Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI FRIDAY, THE 29TH DAY OF JULY 2022 / 7TH SRAVANA, 1944 WP(C) NO. 23870 OF 2022 PETITIONER:
T.N.SUBRAMANIAN, AGED 66 YEARS S/O NARAYANA IYYER, THOORPUMADAM HOUSE, NEAR ARATTUPUZHA MILK SOCIETY, ARATTUPUZHA P.O., THRISSUR 680562.
BY ADVS.
SRI P.SATHISAN SRI DONA AUGUSTINE RESPONDENTS:
1 UNION OF INDIA, REP. BY SECRETARY, MINISTRY OF ROAD TRANSPORT & HIGHWAYS, GOVERNMENT OF INDIA, CENTRAL DELHI P.O., NEW DELHI-110 001.
2 REGIONAL OFFICER, NATIONAL HIGHWAYS AUTHORITY OF INDIA, REGIONAL OFFICE - KERALA, T.C 86/1036-1, AMBLY ARCADE, S.N.N.R.A - 9, PETTAH P.O, THIRUVANANTHAPURAM, 695 024.
3 THE PROJECT DIRECTOR, NATIONAL HIGHWAYS AUTHORITY OF INDIA, PROJECT IMPLEMENTATION UNIT- KOCHI, VII/511 B, NEITHELI -MAVELIPURAM ROAD, MAVELIPURAM, KAKKANAD, KERALA 682030.
4 DIRECTOR GENERAL (ROAD DEVELOPMENT) & SPECIAL SECRETARY, ROOM NO.213, MINISTRY OF ROAD TRANSPORT & HIGHWAYS, TRANSPORT BHAVAN, 1, PARLIAMENT STREET, CENTRAL DELHI P.O., NEW DELHI-110 001.
5 PROJECT DIRECTOR, NATIONAL HIGHWAYS AUTHORITY OF INDIA (HEAD OFFICE) DWARAKA SECTOR 10, SOUTH WEST DELHI P.O., NEW DELHI-110 075.
6 STATE OF KERALA, REP. BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM P.O., PIN - 695 001.
W.P.(C)No.23870/2022 2 7 SPECIAL DEPUTY COLLECTOR (LA) NH & COMPETENT AUTHORITY,OFFICE OF NH 17, (KUTTIPPURAM- EDAPPALLY), KODUNGALLOR P.O., THRISSUR-680664.
8 DISTRICT COLLECTOR, THRISSUR, COLLECTORATE, CIVIL STATION, AYYANTHOLE, THRISSUR-680003.
BY ADVS.
SRI S.MANU,ASGI SMT.MINI GOPINATH, CGC SRI. BIMAL K. NATH, SR.GP, SRI. MATHEWS K. PHILIP, SC.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.23870/2022 3
T.R. RAVI, J.
-------------------------------------------- W.P.(C)No.23870 of 2022 -------------------------------------------- Dated this the 29th day of July, 2022 JUDGMENT
Admit. ASGI takes notice for respondents 1 and 4. Standing Counsel takes notice for respondents 2, 3 and 5. Government Pleader takes notice for respondents 6 to 8.
2.
The petitioner is one of the resident Directors of Karma Autocare India Pvt. Ltd. The Company is situated in a property abutting NH 66 purchased in the name of one Sri Jagadish Sunil Kumar (wrongly shown as Jayakumar in the Sectin 3G Award), one of the Directors of the Company. The said property is acquired for the purpose of widening of National Highway 66. The property includes a portion of the building also. Ext.P6 is the award passed in the case. The petitioner challenges the award by submitting that the establishment of the petitioner along with improvements therein ought to have been duly valued and compensation determined for the same and that the respondents ought not to have deducted 6% towards salvage. The petitioner has preferred Ext.P8 arbitration request under Section 3G(5) of the National Highways Act, 1956 before the 8th respondent and the same is
W.P.(C)No.23870/2022 4 pending.
3.
The petitioner has approached this Court seeking a direction to the 7th respondent to finalise a supplemental award in favour of the petitioner considering Section 28A and Schedule II of Act 30 of 2013 in relation to loss of earnings as per acquisition on account of closing down and shifting of the business, after due evaluation thereof by an Expert or considering Ext.P5 statement and other records submitted by the petitioner; to disburse the amount deducted at 6% towards salvage with interest at 12% and for other consequential reliefs.
4.
Going by the provisions contained in the National Highways Act, once the award is passed, the matter has to be taken up before the Arbitrator for appropriate relief. Section 3G(7) gives ample power to the Arbitrator to consider appropriate value to be fixed as compensation. Once the matter comes before the Arbitrator, the Arbitrator is also having the powers available under Section 17 of the Arbitration and Conciliation Act, 1996 (1996 Act for short) which permits issuance of interlocutory orders. In such circumstances, I deem it appropriate to relegate the petitioner to his remedy before the Arbitrator.
5.
The petitioner is directed to prefer an appropriate
W.P.(C)No.23870/2022 5 interlocutory application before the 8th respondent under Section 17 of the 1996 Act, seeking relief of valuation of the establishment of the petitioner and the improvements made therein. The application shall be filed within ten days. On receipt of the application, the Arbitrator shall consider the interlocutory application and pass orders regarding the inspection and valuation of the establishment and the improvements made therein within one week thereafter and proceed to finalise the application regarding the amounts to be allowed as compensation.
Dispossession and demolition of the structure shall be only after following the procedure prescribed in Section 3E of the National Highways Act, 1956. The entire arbitration proceedings shall be completed at the earliest, at any rate, within eight months from the date of receipt of a copy of this judgment.
The writ petition is disposed of as above.
Sd/-
T.R. RAVI
JUDGE dsn
W.P.(C)No.23870/2022 6 APPENDIX OF WP(C) 23870/2022 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE PROPERTY TAX RECEIPT NO.1210104983 DATED 20.01.2022 ISSUED BY ENGANDIYUR PANCHAYATH.
Exhibit P2 TRUE COPY OF THE BUILDING PERMIT NO.A5- 14448/15 DATED 29.06.2016 ISSUED FROM ENGADIYUR PANCHAYAT.
Exhibit P3 COPY OF THE GST REGISTRATION CERTIFICATE NO.32AAFCK4552R1Z4 DATED 16.07.2018.
Exhibit P4 TRUE COPY OF CENTRAL GOVERNMENT NOTIFICATION DATED 28.8.2015.
Exhibit P5 TRUE COPY OF THE STATEMENTS SUBMITTED BY THE PETITIONER BEFORE THE 7TH RESPONDENT DATED 18.02.2022 ALONG WITH RECEIPT.
Exhibit P5 A TRUE COPY OF THE A VALUATION REPORT PREPARED BY CHARTERED ENGINEER SUBMITTED BEFORE THE 7TH RESPONDENT DATED 25.03.2022.
Exhibit P6 COPY OF SECTION 3G AWARD NO.1/2021- D1/ENG/007975 DATED 30.06.2021 ISSUED BY THE 7TH RESPONDENT.
Exhibit P7 TRUE COPY OF JUDGMENT IN W.P.(C) NO.23142 OF 2021 DATED 30.11.2021.
Exhibit P7 A TRUE COPY OF JUDGMENT IN W.P.(C) NO.27967 OF 2021 DATED 16.12.2021.
Exhibit P8 TRUE COPY OF THE CLAIM SUBMITTED BY THE PETITIONER BEFORE THE 8TH RESPONDENT ALONG WITH RECEIPT DATED 25.05.2022 .