IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 WP(C).No. 27746 of 2009(K) -------------------------- PETITIONER(S): --------------- JOJI PETER, EDASSERY HOUSE, LISSIE HOSPITAL ROAD, ERNAKULAM. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S): --------------- 1. THE SLAO & COMPETENT AUTHORITY, NHDP, CHEMBUKKAVU, THRISSUR. 2. STATE OF KERALA REPRESENTED BY SECRETARY (REVENUE), THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI. V. MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1. True copy of judgment dated 12.1.2009 in WP(c).nO.36058/05 Ext.P2. True copy of judgment dated 21.5.2009 in WP(c).No.9675/2009 Ext.P3. True copy of award dated 31.7.2009 passed by the Ist respondent. Respondent's Exhibits Ext.R1(a). True copy of the letter No.45814/B1/09/RD dated 22.8.2009. Ext.R1(b). True copy of the order NO.54421/B1/09/RD dated 2.12.2009. // true copy // P.S to Judge. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.27746 OF 2009 (K) -------------------------------------------------- Dated this the 27th day of January, 2010 J U D G M E N T The prayer sought is to direct the first respondent to pay compensation to the petitioner under Ext.P3 award forthwith. 2. Petitioner states that the first respondent acquired property measuring 2 and 18 cents of land in Sy.No.697/2 of Muringur Thekkummuri Village along with three storied building constructed by him, for widening NH-47. It is stated that pursuant to Ext.P2 judgment of this Court in WP(c).No.9675/09, compensation due to the petitioner was determined by Ext.P3 award. However, payment of compensation was made subject to eligibility of the petitioner and approval of the State Government. It is contended that once the first respondent has determined the compensation due, the petitioner is entitled to be paid the amount, without any further proceedings and as payment was not made, the writ petition is filed for a direction requiring payment to him. 3. The stand of the respondents as reflected in the counter affidavit and additional counter affidavit is that the land acquired WPC.No. 27746/09 :2 : was a Purambokku land, in which an unauthorized construction was made by the petitioner. It is stated that, in Ext.P2 judgment, this court only directed determination of the compensation in respect of the building and that it was further made clear that release of the amount due is conditional, on an award being passed by the Arbitrator or an order being passed by the Civil Court on a reference made under Section 3 H(4) of the National Highways Act. It is therefore contended that as at present the petitioner is not entitled to be paid compensation as claimed by him. Ext.P2 is the judgment, pursuant to which Ext.P3 award was passed by the first respondent. 4. A reading of Ext.P2 judgment shows that this court had issued the following directions. “If the petitioner has made any written representation regarding his claims(Exts.P2 and P3), and if they are duly received and pending in accordance with law, the same shall also be considered. The release of compensation, if any, to the petitioner will depend upon the decision that may be rendered by the competent court or Arbitrator in terms of the statutory provisions.” 5. From the above, it can therefore be seen that the first respondent has directed to determine the compensation for the WPC.No. 27746/09 :3 : property acquired and as far as release of the compensation so determined is concerned, such release was made conditional upon the decision that may be rendered by the competent court or an award rendered by an Arbitrator in terms of N.H Act, 1956. Ext.P3 award also shows that the compensation has been determined but the eligibility of the petitioner to receive the same has not been decided. This coupled with the case of the respondents as reflected in the counter affidavit that the petitioner is not entitled to compensation for the reason that the construction was made unauthorizedly, that too trespassing into the purambokku land makes adjudication of the petitioner's eligibility to be paid compensation all the more essential. Therefore, the remedy of the petitioner at this stage would be to seek a reference either to civil court or the appointment of another as contemplated under Section 3H(4)of the N.H. ACT, 1956. For these reasons, this Court will not be justified in directing the respondents to disburse the compensation to the petitioner. 6. Learned Counsel for the petitioner relied on Ext.P11 and contended that the beneficiary of Ext.P11 is similarly situated WPC.No. 27746/09 :4 : and that payment of compensation has been made in that case. It is contended that the petitioner cannot be discriminated. Reliance is placed on the Apex Court judgment in Ram Prasad Narayan Sahi & another V. The State of Bihar & ors. ( AIR 1953 SC 215) also. 7. As rightly pointed out by the Government Pleader Ext.P11 was passed pursuant to Ext.P1 judgment. It is also pointed out that, subsequent to Ext.P11, Ext.R1(a) order was issued by the Government conceding the eligibility of those families who are Purambokku encroachers. It is pointed out that subsequently Ext.R1(b) order dated 2.1.2009 was issued clarifying Ext.R1(a) and that the case of the petitioner is covered by Ext.R1(b). In the light of Ext.R1(b) and as Ext.P11 was rendered pursuant to Ext.P1 judgment, I do not find that the petitioner can claim parity in treatment with the beneficiary of Ext.P11. In my view, unless the petitioner succeeds in establishing his eligibility to be paid compensation either before the Arbitrator or before the Civil Court as contemplated in N.H. Act, this court will not be justified in issuing a direction as sought. Having regard to the fact that there exists a dispute, it is WPC.No. 27746/09 :5 : directed that the first respondent shall make a reference to the District Court, Thrissur as contemplated in Section 3-H(4) of the N.H Act, as expeditiously as possible and at any rate within 4 week from the date of production of a copy of the judgment. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/