IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 WP(C).No. 5318 of 2010(L) ------------------------- PETITIONERS: --------------- 1. RADHA RAMANAN, NANTHENCODE HOUSE, CHITTOOR ROAD, NEAR HINDI PRACHARA SABHA,KOCHI. 2. SMT. SASI KUMARI,W/O.LATE SUDHAKARAN, NANTHENCODE HOUSE,CHITTOOR ROAD, NEAR HINDI PRACHARA SABHA,KOCHI. 3. SMT.USHA KUMARI, NANTHENCODE HOUSE,CHITTOOR ROAD, NEAR HINDI PRACHARA SABHA,KOCHI. BY ADV. MR.M.BALAGOVINDAN MR.T.K.ANANDA PADMANABHAN MR.MINI GANGADHARAN RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,SECRETARIATE, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, COLLECTORATE, KODAPPANAKUNNU, TRIVANDRUM. 3. SPECIAL THASILDAR(L.A),COLLECTORATE, KODAPPANAKUNNU, TRIVANDRUM. GOVERNMENT PLEADER MR.G.GOPAKUMAR FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5318 of 2010(L) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: COPY O THE DEATH CERTIFICATE. EXT.P2: WILL EXECUTED BY LATE SUDHAKARAN IN FAVOUR OF THE FIRST PETITIONER. EXT.P3: NOTICE DTD. 7.1.2010 ISSUED BY R3. EXT.P4: SALE DEED EXECUTED BY SUDHAKARAN THROUGH HIS POWER OF ATTORNEY HOLDER, THE 1ST PETITIONER. EXT.P5: COMPLAINT DTD. 14.7.2010. EXT.P6: COMMUNICATION ALONG WITH THE COVERING LETTER. RESPONDENTS' EXHIBITS: NIL .... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.5318 Of 2010 ---------------------- Dated this the 7th day of September, 2011. J U D G M E N T The writ petition is filed seeking the following reliefs: i) To issue a writ of mandamus or other appropriate writ, direction or order directing the respondents to pay the amount of compensation with interest due to late K.Sudhakaran in respect of the land acquired by respondents 2 & 3 evidenced by Ext.P3 to the 1st petitioner on the basis of Ex.P2 till date of payment to the petitioner within a time limit fixed by this Hon'ble Court. ii) To issue a writ of mandamus or other appropriate writ, direction or order directing the 3rd respondent to inform the petitioner/petitioners the total amount which the owner of the property of Ares 2.40 and Ares 3.80 comprised in Survey No.529/21 and 528/8 of Attipra Village, Thiruvananthapuram District to the petitioners forthwith. 2. Petitioners are wife and children of late Sri.K.Sudhakaran, the former Advocate General. The 1st petitioner is the son, 2nd and 3rd petitioner are the wife and daughter respectively. Sri.K.Sudhakaran died on 21.11.2007. Ext.P1 is the copy of the death certificate. It is not disputed that petitioners are the only legal heirs of late Sri.K.Sudhakaran. ::2:: W.P.(C).No.5318 Of 2010 Sri.K.Sudhakaran executed Ext.P2 will dated 24.12.2005. By the provisions of Ext.P2 will, he son is entitled to all monetary benefits which the executant is entitled. 3. It is not disputed that two items of property namely, 2.40 Ares of land in R.S.No.529/21 and 3.80 Ares of land in R.S.No.528/8 owned and possessed by late Sri.K.Sudhakaran was acquired for a public purpose. On 7.1.2010 i.e., long after the death of late Sri.K.Sudhakaran, the Special Tahsildar issued Ext.P3 notice under Section 9(3) of the Land Acquisition Act directing the petitioners to appear before the Special Tahsildar with documents to prove the right over the property. In Ext.P3 the two items of properties referred above are shown in the schedule. 4. The learned counsel for the petitioners submit that the properties namely 2.40 Ares of land in R.S.No.529/21 and 3.80 Ares of land in R.S.No.528/8 respectively are part of a larger extent having more than 1 acre. Sri.K.Sudhakaran sold the entire extent excluding the two items of properties under acquisition on 17.2.2005 to a third party. Ext.P4 is the sale deed. At page 4 of Ext.P4 there is reference to the acquisition of ::3:: W.P.(C).No.5318 Of 2010 the aforesaid two items of properties. The said two items of properties were acquired for widening of the road. It is specifically referred that two items of properties were acquired for widening of the road. The balance extent of 5.40 Are (13.350 cent) and and 41 Are 20 Sq.metre (101.575 cent) was conveyed to the third party as per Ext.P4 sale deed. The learned counsel submits that the balance extent was transferred during the lifetime of Sri.K.Sudhakaran. The petitioners submit that there is no necessity of transfer of patta in the name of the 1st petitioner and that the 1st petitioner is entitled to receive the compensation on the basis of the will executed by his father. 5. All the legal heirs are before this Court. By operation of the will the 1st petitioner alone is entitled to receive compensation. Petitioners 2 & 3 have not disputed the execution nor the entitlement of the 1st petitioner to receive compensation. 6. In the counter affidavit filed by the 3rd respondent, it is stated that two separate land acquisition cases namely, 72/2009 & 23/2009 are registered in respect of 2.40 Ares of land in R.S.No.529/21 and 3.80 Ares of land in R.S.No.528/8 respectively. In the counter affidavit it is stated that in response ::4:: W.P.(C).No.5318 Of 2010 to notice under Section 9(3) of the Land Acquisition Act, no one appeared before the Special Tahsildar to establish their interest or title to the land with documentary evidence and that in the absence of documentary evidence the respondent is not in a position to determine the actual title holder of the land. In the counter affidavit it is stated that the petitioners have not responded to the notice nor produced documents even though two notices are sent and the third respondent requested, in the circumstances, that the petitioners may be directed to produce necessary documents before the Land Acquisition Officer prior to the pronouncement of the award. It is also stated that in the absence of documents, third respondent will be constrained to deposit the compensation under Section 31(2) of the Land Acquisition Act. It is further stated that if the petitioners produce sufficient documents in time that will be examined and appropriate orders will be passed for disbursement of compensation. 7. The petitioner in the affidavit filed in support of I.A.No.10128/2010 averred that on the basis of the affidavit of the 3rd respondent, which I have referred above, the 1st petitioner ::5:: W.P.(C).No.5318 Of 2010 attended to the office of the 3rd respondent with all the documents in original to prove title on 14.7.2010, that the third respondent did not examine the documents and, therefore, the petitioner filed a complaint to the District Collector, Thiruvananthapuram. The complaint dated 14.7.2010 addressed to the District Collector is marked as Ext.P5. 8. In the counter affidavit filed in I.A.No.10128/2010, it is admitted that the petitioner appeared on 30.8.2010 and produced certified copy of partition deed No.128/1950, Will deed No.405/2005/III, death certificate of late Sri.K.Sudhakaran and land tax receipt. It is further stated that the records produced were examined and the petitioner has been instructed to produce the original title deed in respect of the land. It is also stated that the enquiry reveals that the land possessed and enjoyed by Sri.K.Sudhakaran has already been sold to a third party and the records now available are not sufficient to establish that the land under acquisition are not sold and as such the title of the land in favour of Sri.K.Sudhakaran was not proved absolutely by way of documentary evidence. In fact, the said statement is made without referring to page 8 of Ext.P4 sale deed in favour of third ::6:: W.P.(C).No.5318 Of 2010 person. The recitals in page 8 would show that what was sold in Ext.P4 sale deed is the property excluding the properties acquired. Therefore, the statement that the records produced by the petitioners are not sufficient to establish that the land under acquisition was not sold and that the title of late Sri.K.Sudhakaran was not proved, is without any substance. 9. The learned counsel for the petitioner submits that since a larger extent of property was the balance extent which is the major portion of the property sold to a third person, the title deed in the name of Sri.K.Sudhakaran was also handed over to the transferee and therefore, petitioners are in a position to produce the original of the sale deed as title document. The 1st petitioner is willing to produce the certified copy of the sale deed in favour of late Sri.K.Sudhakaran for reference. The 3rd respondent shall not insist for production of the original deed which was handed over to the transferee of Ext.P4 sale deed. 10. Since all the legal heirs have consented to the disbursement of compensation as per the stipulations in Ext.P2 will, the 3rd respondent is duty bound to disburse the compensation to the 1st petitioner. Taking into account the facts ::7:: W.P.(C).No.5318 Of 2010 and circumstances stated above, this Court direct the 3rd respondent to disburse the compensation amount with interest accrued to the 1st petitioner in respect of the two items of properties acquired, on the basis of Ext.P2 will, within a period of one month from the date of receipt of a copy of this judgment. The 1st petitioner shall produce certified copy of partition deed No.128/1950, Will deed No.405/2005/III and also a certified copy of Ext.P4 sale deed before the 3rd respondent for the purpose of disbursement of compensation. The writ petition is disposed of as above. The 1st petitioner shall produce a copy of the judgment before the 3rd respondent immediately for further action. HARUN-UL-RASHID, Judge. bkn/-