SASIDHARAN.K.V V. UNION OF INIDA

WP(C)/22724/2019

AI Insights

The case revolves around the entitlement of a building tenant to compensation for land acquired from his landlord under the National Highways Act, 1956. The competent authority had previously rejected the tenant's claim, stating that it could not be considered to re-determine the compensation. The tenant challenged this decision in the High Court of Kerala. The court examined various provisions of the National Highways Act and related laws, ultimately concluding that the tenant, having a possessory interest and having made improvements to the property, is entitled to compensation. The court also considered the implications of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which applies to the determination of compensation in such cases.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 721595 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 26-06-2020
• Assessment Year: misc
• Laws Referred To: National Highways Act, 1956, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: I DEVI; T MADHU; AC VIDYA; P VIJAYAKUMAR
• Assessee Lawyers: K M AUGUSTINE; ANIL KAITHAKKAL; P SAJU
• Keywords: Compensation; Land Acquisition; Landlord; National Highways Act; Tenant rights; Building tenant
• Section: 3A; 3C; 3G; 3G(2); 3G(4); 3G(5); 3G(7); 3H(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942 WP(C).No.22724 OF 2019(M) PETITIONER: SASIDHARAN.K.V., AGED 54 YEARS, S/O. KUNHIKANNAN.K.V.,SIVAM PARAMBATH, KUNHIMANGALAM, EDAT, KANNUR, KERALA-670 327. BY ADVS. SRI.K.M.AUGUSTINE SRI.ANIL.D.KAITHAKKAL SRI.P.SAJU RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAWAN, 1, PARLIAMENT STREET, NEW DELHI 110 001. 2 STATE OF KERALA,REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PUBLIC WORKS, SECRETARIAT, THIRUVANANTHAPURAM- 695 001. 3 NATIONAL HIGHWAY AUTHORITY OF INDIA, REPRESENTED BY ITS CHAIRMAN GG AND SECTOR 10, DWARKA, NEW DELHI 110 075. 4 DISTRICT COLLECTOR, KASARAGOD-671 001. 5 THE SPECIAL DEPUTY COLLECTOR, LA (NH), ANANGOOR, KASARAGOD AND COMPETENT AUTHORITY-671 001. 6 NALUPURAPPATTIL MUHAMMED HAJI, S/O. AHAMMED KUNHI, AGED AROUND 72 YEARS, KANAHANGAD, PADANNAKKAD (P.O.), KASARAGOD DISTRICT- 671 314. BY ADVS.SMT.I. SHEELA DEVI, CGC SRI.T.MADHU SMT.AC VIDYA, GP SRI.P.VIJAYAKUMAR, ASG OF INDIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.22724 OF 2019(M) -2- JUDGMENT Dated this the 26th day of June 2020 The short issue in this case is whether a building tenant is entitled to compensation for the land acquired from his landlord under the National Highways Act, 1956. The claim has been rejected by the competent authority by Ext.P14 order dated 12.07.2019. In the order, the competent authority states that the claim of the tenant cannot be considered to re-determine the compensation. Challenging this, the petitioner approached this Court. 2. Heard the learned Counsel for the petitioner-tenant, the learned Counsel for the 6th respondent-landlord and the learned Government Pleader. 3. The claim was not decided on merit. If it was decided on merit, the remedy of an aggrieved is, to invoke the provisions for arbitration as contemplated under Section 3G(5) of the National Highways Act, 1956. 4. I have to decide this dispute on narrow compass whether the tenant is entitled for compensation amount or not. WP(C).No.22724 OF 2019(M) -3- 5. Section 3G of the National Highways Act, 1956 refers to payment of the compensation to be determined by the competent authority. Section 3G(2) states as follows: “ (2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent, of the amount determined under sub-section (1), for that land.” 6. According to the learned Counsel for the landlord and the learned Government Pleader, right to claim compensation is only available to the landlord who is the owner of the land and also to the class referred in 3G(2). This class is referable to the persons who claimed the right of easement or other right of use over the land. Therefore, it was argued that a building tenant cannot claim the compensation under Section 3G of the Act. 7. To understand this dispute, it is appropriate to refer to various provisions under the National Highways Act, 1956. The proceedings for acquiring the land starts with a notification issued under the Section 3A of the Act. The Section 3C of the Act contemplate hearing of objection from any person WP(C).No.22724 OF 2019(M) -4- interested in the land. The Section 3G(7) of the Act refers to the component for determination of the compensation by the competent authority or arbitrator. The Section 3H(3) states that when there are several persons claiming interest for the amount deposited, the competent authority shall determine the persons who are entitled to receive the compensation. It is relevant to note, while determining the compensation that the competent authority or arbitrator as the case may be, will also have to take a note of the loss of earnings of a person interested at the time of taking possession of the land (Section 3G(7)(c)). Nowhere in the National Highways Act it is stated that only the persons who is having title over the land alone can claim the compensation. Reference under Section 3G(2) for a claim made by the user or a person who is having easement right are only a reference of class of claim for compensation. It does not lay down exhaustive class or category of persons who can claim compensation. On the other hand, Section 3G(4) states that notice shall be given to all the persons interested in such land. That means any person who is having interest by way of lease WP(C).No.22724 OF 2019(M) -5- or otherwise would be entitled to claim compensation. 8. The rent agreement confers a possessory interest to the tenant. Therefore, a building tenant is also having an interest in the land. To what extent he is entitled to claim compensation is a matter for determination by the competent authority. The tenant's claim has to be considered within the four corners of Section 3G(7). He would be also entitled to claim for his loss of earnings. He can also raise a claim under Section 3G(7)(d) for shifting his place of business and incidental expenses thereon. The competent authority has to consider his claim independently that of claim made by the landlord who is the title owner of the land. There is no hard and fast rule laid in the National Highways Act to determine the compensation. The tenant's claim would depend upon the nature of use, period of occupation, nature of an improvement made etc. If any tenant had carried out any improvements, constructions or any other interior decorations etc, these components will have to be taken into account while determining the compensation. It is also to be noted that unlike the land acquisition Act, 1894, there WP(C).No.22724 OF 2019(M) -6- is no restriction for competent authority in awarding the compensation taking account of varied factors in appropriate cases. The competent authority has to be guided general factors based on the loss one would suffer consequent upon the involuntary acquisition. The component referred as under Section 3G(7) are not exhaustive. The compensation, in ordinary parlance means equivalent to the loss suffered by one. See the definition of compensation under 6th edition of 'Black's Law Dictionary', page No.283: “Compensation, equivalent given for property taken.” 9. The Central Government issued an order dated 28.08.2015, under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (the Act 30 of 2013), extending the application of the aforesaid Act, in regard to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule. By this order, the provisions as above are made WP(C).No.22724 OF 2019(M) -7- applicable for acquisition under the National Highways Act. 10. The Section 3(c) of the Act 30 of 2013 refers to affected family. Affected family includes a building tenant as well (Section 3C(ii)). This was with a object to determine claim for rehabilitation in accordance with the second schedule. Therefore, claim of the tenant has to be considered with reference to the first schedule as well as the second schedule. It depends upon the factual circumstances of such claim. Thus, I hold that the tenant is also entitled to claim the compensation. 11. The petitioner claims that he has carried out interior decorations and additional decorations valuing more than Rupees twenty lakhs. This claim has been refuted by the counsel for the landlord. It is appropriate that an inventory of such improvements is taken before the claim of the petitioner is decided. 12. In view of the fact that the landlord could not obtain the compensation on account of pendency of the writ petition around one year, it is appropriate to order release of 75% of compensation amount to the landlord immediately after WP(C).No.22724 OF 2019(M) -8- obtaining the possession. The claim for compensation by the tenant shall be decided within a period of two months after valuing the improvements alleged to have been made by the petitioner. Any other claim of the petitioner-tenant and the landlord-respondent is left open. The petitioner also undertakes to clear the rent arrears which are due from July 2019 at the rate of Rs. 15,700/- (Rupees fifteen thousand and seven hundred only) per month. The petitioner also submits that in the event, any failure, he has no objection that the rent being recovered by the landlord from the compensation amount if any payable to him. He undertakes that he will clear the rent arrears within a period of four weeks to the landlord. The writ petition is disposed of as above. Sd/- A.MUHAMED MUSTAQUE JUDGE akv/ 29.6.2020 WP(C).No.22724 OF 2019(M) -9- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE RENT AGREEMENT WITH RESPECT TO THE SHOP ROOMS DATED 22/5/2008. EXHIBIT P2 TRUE COPY OF THE LICENSE ISSUED BY KANNANGAD MUNICIPAL COUNCIL, DATED 13/6/2008. EXHIBIT P3 TRUE COPY OF PETITIONER'S GST REGISTRATION CERTIFICATE 17/7/2018. EXHIBIT P4 TRUE COPY OF THE RECEIPT OF RENEWAL OF L & D LICENSE RECEIPT NO. 8010111765 DATED 11/2/2019. EXHIBIT P5 TRUE COPY OF THE BUILDING TAX RECEIPT NO. 30762 DATED 11/2/2019. EXHIBIT P6 TRUE COPY OF THE LABOUR TAX RECEIPT NO. 30761 DATED 11/2/2019. EXHIBIT P7 TRUE COPIES OF THE RENT RECEIPTS ISSUED TO THE PETITIONER DATED 30/4/2019. EXHIBIT P8 TRUE COPIES OF THE RENT RECEIPTS ISSUED TO THE PETITIONER DATED 31/5/2019. EXHIBIT P9 TRUE COPIES OF THE RENT RECEIPTS ISSUED TO THE PETITIONER DATED 30/6/2019. EXHIBIT P10 TRUE COPY OF PETITIONERS INCOME TAX RETURN VERIFICATION FORM FOR THE ASSESSMENT YEAR 2018-2019 DATED 31/8/2018. EXHIBIT P11 TRUE COPY OF THE APPLICATION DATED 31/5/2019 UNDER RIGHT TO INFORMATION ACT. EXHIBIT P12 TRUE COPY OF THE STRUCTURAL VALUATION OF THE SHOP ROOMS OBTAINED UNDER RIGHT TO INFORMATION ACT DATED 7/6/2019. EXHIBIT P13 TRUE COPY OF THE APPLICATION DATED 25/6/2019 SUBMITTED BY THE PETITIONER FOR REVALUATION OF STRUCTURE. EXHIBIT P14 TRUE COPY OF THE ORDER DATED 12/7/2019 BY THE 5TH RESPONDENT. WP(C).No.22724 OF 2019(M) -10- EXHIBIT P15 TRUE COPY OF THE COMPENSATION AWARD IN LAC NO. 185 KANHANGAD VILLAGE DATED 11/3/2019. EXHIBIT P16 TRUE COPY OF THE NOTICE ISSUED BY 5TH RESPONDENT DATED 23/7/2019. EXHIBIT P17 TRUE COPY OF REPLY NOTICE ISSUED BY PETITIONER TO THE 5TH RESPONDENT DATED 14/8/2019. RESPONDENT'S/S EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE "