IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 18950 of 2008(E) --------------------------------------- PETITIONERS: --------------------- 1. EAPEN CHACKO, AGED 74, RESIDING AT EZHAMALAYIL PERUMPAIKKAD VILLAGE, KOTTAYAM TALUK. 2. ELIAMMA EAPEN, AGED 54, RESIDING AT EZHAMALAYIL PERUMPAIKKAD VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.JOHN JOSEPH VETTIKAD. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY CHIEF SECRETARY, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOTTAYAM. 3. THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 4. THE SUPERINTENDING ENGINEER, KERALA STATE ROAD TRANSPORT PROJECT, RAJADHANI, COMPLEX, KARAMANA, THIRUVANANTHAPURAM. 5. THE EXECUTIVE ENGINEER, KERALA STATE ROAD TRANSPORT PROJECT DIVISION OFFICE, REST HOUSE COMPOUND, MUVATTUPUZHA. 6. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ROAD TRANSPORT PROJECT DIVISION OFFICE, REST HOUSE COMPOUND, MUVATTUPUZHA. 7. THE SPECIAL TAHSILDAR, LAND ACQUISITION (N.H) REVENUE TOWER, CHANGANACHERRY. W.P.(C). NO.18950/2008-E: *ADDL. R8. IMPLEADED: 8. MOHAMMED ISMAIL, AGED 54, S/O. T.M. ABDUL KAREEM, VALIYAVEETTIL HOUSE, ERUMELY VILLAGE, KANJIRAPPALLY TALUK. *ADDL.R8 IS IMPLEADED AS PER ORDER DT. 14/01/09 IN I.A. 362/09. **ADDL.R9. IMPLEADED: 9. NEELIMANGALAM MUSLIM JAMA – ATH, PERUMBAIKKADU VILLAGE, KOTTAYAM, REPRESENTED BY ITS SECRETARY. **ADDL.R9. IS IMPLEADED AS PER ORDER DT. 08/04/09 IN I.A. 4976/09. R1 TO R7 BY GOVERNMENT PLEADER SRI. A.J. VARGHESE, ADDL.R8. BY ADV. SRI.LIJI.J.VADAKEDOM, ADDL.R9. BY ADV. SRI.V.P.MOHAMMED NIYAZ. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.18950/2008-E: APPENDIX PETITIONERS' EXHIBITS & ANNEXURE: EXT.P.1: COPY OF THE RECOMMENDATIONS DTD. 23/01/2004 OF THE EXECUTIVE ENGINEER FOR THE SHIFTING OF THE BUS BAY FROM THE FRONT PORTION OF THE PETITIONERS' SHOP ROOM AND THE RESIDENTIAL BUILDING. EXT.P.2: COPY OF THE STRIP PLAN SUBMITTED BY THE EXECUTIVE ENGINEER FOR THE SHIFTING OF THE BUS BAY. EXT.P.3: COPY OF THE JUDGMENT IN W.P.(C).NO.21457/2004 DTD. 21/07/2008. EXT.P.4: COPY OF THE PROCEEDINGS OF THE SUPERINTENDING ENGINEER WITH NO PWD/KSTP/PMT/80/01 DTD. 17/09/2004. EXT.P.5; COPY OF THE NOTICES NO. B5 412/06 (174) DTD. 24/05/2008 UNDER SECTION 9 (3) OF THE LAND ACQUISITION ACT. EXT.P.6: COPY OF THE NOTICES NO.B5.412/06 (173) DTD. 24/05/2008 UNDER SECTION 9 (3) OF THE LAND ACQUISITION ACT. EXT.P.7: COPY OF THE SURVEY PLAN IN RESPECT OF THE CHANGED AILMENT. EXT.P.8: COPY OF THE STATEMENT GIVEN BY THE R.7 TO THE GOVERNMENT DTD. 02/07/2008. ANNEXURE-I: COPY OF THE SALE DEED NO.636/07 OF THE ADDL. SRO, KOTTAYAM. RESPONDENTS' EXHIBITS: EXT.R5.A: COPY OF THE LETTER DT. 17/06/2008 ISSUED BY EXECUTIVE ENGINEER, SPECIAL TAHSILDAR. EXT.R5.B: COPY OF THE ORIGINAL STIRP PLAN. EXT.R5.C: COPY OF THE MODIFIED STRIP PLAN. EXT.R8.A: COPY OF THE SALE DEED NO. 636/07 OF THE ADDL. S.R.O. KOTTAYAM. EXT.R8.B: COPY OF THE PERMISSION DTD. 02/06/2008 GRANTED TO THE PETITIONER BY THE OFFICE OF THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, KOTTAYAM. EXT.R9.A: COPY OF THE APPROVED PLAN ISSUED BY THE KUMARANALLOOR PANCHAYATH DTD. NIL. EXT.R9.B: COPY OF THE APPROVED PERMIT ISSUED BY THE KUMARANALLOOR PANCHAYATH DT. 05/12/2006. EXT.R9.C: COPY OF THE BUILDING TAX RECEIPT ISSUED BY THE KUMARANALLOOR PANCHAYATH FOR THE PERIOD 2007-08 IIND HALF DT. 29/11/2007. EXT.R9.D: COPY OF THE BUILDING TAX RECEIPT ISSUED BY THE KUMARANALLOOR PANCHAYATH FOR THE PERIOD 2008-09 IIND HALF DTD. 14/11/2008. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.18950/2008-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 14th day of July, 2010 J U D G M E N T This writ petition is filed by the petitioners seeking implementation of Ext.P4 proceedings of the Superintending Engineer, namely, the fourth respondent herein. 2. The issue pertains the construction of a Bus-bay on the side of the M.C Road between chainage Nos.39/500 to 39/600 in the left half of Chengannur-Ettumanoor road under the Kerala State Transport Project. 3. The petitioners are conducting a shop dealing with home appliances, furnitures and also a super market at Neelimangalam on the western side of M.C road. The proposal was to acquire their property between chainage Nos.39/500 to 39/600 in the left half of Chengannur- Ettumanoor road. According to the petitioners, when the boundary stones were put up, it was found that the entry to the petitioners' shop and the godown is completely cut off and the well just in front of the petitioners' house also will be within the area acquired. The petitioners had approached this Court by filing W.P.(C).No.21457/2004 wherein a direction was issued to the respondents to consider the grievances raised by the petitioners on the basis of the recommendation of the Executive Engineer W.P.(C). No.18950/2008 -:2:- (Ext.P1) which reflects the apprehension of the petitioner. It is mentioned in Ext.P1 that the proposed acquisition will affect the business establishments and prospects, and also a drinking water well is existing in the proposed Bus- bay. Finally, it was recommended that in the alternative, the Bus-bay can be provided between boundary stones 235 and 241 at a length of 50 mts. Ext.P2 is the copy of the strip plan submitted by the Executive Engineer. The Superintending Engineer by Ext.P4 passed appropriate proceedings also for shifting it. 4. The order passed by the Superintending Engineer shows that it is decided to shift the location of the Bus- bay towards north (Ettumanoor side) on the same side by 20 mts. where vacant land is available so as to mitigate the hardship of the petitioners. 5. The petitioners' contention is that the Executive Engineer while implementing the said order has failed to implement it in full and again the petitioners are put to difficulty in the matter. It is in these circumstances, the they have filed this writ petition seeking for a direction to the respondents to strictly follow with the directions in Ext.P4 proceedings by carrying out fresh survey measurements in accordance with the directions in Ext.P4. W.P.(C). No.18950/2008 -:3:- 6. The fifth respondent has filed a counter affidavit in the matter taking the stand that the directions in Ext.P4 have been fully implemented and Exts.R5(b) and R5(c) plans are also produced in the matter. The stand taken is that the location has been shifted to North (towards Ettumanoor side) as per measurements provided in Ext.R5(c). 7. The additional respondents 8 and 9 are the nearby land owners. The additional 8th respondent's property is lying just on the Northern side of the petitioners' property and the 9th respondent-Juma-ath's property is lying on Northern side of the petitioners' property i.e. in between the properties, the property of the Additional eighth respondent is situated. 8. On the application, I.A.No.14359/2008, filed by the petitioners, this Court appointed an Advocate Commissioner who has conducted a local inspection and with the assistance of the Surveyor has taken measurements and has prepared plans also. The Commissioner has produced along with the report, 4 different plans and the last one is the suggestive plan. On behalf of the Executive Engineer, the learned Government Pleader has filed an objection to the Commission Report. The learned counsel for the petitioners submitted that going by the report of the Commissioner, it can be found that the directions W.P.(C). No.18950/2008 -:4:- issued by the Superintending Engineer have not been fully complied with by the Executive Engineer. The learned counsel for the petitioners also relied upon a copy of the statement of facts forwarded by the Special Tahsildar, the seventh respondent to the learned Government Pleader which has been produced as Ext.P8 in support of the plea. According to the learned counsel for the petitioners, it can be seen on a reading of Ext.P8 that the Executive Engineer has not fully effected the order Ext.P4 for certain technical reasons. 9. The learned Government Pleader and the learned counsel appearing for additional respondent Nos.8 and 9 contended that what is involved in implementation of Ext.P4 is shifting of the Bus-bay by 20 mts. from the Southern point of the plan which was prepared earlier (prior to the passing of Ext.P4 order). The learned counsel for the petitioners submitted that it should be shifted by 20 mts. from Northern point itself. 10. Heard the learned Advocate Commissioner also, who conducted the local inspection in the matter. 11. The issue is on a narrow compass. The matter will have to be ascertained in the light of Ext.P4 order passed by the Superintending Engineer. If along with Ext.P4, a plan was also prepared, then it will have to be seen from W.P.(C). No.18950/2008 -:5:- the measurements as well as other details available in the spot to find out whether the Bus-bay has been properly shifted in tune with Ext.P4. 12. Since the entire matter is in dispute, this Court may not be justified on entering into findings on the disputed question of facts. Therefore, the proper course is to direct the fourth respondent-Superintending Engineer itself to find out whether Ext.P4 order passed by the said Officer has been properly implemented by fixing the present location of the Bus-bay and its alignment. One of the contentions raised by the petitioners is that the well which is on the side of the road in his property will not be included in the area to be acquired for the purpose of the Bus-bay, which is disputed by the learned counsel for additional respondents 8 and 9. All these are matters for consideration by the Superintending Engineer. Therefore, there will be a direction to the fourth respondent to hear all parties including the petitioners and additional respondent Nos. 8 and 9 as well as respondents 5 to 7 and to conduct due enquiry in the matter including a local inspection, if required. All the parties can produce materials they are relying upon before the Superintending Engineer. The Advocate Commissioner's Report along with the plan and the objection filed by parties also will be W.P.(C). No.18950/2008 -:6:- considered while taking a decision. Appropriate orders will be passed after hearing the parties within a period of three months. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms