IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 WP(C).No. 31938 of 2006(B) ------------------------------------- PETITIONERS: ------------------ *1. P.K.SAMIKUTTY, S/O. CHANDUKUTTY, AGED 86 YEARS, CHEVAYUR AMSOM DESOM, KOZHIKODE TALUK & DISTRICT. (* DIED) * SUPPLEMENTAL PETITIONERS 2 TO 8 IMPLEADED 2. BHANUMATHI, D/O.P.K.SAMIKUTTY, CHEVAYUR AMSOM & DESOM, KOZHIKODE TALUK & DISTRICT 3. SATHYAVATHI. D/O.P.K.SAMIKUTTY, RESIDINT AT -DO- 4. SURESH KUMAR, S/O.P.K.SAMIKUTTY, RESIDING AT -DO- 5. SUDHEERA D/O.P.K.SAMIKUTTY, RESIDING AT -DO- -DO- 6. MALLIKA NIECE OF P.K.SAMIKUTTY, RESIDING AT -DO- -DO- 7. SAJISH MOHAN GRAND SON OF P.K.SAMIKUTTY, RESIDING AT -DO- -DO- 8. NINDHU GRAND DAUGHTER OF P.K.SAMIKUTTY, RESIDING AT -DO- -DO- * SUPPLEMENTAL PETITIONERS 2 TO 8 IMPLEADED AS PER ORDER DATED 14/08/07 IN I.A.10700/07. BY ADV. SRI.T.SETHUMADHAVAN SRI.KODOTH PUSHPARAJAN SRI.K.JAYESH MOHANKUMAR W.P.(C).31938/2006-B RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOZHIKODE. 2. REVENUE DIVISIONAL OFFICER, KOZHIKODE. BY SENIOR GOVERNMENT PLEADER SRI.V.T.K.MOHANAN ADV.SRI.K.JAJU BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).31938/2006-B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN O.P.NO.11349/1998 DATED 15/03/2006. EXT.P2: COPY OF I.A.NO.2301 OF 2006 IN O.S.NO.24/1996 ON THE FILE OF THE MUNSIFF COURT-IIA, KOZHIKODE DATED 31/08/2006. EXT.P3: COPY OF THE AFFIDAVIT AND APPLICATION I.A.NO.2821/2006 (COMMISSION APPLICATION) FILED ON BEHALF OF THE PETITIONER BEFORE THE MUNSIF COURT, KOZHIKODE DATED 17/10/2006. EXT.P4: COPY OF THE BUILDING PERMIT ISSUED BY THE CORPORATION OF CALICUT DATED 19/12/64, ISSUED TO THE FATHER OF THE PETITIONER. EXT.P5: COPY OF THE LAND ACQUISITION AWARD PASSED BY THE COMPETENT AUTHORITY DATED 28/12/1961. EXT.P6: COPY OF THE ORDER PASSED BY THE MUNSIFF COURT-IIA, KOZHIKODE IN I.A.NO.2821/2006 IN O.S.NO.24/1996 DATED 09/11/2006. EXT.P7: COPY OF THE ORDER IN I.A. NO.2282/2006 IN O.S.NO.24/1996 DATED 12/10/2006 OF THE MUNSIFF'S COURT, KOZHIKODE-II. RESPONDENT'S EXHIBITS: EXT.R3(A): COPY OF JUDGMENT DATED 20/11/1997 IN C.R.P. NO.1171 OF 1997 OF THIS HON'BLE COURT. // TRUE COPY // Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 31938 OF 2006 = = = = = = = = = = = = = = = Dated this the 19th day of June, 2008. J U D G M E N T This writ petition is preferred against the dismissal of I.A.2821/06 in O.S.24/96 whereby the Court rejected the prayer of the 8th plaintiff for issuance of a Commission. Earlier, plaintiffs 1 to 7 filed an application for the issuance of a Commission that has been dismissed by the trial court and affirmed by the decision in revision by the High Court. The suit is one for a permanent injunction to restrain the Government from demolishing the structure situated in the plaint schedule property. A perusal of the pleadings would reveal that the plaint schedule property is comprised in T.S.316/4B2. One acre 13 cents of land was acquired by the Government for the purpose of Mavoor-Kozhikode road under the Land Acquisition Act and the award has been passed as award No.16/61. The question that arises for determination in the suit itself is whether the building which is proposed to W.P.C. 31938 OF 2006 -:2:- be demolished forms part and parcel of the property acquired under the award No.16/61 or not. If it forms part and parcel of the award No.16/61 then necessarily the Government is entitled to proceed under the Land conservancy Act and demolish the structures situated therein. 2. There had been parallel proceedings but the principle question to be adjudicated is the point which I had referred to earlier. The present 8th plaintiff has come into the picture later and he is the owner of the property. Formerly it were only the tenants who had moved the Court. Therefore there is considerable force in the contention that even though it is a suit for injunction the question of lie of the property assumes importance for a proper determination of the case. 3. It can be seen that the land has been acquired by the Government by measurement of the property and by preparation of the sketch. plan etc. Those records would be available with the Government. 8th plaintiff also will have the document regarding his right and entitlement to the property W.P.C. 31938 OF 2006 -:3:- which is acquired and which is not acquired. Both the parties are permitted to place all the materials before the Court and when the Court is satisfied that the question cannot be decided without reference to the Commissioner for proper identification of the property then the Court can stop the trial at that stage, issue a Commission for this purpose. If the materials produced by the parties are sufficient to arrive at a decision one way or the other the Court is at liberty to move to proceed further in accordance with law. So, reserving this right of the writ petitioner, this writ petition is closed. The Court shall endeavor to dispose of the matter as expeditiously as possible. M.N. KRISHNAN, JUDGE. ul/-