Disposed

Abdul Salim v. National Highway Authority of India

Kerala HC24 Jan 2022WP(C)/246/2022

Case brief

AI extract

What is this about?

Petitioner challenging land acquisition valuation for an ice factory demanded expert machinery assessment. Court barred dictating authority's valuation method, directing petitioners' representations to be disposed of under NH Act Section 3G(7) and Fair Compensation Act Section 94 before award settlement.

What did the court decide?

Directed the Competent Authority to dispose of petitioner's representations under NH Act Sec 3G(7) and Fair Compensation Act Sec 94, allow hearing, and decide on expert valuation and unsafe building c

Abdul Salim Vs National Highway Authority of India — Land Acquisition | Kerala HC (2022)

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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 DEVAN RAMACHANDRAN MONDAY, THE 24^TH DAY OF JANUARY 2022 / 4TH MAGHA, 1943

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WP(C) NO. 246 OF 2022

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PETITIONER:

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ABDUL SALIM, AGED 57 YEARS, S/O.KOYAKUTTY, PAPPANKULANGARA HOUSE, KADATHOOR MURI, THAZHAVA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM, PIN - 690 523.

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BY ADVS.SIJU KAMALASANAN S.ABHILASH ANJANA KANNATH T.S.SREEKUTTY

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RESPONDENTS:

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1 NATIONAL HIGHWAY AUTHORITY OF INDIA, G5 AND 6, SECTOR - 10, DWARAKA, NEW DELHI, PIN - 110 075, REPRESENTED BY ITS CHAIRMAN.

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2 PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, TC-29/1539/I, RAJASREE KAIRALI, PERUMTHANNI, VALLAKKADAVU P.O., THIRUVANANTHAPURAM - 695 008.

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3 SPECIAL DEPUTY COLLECTOR AND COMPETENT AUTHORITY, LAND ACQUISITION, NATIONAL HIGHWAY AUTHORITY OF INDIA, COLLECTORATE, KOLLAM - 691 013.

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4 THE DISTRICT COLLECTOR, CIVIL STATION, KOLLAM - 691 013.

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5 SAMARA CONSULTANTS AND DEVELOPERS, 1ST FLOOR, KONDAPILLIL BUILDING, NEAR CIVIL STATION, KAKKANAD, KOCHI - 682 020.

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SMT.MABLE C.KURIAN, SR.GP, SRI. MATHEWS K PHILIP - SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 246 OF 2022

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JUDGMENT

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The petitioner says that he is running an 'Ice Factory' in his property, with financial assistance from various Banks, for the last 15 years. He says that a portion of the property on which the factory is situated, as also a fraction of the said building, has now been acquired for the purposes of the National Highway Authority of India (NHAI), but that the Competent Authority for Land Acquisition (CALA), appointed under the provisions of the National Highways Act ('NH Act', for short), has not valued the machinery, equipments, infrastructure or the entire building in which the 'Ice Factory' is being conducted properly; and that he, therefore, apprehends that he will be denied eligible compensation under the provisions of the aforesaid 'NH Act'.

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Sri.Siju Kamalasanan – learned counsel

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appearing for the petitioner, pointed out that only an

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expert in factories and machineries can fix

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WP(C) NO. 246 OF 2022

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compensation, particularly with respect to the

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machineries, equipments and infrastructure, and that the CALA must be, therefore, directed to avail such assistance before an Award is issued.

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Sri.Siju Kamalasanan then added that, as is evident from Ext.P4 - which is a report settled by the 5^th respondent, remaining portion of the building has been found to be 'unsafe' after the demolition of the acquired area and therefore, that his client is fully entitled to compensation for the entire building under the provisions of Section 3G(7) of the 'NH Act' read with Section 94 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ( the 'Fair Compensation Act', for short).

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The learned counsel, therefore, prayed that this Court direct the CALA to avail the assistance of an expert for the valuation of the building, machinery and other infrastructure; that to resultantly acquire the entire structure, leading to eligible benefits

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WP(C) NO. 246 OF 2022

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being favoured to his client under Schedule II of the 'Fair Compensation Act', taking note of the policy of the Government of Kerala for Rehabilitation and Resettlement, as per order dated 29.12.2017.

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The learned Senior Government Pleader – Smt.Mable C.Kurian, answered the afore submissions, affirming that CALA is yet to issue an Award in favour of the petitioner; and supplementing it, saying that, therefore, for the said reason, this writ petition is not maintainable. She submitted that the CALA will certainly assess the value of the machineries and the building and will make available to the petitioner the eligible compensation under Section 3G(7) of the 'NH Act', as is entitled to him. She added that these are matters which will have to be decided by the CALA appropriately and cannot be dictated to by the

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petitioner in a manner, as has been effectively sought for in this writ petition.

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Sri.Bidan Chandran – learned Standing Counsel

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for the NHAI, submitted that his client has no role to

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WP(C) NO. 246 OF 2022

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play in the determination of compensation payable to

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the petitioner; but prayed that when the Award is issued, the CALA may be directed to hear his client also, so that any necessary inputs can be made available.

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recorded, it is evident that this Court could not be now justified to issue specific orders to the CALA, because it is enjoined to act as per the provisions of Section 3G(7) of the 'NH Act'. The question whether

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Section 94 of the 'Fair Compensation Act' is

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applicable is also something that the CALA must certainly consider.

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That said, the petitioner's contention that the building and machineries will have to be evaluated

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by an expert is an aspect that he can bring to the notice of the CALA, which Authority will thereupon consider it and decide whether such a course is necessary, specifically adverting to Ext.P4 report of the 5^th respondent, after evaluating its credibility

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WP(C) NO. 246 OF 2022

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and viability.

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Thus, in the scenario of the admitted fact

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that an Award has not been issued, it would not be prudent for this Court to dictate to the CALA the manner in which it has to act, particularly when such has been provided in the provisions of the statutory Scheme.

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Resultantly, I direct the 3^rd respondent –

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CALA, to take up Exts.P6 to P8 representations of the petitioner and dispose of same, after affording him an opportunity of being heard, before the Award in his favour is finally settled.

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specifically under the provisions of Section 3G(7) of the 'NH Act' and will advert to Ext.P4 report - after evaluating its genuineness and worth - and decide whether petitioner is entitled to full value of the building because, according to him, the balance has been declared to be 'unsafe'; as also whether it would require the assistance of an expert in factories and

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WP(C) NO. 246 OF 2022

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machineries for its valuation.

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shall be done, as expeditiously as is possible, without any avoidable delay.

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This writ petition is thus ordered.

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Sd/-

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akv

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DEVAN RAMACHANDRAN JUDGE

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WP(C) NO. 246 OF 2022

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APPENDIX OF WP(C) 246/2022

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PETITIONER EXHIBITS

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EXHIBIT P1	THE TRUE COPY OF MAHAZAR PREPARED BY THE REVENUE INSPECTOR UNDER CALA ON 14/8/2020.
EXHIBIT P2	TRUE COPY OF VALUATION REPORT FOR THE STRUCTURE PREPARED BY THE 5TH RESPONDENT DATED 23/1/2021.
EXHIBIT P3	TRUE COPY OF REVISED VALUATION STATEMENT SUBMITTED BY THE 5TH RESPONDENT AS DICTATED BY THE 3RD RESPONDENT DATED 20/3/2021.
EXHIBIT P4	THE TRUE COPY OF PLAN PREPARED BY THE 5TH RESPONDENT SHOWING THE ACQUIRED PORTION AND 'UNSAFE AREA' OF THE ACQUIRED LAND.
EXHIBIT P5	THE PHOTOGRAPHS SHOWING THE ACQUIRED PORTION INCLUDING THE PASSAGE, RCC BUILDING, MACHINE ROOM, TIN ROOFED SHEDS AND WATER TANKS FIXED ABOVE THE RCC BUILDING.
EXHIBIT P6	THE TRUE COPY OF REPRESENTATION DATED 19/02/2021 SUBMITTED BEFORE THE 3RD RESPONDENT.
EXHIBIT P7	THE COPY OF REPRESENTATION DATED 17/12/2021 SUBMITTED BEFORE THE 3RD RESPONDENT.
EXHIBIT P8	THE COPY OF REPRESENTATION DATED 23/12/2021 BEFORE THE 4TH RESPONDENT.

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RESPONDENT'S/S EXHIBITS : NIL.

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//TRUE COPY// P.A. TO JUDGE

Abdul Salim v. National Highway Authority of India

Case brief

What is this about?

What did the court decide?

Abdul Salim v. National Highway Authority of India

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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