IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 13786 of 2006(N)
1. P.M.JACOB, S/O.MARKOSE,
... Petitioner
Vs
1. THIRUVANANTHAPURAM DEVELOPMENT
... Respondent
2. SPECIAL TAHSILDAR (LAND ACQUISITION),
3. CHIEF ENGINEER,
4. HARIPRASAD, ASSISTANT ENGINEER,
For Petitioner :SRI.BECHU KURIAN THOMAS
For Respondent :SRI.K.A.JALEEL, SC., TRIDA
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :03/04/2007
O R D E R
K.Padmanabhan Nair, J.
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W.P.(C)No.13786 of 2006-N
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Dated, this the 3rd day of April, 2007.
Judgment
This writ petition came up for admission on 26-05-2006. This Court did not
admit the writ petition but directed the Government Pleader and Standing Counsel
for Trivandrum Development Authority, (for short, TRIDA) to get instructions.
Subsequently one Jacob George Joseph filed a petition for impleading him as the
additional 5th respondent. That petition was allowed. The Secretary of TRIDA
has filed a counter affidavit. The Special Tahsildar (Land Acquisition)
Thiruvananthapuram, produced a copy of the site plan prepared for acquisition of
disputed land. Sri Jacob George also filed a counter affidavit. Learned
Government Pleader submitted that he has received instructions in the matter from
the Special Tahsildar (L.A.). So the writ petition is heard and disposed of at the
admission stage itself without issuing notice to respondents 3 and 4.
2. The material averments in the writ petition are as follows: Petitioner is a
tenant of the building bearing Door No.T.C.25/2525 situated in Sy.No.1322/2 of
Vanchiyoor Village owned by the additional 5th respondent. Petitioner is
conducting a tourist home in the tenanted building. There was a proposal by
TRIDA to widen M.G.Road from L.M.S to Aattukulangara and Ext.P1
notification was issued under Section 4(1) and 17(4) of the Land Acquisition Act.
W.P.(C) No. 13786 of 2006 2
For that purpose portions of buildings adjacent to M.G.Road are to be acquired
and demolished. About 2 cents of land and 4.70 metres of building occupied by
the petitioner alone were required for acquisition. Such an acquisition would not
interfere with the tenancy of the petitioner since only a small portion in the ground
floor alone will be required and remaining 30 rooms of the tourist home could
function without any hindrance. Landlord made an attempt to get the entire
building acquired exerting undue influence over Government officials. Petitioner
filed W.P.(C) No.6666 of 2006 before this court and this court by judgment dated
31-3-2006 disposed of the writ petition on the basis of the submission of the
Government Pleader that the request of the landlord to acquire the whole building
was rejected. At present the width of the road in front of the petitioner’s
establishment is having 13 metres and the proposal is to acquire the land so as to
increase the width of the road to 22 metres to make it fit for a four lane traffic.
Two stones were planted by the 4th respondent. The first stone was planted in the
north western side at a distance of 5.70 metres from the boundary and the second
stone was kept on the south western side at a distance of 7.3 metres from the road
whereas as per the original plan, the survey stone at north western side was 4.7
metres away from the road and the survey stones on the south western side at a
distance of 5.7 metres (see para 8 of the Writ Petition). Petitioner disputed laying
of stones and on verification it was found that the stones were not laid as per the
approved scheme and plan. There was allegation of large scale corruption in the
W.P.(C) No. 13786 of 2006 3
acquisition proceedings and officers manipulated records suppressing materials
from the public so as to change alignment of the road to meet the wishes of the
influential people. As per the original sanctioned plan, the acquisition is to be
made in a straight lined manner so as to acquire equal extent from either side.
Subsequently one metre has been reduced from the eastern side of the road and one
metre has been increased towards the western side. All this was done to cater to
the vested interests of certain influential people who have properties on the eastern
side of the building occupied by the petitioner. 4th respondent had planted the
stone illegally to favour one A.Bency who owns property on the rear side of the
building occupied by the petitioner. There is no direct road access to the property
owned by Sri A.Bency from M.G.Road but only a small corridor which belongs to
the petitioner’s landlord. 4th respondent changed the original alignment to enable
for an easy access to the property owned by Sri A.Bency. If 4.7 metres of
building is acquired petitioner can continue to enjoy the building without much
difficulty as a strong beam is in existence at 5 metres from the road,which will
support the building. But if the building is demolished to a length of 5.7 metres,
then the next beam is at a distance of more than 10 metres which requires the
building till 10 metres to be demolished thereby causing loss and hardship to the
petitioner. Petitioner filed a petition before the 3rd respondent who directed an
officer of TRIDA to conduct an inspection. The said officer examined and
realised that the stones were not laid in accordance with the original plan. He
W.P.(C) No. 13786 of 2006 4
removed the stones and laid the stones in the correct places. On the next day, 4th
respondent came to the building and removed the stones and placed them where
he had originally planted them. Petitioner’s building is going to be acquired in a
slanting manner and not in a straight line and such a deviation is illegal and
malafide . It is averred that respondents or any officers under them cannot require
the demolition of a building in violation of Ext.P1 notification or the approved
plan and sketch.
3. It was further averred that as per the sanctioned plan, only an extent of
4.7 metres is required to be acquired in front of the petitioner’s building. Instead
of acquiring 4.7 metres, 4th respondent has demarcated an area having width of
5.7 metres at one side and 7.3 metres on the other side from the petitioner’s
building. Such slanting acquisition affects the petitioner’s building and is not
warranted under law. Hence the prayer to quash Ext.P6 notice and also for a
direction to respondents 1 to 4 to demarcate and acquire only 4.7 metres from the
end of the road to petitioner’s building pursuant to Ext.P1 and as sanctioned in the
plan and also for a writ of prohibition prohibiting respondents 1 to 4 from
acquiring or demolishing the building occupied by the petitioner in excess of 4.7
metres from the road.
4. In the counter affidavit filed by the Secretary of TRIDA the following
contentions are raised. Petitioner is not entitled to get any relief sought for since
he is a tenant who is not an interested party in the land acquisition proceedings.
W.P.(C) No. 13786 of 2006 5
As per the approved sketch lands to a width varying from 5.7 metres to 4.7 metres
have to be acquired from the property. The building is affected partly due to road
widening. Survey stones are planted in 2004 in accordance with the approved road
widening alignment sketch. As per the approved drawing, width of the acquisition
at this portion is 5.77 metres from the road. Petitioner had submitted a
representation before the first respondent on 26-7-2004 stating that the main
concrete beam in which the staircase rests is just in front of the planted survey
stone line and requested to exempt the beam of the building so that he could save
5 rooms out of 10 rooms affected. Petitioner has admitted that the beam is at a
distance of about 5 metres from the road. Since the width of the acquisition is 5.7
metres, the beam which is referred to in the writ petition cannot be saved. The
petitioner had filed a complaint before the High Level Committee constituted by
the Government to hear the grievance of the affected parties . On 16.8.2004, the
High Level Committee had decided to to proceed with the proposal of acquisition
without any change as it is absolutely necessary for the proposed improvement in
the area. The Committee evaluated that the building is not having any statutory
set back in front. Part valuation of the structure is effected upto the next support
for ensuring stability of the remaining portion of the building. Irrespective of the
position of the survey stones, the building is to be demolished up to the next
support considering the safety of the structure to be retained.
5. The learned Government Pleader made the following submissions based
W.P.(C) No. 13786 of 2006 6
on the written instructions received by him from the Land Acquisition Officer.
The statement of facts is made available for my perusal. The owner of the
building initially made an attempt to get the building exempted from acquisition.
Subsequently he requested for acquisition of whole building under Section 49 of
the Land Acquisition Act and that request was turned down by the first respondent.
The owner of the land has handed over possession of the building occupied by
the petitioner and others. The land owner has not raised any objection regarding
the area of acquisition and has received compensation for the land and part of the
building situated in it. Petitioner is only a tenant of the building and has no locus
standi to raise any objection relating to the acquisition. The survey sketches were
prepared as per the alignment stones planted by the requisitioning authority and
award was passed.
6. The additional 5th respondent who is the owner of the property has filed a
counter affidavit giving the details of the rent control proceedings between
himself and petitioner, which has no relevancy in deciding the issue involved in
this case. Petitioner being a tenant of the building has no locus standi to maintain
an action challenging the acquisition. The landlord did not exert any undue
influence for requisition of the whole building. Additional 5th respondent handed
over possession of the property on 15-03-2006 . Petitioner has no statutory right to
be heard and he is raising all sorts of frivolous contentions to create hardship to
the 5th respondent. There is collusion between petitioner and other respondents
W.P.(C) No. 13786 of 2006 7
and hence he prayed for dismissal of the writ petition.
7. Ext.P1 notification is not under challenge. Admittedly petitioner is a
tenant of the building, portion of which is to be acquired for a public purpose.
According to the petitioner, initially the proposal as per Ext.P1 was to demolish a
portion of the building having a width of 5.7 metres at one side and 4.7metres at
the other side. Counsel for the petitioner has repeatedly stated that the petitioner
has no objection to acquire the land and portion of the building as per Ext.P1
notification and the original alignment. But there is absolutely no bonafides in that
statement. The specific prayer in the writ petition is to restrain respondents
from demolishing any portion of the building beyond 4.7 metres from the road.
The attempt of the petitioner is to get an order restraining the Land Acquisition
authorities from demolishing a portion of the building for which the additional 5th
respondent had already received compensation. The intention of the petitioner is
clear from the averments made in paragraph 11 of the writ petition. It is averred
that if 4.7 metres of the building is acquired then petitioner can continue to enjoy
the building without much difficulty as a strong beam is in existence at 5 metres
from the road which will support the building. But if the building is demolished to
a length of 5.7 metres then the next beam is at a distance of more than 10 metres
which requires the building till 10 metres to be demolished which will cause loss
to his business. Only to achieve this relief, petitioner has come forward with a
case of planting survey stones of 7.3 metres from road at one side. The request
W.P.(C) No. 13786 of 2006 8
of the petitioner to save the beam cannot be allowed. That beam can be saved only
if the width of acquisition is reduced to less than 5 metres. The attempt of the
petitioner is to save 5 rooms out of 10 rooms affected. The petitioner has filed a
petition before the first respondent on 26-7-2004 stating that the main concrete
beam in which the staircase rests is just in front of the planted survey stone line
and therefore he requested to exempt the beam of the building so that he could
save 5 rooms out of 10 rooms affected. In that petition petitioner had admitted
that the beam is situated at a distance of about 5 metres from the road. The very
same grievance was projected before the High Level Committee constituted by the
Government to hear such grievances and the Committee rejected the request of the
petitioner. The Committee evaluated that the building is not having any statutory
set back in front. More over, the building portion to be acquired and demolished is
valued upto the next support for ensuring stability of the remaining portion of the
building . It is trite law that while a portion is to be acquired it need not confine to
area coming within the area of the land proposed to be acquired. It depends upon
various other factors. The most important factor being the safety of the
remaining structure. That is a matter to be decided by the experts and not by the
court. If necessary the authority is entitled to acquire the building portion falling
outside the acquired land. In such cases, the owner of the building will get
compensation for the building. In this case irrespective of the position of the
survey stones the building has to be demolished up to the next support considering
W.P.(C) No. 13786 of 2006 9
the safety of the structure to be retained. The attempt of the petitioner to restrain
the authorities from demolishing a beam which is within 5.7 metres for which
compensation was paid to the landlord cannot be allowed. The stand of the first
respondent that wherever be the position of survey stones, to ensure safety of the
building, a portion of the same has to be demolished upto the next support
otherwise, it will affect the safety of the building is only to be upheld. It is
admitted by the petitioner also that if the beam which he wants to protect is
demolished the portion of the building upto the next support is to be demolished.
This court cannot issue any direction to make any change from the undisputed
original proposal under Ext.P1especially in view of the fact that compensation was
paid for a portion of the building to be demolished.
8. It is very interesting to note that the petitioner has no case that the Land
Acquisition Officers are demolishing the building upto next support on account of
the undue influence exerted by the additional 5th respondent. The only allegation
levelled against him in the writ petition was that he made an attempt to get the
entire building itself acquired using undue influence. The specific case put
forward by the petitioner in the writ petition is that a deviation from the original
alignment was made by 4th respondent due to undue influence exerted by one Sri
A.Bency who owns property on the rear side of the building. Bency is not made a
party to the Writ Petition. It is alleged that Bency does not have a direct access
from his property to the M.G.Road but a small corridor belonging to the 5th
W.P.(C) No. 13786 of 2006 10
respondent and the attempt of the 4th respondent is to provide a road access to the
property of Bency. Those averments were denied by the respondents. I do not
find any merit in that contention. The materials on record show that the attempt of
the petitioner is to save 5 more rooms by false and frivolous allegations. The
additional 5th respondent has no case that the 4th respondent in collusion with Sri
A.Bency is attempting to demolish any portion of the building not covered by the
notification. The petitioner is only a tenant and not a “person interested” as
defined in section 3(b) of the Land Acquisition Act. He is not entitled to raise a
contention of excessive acquisition. See Mohammed v. Project Director (1993(1)
K.L.T.730). The land and building belong to additional 5th respondent. So long as
the petitioner has not raised a complaint of excessive acquisition in variance to the
original proposal for acquisition, he is not entitled to challenge it. The writ
petition is filed with malafide intention and with ulterior motive. There is no
merit in it. The same is only to be dismissed.
In the result, writ petition is dismissed.
K.Padmanabhan Nair,
Judge.
s.