IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35776 of 2007(H)
1. PEERMOHAMMED P.S., PARAKKAVETTY,
... Petitioner
Vs
1. THE SPECIAL TAHSILDAR,
... Respondent
2. THE EXECUTIVE ENGINEER,
3. THE CHIEF ENGINEER (ROADS AND BRIDGES),
For Petitioner :SRI.SIBY MATHEW
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :28/08/2008
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C)No. 35776 OF 2007
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Dated this the 28th day of August, 2008
J U D G M E N T
The writ petitioner is a person whose land was acquired for the
construction of Changanassery bye pass 3rd reach. According to him,
he was absolute owner in possession of 8.46 Ares of land in Block
No.139, Sy. No.11/1 as per schedule B to document No.471/1961 of
Sub Registry Office, Changanassery. On the basis of request from the
second respondent – Executive Engineer, PWD Roads Division,
Kottayam steps were initiated for acquisition of a total extent of
2.1831 hectares of land comprised in various survey numbers of
Changanasserry Village for the construction of Changanasserry bye-
pass road. After the publication of the initial notification under Section
4(1), necessary survey was done and finally declaration under section
6 of the Land Acquisition Act was also promulgated. Thereafter, award
enquiry was conducted and on participating in the award enquiry, the
petitioner produced documents relating to title and possession over his
property to be acquired and Ext.P1 award was passed by the Land
Acquisition Officer. As per Ext.P1 award, total amount of Rs.2,43,51/-
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is fixed as compensation for 8.46 Ares of land at the rate of
Rs.20,646/- per Are. Thereafter, possession notice under 15(3) was
given to the petitioner and pursuant to that, the petitioner’s land was
taken possession by the first respondent. Ext.P2 is a copy of the
Mahazar prepared by the Tahsildar at the time of taking over the
possession. Sketch of the land acquired from the petitioner is also
shown in Ext.P2 Mahazar. The petitioner states that prior to the
acquisition, through out the entire stretch of the land acquired on
either side, a boundary wall having a width of 2 ft. was constructed
with rubble and concrete. In the meanwhile, the petitioner received
the award amount under protest and as requested by him a reference
under Section 18 was made to the competent Sub Court. It is
submitted that thereafter the land has been acquired upto the
Kaviyoor road for the purpose of the bye-pass and the entire stretch of
the land acquired has been filled with red earth. Though the proposed
bye-pass road has not been formally inaugurated, the public have
already started using the bye-pass road. Ext.P3 is the claim statement
filed by the petitioner before the reference court and it will be seen
there from that the petitioner has raised a claim for injurious affection
of the remaining land before the reference court. The petitioner
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submits that to his great surprise and agony during the weeks prior to
the institution of the writ petition (during the last weeks of November
2007), some officials and staff of the office of the Special Tahsildar
came to the petitioner’s property and measured the petitioner’s land
lying adjacent to the acquired land. On enquiry, the petitioner’s son
was informed by those officials that three metres of land is taken
possession over and above the land already taken. No convincing and
sound reason has been given by the officials for their act. The specific
request to the petitioner to give written notice has invited no
response. After measurement, the personnel of the office of the first
respondent has kept two poles in the petitioner’s property, 3 metres
away from the property already taken possession from the petitioner.
The petitioner says that the present move to take possession of
additional land from the petitioner is only to help adjacent land owner.
The respondents are not entitled to take additional land from the
petitioner without due notice and without referring to the provisions of
the Land Acquisition Act. On the above averments, the petitioner
raises various grounds and seeks following reliefs in the writ petition:
i. Issue a writ of prohibition restraining the respondents from
taking possession of any land from the petitioner other than
the land already taken possession of from the petitioner on
the basis of Ext.P1 award and Ext.P2 Mahazar.
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ii) Issue a declaration that the respondents can take possession
of any additional land from the petitioner only after resorting
to the provisions in the Land Acquisition Act.
2. The respondent has filed a detailed counter affidavit through
the Valuation Assistant (Deputy Tahsildar) attached to his office. It is
contended therein that the acquired land was handed over to the
Public Works Department, the requisitioning authority on 25-11-2005
by observing the prevailing rules under the Act. No constructions were
made or allowed in the land acquired by the land acquisition officer
before the date of handing over. On 25-11-2005, the date of handing
over, the land stood vested with the Public Works Department and the
land acquisition officer is not responsible for any activities said to have
been done in the land acquired from the petitioner. It is further stated
in the counter affidavit that on examining the alignment of the
neighbouring plot which was handed over to the Public Works
Department as per the order in WP(C). No. 30969/06 (the case in
which one Mariamma Francis was the petitioner) the officials found
that there is encroachment in Block No.139, survey No.11/1 in the
land which had been acquired from the petitioner. On 10-12-2007 a
notice from Sri.A.A.Mohammed Nazir, Advocate of the petitioner dated
6-12-2007 was received by the land acquisition officer alleging that the
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land acquisition officer is dumping waster materials in the land
belonging to the petitioner. On 10-12-2007 itself reply was given to
the advocate refuting the allegations since the land acquisition officer’s
office is not involved in any of the alleged activities. PWD is the
custodian of the land now and a sum of Rs.2,43,751/- has been
awarded to the petitioner as compensation for the acquired land. At
the instance of the petitioner the question of determination of the
correct compensation has been referred to the Sub Court, Kottayam
where L.A.R. No.26/06 is pending. The land acquisition officer has no
intention to acquire the balance land belonging to the petitioner and
the allegations levelled against the land acquisition officer are
baseless. On considering the prayer for interim relief this court on5-
12-2007 passed an order of “interim stay” restraining the respondents
from taking possession of any land from the petitioner other than the
land already taken possession of from him on the basis of Ext.P1
award and Ext.P2 mahazar. That interim order is continuing.
3. To the counter affidavit submitted by the land acquisition
officer the petitioner has through his power of attorney holder filed a
reply affidavit. Ext.P4 produced along with the reply affidavit is copy
of the lawyer notice dated 6-12-2007 which was issued allegedly when
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it was noticed that waste was being dumped into the petitioner’s
property by the officials and staff of the first respondent. The reply
affidavit denies the contentions in the counter affidavit that while
examining the plot acquired from Smt.Mariamma Francis it was seen
that there was encroachment into the property which had been taken
over from the petitioner. That allegation is described in the reply
affidavit as irresponsible, vague and totally incorrect. It is stated that
when the officials of the first respondent were measuring the property
of the petitioner, petitioner’s son Zakir Hussain enquired about the
reason for the measurement and even at that time it was not alleged
that there was encroachment. If there is encroachment the same
could be verified by conducting re-measurement. It is claimed that
the petitioners residential house is situated on the southern extremity
of the remaining property. The residential plot of the petitioner is
having well defined boundaries on all the four sides. The said plot is
bounded by compound wall on all the four sides. It is from the
remaining 44 cents of the petitioner that the respondents have
acquired 8.46 ares for the construction of Changanacherry Bypass 3rd
Reach Part I. Having regard to the lie of the property of the petitioner
described above, the allegation of encroachment made in the counter
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affidavit can only be a pigment of imagination. Rough sketch showing
the lie of the bypass road, railway station road and the petitioner’s
residential building and the remaining land belonging to the petitioner
is produced as Ext.P5. Reply affidavit reiterates the allegation that the
present attempt of the respondents is to take possession of land of the
petitioner in addition to the land already acquired under Ext.P1 award.
Petitioner does not want even an inch of land acquired from the
petitioner. At the same time respondents are not entitled to take
additional land from the petitioner without due notice and without
resorting to the provisions in the Land Acquisition Act.
4. Considering the pleadings and on hearing initial submissions
of the counsel for the petitioner and the learned Govt.Pleader,
K.Padmanabhan Nair, J. passed the following interim order on 10-3-
2008.
“The operation of interim order is extended by three months.
In the nature of the contentions raised by the counsel for
the petitioner, I am of the view that a joint inspection has to be
conducted, by the District Collector or an officer not below the
rant of ADM/RDO, with the superintendent of roads and Bridges,
on the land acquired from the petitioner and near the
neighbouring area.
Hence, there will be a direction to the District Collector,
Kottayam, and also to the Superintendent, Roads and Bridges,
who is in charge of this particular area, to physically supervise,
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to conduct inspection and to file a report, with due notice to the
petitioner, and file a report with sketch countersigned by both
sides. It is made clear that work shall not be entrusted to lower
staff and the actual measurement shall be conducted either by
the Superintendent of survey and land records or the senior
officer attached to that office in the presence of District Collector
or the Superintending Engineer.
Inspection shall be conducted within three weeks from
today with due notice to the petitioner and file a report.
Post after three weeks.”
Pursuant to that order inspection and measurement were conducted
and the Govt. Pleader has filed Annexure-A report and Annexure-B
sketch. It is reported in Annexure-A that the District Collector,
Kottayam, the Superintendent of Survey, Kottayam, the Assistant
Executive Engineer PWD (Roads) Changanacherry and the Special
Tahsildar LA (General) Kottayam, the power of attorney holder of the
petitioner and son of the petitioner were present at the time when
inspection and survey were conducted. Total extent of land acquired
from the petitioner as per the award is 8.46 ares. After acquisition of
the land in Sy. No. 11/1 the property was divided into three parts.
The western part which takes in the balance land in the possession of
the petitioner including the site of his house – 25.61 ares, the middle
part which is the acquired land – 8.46 ares and the eastern part which
is balance property of the petitioner – 4.64 ares. At the time of the
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inspection it was noticed that the petitioner had encroached into 0.074
ares which was already acquired and handed over to the PWD in the
northern side. The retaining wall constructed by the PWD at the
eastern side was moved to 3.4 metres into the property of the
petitioner, i.e. 0.35 ares at the south eastern end. It is further
reported that the petitioner has encroached into another 0.80ares of
PWD purambokku land and attached the same to the property of the
petitioner. Apparently the petitioner has stealthily replanted the
boundary stones fixed by the land acquisition authorities in order to
retain a good front yard for his residential building situated at the
western side of the road. The department unaware of the secret plans
of the petitioner, was on the wrong notion that the boundary stones
planted by the land acquisition authorities were kept intact and
constructed retaining walls at one side. The contentions of the
petitioner are found to be incorrect. The above points were explained
to the petitioner. It is pointed out in the report that survey was done
in the presence of the surveyor who had been arranged by the
petitioner and that surveyor was also convinced of the above facts.
5. Along with the above report a sketch prepared by the
Surveyor attached to the District Superintendent of Survey and Land
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Records, Kottayam is produced. To the report and the sketch the
petitioner has filed a statement of objections taking exception to the
allegation in the report that the petitioner had encroached into 0.74
Ares of land already acquired and handed over to the P.W.D. on the
northern side. According to the objections, serious mistakes have
crept into the report. Exception is taken to the allegation that the
retaining wall constructed by the PWD at the eastern side was moved
3.4 metres into the property of the petitioner. It is pointed out that no
details are given in the report indicating the correctness of the above
allegation. Exception is taken to the allegation in the report that 0.80
Ares of PWD Purambokku has been further encroached upon and to
the allegation that the petitioner had stealthily replanted the boundary
stones fixed by the land acquisition authorities for the purpose of
retaining a good front yard for his residential building situated at the
western side of the road. It is submitted that in between the
residential building of the petitioner and the railway station road on the
eastern side there is a compound wall made of hard laterite stone with
rubble foundation. It is further submitted that there is a mud wall on
the northern boundary of the residential property. This laterite stone
wall and the mud wall are more than 50 years old. It is pointed out
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that the advocate commissioner deputed from the reference court has
reported on these aspects. It is claimed that there is no Purambokku
land in the area and the old survey records such as O.M. sketch, blue
print measurement of the entire area, co-relation statement from the
Village Officer, settlement register etc. will clearly show that there is
no Purambokku land in the area. It is then submitted that the records
produced by the L.A. Officer before the Sub Court in the reference case
under section 18 will not tally with the sketch and report now produced
by the respondent in this case.
6. Very strenuous arguments were addressed before me by the
learned counsel for the petitioner Sri.A.A.Mohammed Nazir and
Mr.Basant Balaji, learned senior Government Pleader. My attention
was drawn by Mr.Nazir to the pleadings and to the documents. He
submitted that the report and the sketch submitted before this court
on the basis of the joint inspection conducted cannot be correct since
there is considerable variation between the sketch prepared in
connection with passage of award and taking over of possession which
is available in the land acquisition file produced before the land
acquisition reference court in L.A.R. No. 26/06 and the present sketch.
Counsel submitted that it is a very innocuous prayer which has been
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made in the writ petition and that there is every justification for
confirming the interim order which was issued by this court on 5-12-
2007.
7. The prayers in the writ petition would certainly look
innocuous. But granting those prayers will pre-suppose a finding by
this court that the respondent Government has attempted to take
possession of properties belonging to the petitioner not covered by the
acquisition without recourse to the provisions of the Land Acquisition
Law. I am not convinced on the basis of the materials produced in this
case and the submissions addressed at the Bar that the apprehension
voiced by the petitioner in this writ petition that there is an attempt on
the part of the respondents to dispossess the petitioner of his property
not covered by the award. The joint inspection and measurement was
conducted with notice to the petitioner and it is not disputed that the
measurement was conducted in the presence of the power of attorney
holder of the petitioner, the son of the petitioner and a private
surveyor who had been arranged by the petitioner. I am prima facie
convinced that Annexure-B sketch produced along with the report of
the District Collector has been prepared on the basis of the
measurement and facts revealed on the inspection and discloses the
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state of affairs existing as of now. This court under Article 226 of the
Constitution is not expected to resolve complicated disputes regarding
title and possession over immovable property which is raked up by the
petitioner through the objections filed by him to the report and the
sketch. The question which arises in this writ petition is only whether
it can be stated on the basis of the available materials in this case
whether there is warrant for interdicting the respondents from
dispossessing the petitioner of his properties. The said question
according to me, can only be decided in the negative.
8. The writ petition will stand dismissed. However, it is made
clear that this judgment does not decide finally regarding the
correctness of the allegations in the report submitted by the District
Collector that the petitioner is an encroacher of Purambokku nor does
it foreclose petitioner’s remedy before a regular civil court in the
event of accrual of any genuine cause of action against the
Government or public officers. The parties will suffer their costs.
(PIUS C.KURIAKOSE, JUDGE)
ksv/dpk