IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 WP(C).No. 27380 of 2005(H) -------------------------- PETITIONERS: ------------ 1. MARY ABRAHAM, D/O. ABRAHAM, AGED 43 YEARS, THEKKEKUTTU HOUSE, KARIMKUNNAM P.O., THODUPUZHA. 2. MELVIN, S/O. MATHEW M.M., AGED 17 YEARS, MAMBUZHAKAL HOUSE, NOW RESIDING AT THEKKEKUTTU HOUSE, KARIMKUNNAM P.O.,THODUPUZHA, REPRESENTED BY HIS NEXT FRIEND & GUARDIAN MARY ABRAHAM, THE 1ST PETITIONER. 3. MABLE, D/O. M.M.MATHEW, AGED 15 YEARS, MAMBUZHAKKAL HOUSE, NOW RESIDING AT THEKKEKUKTTU HOUSE, KARIMKUNNAM P.O.,THODUPUZHA, REPRESENTED BY HER NEXT FRIEND & GUARDIAN MARY ABRAHAM, THE 1ST PETITIONER. BY ADV. SRI.M.M.SAIDU MUHAMMED SRI.P.A.SHAJI SAMAD RESPONDENTS: ------------- 1.THE DISTRICT COLLECTOR, IDUKKI DISTRICT, CIVIL STATION, PAINAVU. 2.THE SPECIAL TAHSILDAR (L.A), MINI CIVIL STATION P.O., THODUPUZHA. 3.THE EXECUTIVE ENGINEER, K.S.T.P. DIVISION, P.W.D. PONKUNNAM P.O., KANJIRAPPILLY, KOTTAYAM DISTRICT. 4.M.M. MATHEW, S/O. MATHAI, MAMBUZHAKAL HOUSE, AYARKUNNAM P.O., KOTTAYAM. WPC 27380/05 5.SHRI MATHEW STEPHEN, PULIMPARAYIL, MALLUSSERY, CHUNKAM P.O.,KOTTAYAM. (THE POWER OF ATTORNEY HOLDER OF SHRI.M.M.MATHEW, MAMBUZHAKKAL HOUSE, AYARKUNNAM P.O.) BY SR. ADV. SRI. C.C. THOMAS FOR R4 & R5 GOVT. PLEADER MR.SHYSON P.MANGUZHA FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 27380 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 19th June, 2008 JUDGMENT The petitioners who are wife and children respectively of the 4th respondent are voicing genuine grievances in this Writ Petition. There were two matrimonial appeals before this court under the matrimonial jurisdiction between the 1st petitioner-wife and the 4th respondent-husband. Both those appeals were disposed of on the basis of Ext.P1 joint application filed by the first petitioner and the 4th respondent. Paragraphs 6 and 8 of Ext.P1 which has been accepted and incorporated by the Division Bench in its judgment which is Ext.P2 are very relevant and will be quoted below: “6. There are two children in the wedlock. They are Melvin aged 15 years and Mable aged 13 years. It has been agreed between the applicants that the children would continue to be in the custody of the 2nd applicant. The 1st applicant is at liberty to visit the children whenever he come over to India and the children are free to reside with him as and when desired by them. The 1st applicant undertakes to transfer 2.94 acres of property in survey numbers 655:1/10, 1/29, 1/27 and 1/33 of Thodupuzha Village to the children jointly by way of gift permitting the 2nd applicant to enjoy possession of the property W.P.C.No.27380/05 - 2 - till the boy attains the age of 21 and the girl attains the age of 18 and to collect the usufructs there from for the maintenance of the children. The above provision would not disinherit the children from the properties of their parents in any manner. 8. The 1st applicant undertakes to handover to his daughter Mable, Gold Ornaments weighing 200 grams (25 sovereigns) for the purpose of use at the time of marriage. It will be kept in the locker in the name of Mable till she attains 18 years of age. She can use it after that as per her wishes. Passport of the 2nd applicant is with the 1st applicant. He undertakes to return the same to the 2nd applicant.” Though notice was issued from this court to the 4th respondent- husband, he refused to accept the notice and accordingly service on him has been declared to be completed. Learned senior counsel who appeared before the Division Bench in the matrimonial case reported that he no longer holds any engagement from the 4th respondent. The other respondents in the Writ Petition have not filed any counter affidavits. 2. I have heard the submissions of Mr.M.M.Saidu Muhammed, learned counsel for the petitioners. He submitted that though many of the conditions incorporated in the compromise judgment passed on W.P.C.No.27380/05 - 3 - the basis of Ext.P1 have been complied with by the parties, the important condition that the 4th respondent shall transfer the property having an extent of 2.94 acres in survey Nos.655:1/10, 1/29, 1,27 and 1/33 of Thodupuzha Village to the children, namely, the 2nd and 3rd petitioners by way of gift permitting the 1st petitioner to enjoy possession of the property till such time as the children attained majority by collecting usufructs from the properties for the purpose of maintaining the children and the equally important condition that the 4th respondent shall hand over to the third petitioner, the daughter gold ornaments weighing 200 grams have not been complied with at all by the 4th respondent. Counsel submitted that accusing the 4th respondent of contempt of the judgment of the Division Bench COC No.659/05 was filed by the first petitioner before this court. Before the contempt court the 4th respondent submitted through counsel that he will be executing gift deed in favour of the children within two months and that the contempt case was disposed of recording the submission as an undertaking given by the 4th respondent himself. Copy of the judgment in COC No.659/05 was also placed before me by the counsel. Mr.Saidu Muhammed further submitted that while matters stood so, the Government initiated proceedings for W.P.C.No.27380/05 - 4 - acquisition of 22 cents of land from out of the property undertaken to be conveyed in favour of the 2nd and 3rd petitioners and the 4th respondent who was abroad on coming to know about the proceedings for acquisition came down and claimed compensation through the 5th respondent, his power of attorney holder for the acquired property. It was at that juncture that the present Writ Petition was filed. Mr.Saidu Muhammed submitted that the land acquisition authority noticing the objection filed by the petitioners has deposited the amounts before the court under Section 31(2) of the Land Acquisition Act and that the court has already registered a reference case. 3. The following are the prayers in this Writ Petition: a) Call for the records relating to the case and examine the same. b) Declare that in view of Exhibits P1 to P3 only petitioners 2 & 3 are entitled to receive compensation for the land sought to be acquired out of 2.96 acres comprised in Sy.Nos.655/1/33, 655/1/27, 655/1/29 & 655/1/10 of Thodupuzha Village. c) Issue a writ of mandamus such other writs, orders or direction commanding respondents 1 to 3 to consider and dispose of Exhibits P4, P5 & P6 claims submitted by the petitioners. W.P.C.No.27380/05 - 5 - d) Issue a writ of prohibition restraining respondents 1 & 2 from passing award in favour of the 4th respondent or paying compensation to him or his Power of Attorney holder in respect of the land sought to be acquired out of 2.96 acres comprised in Sy.Nos.655/1/33, 655/1/27, 655/1/29 & 655/1/10 of Thodupuzha Village to petitioners 2 & 3 only. On considering the Writ Petition for admission and on hearing the submissions of the counsel for the petitioners, I passed the following interim order on 22.9.2005: “Serve copy of this Writ Petition to Sri.C.C.Thomas. Show the name of Sri.C.C.Thomas in the cause list. In the meanwhile, there will be an interim order restraining the 2nd respondent from disbursing the compensation for the acquired property having an extent of 22 cents of land in Sy.Nos.655/1/33, 655/1/27, 655/1/29, 655/1/10 of Thodupuzha Village to anybody for a period of one week.” Mr.Saidu Muhammed, counsel for the petitioners submitted that every justification for granting relief No.b in the Writ Petition. 4. True, the petitioners claim for such relief is fairly strong in view of Ext.P1 joint petition and Ext.P2 common judgment and also in view of the undertaking given to this court in COC No.659/05. At the W.P.C.No.27380/05 - 6 - same time, since the land acquisition reference court is in seizin of the matter (LAR No.107/06 on the files of the Sub Court, Thodupuzha), I am of the view that it is for that court to consider all the above documents and take a decision. I therefore dispose of the Writ Petition issuing the following directions: The Sub Court, Thodupuzha which is presently in seizin of LAR No.107/06 will give top priority to LAR No.107/06 and dispose of that LAR on the basis of the various items of evidence to be adduced before that court by the petitioners including Exts.P1 and P2 and the judgment in COC No.659 of 2005. Since I am informed that the petitioners are hard pressed for money and amounts are urgently required for the educational needs of petitioners 2 and 3, the reference court will ensure that the LAR case is disposed of within one month of receiving copy of this judgment. srd PIUS C.KURIAKOSE, JUDGE