IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 W.P(C).No. 34390 of 2008(R) -------------------------------------- PETITIONER: ------------------- INDIRAMANI, W/O.M.KRISHNA MURTHY, AGED 71 YEARS, RESIDING AT "THAMBURU", MULAYIL LANE, SASTHAMANGALAM TRIVANDRUM. BY ADV. SRI.R.S.KALKURA SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) SRI. M.S. KALESH RESPONDENTS: ------------------------- 1. STATE OF KERALA, RERESENTED BY THE DISTRICT COLLECTOR, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, TRIVANDRUM. 3. SPECIAL TAHSILDAR, LAND ACQUISTITION (GENERAL),COLLECTORATE, VANCHIYOOR, TRIVANDRUM. BY SRI. BASANT BALAJI, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 34390/ 2008 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE SETTLEMENT DEED NO.2349/1974 DATED 23/08/1974. EXHIBIT P2 : TRUE COPY OF THE TAX RECIPT NO.0627793 DATED 16/09/2007 AND 0353316 DATED 9/09/2008 IN RESPECT OF THE PROPERTY BELONGING TO THE PETITIONER. EXHIBIT P3 : TRUE COPY OF THE NOTICE RECIEVED BY THE NEIGHBOURING OWNER IN RESPECT OF THE SAID ACQUISITION AND THE AWARD PASSED BY THE 2ND RESPONDENT ALONG WITH 9(3) NOTICE DATED 29/10/2007. EXHIBIT P4 : TRUE COPY OF THE LOCATION SKETCH OF THE PETTIONER'S PROPERTY AND THE ADJOINING PROPERTIES SHOWING THE PROPERTY ACQUIRED ON EITHER SIDE OF THE PETITIONER'S PROPERTY. EXHIBIT P5 : TRUE COPY OF THE REPRESENTATION DATED 5/09/2008. EXHIBIT P6 : TRUE COPY OF THE PHOTOGRAPHS OF THE BUILDING IN THE PETITIONER'S PROPERTY ALONG WITH THE EXISTING COMPOUND WALLS. RESPONDENTS' EXHIBITS: EXHIBIT R3(a): TRUE COPY OF THE ROUGH SKETCH SHOWING THE LIE OF THE PROPERTY IN BOTH THE SY. NOS. EXHIBIT R3(b): TRUE COPY OF THE LETTER ISSUED TO THE PETITIONER AS WELL AS SRI. GOPALAKRISHNAN DATED 17/11/2008 EXHIBIT R3(C): TRUE COPY OF THE REPLY DATED 24/11/2008. EXHIBIT R3(d): TRUE COPY OF THE REPLY FILED BY THE PETITIONER DATED 24/11/2008. /TRUE COPY/ P.A. TO JUDGE scm PIUS C. KURIAKOSE, J. ----------------------------------- W.P(C). No. 34390 of 2008 ------------------------------------------- Dated this the 4th day of December, 2008 JUDGMENT The petitioner alleges that the property in Survey No.393/1 was attempted to be taken over without recourse to the provisions of the Land Acquisition Act. It is submitted that the properties of Shri. Gopalakrishan and Dr. B Ravikumar, which are lying on either sides of the petitioner's property have been acquired and taken possession of by the Government, but still no proceedings were taken in respect of acquisition of her property. 2. Following are the prayers in this writ petition; 1. Issue a writ of mandamus or any other appropriate writ order or direction of the nature of mandamus directing the respondents not to take possession or acquire any portion of the property without effecting 4(1) notification as contemplated under the Land Acquisition Act, and issuance of appropriate notices as contemplated therein with a right to raise all objections, references to the courts W.P(C). No. 34390/ 2008 2 in respect of compensation payable and all rights enshrined to the owner of the property to be acquired under the Land Acquisitions Act. 2. Issue a writ of mandamus or any other appropriate writ order or direction of the nature of mandamus directing the respondents 1 and 2 not to take possession of the property of the petitioner unless all procedures as established under law and contemplated under the Land Acquisition Act, have been complied with in so far as the property to be acquired from the petitioner is concerned. 3. Detailed counter affidavit has been filed by the 3rd respondent, Land Acquisition officer. It is contended therein that a mistake was occasioned in the proceedings, which were initiated for acquisition of the properties for the purpose of widening the Vellayambalam-Sasthamangalam road. The 3rd respondent became compelled to pass award and release payment to Shri.Gopalakrishnan, who is none other than petitioner's son, in view of order passed in that regard by the Lok Ayukta. Mistake which was committed by the 3rd W.P(C). No. 34390/ 2008 3 respondent was that, compensation payable for the petitioner's property was also included in the compensation determined in the award, passed in favour of Shri. Gopalakrishnan, the petitioner's son. Immediately thereafter Exhibit R3(b) letter was issued to the petitioner's son, Shri. Gopalakrishnan and also to the petitioner, informing them that out of total compensation awarded in favour of Shri. Gopalakrishnan, i.e Rs.8,18,626/-, the amount which is eligible for payment to Shri.Gopalakrishnan is only Rs. 4,75,381/- and that balance of Rs.2,59,745/- was actually payable to the petitioner, for her property which was also under acquisition. In Exhibit R3(b) Shri. Gopalakrishnan, petitioner's son was directed to refund excess amount of Rs.2,59,745/- so as to enable the L.A Officer to pay the compensation amount due to the petitioner. In Exhibit R3(c), Shri.Gopalakrishnan has expressed his willingness to remit back the money overdrawn by him subject to some conditions. The petitioner had submitted Exhibit R3(d), wherein she has reiterated her contentions in the writ petition that the L.A officer will have to initiate the proceedings under the LA Act before her property is taken over. W.P(C). No. 34390/ 2008 4 I have heard Mr. R.S.Kalkura, learned counsel for the petitioner. Having regard to the submissions as well as the pleadings of the parties, I dispose of this writ petition issuing the following directions; 1. The 3rd respondent is directed to pursue proceedings, which initiated under Exhibit R3(b) for recovering the excess amount of Rs.2,59,745/- from Shri. Gopalakrishnan. 2. The 3rd respondent is also directed to issue notice under Section 9(3) to the petitioner, inviting her claims for the compensation to be awarded under the Land Acquisition Act and to finalise the proceedings by passing award in her favour regarding her property. It is also directed that award need be passed only after the 3rd respondent is able to recover the excess amount from Shri.Gopalakrishnan, petitioner's son. Till the award is passed in favour of the petitioner in respect of her property, petitioner will not be dispossessed from the same. PIUS C. KURIAKOSE, JUDGE scm