IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 WP(C).No. 30718 of 2007(F) --------------------------------------- PETITIONER: ------------------ K.K.DANIEL, KODAKERIL, THOLASSERY P.O., THIRUVALLA. BY ADV. SRI.P.HARIDAS RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, P.W.D., GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, PATHANAMTHITTA. 3. THE EXECUTIVE ENGINEER, K.S.T. PROJECT, MUVATTUPUZHA. 4. SPECIAL TAHSILDAR (LA NH), RANNI. BY GOVERNMENT PLEADER SMT.LATHA THANKAPPAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 30718 OF 2007 ----------------------------------------------- Dated this the 12th day of August, 2008 J U D G M E N T The petitioner's case is that he and his wife are deaf and dumb person. Petitioner was originally having 15.5 cents of land on the side of the main central road at Thiruvalla. In the year 1973 an extent of 1.25 cents of land was acquired for the purpose of widening the M.C. Road. Later a further extent of 48 sq. metres of land was conveyed by the petitioner under sale deed No. 3186/05 of the Sub Registry, Thiruvalla in favour of the third respondent Executive Engineer, KSTP Project, Muvattupuzha. When it was noticed that the respondents viz., the State (R1), District Collector (R2), Executive Engineer (R3) and the Special Tahsildar (L.A) (R4) were tried to encroach the petitioner's remainder property this court by judgment dated 16-3-2006 in WP(C) No.7188 of 2006 directed the 4th respondent to dispose of the petitioner's representation after conducting a survey. According to the petitioner, without conducting a proper survey and without demarcating the property as directed by this court, the respondents would inform the petitioner that the proposal is to acquire only 48 sq. metres of land covered by sale deed No.3186/05. When the attempts of encroachment continued petitioner approached this court again by WP(C)N0.30718/07 -2- filing WP(C). No. 22183 of 2006 and this time also the respondents on visiting the properties would claim that the petitioner's claims that the land belonging to him covered by acquisition proceedings or sale deed No.3186/05 is being appropriated for road purpose is without basis. The petitioner could realise property extending to 48 sq. metres covered by sale deed No.3186/05 has been demarcated by the respondents leaving 69 sq. metres of land belonging to the petitioner between the same and the margin of the road. It was realised that between the extent of 1.25 cents acquired in 1973 and the extent of 48 sq. metres of property proposed to be acquired under sale deed No.3186/05 an extent of 69 metres is left out of acquisition. Petitioner alleges that the above extent of 69 sq. metres has been actually taken over by the third respondent without due process of law and without taking any deed of conveyance from the petitioner. Petitioner has not been paid any compensation for the above extent of 69 sq. metres. The petitioner was under the impression that this was the result of mistake in the resurvey conducted in the area and therefore the petitioner approached this court by filing WP(C). No. 30448/06. This court passed Ext.P1 order directing the Deputy Director of Survey and Land Records, Pathanamthitta to get the property surveyed and to give WP(C)N0.30718/07 -3- a survey report. It was observed by this court in Ext.P1 that on the basis of what is revealed by the survey it is for the petitioner to claim compensation before the authorities if it is revealed that more than what has been acquired under law or what has been conveyed is actually taken possession of for the purpose of road development. Respondents did not take any action despite Ext.P1. However, after the petitioner filed C.C.C. No. 569/07 a survey was conducted and report and plan were submitted. Ext.P2 is copy of the report and plan. According to Ext.P2 no mistake has been committed in resurvey and therefore the petitioner's allegation that he has been dispossessed of 69 sq. metres of land belonging to him without acquisition proceedings or direct conveyance from him is without basis. Petitioner submits that it is clear from the plan which is appended to Ext.P2 that the petitioner's claim and allegation is correct. After Ext.P2 was obtained the petitioner filed Ext.P3 representation before the respondents. On the basis of the sketch appended to Ext.P2 it is claimed that 69 sq. metres of land belonging to the petitioner has been actually taken over by the third respondent for the purpose of the M.C. Road under KSTP Project without paying compensation and that the petitioner is entitled for compensation with interest from 17-11-2005 when the petitioner WP(C)N0.30718/07 -4- was actually dispossessed. It is also stated that the petitioner is 75 years old deaf and dumb and unable to take care of himself. Petitioner's wife also is almost equally aged ailing and deaf and dumb. Petitioner and his wife badly needs compensation amount so that they can live peacefully during their oldage. 2. The 4th respondent L.A. Officer has filed a detailed counter affidavit. It is stated therein that for extension of Chengannoor – Ettumanoor M.C. Road in Thiruvalla Village only 48 sq. metres of land in Sy. No.237/4-25 and 237/4-26 belonging to the petitioner has been taken over. The notification under section 4(1) was initially issued and after verification of the survey records the sketch of the property proposed to be acquired was measured and identified as 48 sq. metres. Thereafter on negotiations a sale deed was taken from the petitioner in respect of that 48 sq. metres. Ext.R4(a) is the sketch and that would show that the petitioner is in possession of 81 sq. metres of Purambokku land in Sy. No.176/1 adjacent to the land acquired (48 sq. metres). It is contended on the basis of Ext.R4(b) copy of the Thandaper Register in respect of the petitioner's property that in survey No.237/4 of Thiruvalla Village as per Thandaper the petitioner was in possession and enjoyment of 5.05 Ares of land. The acquired WP(C)N0.30718/07 -5- land (48 sq. metres) has not been deducted from the Thandaper account so far. The petitioner continues to be in possession of 4.57 Ares of land and he is remitting tax from 1997 to 2005 for 5.05 Ares. Petitioner is aware of the extent which he possessed before the acquisition of 48 sq. metres of land and the extent which is possessing after the acquisition. Ext.R4(c) copy of form No.7 report showing the details of survey and subdivisions in Thiruvalla Village is produced. It is pointed out that the extent of 69 sq. metres of property which the petitioner claims is in Sy. No. 176/1 whereas the property actually acquired from him is in Sy. No.237/4. It is pointed out that at the time when the petitioner was executing sale deed in respect of 48 sq. metres of KSTP he never raised any objection in relation to land having extent of 69 sq. metres. It is then contended that if the petitioner was having any complaint regarding extent of the land proposed to be acquired he should have filed objection at the time when he received notice under section 9(2). He did not file any statutory petition against the resurvey to the appellate authority i.e., Deputy Director of Survey and Land Records, Pathanamthitta. Notificaiton under section 13(2) of the Survey and Boundaries Act was published on disposing of the various complaints which were received by the Deputy Director. Even WP(C)N0.30718/07 -6- now it is open to the petitioner to file a complaint to the Deputy Director of Survey and Land Records against the resurvey. The Deputy Director will take action according to the rules. If on finalising the complaint which the petitioner may file, the land which is now shown in the resurvey plan as Purambokku is found to be registered holding of the petitioner there will not be any objection for acquiring the land under the Land Acquisition Act and for payment of compensation to the petitioner in consultation with the KSTP authorities. On noticing the counter affidavit the petitioner filed I.A.2505/08 for reception of Exts.P4 to P7 additional documents. Ext.P4 is copy of the original title deed of the petitioner which will reveal that in survey No.405/18 of Thiruvalla Village he held a total extent of 15.5 cents. Ext.P5 is copy of the notice under section 9(3) and section 10 of the Kerala Land Acquisition Act, 1961 dated 25-4-1973 which supports the claim of the petitioner that an extent of 50 sq. metres of property was acquired by the Government in 1973 for widening of the M.C. Road. Exts. P6 and P7 respectively are documents which will show that the petitioner's claim (not disputed by the respondents also) that in 2005 a further extent of 48 sq. metres was also acquired under a negotiated purchase from the petitioner is correct. After hearing Mr.P.Haridas, learned WP(C)N0.30718/07 -7- counsel for the petitioner and Smt.Latha T.Thankappan, learned Govt. Pleader for some time the following interim order was passed by me on 26-6-2008. “The grievance of the petitioner is that 69 sq. metres of land belonging to him has been taken over by the respondents without recourse to proceedings under the Land Acquisition Act, i.e., without passing any award under that Act or on the basis of any negotiated sale and purchase. According to the petitioner, Ext.P4 clearly shows that the petitioner was having title to a total extent of 6.2 Ares. It is not disputed that in land acquisition proceedings only 50 sq. metres of land were acquired in 1973 and a further extent of 48. sq. metres were assigned after negotiated in 2005. Ext.P4 is the deed of sale executed by the petitioner in respect of 48 sq. metres of land in favour of the Government in 2005. The pith and substance of the petitioner's grievance is that when he was having 6.2 Ares originally and when it is conceded by the Government that a total extent of only 28 sq. metres have been taken over and when it is seen that the remainder extent presently available with the petitioner is only 4.57 Ares, the Government has to account for a minimum extent of 65 sq. metres. 2. This court had occasion to consider the petitioner's grievance earlier and Ext.P1 is the judgment. Under Ext.P1 the Deputy Director of Survey and Land Records, Pathanamthitta was directed to conduct a survey and the petitioner was permitted to claim compensation from the Land Revenue Authorities, if the survey reveals that more extent than what was actually acquired from him/purchased from him is presently under the possession of the Government, the petitioner can claim compensation from the revenue authorities. Ext.P2 is the report submitted by the Deputy Director of Survey and Land Records including sketch prepared on the basis of the survey conducted. The first sketch is the enlargement and the portion shaded black is marked separately as the property covered by 1973 acquisition and two triangular portions shaded light black with stripes are also shown separately as the area covered by WP(C)N0.30718/07 -8- 2005 acquisition. In between lies the disputed property having an extent of 69 sq. metres (ANMDEFG). According to the sketch and the survey report submitted by the Deputy Director of Survey and Land Records this property is remaining unpossessed by the petitioner and as per re-survey plan it has been described as puramboke. The issue is whether this property is part of the property covered by Ext.P4. The petitioner is directed to produce basic tax receipts or any other document which would show that he was having possession over the entire extent covered by Ext.P4 (less the property acquired in 1973) at the time of acquisition (prior to resurvey). Post on 3-7-2008” Pursuant to the above order the petitioner filed Ext.P7 tax receipt dated 26-6-1970, Ext.P8 tax receipt dated 17-8-87 and Ext.P9 tax receipt dated 27-9-1990 which certainly support the case of the petitioner that the extent of the original holding was 15.00 cents. 3. I have heard the submissions of Sri.P. Haridas, counsel for the petitioner and Smt.Latha T.Thankappan, Sr. Govt. Pleader. The learned Government Pleader has placed before me the land acquisition file and I have perused the same. The claim of the petitioner that extent of his holding in old survey No.405/18 (3) of Thiruvalla Village which came to his ownership under Ext.P4 sale deed dated 29-2-1968 is supported by Ext.P4 and also by Ext.P7 basic tax receipt. I have no difficulty to accept the same. It is not disputed by the respondents that the extent of 48 sq. metres conveyed to the Government under Ext.P7 is a part of the petitioner's holding covered by Ext.p4 sale WP(C)N0.30718/07 -9- deed. In fact, in Ext.P7 petitioner traces his title to Ext.P4 and he respondents having accepted Ext.P7 cannot now contend that the petitioner did not have title and possession over the entire extent covered by Ext.P4. The petitioner's claim that in 1973 an extent of 50 sq. metres was acquired in land acquisition proceedings for the purpose of widening of the M.C. Road is not seen specifically denied in the counter affidavit. In fact, I am of the view that the said claim can be accepted in view of Ext.P5 notice under section 9(3) dated 25-4- 1973. We will now examine the sketch appended to Ext.P2 report prepared on the basis of the measurement conducted pursuant to Ext.P1 judgment. On the enlargement sketch showing the details I have marked the area acquired in 1973 as 1973 acquisition and the area covered by Ext.P7 conveyance deed separately. In fact in Ext.P2 also the area covered by 1973 acquisition is shown as AGFEDHI. It is also shown that the said portion is part of old survey No.405/18. The areas covered by Ext.P7 is in the form of 2 triangles MLKJD and PONA and the said area having a total extent of 48 sq. metres is also shown in the sketch. The area in dispute having 69 sq. metres is ANMDEFG. The stand of the respondents is that the area ANMDEFG (written by me as not acquired) is purambokku area wrongfully possessed by the WP(C)N0.30718/07 -10- petitioner. According to the petitioner, the portion ANMDEFG is part of petitioner's original holding covered by Ext.P4 taken over by the respondents and presently lying as part of the M.C.Road. The main basis for the Government's contention is that as per the Village records the portion ANMDEFG is included in the survey number of M.C. Road and that the petitioner had been accepted the position that after the acquisition covered by Ext.P7 he has been left with only 5.05 Ares, an extent which is admittedly possessing even now. The Government's contention in my opinion is too technical for receiving acceptance. I have no doubt in my mind that the plot ANMDEFG in Ext.P2 is part and parcel of the petitioner's holding covered by Ext.P4 sale deed. May be the petitioner was dispossessed of that plot not now but earlier. Whatever that be the plot ANMDEFG now lies as part of M.C.Road and it is not disputed that the petitioner has not been paid any compensation towards value of that plot in any proceedings whatsoever. The petitioner's case that he is a hapless old man suffering from various ailments and that not only he but his wife also is deaf and dumb is not disputed. It will be hard to relegate the petitioner to the statutory remedies indicated in the counter affidavit filed by the respondents since it has been established that the plot WP(C)N0.30718/07 -11- AMDEFG extending to 69 sq. metres is part of the plot covered by Ext. P4. At the same time I am not inclined to allow the petitioners prayer for payment of interest with effect from 17th November 2005 when that plot was allegedly taken over though I have reason to think that the actual taking over of that plot was even earlier. The writ petition will stand disposed of granting the following relief to the petitioner. 4. The respondents will pay to the petitioner the land value for 69 sq. metres of land (the plot ANMDEFG shown in Ext.P2) at the rate of Rs.75,000/- per cent, i.e., Rs.1853.22 per sq. metre. Payment as ordered above shall be made within three months of the petitioner placing a copy of this judgment before the respondents. If payment is not made within the stipulated period the amount will carry interest on the amount from the stipulated date at 12% per annum. (PIUS C.KURIAKOSE, JUDGE) ksv/-