamus or such other Writ, Order or Direction directing the respondents not to acquire any area in excess of the area shown under Resurvey Nos.460/10, 461/2/2 and 460/25 (respectively in the three writ petitions) of Block No.28 of Adichanallur Village in Ext.P3, belonging to the petitioner;

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b) Direction to the respondents that the petitioner cannot be dispossessed of his properties and building in excess of the area notified for acquisition Resurvey No.460/10, 461/2/2 and 460/25 (respectively in the three writ petitions) of Block No.28 of Adichanallur Village in Exhibit P3;

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c) Direction to the 3^rd respondent to pass awards under the First, Second and third Schedules of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,2013, while passing award under Section 3G of the National Highways Act,1956, for the lands that may be found to be acquired from the petitioner.”

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2. Heard the learned counsel for the petitioner, the learned Assistant Solicitor General of India, the Standing Counsel appearing for the National Highway Authority of India and the learned Government Pleader.

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W.P.(C)33356/18 - : 4 :-

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3. It is submitted by the learned counsel for the petitioners that though the notification for acquisition of land in terms of Section 3A of the National Highways Act,1956, has been issued for acquiring specified extent of property, measurements and further steps are being taken in respect of larger extent of property belonging to the petitioners. The learned counsel for the petitioners submits that no acquisition in excess of the property specified in the notification can be carried out in terms of the specific provisions contained in Section 3 of the Act. Learned counsel also submits that the provisions with regard to fixing of compensation as provided in the Schedules to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,2013 are to be given effect to in the case of acquisition under the Act as well.

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4. A detailed counter affidavit has been filed on behalf of respondents 2 and 4 in WP(C) No.29657 of 2018. Paragraph 7 specifies that the extent of land shown in Ext.P3 is only approximate and the exact area required is to be ascertained by detailed survey by the respondents. It is specifically stated that if more land is required than notified in Ext.P3 from the petitioners, then the same will be acquired only after publication of fresh Section 3A(1) notification under the Act for acquiring additional extent of land required. It is stated that Section 3D notification will be only for what is notified under Section 3A and the omitted portion of land will be acquired only after publishing fresh notification in terms of Section 3A.

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5. With regard to the contentions of the petitioners in respect of right to fair compensation, it is submitted in paragraph 10 that though land is being acquired under the provisions of the National Highways Act,1956, the land owners will be given compensation under the Land Acquisition Act and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,2013 as amended.

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6. The submissions made in the counter affidavit filed on behalf of second and fourth respondents as stated above are recorded. This writ petition is disposed of directing that declaration under Section 3D shall be finalised only in accordance with Section 3A(1) notification as presently issued. Any further acquisition in respect of the lands belonging to the petitioners will be only after issuance of fresh Section 3A(1) notification in accordance with law. Further steps to be taken in accordance with the statute shall also be duly followed. The compensation due to the petitioners shall be computed in terms of Schedules 1,2 and 3 of the Act, 2013 as stated in the counter affidavit.”

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6. Accordingly it is ordered that the directions and orders

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issued by this Court in the abovesaid judgment in W.P.(C).No. 29657/2018 and connected cases, will be applicable in this case as well. It is also ordered that Sec. 3A declaration shall be finalised only

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W.P.(C)33356/18 - : 5 :-

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in accordance with Sec. 3A notification, which has now been presently issued and any further acquisition in respect of additional lands belonging to the petitioner, which is over and above the present Sec. 3A can be considered for acquisition only after issuing fresh Sec. 3A notification for such additional land. Further it is also ordered that the compensation payable to the petitioner shall be in terms of Schedules 1, 2 and 3 of the Act, 2013, as stated in the counter affidavit.

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With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.

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sdk+

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Sd/- ALEXANDER THOMAS, JUDGE

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W.P.(C)33356/18 - : 6 :-

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 THE TRUE COPY OF THE RELEVANT PAGES OF NOTIFICATION DATED 9.2.2018 PUBLISHED IN THE MALAYA MANORAMA DAILY DATED 10.3.2018 EXHIBIT P2 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER AND SIX OTHERS BEFORE THE 3RD AND 4TH RESPONDENTS EXHIBIT P3 THE TRUE COPY OF THE SKETCH PLAN PREPARED BY 'ATLAS SURVEY ENGINEERING SYSTEM' KOLLAM EXHIBIT P4 THE TRUE COPIES OF THE INTERIM ORDER DATED 7.8.2018 OF THIS COURT IN WPC.20727/2018 RESPONDENTS' EXHIBITS R3A COPY OF THE LETTER TO.SMEC INTERNATIONAL PVT.LTD.27.6.16. R3B COPY OF THE GAZETTE NOTIFICATION DTD.4.12.2009. R3C COPY OF THE GOVT. LETTER DTD.1.2.2017. R3D COPY OF THE GOVT. OF INDIA NOTIFICATION DTD.8.6.28. R3E COPY OF THE PLAN.

Shaju P.K., v. the Union of India

Case brief

What is this about?

What did the court decide?

Shaju P.K., v. the Union of India

Case brief

What is this about?

What did the court decide?

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