IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 WP(C).No. 19749 of 2009(K) -------------------------------------- PETITIONER(S): ---------------------- MOHAMED. P.A., S/O. P.K. ABDU, PADIYATH HOUSE, OPP.OLD POLICE STATION KODUNGALLUR, THRISSUR DIST. 680 664. BY ADV. MR.KALEESWARAM RAJ RESPONDENT(S): ------------------------- 1. THE DY. COLLECTOR AND COMPETENT AUTHORITY KODUNGALLOOR-BYE-PASS, KODUNGALLOOR, THRISSUR DISTRICT. 2. UNION OF INDIA, REPRESENTED BY ITS SECRETARY MINISTRY OF SHIPPING & SURFACE TRANSPORT, PARLIAMENT STREET, NEW DELHI. R1 BY GOVERNMENT PLEADER SMT.K.R. DEEPA. R2 BY ADV. MR.P. PARAMESWARAN NAIR, ASST. SG, MR.CYRIAC KURIAN, CGSC . THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 19749/2009-K APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE TITLE DEED NO.644/1992 OF S.R.O. KODUNGALLOOR. EXT.P2: COPY OF THE NOTIFICATION NO.L.A.2/8/2008 DATED 07/11/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE NOTIFICATION NO.L.A.2/8/2008 DATED 11/05/2009 ISSUED BY THE 1ST RESPONDENT. EXT.P4: COPY OF THE SECTION 3E NOTICE DATED 23/05/2009 ISSUED BY THE 2ND RESPONDENT. EXT.P5: COPY OF THE LETTER NO.L.A.C.49/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P6: COPY OF THE CERTIFICTE NO.2814/2008 DATED 2/12/2008 ISSUED BY THE VILLAGE OFFICER. EXT.P7: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 25/05/2009. EXT.P8: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 18/05/2009. EXT.P9: COPY OF THE INVITATION LETTER. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE SECTION 3 A OF N.H. ACT NOTIFICATION PUBLISHED IN KERALA KOUMUDI ON 14/07/2008. EXT.R1(b): COPY OF THE SECTION 3 A OF N.H. ACT NOTIFICATION PUBLISHED IN MATHRUBHOOMI ON 19/11/2008. EXT.R1(c): COPY OF THE SECTION 3 D GAZETTE NOTIFICATION PUBLISHED IN LOCAL NEWS PAPERS DATED 30/10/2008 (135 Sq,MTRE IN SY. NO.542/5). EXT.R1(d): COPY OF THE SECTION 3 D GAZETTE NOTIFICATION PUBLISHED IN LOCAL NEWS PAPERS DATED 13/04/2009 (131 Sq. MTR. IN SY. NO.543/1). EXT.R1(e): COPY OF THE LETTER DATED 13/07/2009 ISSUED TO THE PETITIONER. EXT.R1(f): COPY OF THE REQUEST MADE BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 01/07/2009. //TRUE COPY// P.A. TO JUDGE rs. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.19749 of 2009-K = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of August, 2009. JUDGMENT 1.The petitioner challenges actions taken under the National Highways Act, 1956, hereinafter referred to as the "NH Act", in relation to an item of property. He says that he owns 10 cents of land in R.S.No.543/1 and 542/5 of Lokamaleswaram village in Kodungallur taluk in Thrissur district. According to him, no proper notice was issued in terms of Section 3E of the NH Act after determining the compensation due in terms of Section 3G and no notice whatsoever was issued intimating the factum of any deposit having been made in terms of Section 3H. It is hence contended that, bereft of such procedure, there could not have been any action for dispossession and the impugned notices issued, purportedly, under Section 3E of the NH Act are without WP(C)19749/09 -: 2 :- jurisdiction. Incidentally, it is pointed out that it is only the petitioner's wife who is shown as the owner of the land in one of the notices. That part, the petitioner attempts to point out that the entire residential building owned by him is not required to be pulled down because it does not come within the alignment covered by the notification and declaration issued under Section 3D and that if the remaining portion of the building is left intact, he can continue to reside there with his family. He also points out that his daughter is due to get married shortly and actual dispossession should be deferred by, at least, six months after the payment of compensation that is due in terms of Section 3H(1) of the NH Act. 2.Refuting the contentions, the first respondent has placed a counter affidavit and also an additional counter affidavit. 3.The petitioner has also placed a reply affidavit WP(C)19749/09 -: 3 :- on record. 4.Apart from pressing for consideration the plea of the petitioner as afore-noted, his learned counsel argued that deprivation of property, except in accordance with due process in terms of the NH Act and the Rules and by obeying the statutory directions in that regard, would result in deprivation of human rights even if no fundamental right issue could be raised. It was accordingly argued that the colour of constitutional protection under Article 300A of the Constitution, in the backdrop of the indefeasible human rights as elucidated by the Apex Court in Chairman, Indor Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd., (2007 (8) SCC 705, should necessarily advise that the procedure prescribed by the NH Act has to be complied with as a mandatory requirement. 5.The learned counsel for the respondents argued that amounts have been deposited in terms of WP(C)19749/09 -: 4 :- Section 3H(1) and it does not oblige any notice of such deposit being given before a notice of dispossession is issued in terms of Section 3E. 6.Section 3D provides for the making of a declaration that the land in relation to which that notification is issued should be acquired for the public purpose. Such declaration is preceded by a notification under Section 3A(1), following which the authority gets the power to enter for survey etc. in terms of Section 3B. Once declaration is made in terms of Section 3D, the land vests absolutely in the Central Government free of all encumbrances by virtue of Sub-section (2) of Section 3D. On that event of vesting, Section 3F provides that it shall be lawful for any person authorised by the Central Government in that behalf, to enter upon the land. Following such vesting, the Government gets empowered by virtue of Section 3E(1) to issue notice in writing directing the owner of the land as also any other person found to be in WP(C)19749/09 -: 5 :- possession, to surrender or deliver possession. However, that course can be adopted only after the Central Government deposits the amount determined as compensation with the competent authority in terms of Section 3H(1). Section 3G provides for determination of amount payable as compensation. Before proceeding to determine such amount, the competent authority is required to give a public notice in terms of the provisions of sub-sections (3) and (4) of Section 3G and to take into consideration such matters as are enumerated under Clauses (a) to (d) of sub- section (7) of Section 3G in the matter of determining the compensation. While Section 3H(1) enjoins that the compensation amounts so determined shall be deposited as a pre-condition for issuing a notice for possession under Section 3E(1), the law does not require that notice of such deposit has also to be given. This is because, even in an enquiry under Section 3G, to determine the compensation, individual notices are not called for and Section 3E(1) is not made WP(C)19749/09 -: 6 :- conditional on the delivery of the individual notices regarding the deposit. If challenged, the competent authority and the Central Government have to show that deposit has been made. In the case in hand, it is shown that compensation was determined and amount has been deposited. 7.It appears that the land being acquired from the petitioner is a parcel of 10 cents and according to him, it results in severance of the remaining parcel and that there is a building which stands in the remaining parcel as also on the acquired land. Unlike in the Land Acquisition Act, 1894 which, by the force of Section 3J of the NH Act, shall not apply to an acquisition under the NH Act, there is no provision for acquiring anything more than what is covered by the notification and declaration even at the instance of the person from whom the land of the building is being acquired. This means that the acquisition has to necessarily get confined to the declaration made under Section 3D following consideration of WP(C)19749/09 -: 7 :- objections to notification under Section 3A. One light of guidance for this conclusion is the fact that the aspects which are enumerated are relevant for determination of the compensation under the NH Act. Section 3G(7) provides not only for the severance compensation but for injurious effects of the acquisition on other immovable property and for reasonable expenses incidental to change of residence or place of business if the person interested is compelled to change his residence or place of business as a consequence of the acquisition. 8.The aforesaid will show that the competent authority has to bestow due attention to the plea of the petitioner that the structure that would be left out of the acquired land should be left intact for being retained and preserved for the purpose of the petitioner. Obviously, if it calls for re-determination of the value of the building as fixed by the officers, that may have to be done since the petitioner is not entitled to be WP(C)19749/09 -: 8 :- paid anything in excess of what is payable in terms of sub-section (7) of section 3G of the NH Act and other statutory incidentals as may be available under the NH Act. While recording the offer of the respondents that the petitioner could be permitted to continue in occupation till the 31st August, 2009, it is ordered that the acquisition of land from the petitioner would be confined and regulated by what is stated above. The writ petition is ordered accordingly. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/030809