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2024 DIGILAW 493 (KER)

Jameela v. National Highway Authority of India

2024-04-25

VIJU ABRAHAM

body2024
JUDGMENT : Viju Abraham, J. 1. Petitioners have approached this Court challenging Ext.P7 order passed by the Arbitrator. 2. The petitioners are in absolute ownership and possession of 5.66 ares of land and building thereon comprised in old Sy. No.23/1/A and 23/1/A5 of Resurvey No.193/17, 193/17-65 of Edappally North Village. A portion of the property and the building of the petitioners were acquired for the purpose of widening the National Highway-66, and Ext.P2 award was passed by the 3rd respondent awarding a compensation of Rs.96,76,070/-. The petitioners contend that the portion to be demolished as part of widening of the National Highway is a reception area, lift space and stair case cabin and it has now become necessary to demolish about six rooms on the 3rd floor and a considerable area of basement parking and the entire area allotted to parking the vehicle of guests would be ceased. The grievance raised by the petitioners is that, by issuing Ext.P2, the 3rd respondent never calculated and considered the damage to the remaining building and the loss of earnings that would have been caused to the petitoners. Thereupon petitioners approached this Court filing WP (C) No. 30659/2022 which was disposed of as per Ext.P4 judgment, relegating the petitioners to approach the arbitrator under Section 3G(7) of the National Highway Act. Operating portion of the said judgment reads as follows: “(5) The petitioners shall prefer an appropriate application before the 2nd respondent under Section 3G of the National Highways Act, 1956. The petitioner may also prefer appropriate interlocutory application before the 2nd respondent under Section 17 of the 1996 Act, seeking relief of valuation of the commercial building. The application shall be filed within ten days from the date of receipt of a certified copy of this judgment. The Arbitrator shall consider the interlocutory application and pass orders within one week thereafter and proceed to finalise the arbitration application after hearing the petitioner and other interested persons. Dispossession and demolition 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 certified copy of this judgment.” 3. Dispossession and demolition 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 certified copy of this judgment.” 3. Petitioners submitted an application under Section 3G of the National Highway Act, 1965 before the 2nd respondent and an interim application was also filed seeking to value the effective portion of the commercial building in question, which was allowed by the 2nd respondent and Ext.P5 valuation statement was prepared, whereby the same was valued at Rs.1,67,33,470/-. To which petitioners preferred an objection and later on a fresh valuation was taken and Ext.P6 report was submitted, whereby the property was valued at an estimate amount of Rs.1,75,83,349/-. Thereafter, Ext.P7 award was passed whereby a direction was issued to pay an amount of Rs.75,74,925/- with 100% solatium being recalculated on the structural value of the building under acquisition. The grievance raised by the petitioners is that in Ext.P6 valuation report submitted by the 5th respondent as per the interim order passed by the 2nd respondent arbitrator, the property was valued at Rs.1,75,83,349/- and the 2nd respondent in Ext.P7 reduced the said amount to Rs.75,74,925/- without any application of mind. It is submitted that the petitioners would not be able to demolish the portion of the building including the lift, stair case and reception area and constructed the same facilities by demolishing existing room on three floors by the amount awarded by the 2nd respondent and the same is evident from Exts.P5 and P6 reports of the PWD Engineers. It is contended that the building in question has 20 rooms and, out of which six rooms have to be demolished entirely for the purpose of making a stair case, lift and reception area. Moreover, the basement floor used for the parking of guests’ vehicle, which is one of the biggest advantage of the hotel, would become completely inoperative due to the present acquisition, and therefore the income from the said building would be considerably reduced. It is in the said circumstances that the petitioners have approached this Court challenging Ext.P7. 4. Moreover, the basement floor used for the parking of guests’ vehicle, which is one of the biggest advantage of the hotel, would become completely inoperative due to the present acquisition, and therefore the income from the said building would be considerably reduced. It is in the said circumstances that the petitioners have approached this Court challenging Ext.P7. 4. A counter affidavit has been filed by the 1st respondent, National Highway Authority contending that originally an award was passed, whereby an amount of Rs.96,76,070/- was granted as compensation and the petitioners themselves have given Ext.R1(a) undertaking that they are vacating the structural improvement therein on the land in question after accepting the award amount. Based on Ext.P7 award passed by the arbitrator, a total amount of Rs.1,51,48,591/- is already deposited in the account of the petitioners. It is contended that only a small portion of the building is coming under acquisition. Since there is neither any relocation of business nor any displacement occurred to the petitioners due to such acquisition, the demand for benefit with respect to relocation charges is incorrect. It is further contended that if the petitioners are aggrieved by the Ext.P7 award passed, and it is for them to invoke Section 34 of the Arbitration and Conciliation Act, 1996 and approach the appropriate forum. 5. I have heard the rival contentions of both sides. 6. The contention of the petitioner is that while issuing Ext P7 order, the arbitrator did not look into Ext P5 and P6 valuation reports submitted by the Executive Engineer of the PWD. I am of the view that these are all matters which could be agitated by the petitioner by filing appropriate petition under Section 34 of the Arbitration and Conciliation Act 1996. So as to facilitate the petitioner to initiate proceedings as per Section 34 of the Arbitration and Conciliation Act, 1996, the interim order granted in the case on 12.02.2024 will continue for a period of two weeks from today. Reserving such right of the petitioner, the writ petition is disposed of.