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IN THE HIGH COURT OF KERALA AT ERNAKULAM
DEVAN RAMACHANDRAN, J.
M.Aboobacker, S/o.Muhammed Kunju – Appellant
Versus
Union Of India – Respondent
WP(C) Nos.3562, 3267, 13984, 13936 of 2021
Decided on : 24-09-2021
National Highway Act, 1956 - Section 3D, 3D(4) , 3D(A) , 3A , 3G , 3G(3) , 3G (7), 3I - Kerala Conservation of Paddy Land and Wetland Act, 2008 - Basic Tax Register - Revenue Records - Wet lands - Garden/Dry Land - National Highway Authority of India - Competent Authority for Land Acquisition - Right to Fair Transparency - Central Government to notify its intention to acquire land/lands for purposes - Fair Value notifications - Whether 'CALA' was in error in having reported nature of properties of petitioners to Government of India based on entries in BTR –
Finding of the court : CALA' is statutorily obliged to make a comprehensive enquiry adverting to documents of title; physical nature of property; purposes for which it had been put to use prior to acquisition; nature of locality; infrastructural development of area where is situated; nature of road which it abuts; ease of access to it etc juxtaposed by entries in Revenue Records and Fair Value notifications - Considerations above enumerated of course are not exhaustive –
Result : Writ Petitions ordered accordingly.
JUDGMENT :
It is very ubiquitous in our State that the nature and attributes of properties are at variance from the entries relating to it in the Basic Tax Register (BTR) and such other Revenue Records; and this has created the controversy presented in these cases.
2. The properties of the petitioners in the above Writ Petitions are described as “Wet lands” in the Basic Tax Register (BTR), but are stated to be far from such attributes presently.
3. The petitioners assert that their lands have remained with all the features of a “Garden/Dry Land” even prior to the year 2008, when the Kerala Conservation of Paddy Land, Act (hereinafter referred to as the “Paddy Land Act” for ease), was brought into force and that this is incontestable since they are not included in the “Data Bank”, prepared under its sanction.
4. While so, it transpires that the lands in question in these cases were acquired for the purposes of the National Highway Authority of India (NHAI) and when the final notification under Section 3D of the National Highway Act, (“NH Act” for short) was issued, they have been described as “Wet lands”, adopting the entries in the BTR.
5. The petitioners thus apprehend that, solely because their lands are shown as “Wet lands”, the Competent Authority for Land Acquisition (CALA) will grant them lower compensation than their real present value.
6. The petitioners predicate that the 'CALA' has illogically accepted the entries in the 'BTR', solely because the Government of India, through its order dated 14th August, 2020 – a copy of which is appended as Ext.P16 in W.P.(C)No.3267 of 2021 (hereinafter referred to as the “GOI Order” for convenience) – has mandated that the value of a land can only be assessed on the basis of its Revenue Records.
7. The petitioners contend that the above mentioned order of the Government of India is illegal, because the 'CALA' is enjoined to act implicitly as per the provisions of the applicable Statutes and Regulations; and its statutory jurisdiction and competence cannot be fettered or interdicted by any Authority, in the manner as has been done through this order.
8. The petitioners, therefore, pray that Ext.P16 order in W.P.(C)No.3267/2021, as also the Notification issued under Section 3D of the 'NH Act', to the extent to which it relates to their acquired lands, be set aside; and the 'CALA' be directed to assess the value of their properties in terms of the Right to Fair Transparency RFCTLARR and Act for short), taking its present physical state and attributes alone into consideration and not as per its description in the BTR.
9. I have heard Sri.Mohammed Shah -the learned counsel for the petitioners in all these cases; Sri.Bidan Chandran-learned Standing Counsel for the NHAI and Smt.Resmi Thomas -learned Government Pleader appearing for the other respondents.
10. Smt.Resmi Thomas confirmed that the notification under Section 3(D) of the NH Act, with respect to the properties in question, has already been published; and thus asserted that this writ petition is, therefore, not maintainable, because once the said notification had been so issued, the petitioners cannot challenge it, on account of the statutory bar under Section 3D(4) of the NH Act; and that it is now for them to approach the 'CALA' and establish the value of their properties, if they are so interested.
11. The learned Government Pleader, maintained that, as far as the tenor and description of the properties are concerned, only the Revenue Records could have been relied upon and not the 'Data Bank', which is not one such. She thus prayed that these Writ Petitions be dismissed.
12. Sri.Bidan Chandran -the learned counsel for NHAI, argued more or less in terms of the afore submissions of Smt.Resmi Thomas, reiterating that once the Section 3(D) notification had been published, the petitioners cannot assail it in any Court of law, because of the statutory bar under Section 3D(A) of the NH Act; explaining that this is also because it has been settl
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