{"id":196261,"date":"2007-04-03T00:00:00","date_gmt":"2007-04-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-m-jacob-vs-thiruvananthapuram-development-on-3-april-2007"},"modified":"2018-11-17T16:22:05","modified_gmt":"2018-11-17T10:52:05","slug":"p-m-jacob-vs-thiruvananthapuram-development-on-3-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-m-jacob-vs-thiruvananthapuram-development-on-3-april-2007","title":{"rendered":"P.M.Jacob vs Thiruvananthapuram Development on 3 April, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
P.M.Jacob vs Thiruvananthapuram Development on 3 April, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C) No. 13786 of 2006(N)\n\n\n1. P.M.JACOB, S\/O.MARKOSE,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THIRUVANANTHAPURAM DEVELOPMENT\n                       ...       Respondent\n\n2. SPECIAL TAHSILDAR (LAND ACQUISITION),\n\n3. CHIEF ENGINEER,\n\n4. HARIPRASAD, ASSISTANT ENGINEER,\n\n                For Petitioner  :SRI.BECHU KURIAN THOMAS\n\n                For Respondent  :SRI.K.A.JALEEL, SC., TRIDA\n\nThe Hon'ble MR. Justice K.PADMANABHAN NAIR\n\n Dated :03\/04\/2007\n\n O R D E R\n<\/pre>\n
                                 K.Padmanabhan Nair, J.\n<\/p>\n<\/p>\n
                             – – – – — – – – – – – – – – – – – – – – – – –\n<\/p>\n
\n                               W.P.(C)No.13786  of 2006-N<\/p>\n
                            – – — – – –  — – – – – – – – — – – – – – —\n<\/p>\n
\n                         Dated, this the 3rd   day of  April, 2007.\n<\/p>\n
                                            Judgment<\/p>\n
        This writ petition came up for admission on 26-05-2006.  This Court did not<\/p>\n
admit the writ petition but directed the  Government Pleader and Standing Counsel<\/p>\n
for   Trivandrum   Development   Authority,  (for   short,   TRIDA)   to   get   instructions.<\/p>\n
Subsequently one Jacob George Joseph filed a petition for impleading him as the<\/p>\n
additional  5th  respondent.     That  petition  was  allowed.     The  Secretary of  TRIDA<\/p>\n
has   filed   a   counter   affidavit.     The   Special   Tahsildar   (Land   Acquisition)<\/p>\n
Thiruvananthapuram,  produced a copy of the site plan prepared for acquisition of<\/p>\n
disputed   land.     Sri   Jacob   George   also     filed   a     counter   affidavit.     Learned<\/p>\n
Government Pleader submitted that  he has received instructions in the matter from<\/p>\n
the Special Tahsildar (L.A.).    So the writ petition is heard and disposed of at the<\/p>\n
admission stage itself without issuing notice to respondents 3 and 4.<\/p>\n
        2. The material averments in the writ petition are as follows:  Petitioner is a<\/p>\n
tenant of the building bearing Door No.T.C.25\/2525 situated in Sy.No.1322\/2   of<\/p>\n
Vanchiyoor   Village   owned   by   the   additional   5th  respondent.     Petitioner   is<\/p>\n
conducting   a   tourist   home   in   the   tenanted   building.   There   was   a   proposal   by<\/p>\n
TRIDA   to   widen     M.G.Road   from   L.M.S   to   Aattukulangara     and     Ext.P1<\/p>\n
notification was issued under Section 4(1) and 17(4) of the Land Acquisition Act.<\/p>\n
W.P.(C) No. 13786 of 2006                          2<\/span><\/p>\n
For that purpose portions     of buildings adjacent to M.G.Road are to be acquired<\/p>\n
and demolished.  About   2 cents of land and 4.70 metres of building occupied by<\/p>\n
the petitioner alone were required for acquisition.   Such an acquisition would not<\/p>\n
interfere with the tenancy of the petitioner since only a small portion in the ground<\/p>\n
floor  alone  will  be required    and  remaining  30 rooms of  the tourist home could<\/p>\n
function   without   any   hindrance.   Landlord   made   an   attempt   to   get   the   entire<\/p>\n
building acquired exerting undue influence over  Government officials.  Petitioner<\/p>\n
filed W.P.(C) No.6666 of 2006 before this court and this court by judgment dated<\/p>\n
31-3-2006   disposed   of   the   writ   petition     on   the   basis   of   the   submission   of   the<\/p>\n
Government Pleader that the request of the landlord to acquire the whole building<\/p>\n
was   rejected.       At   present   the   width   of   the   road   in   front   of   the   petitioner’s<\/p>\n
establishment is having  13 metres and the proposal is to acquire the land  so as to<\/p>\n
increase the width of the road to 22 metres to make it fit for a four lane traffic.<\/p>\n
Two stones were planted by the 4th respondent.  The  first  stone was planted in the<\/p>\n
north western side at a distance of 5.70 metres from the boundary and the second<\/p>\n
stone was kept  on the south western side at a distance of 7.3 metres from the road<\/p>\n
whereas   as per the original plan, the survey stone at north western side was   4.7<\/p>\n
metres away from the road and the survey stones on the south western side at  a<\/p>\n
distance of 5.7 metres (see para 8 of the Writ Petition).   Petitioner disputed laying<\/p>\n
of stones and on verification it was found that the stones were not laid as per the<\/p>\n
approved scheme and plan.   There was  allegation of large scale corruption in the<\/p>\n
W.P.(C) No. 13786 of 2006                           3<\/span><\/p>\n
acquisition   proceedings   and   officers   manipulated   records   suppressing   materials<\/p>\n
from the public   so as to change alignment of the road to  meet the wishes of the<\/p>\n
influential   people.     As   per   the   original   sanctioned   plan,   the   acquisition   is   to   be<\/p>\n
made   in   a   straight   lined   manner   so   as   to   acquire   equal   extent   from   either   side.<\/p>\n
Subsequently one metre has been reduced from the eastern side of the road and one<\/p>\n
metre has been increased towards the western side.   All this was done to cater to<\/p>\n
the vested interests of certain influential people who have properties on the eastern<\/p>\n
side of the building occupied by the petitioner.     4th  respondent had planted   the<\/p>\n
stone illegally to favour one A.Bency who owns property on the rear side of the<\/p>\n
building occupied by the petitioner.  There is no direct road access to the  property<\/p>\n
owned by Sri A.Bency from M.G.Road but only a small corridor which belongs to<\/p>\n
the petitioner’s landlord.   4th  respondent changed the original alignment to enable<\/p>\n
for   an     easy   access   to   the   property  owned   by    Sri   A.Bency.      If   4.7   metres   of<\/p>\n
building is acquired   petitioner can continue to enjoy the  building  without much<\/p>\n
difficulty as a strong beam is in existence at 5 metres from the road,which   will<\/p>\n
support the building.   But if the building is demolished to a length of 5.7 metres,<\/p>\n
then   the   next   beam   is   at   a   distance   of   more   than   10   metres   which   requires   the<\/p>\n
building till 10 metres to be demolished thereby causing loss and hardship to the<\/p>\n
petitioner.       Petitioner filed a petition before the 3rd  respondent who directed an<\/p>\n
officer   of     TRIDA   to   conduct   an   inspection.     The   said   officer   examined   and<\/p>\n
realised   that   the   stones     were   not   laid   in   accordance   with   the   original   plan.   He<\/p>\n
W.P.(C) No. 13786 of 2006                           4<\/span><\/p>\n
removed the stones and laid the stones in the correct places.   On the next day, 4th<\/p>\n
respondent came to the building and removed   the stones and placed them where<\/p>\n
he had originally planted  them.  Petitioner’s building is going  to be acquired in a<\/p>\n
slanting   manner   and   not   in   a   straight   line   and   such   a   deviation   is   illegal   and<\/p>\n
malafide .  It is averred that respondents or any officers under them cannot require<\/p>\n
the demolition of  a building in violation of   Ext.P1 notification or the approved<\/p>\n
plan and sketch.\n<\/p>\n<\/p>\n
        3.   It was further averred that as per the sanctioned plan, only an extent of<\/p>\n
4.7 metres  is required to be acquired in front of the petitioner’s building.  Instead<\/p>\n
of acquiring 4.7 metres, 4th  respondent has demarcated   an area having width   of<\/p>\n
5.7   metres   at   one   side   and   7.3   metres   on   the   other   side     from   the   petitioner’s<\/p>\n
building.     Such   slanting   acquisition   affects   the   petitioner’s   building   and   is   not<\/p>\n
warranted   under   law.     Hence   the   prayer   to   quash   Ext.P6   notice   and   also   for   a<\/p>\n
direction to respondents 1 to 4 to demarcate and acquire only 4.7 metres from the<\/p>\n
end of the road to petitioner’s building pursuant to Ext.P1 and as sanctioned in the<\/p>\n
plan   and   also   for   a   writ   of   prohibition   prohibiting   respondents   1   to   4   from<\/p>\n
acquiring or demolishing  the building occupied by the petitioner in excess of 4.7<\/p>\n
metres from the road.\n<\/p>\n<\/p>\n
        4. In the counter affidavit filed by the Secretary of   TRIDA the following<\/p>\n
contentions are raised.   Petitioner is not entitled to get any relief  sought for since<\/p>\n
he is a tenant   who is not an interested party in the land acquisition proceedings.<\/p>\n
W.P.(C) No. 13786 of 2006                           5<\/span><\/p>\n
As per the approved sketch lands to a width varying from 5.7 metres to 4.7 metres<\/p>\n
have to be acquired from the property.   The building is affected partly due to road<\/p>\n
widening. Survey stones are planted in 2004 in accordance with  the approved road<\/p>\n
widening alignment sketch.  As per the approved drawing, width of the acquisition<\/p>\n
at   this   portion   is   5.77   metres   from   the   road.     Petitioner   had     submitted   a<\/p>\n
representation   before   the   first   respondent   on   26-7-2004   stating   that   the   main<\/p>\n
concrete beam in which the staircase   rests is just in front of the planted survey<\/p>\n
stone line and  requested to exempt the beam of the building so that he could save<\/p>\n
5 rooms out of 10 rooms affected.   Petitioner has admitted that the beam is at a<\/p>\n
distance of about 5 metres from the road. Since the width of the acquisition is 5.7<\/p>\n
metres, the beam which is referred  to in the writ petition cannot be saved.   The<\/p>\n
petitioner had filed a complaint before the High Level Committee constituted by<\/p>\n
the Government to hear the grievance of the affected parties .   On 16.8.2004, the<\/p>\n
High Level Committee had decided to  to proceed with the proposal of acquisition<\/p>\n
without any change as  it is absolutely necessary for the proposed improvement in<\/p>\n
the area.   The Committee evaluated   that the building is not having any statutory<\/p>\n
set back in front.  Part valuation of the structure is effected   upto the next support<\/p>\n
for ensuring stability of the remaining portion of the building.  Irrespective of the<\/p>\n
position   of   the   survey   stones,   the   building   is   to   be   demolished   up   to   the   next<\/p>\n
support considering the safety of the structure to be retained.<\/p>\n
        5.  The learned  Government Pleader made the following submissions based<\/p>\n
W.P.(C) No. 13786 of 2006                          6<\/span><\/p>\n
on   the   written   instructions   received   by   him   from   the   Land   Acquisition   Officer.<\/p>\n
The   statement   of   facts   is     made   available   for   my   perusal.       The   owner   of   the<\/p>\n
building initially made an attempt to get the building exempted  from acquisition.<\/p>\n
Subsequently he requested for acquisition of whole building under Section 49 of<\/p>\n
the Land Acquisition Act and that request was turned down by the first respondent.<\/p>\n
The owner of the land has handed over possession    of the  building occupied by<\/p>\n
the petitioner and others. The land owner has not raised  any objection regarding<\/p>\n
the area of acquisition and has received compensation for the land and part of the<\/p>\n
building situated in it.  Petitioner is only a tenant of the building and has no locus<\/p>\n
standi to raise any objection relating to the acquisition.  The survey sketches were<\/p>\n
prepared   as per the alignment stones planted by the requisitioning authority and<\/p>\n
award was passed.\n<\/p>\n<\/p>\n
        6.  The additional 5th respondent who is the owner of the property has filed a<\/p>\n
counter   affidavit     giving   the       details   of   the   rent   control   proceedings   between<\/p>\n
himself and petitioner, which has no relevancy in  deciding the issue involved in<\/p>\n
this case.   Petitioner being a tenant of the building has no locus standi to maintain<\/p>\n
an   action   challenging   the   acquisition.     The   landlord     did   not     exert   any   undue<\/p>\n
influence for requisition of the whole building.   Additional 5th respondent handed<\/p>\n
over possession of the property on 15-03-2006 .  Petitioner has no statutory right to<\/p>\n
be heard and   he is raising all sorts of frivolous contentions to create hardship to<\/p>\n
the 5th  respondent.     There is collusion between petitioner and other respondents<\/p>\n
W.P.(C) No. 13786 of 2006                            7<\/span><\/p>\n
and hence he prayed for dismissal of the writ petition.\n<\/p>\n<\/p>\n
        7.     Ext.P1 notification is not under challenge.     Admittedly petitioner is a<\/p>\n
tenant   of   the   building,   portion   of   which   is   to   be   acquired   for   a   public   purpose.<\/p>\n
According to the petitioner, initially the proposal as per Ext.P1 was to demolish a<\/p>\n
portion of the building having a width of 5.7 metres at one side and  4.7metres at<\/p>\n
the other side. Counsel for the petitioner has repeatedly stated that the   petitioner<\/p>\n
has   no   objection   to   acquire   the   land   and   portion   of   the   building   as   per   Ext.P1<\/p>\n
notification and the original alignment.  But there is absolutely no bonafides in that<\/p>\n
statement.         The   specific   prayer  in   the   writ   petition   is   to   restrain     respondents<\/p>\n
from  demolishing   any  portion   of   the  building  beyond  4.7  metres  from  the   road.<\/p>\n
The   attempt of the petitioner is to get an order   restraining the Land Acquisition<\/p>\n
authorities from demolishing a portion of the building for which the additional 5th<\/p>\n
respondent had already received compensation.   The intention  of the petitioner is<\/p>\n
clear from the averments  made in paragraph 11 of the writ petition.  It is averred<\/p>\n
that if 4.7 metres of the building is acquired then petitioner can continue to enjoy<\/p>\n
the building without much difficulty as a strong beam is in existence at 5 metres<\/p>\n
from the road which will support the building.  But if the building is demolished to<\/p>\n
a length of 5.7 metres then the next beam is at a distance of more than 10 metres<\/p>\n
which requires the building till 10 metres to be demolished which will cause loss<\/p>\n
to  his  business.   Only  to  achieve  this  relief,   petitioner  has  come forward   with  a<\/p>\n
case of planting survey stones of 7.3  metres from road at one side.    The request<\/p>\n
W.P.(C) No. 13786 of 2006                          8<\/span><\/p>\n
of the petitioner to save the beam cannot be allowed.  That beam can be saved only<\/p>\n
if the width   of acquisition   is reduced to less than 5 metres.   The attempt of the<\/p>\n
petitioner is to save 5 rooms out of 10 rooms  affected.  The petitioner has filed a<\/p>\n
petition before the  first  respondent on  26-7-2004   stating that the  main concrete<\/p>\n
beam in which  the staircase rests is just in front of the planted survey stone line<\/p>\n
and  therefore  he  requested  to  exempt  the   beam  of  the  building   so  that  he  could<\/p>\n
save 5 rooms out of  10 rooms affected.  In that  petition  petitioner had admitted<\/p>\n
that the beam is situated at a distance of about 5 metres from the road.   The very<\/p>\n
same grievance was projected before the High Level Committee constituted by the<\/p>\n
Government to hear such grievances and the Committee  rejected the request of the<\/p>\n
petitioner. The Committee evaluated that the building is not having any statutory<\/p>\n
set back in front.  More over, the building portion to be acquired and demolished is<\/p>\n
valued  upto the next support for ensuring stability of the remaining portion of the<\/p>\n
building .  It  is trite law that while a portion is to be acquired it need not confine to<\/p>\n
area coming within  the area of the land proposed to be acquired.  It depends upon<\/p>\n
various   other   factors.     The   most   important   factor       being   the   safety   of   the<\/p>\n
remaining structure.  That is a matter to be decided by the experts and not by the<\/p>\n
court.   If necessary the authority is entitled to acquire the building portion falling<\/p>\n
outside   the   acquired   land.     In   such   cases,   the   owner   of   the   building   will   get<\/p>\n
compensation   for   the   building.   In   this   case     irrespective   of   the   position   of   the<\/p>\n
survey stones the building has to be demolished up to the next support  considering<\/p>\n
W.P.(C) No. 13786 of 2006                           9<\/span><\/p>\n
the safety of the structure to be retained.  The attempt of the petitioner  to restrain<\/p>\n
the   authorities   from   demolishing   a   beam   which   is   within   5.7   metres   for   which<\/p>\n
compensation was  paid to the landlord  cannot be allowed.   The stand of  the first<\/p>\n
respondent that wherever be the position of survey stones,  to ensure safety of the<\/p>\n
building,   a   portion   of   the   same   has   to   be   demolished   upto   the   next   support<\/p>\n
otherwise, it will affect  the safety of the building is only to be upheld.           It is<\/p>\n
admitted     by   the   petitioner   also   that   if   the   beam   which   he   wants   to   protect   is<\/p>\n
demolished the portion of the building upto  the next  support is to be demolished.<\/p>\n
This   court   cannot   issue   any   direction   to   make   any  change   from   the   undisputed<\/p>\n
original proposal under Ext.P1especially in view of the fact that compensation was<\/p>\n
paid for a portion of the building to be demolished.\n<\/p>\n<\/p>\n
        8.  It is very interesting to note that the petitioner has no case that the Land<\/p>\n
Acquisition Officers are demolishing the building upto next support on account of<\/p>\n
the undue influence exerted by the additional 5th  respondent.   The only allegation<\/p>\n
levelled   against  him in  the  writ petition   was  that  he made  an  attempt  to   get the<\/p>\n
entire   building   itself     acquired   using   undue   influence.         The   specific   case   put<\/p>\n
forward by the petitioner in the writ petition is that a deviation from the original<\/p>\n
alignment was made by 4th respondent due to   undue influence exerted by one  Sri<\/p>\n
A.Bency who owns property on the rear side of the building.   Bency is not made a<\/p>\n
party to the Writ Petition.  It is alleged  that Bency  does not have a direct access<\/p>\n
from   his   property   to   the   M.G.Road     but   a   small   corridor   belonging   to   the   5th<\/p>\n
W.P.(C) No. 13786 of 2006                            10<\/span><\/p>\n
respondent  and the   attempt of the 4th respondent is to provide a road access to the<\/p>\n
property of   Bency.   Those averments were denied by the respondents.   I do not<\/p>\n
find any merit in that contention.  The materials on record  show that the attempt of<\/p>\n
the petitioner   is to save 5 more rooms by   false and frivolous allegations.   The<\/p>\n
additional 5th  respondent has no case that the 4th  respondent in collusion with Sri<\/p>\n
A.Bency  is attempting to demolish any portion  of the building not covered by the<\/p>\n
notification.     The   petitioner   is   only  a   tenant     and   not   a   “person   interested”     as<\/p>\n
defined in section 3(b) of the Land Acquisition Act.   He is not entitled to raise a<\/p>\n
contention of excessive acquisition. See  Mohammed  v.  Project  Director  (1993(1)<\/p>\n
K.L.T.730). The land and building belong to additional 5th respondent.  So long as<\/p>\n
the petitioner  has not raised a complaint of excessive acquisition in variance to the<\/p>\n
original   proposal   for   acquisition,     he   is   not   entitled   to   challenge   it.       The   writ<\/p>\n
petition   is filed with   malafide intention   and with  ulterior  motive.   There is no<\/p>\n
merit in it.  The same is only to be dismissed.\n<\/p>\n<\/p>\n
        In the result, writ petition is dismissed.\n<\/p>\n<\/p>\n
                                                              K.Padmanabhan Nair,<\/p>\n
                                                              Judge.\n<\/p>\n
s.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court P.M.Jacob vs Thiruvananthapuram Development on 3 April, 2007 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-196261","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nP.M.Jacob vs Thiruvananthapuram Development on 3 April, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/p-m-jacob-vs-thiruvananthapuram-development-on-3-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"P.M.Jacob vs Thiruvananthapuram Development on 3 April, 2007 - 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