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2025 DIGILAW 800 (KER)

Mano Alex W/o. Alex Mathew v. Union Of India

2025-04-02

VIJU ABRAHAM

body2025
JUDGMENT : The above writ petition is filed challenging Ext.P1 notification issued under Section 3A of the National Highways Act, 1956 (in short 'the Act, 1956'). Going by Section 3A of the Act, 1956 the acquisition could be made if the land is required for a public purpose, for the building, maintenance, management or operation of a national highway or part thereof and the contention of the petitioner is that the present acquisition is not for any of the purposes mentioned in Section 3A of the Act, 1956 and therefore, the proceedings initiated as per Ext.P1 is liable to be interfered with. It is seen that subsequently the petitioner restricted the reliefs to the extent of seeking a direction to the NHAI to acquire the small portion of land left out from the 3A notification as the same cannot be utilised by the petitioner for any other purpose and to pay compensation for the acquired land treating the property as “purayidom”. 2. When the matter came up for consideration on 17.07.2020 this Court clarified that the National Highway Authorities are entitled for 3D publication, but they were injuncted from taking further action after the 3D publication, without obtaining further orders from this Court. Later a subsequent order was issued on 20.08.2020 wherein this Court has observed that the petitioner's genuine concern is that the remaining land will be rendered useless and if that portion of the land is also acquired, her grievance will be redressed to a certain extent. Thereupon the petitioner's request was directed to be addressed by the Project Director for acquiring the remaining land which cannot be utilised by the petitioner for any purpose or to refix the alignment, so that the petitioner is able to use the balance land and also directed that appropriate decision shall be taken by the Project Director. 3. The learned Standing Counsel appearing for the National Highway Authority would submit that the issue was considered, and the Authority has decided to acquire the balance land, for which a fresh notification is to be issued. 4. The issue now projected by the petitioner is in respect of the determination of the land value of the property covered by Ext.P1, 3A notification published as per the Act, 1956. 4. The issue now projected by the petitioner is in respect of the determination of the land value of the property covered by Ext.P1, 3A notification published as per the Act, 1956. The learned counsel appearing for the petitioner would submit that at the time of 3A notification the property was classified as a paddy land in the revenue records though the same was converted even prior to the coming into force of Kerala Conservation of Paddy Land and Wetland Act, 2008(in short 'the Act, 2008'). The Form 5 application filed by the petitioner before the Revenue Divisional Officer as per the provisions of the Act, 2008 was allowed as per Exts.P5 and P6 ordering removal of the property of the petitioner from the data bank. Later, Form 7 application under Section 27A of the Act, 2008 was submitted by the petitioner and a direction was issued by this Court in W.P.(C)Nos.35050 & 35289 of 2024 to the authorities to consider the Form 7 application submitted by the petitioner. The petitioner submits that till date no action has been taken on the same. The learned counsel for the petitioner contended that the petitioner is entitled for compensation by treating the nature of the land as 'purayidom' and not as a paddy land. 5. The learned Standing Counsel appearing for the National Highway Authority as well as the learned Government Pleader would submit that as per the Act, 1956 there are several other stages of proceedings as part of the acquisition of land, which includes proceedings under Section 3G of the Act, 1956 which deals with the determination of the amount payable as compensation. Going by Section 3G(i), if any land is acquired under the Act, 1956 they shall be paid an amount which shall be determined by an order of the competent authority and that going by Section 3G, public notice will be issued inviting claim from all persons interested in the land notified to be acquired. It is further submitted that any claim of the petitioner for payment of amount towards compensation treating the property as “purayidom”, could be raised by the petitioner in the said proceedings. It is also submitted that going by Section 3-I of the Act, 1956 the competent authority shall have all the powers of a Civil Court to accept documents etc., so as to determine the compensation to be paid. It is also submitted that going by Section 3-I of the Act, 1956 the competent authority shall have all the powers of a Civil Court to accept documents etc., so as to determine the compensation to be paid. It is also pointed out that if the petitioner has any grievance regarding the determination of the compensation amount, she can approach the Arbitrator for enhancement of the same as provided in Section 3G(5) of the Act, 1956. 6. I have considered the rival contentions on both sides. 7. The grievance projected by the petitioner is that going by Section 3G(7), of the Act, 1956 the competent authority while determining the compensation, have to take into consideration the market value of the land on the date of publication of the notification under Section 3A and that if directions are not issued by this Court, the competent authority will take a decision regarding payment of the compensation taking the market value based on the nature of the land as on the date of publication of the notification under Section 3A. The petitioner would contend that Ext.P1 notification under Section 3A was issued only in 2019 and the petitioner has submitted the necessary application as early as in 2010 for removing the property from the data bank, as evident from Exts.P7 to P11, which were submitted much before Ext.P1 - 3A notification. Going by Ext.P5 and P6, the Form 5 application submitted by the petitioner has been allowed by removing the property from the data bank. What remains is only the change of nature of land in the revenue records, for which Form 7 application submitted by the petitioner is pending consideration. I am of the view that the impact of issuance of Ext P5 and P6 order on the Form 5 application submitted by the petitioners removing the property from the data bank is a declaration that the property in question was not a paddy land as on the date of coming into force question of the Act, 2008 and that the property ought not to have been included in the data bank. The Division Bench of this Court had occasion to consider an almost identical issue in State of Kerala v. Mary John [2024 KHC OnLine 1428], wherein the contention taken by the authorities was that the property is a wetland in the revenue records and therefore, the land value can be fixed only treating the said property as a wetland. Though the acquisition was in the year 2006, ie., before coming into force of the Act, 2008, the Court on the basis of the Commission report filed in the said case, which reveals that it is a converted land, entered a finding to the effect that merely for the reason that in the revenue records the land is shown as wetland, it cannot be differentiated with dry land for the purpose of awarding compensation. Paragraph 3 of the said judgment reads as follows: “3. The commission report shows that there were coconut trees in that land. Therefore, it is clear that it is a converted land. Merely for the reason that in the revenue record, the land was shown as wetland, it cannot be differentiated with dry land, for the purpose of awarding compensation. It is to be noted that the Kerala Conservation of Paddy Land and Wetland Act, 2008 came into force only with effect from 12.08.2008. There was no rigor in utilising the land as a classified wetland prior to 12.08.2008. Therefore, the reference court was rightly justified in equating this land in the same category of IV and V. We have dismissed the State’s appeal preferred against enhancement of the market value in respect of category IV and V. In the light of above, we dismiss the State’s appeals” (underline supplied) It is also profitable to refer to the judgment in M. Aboobacker v. Union of India [ 2021 (6) KLT 1 ] wherein this Court has considered the parameters to be taken into consideration by the Competent Authority for Land Acquisition (CALA), while determining the compensation. Paragraphs 26 to 30 of the said judgment reads as follows” “26. Now we come to the acme stage of this litigation: an examination if the CALA is constrained to value the lands, when he does so under Section 3-G of the NH Act, solely being guided by the entries in the Revenue Records. 27. Paragraphs 26 to 30 of the said judgment reads as follows” “26. Now we come to the acme stage of this litigation: an examination if the CALA is constrained to value the lands, when he does so under Section 3-G of the NH Act, solely being guided by the entries in the Revenue Records. 27. Upfront, the answer to this has to be to the negative, because the NH Act imposes no such limitation. On the contrary and more importantly, Section 3-G(7) of the NH Act commands the 'CALA' (as also the Arbitrator in the next stage), to take into consideration, among the other criteria mentioned therein, the market value of the land on the date of publication of the notification under Section 3A, while determining compensation under Section 3G(1) of the Act. Therefore, it is the 'market value' of the land at the time of the Section 3-A notification which is to be taken into account by the 'CALA', which will have to be ascertained through relevant and applicable enquiry, based on all germane inputs – one of which alone can be the classification of the land in the Revenue records. 28. That so said, it is here that the submissions of Sri.Bidan Chandran - learned Standing Counsel for the NHAI, assumes significance. As rightly shown by him, while the 'CALA' acts under. Section 3-G of the 'NH Act', he is vested with the powers of a Civil Court, including for summoning and examining witnesses; delivery and production of documents; reception of affidavits and requisitioning any public record. These powers are unequivocally granted to him by Section 3I of the 'NH Act'. 29. Therefore, if the 'CALA' is to merely assess the value of the acquired properties confined by the entries in the Revenue Records, or even by the Fair Value notification, such expansive powers would not have been statutorily vested on him. The purpose sub-serving Section 3-I of the NH Act is to equip the 'CALA' to determine the real market value of the property, at the time of issue of the notification under Section 3-A; which he will have to accomplish, adverting to all genuine materials and inputs, among which would be the Revenue Records and Fair Value notifications . 30. The purpose sub-serving Section 3-I of the NH Act is to equip the 'CALA' to determine the real market value of the property, at the time of issue of the notification under Section 3-A; which he will have to accomplish, adverting to all genuine materials and inputs, among which would be the Revenue Records and Fair Value notifications . 30. To paraphrase, the 'CALA' is statutorily obliged to make a comprehensive enquiry – adverting to the documents of title; the physical nature of the property; the purposes for which it had been put to use prior to acquisition; the nature of the locality; the infrastructural development of the area where is situated; the nature of the road which it abuts; the ease of access to it etc., – juxtaposed by the entries in the Revenue Records and the Fair Value notifications. The considerations above enumerated, of course, are not exhaustive ." (underline supplied) This Court in Aboobacker’s case cited supra, has held that while determining compensation for the acquired land, the authority need not be solely guided by the entries in the revenue records and the authority is statutorily obliged to make a comprehensive enquiry adverting to the documents of title, physical nature of the property, the purpose for which the property was put to use prior to the acquisition, nature of the locality, infrastructural development of the area, nature of the roads it abuts, the ease of access to it, to assess the value of the acquired property even looking into the fair value notification etc., juxtaposed by the entries in the revenue records and the fair value notification. 8. Admittedly, as evident from Exts.P5 and P6 orders, the property was a converted land much prior to the coming into force of Act 2008. In the light of the declaration of law as stated above, I am of the view that the authority while determining the compensation has to fix the land value not merely on the basis of the entries in the revenue records but on the basis of the parameters enumerated above and also the nature of the land. In the light of the declaration of law as stated above, I am of the view that the authority while determining the compensation has to fix the land value not merely on the basis of the entries in the revenue records but on the basis of the parameters enumerated above and also the nature of the land. In light of the above, I am of the opinion that the property which was declared to be not 'paddy land' as on the date of coming into force of Act, 2008, and which was ordered to be removed from the data bank as per Exts.P5 and P6 orders cannot be treated as 'paddy land' for the purpose of determination of the compensation only for the reason that the nature of the property is entered in the revenue records as 'Nilam'. It is also to be noted that Form-7 application was also submitted by the petitioner to change the nature of land in the revenue records and a direction was issued by this Court to consider the same and is pending consideration before the authority concerned. In the above facts and circumstances, the above writ petition is disposed of permitting the petitioner to raise all her contentions in the enquiry to be initiated by the competent authority for determination of compensation as provided under Section 3G of the Act, 1956. The petitioner will be free to produce all the documents in support of her claim and the claim of the petitioner for payment of compensation treating the land as dry land/purayidom shall be duly considered by the competent authority with specific reference to the fact that the property has already been removed from the data bank and such removal is a declaration that the property was not a paddy land as on the date of coming into force of the Act, 2008 and the parameters stated above. The competent authority shall issue notice to the petitioner before determining the compensation amount and the petitioner shall be afforded an opportunity of being heard. As regards the additional land to be acquired, necessarily, the authorities shall issue a fresh notification and the determination of the compensation shall also be taking into consideration the parameters enumerated above.