Dismissed

The Special Deputy Collector v. Vinodkumar

Kerala HC18 Feb 2020WA/1442/2019

Case brief

AI extract

What is this about?

This writ appeal challenged the 2018 judgment confirming Section 3-J of the National Highways Act, 1956. The court noted that the Supreme Court in Tarsem Singh struck down Section 3-J. Consequently, the court held that provisions of the Land Acquisition Act, 1894 apply to determine compensation benefits, including solatium and interest.

What did the court decide?

The High Court was directed to grant all benefits provided under the Land Acquisition Act, 1894, within two months from the date of the judgment.

The Special Deputy Collector Vs Vinodkumar — Land Acquisition | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941

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WA.No.1442 OF 2019

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AGAINST THE JUDGMENT DATED 18.09.2018 IN WP(C) 23194/2007(J) OF HIGH COURT OF KERALA

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APPELLANTS/RESPONDENTS 1 & 2 IN W.P.(C):

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1 THE SPECIAL DEPUTY COLLECTOR SLAO AND COMPETENT AUTHORITY LA, NHDP, THRISSUR 20

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2 THE DISTRICT COLLECTOR, ARBITRATOR, ERNAKULAM-682 030

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BY SRI. TEK CHAND, SR. GOVERNMENT PLEADER

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RESPONDENTS/PETITIONER & 3RD RESPONDENT IN W.P.(C):

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1 VINODKUMAR

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S/O LATE CHANDRASEKHARAN PILLAI, CHANDRA VILLA, THOTTAKKATTUKARA, ALUVA-683 108.

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2 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF SHIPPING, ROAD TRANSPORT AND HIGHWAYS, NEW DELHI-110 001

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R2 BY ASGI

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R1 BY SRI. K.G. BALASUBRAMANIAN

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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'CR'

Dated this the 18^th day of February, 2020.

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JUDGMENT

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S. Manikumar, CJ

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Challenge in this appeal is against the judgment dated 18.09.2018 in W.P.(C) No. 23194 of 2007 by which the writ court confirmed the constitutional validity of Sections 3-G and 3-J of the National Highways Act, 1956 ('the Act' for short).

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Today, when the matter is taken up for consideration, inviting the attention of this Court in Union of India v. Tarsem Singh [(2019) 9 SCC 304= 2019(4) KLT 739(SC)], Sri. Tek Chand, learned Government Pleader submitted that Section 3-J of the Act has been struck down by the Hon'ble Apex Court and therefore, State is not pressing this appeal.

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Following the aforesaid decision, findings in the impugned judgment, insofar as, not interfering with Section 3-J of the Act, is not correct. However, learned single Judge has directed to pay solatium and interest to the first respondent/writ petitioner. Challenging the said findings, this appeal is preferred by the State.

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Section 3-J reads thus:

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“3-J. Land Acquisition Act 1 of 1894 not to apply-Nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under this Act.”

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In view of the judgment of the Apex Court in Tarsem Singh (supra), striking down Section 3-J, the grounds raised in the appeal do not merit consideration. Unless Section 3-G of the Act is available under the Act, compensation cannot be determined and paid. Section 3-G

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of the Act, which deals with determination of amount payable as compensation, reads thus:

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“[3-G. Determination of amount payable as compensation.—

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(1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.

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(2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent. of the amount determined under sub-section (1), for that land.

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(3) Before proceeding to determine the amount under sub- section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired.

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(4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in subsection (2) of section 3C, before the competent authority, at a

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time and place and to state the nature of their respective interest in such land.

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(5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government.

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(6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.

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(7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration—

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(a) the market value of the land on the date of publication of the notification under section 3A;

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(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;

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(c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;

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(d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.”

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In Abbas T. Vagh and Ors. v. The Competent

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Authority and Ors [W.P.(C) No. 30548 of 2013 dated 03.12.2013 of Madras High Court], in paragraphs 53 and 54, it is held thus:

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“54. The main ground of challenge before the Hon'ble Madurai Bench of this High Court was that in view of Section 3J of the National Highways Act, 1956, the determination of compensation under the National Highways Act and Land Acquisition Act, 1894, differ. Hence, the provisions of the Land Acquisition Act, 1894, cannot be made applicable for determining the compensation under the National Highways Act. The Project Director, National Highways Authority of India, Madurai, has also contended that the decision in Lalita and another vs. Union of India and others, reported in AIR 2003 Karnataka 165, has been stayed by the Hon'ble Supreme Court and that the decision of Hon'ble Mr.Justice Vinod K.Sharma in T.Chakrapani & Others, Vs. Union of India, Rep. by Secretary, National Highways Department, New Delhi and 5 others, reported in MANU/TN/1113/2011 : 2011 Writ L.R. 193, has also been stayed by the Hon'ble Division Bench of this Court. It has also been contended that the scheme provided under the Land Acquisition Act, 1894, cannot be made applicable to the cases arising out of National Highways Act, 1956.

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However, perusal of the order made in CMA [MD] Nos.650, 651 to 680 of 2013 dated 30.08.2013, shows that in view of Section 3-J of the National Highways Act, 1956, the landowners have conceded that they are not entitled to 30% solatium and other items of compensation. Having regard to the judgments stated supra, while confirming the liberty, granted by the learned Principal District Judge, Madurai, to submit a revised calculation, after the outcome of the legal proceedings stated supra, a Hon'ble Division Bench of this Court, in a batch of CMA Nos.650, 651680 of 2013, dated 30.08.2013, has partly allowed the Civil Miscellaneous Appeals filed by the Project Director, National Highways Authority of India, Madurai and reduced the compensation amount at Rs.12,000/- per Cent and added 10% statutory solatium, and on the amount, further added 9% interest from the date of taking possession, till the date of deposit.”

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In the light of the aforesaid judgment of the Hon'ble

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Apex Court which struck down Section 3-J of the Act and the judgment of the Madras High Court, the provisions of the Land Acquisition Act, 1894 relating to the payment of

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solatium and interest will apply to the acquisitions made under the Act. In so far as the directions in the impugned judgment to make payment of solatium and interest are concerned, we observe that the statutory authorities are bound to compute the compensation in terms of Section 3-G of the Act and grant all benefits provided under the Land Acquisition Act, 1894. The benefits shall be given within a period of two months from the date of receipt of a copy of this judgment.

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In the result, this appeal is dismissed.

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sd/- S. MANIKUMAR, CHIEF JUSTICE.

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sd/- SHAJI P. CHALY, JUDGE.

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W.A. No. 1442/2019 : 7 :

The Special Deputy Collector v. Vinodkumar

Case brief

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The Special Deputy Collector v. Vinodkumar

Case brief

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