Kerala High Court · 2024

challenged the judgment dated 06.06.2023 in W. P. (C) No. 32477 of 2022 by which the learned Single Judge, while dismissing the writ petition seeking to disburse an amount of Rs. 12,16,769/-, the payment of which was deferred by the respondent National Highways Authority on the ground that the appellants could produce documents to prove their ownership of only 620 sq.m. of land out of 690 sq.m. acquired for widening of National Highway No. 544, directed the competent authority to take steps to refer the question as to whether the petitioners are entitled to claim compensation in respect of the 70 sq.m. of land for adjudication by the competent civil court, in accordance with law.

2. The short facts that arise from the record are as under:- W. A. No. 1225 of 2023 -4- After due process, the Central Government published declaration under Section 3D(1) of the National Highways Act 1956 (hereinafter referred to as ‘the Act’), regarding vesting of appellant's land admeasuring 0.0690 hectares (690 sq.m.), comprised in Sy. No. 263/2(263/2) in Panancheri village. Thereafter, competent authority under the National Highways issued Ext. P6 notice under Section 3E(1) of the Act asking the appellants to surrender 690 sq.m.of land in their possession. The authority had, after taking into consideration relevant facts, decided the value of the land at Rs. 6674.85/- per sq.m. and the total amount as Rs. 1,19,93,860.58/-, rounded off to 1,19,93,861/-. However, the appellants were paid only Rs. 1,07,77,092/-, on the premise that they could produce title documents with regard to 620 sq.m. only. Payment of Rs. 12,16,769/- for the remaining land admeasuring 70 sq.m. was hence deferred. The said decision came to be challenged by the present appellants by way of the captioned writ petition.

3. The National Highways Authority as well as the State W. A. No. 1225 of 2023 -5- filed their counter affidavit / statement before the learned Single Judge. By the impugned judgment, the writ petition came to be dismissed. Hence, this appeal.

4. By taking us through Ext. P11 Basic Tax Register, the learned counsel for the appellants would submit that measurement of 690 sq.m.of land in Sy. No. 263/2 is entered to in the Basic Tax Register, which suggests that the appellants are the owners and occupiers of the land. This entry was made after the resurvey conducted by the State Government way back in the year 1992 and has never been disputed either by the State authority or any individual. He would submit that Ext. P12 Form No. 93 prescribed under the Kerala Survey and Boundaries Act, 1961, would show that the balance land in the possession of the appellants, after an earlier acquisition, is 690 sq.m. By taking us through Ext. P16 mahazar prepared by the Special Revenue Inspector while taking possession of the appellant’s land for widening of NH 47 and counter signed by the Special Tahsildar as well as the Project Director, NHAI also reveal that the area under acquisition in Sy. W. A. No. 1225 of 2023 -6- No. 263/3 is 690 sq.m. By taking us through Ext. P3 possession and non-attachment certificate issued by the Government of Kerala in Form 14C of the Village Manual, he would submit that the appellants are the owners and occupiers of the land and that there is no attachment on the property admeasuring 690 sq.m.

5. He would further submit that, when suo motu proceedings were undertaken by the concerned Tribunal way back in the year 1971, the appellants' predecessor had deposed that he is in possession of 620 sq.ms.. When resurvey was conducted in the year 1992, the land in the appellants' possession was found to be 690 sq.ms. He therefore would submit that sufficient documents were produced before the competent authority as well as the learned Single Judge to establish that the appellants are the owners and occupiers of the entire extent of 690 sq.m. in Sy. No. 263/2 and therefore, the authority ought to have paid compensation for 70 sq.m. of land also and the learned Single Judge ought not to have referred the matter to the civil court.

6. The learned Counsel would contend that under Section W. A. No. 1225 of 2023 -7- 3H(3) of the Act the authority can decide the entitlement of compensation even if there is a rival claim. He, therefore, would submit that in the absence of any claim for the land in question, either by the State authority or by any third person, the learned Single Judge ought not to have directed the authority to refer the matter to the Principal Civil Court as provided under Section 3H(4) of the Act. He would submit that, since there is no dispute about the title of the property and the State has no case that they are the owners of the land, it would be a futile exercise to refer the issue regarding ownership of 70 sq.m. He therefore would submit that the appeal may be allowed and the impugned judgment of the learned Single Judge may be set aside.

7. On the other hand, learned counsel appearing for the National Highways Authority would submit that the competent authority had rightly withheld the amount with regard to 70 sq.m. since the appellants did not produce any title deed for the said extent of land. He would submit that the appellants produced documents with respect to 620 sq.m. only and compensation for W. A. No. 1225 of 2023 -8- the said extent has already been disbursed. He would submit that, once the authority finds that the issue regarding title cannot be decided, the matter has to be referred to the competent civil court. The appellants are supposed to prove their title with regard to the remaining 70 sq.m. of land before the civil court and if they establish the same, the amount can be paid to them. In support of this contention, learned Counsel relied upon a decision of this Court in Sreeja v. Union of India and Others [2022 (6) KHC 698 (DB)]. By taking us through paragraphs 10 and 11 of the decision, he would submit that the learned Single Judge has rightly referred the matter to the civil court under Section 3H(4) of the Act. He therefore would submit that the appeal be dismissed.

8. We heard the learned Advocates appearing for the respective parties and perused the documents produced on record.

9. It is true that before the tribunal way back in the year 1971, appellants predecessor had declared that he was in possession of only 620 sq.m. of land. At the same time, it is not in dispute that in the year 1992 when resurvey was conducted at the W. A. No. 1225 of 2023 -9- instance of the State Government, the correct measurement was found to be 690 sq.ms and the same was entered in the revenue records. This aspect is proved by the appellants by producing Ext. P11 Basic Tax Register. Ext. P12 Form No. 93, which was issued prior to Ext. P6 notification, also suggests that the appellants are owners and occupiers of the 690 sq.m. of land. Ext. P3 possession and non-attachment certificate issued by the Government of Kerala under Form No. 14C also establishes the above fact. It is also amply clear from Ext. P14 communication of the Special Deputy Collector dated 24.03.2022 that no other claim was raised regarding the land in question. It is pertinent to note that, as per the declaration under Section 3D(1), 690 sq.ms had vested with the Government and on the strength of the notice issued under Section 3E(1), possession of the entire land has been taken over from the appellants by the authority. All these aspects and the fact that there is no rival claim over the land, is sufficient proof of the fact that the appellants are the owners and occupiers of the entire land and are entitled to compensation for 690 sq.m. acquired from W. A. No. 1225 of 2023 -10- their possession.

10. The provisions relied on by the learned Counsel for the respondent authority with regard to Sections 3H(3) & (4) are reproduced hereunder:- “3H. Deposit and payment of amount (3) Where several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them. (4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the Principal Civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated.”

11. As stated herein above, neither the State authority nor any third person has claimed any interest over the 70 sq.m. of land in question. Even in the statement filed on behalf of the State authority before the learned Single Judge, no such ownership is claimed. In the absence of any such claim, there is no question of W. A. No. 1225 of 2023 -11- getting a declaratory decree from the civil court about the nature of ownership of the 70 sq.m. of land, when sufficient documents are on record.

12. The judgment relied on by the counsel for the respondent authority in Sreeja’s case (supra), the competent authority had expressed its inability to decide the rival claims for title over the acquired land. Hence this Court held that the dispute could be referred to the competent civil court under Section 3H(4) of the Act. That decision has no application to the case at hand since there is no rival claim with regard to the acquired land. For the aforementioned reasons, the appeal is allowed and the impugned judgment is set aside. The respondent authority is hereby directed to release the balance amount due to the appellants within a period of four weeks from today. If the amount is not released within four weeks, the appellant will be entitled for interest from the date of taking possession of the land as per the provisions of the Act. W. A. No. 1225 of 2023 -12- Pending Interlocutory Applications, if any, shall stand closed. Sd/- A. J. DESAI CHIEF JUSTICE Sd/- V. G. ARUN JUDGE Eb