IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 OP(C).No. 525 of 2011(O) --------------------- PETITIONERS : --------------------- VELAYUDHAM, S/O. LATE S.V.PANDIT, INGLEDENE, OPPOSITE RAJ BHAVAN, KOWDIAR.P.O., THIRUVANANTHAPURAM-3. BY ADV. SMT.M.HEMALATHA RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR,THIRUVANANTHAPURAM-695005. 2. THE SECRETARY, TRIDA, THIRUVANANTHAPURAM-695003. R1 BY GOVT. PLEADER SRI. T.K. SAJEEV R2 BY ADV. SRI.K.A.JALEEL, SC., TRIDA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 525 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE WRITTEN STATEMENT IN L.A.R. NO. 97/02. EXT.P2 : COPY OF THE COMMISSION REPORT. EXT.P2(a) : COPY OF THE COPY OF THE PLAN. EXT.P3 : COPY OF THE COMMON AWARD IN L.A.R. NO. 97/02 & 65/02 DATED 30-11-2009. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn P.BHAVADASAN, J. ---------------------------- O.P(C).No. 525 of 2011 --------------------------------- Dated this the 16th day of March, 2011 JUDGMENT In this Original Petition filed under Article 227 of the Constitution of India, the following reliefs are sought for: i. to call for the records leading to Exhibit-P3 and to set aside that part of the judgment which refused to consider the question of extent of the property and to direct the learned IInd Additional Sub Judge, Thiruvananthapuram to consider and decide the question of extent of the land acquired by the respondents; ii. to direct the learned IInd Additional Sub Judge, Thiruvananthapuram to consider Exhibit-P2 and P2(a) and decide the case after giving the petitioner an opportunity to prove the same; iii. Such other reliefs which the petitioner may ask for during the course of the proceedings and which this Honourable Court may deem fit and necessary in the interest of justice may also be granted. 2. The petitioner's complaint is that more area then what is notified by the government was taken possession of land and he sought measurement of land in the Land Acquisition Reference Court. The lower court decided the issue as follows: Issue No.2: The claimants in LAR 97/2002 put forward the contention that excess land were taken possession by the LA Officer without notification and hence they are entitled to get O.P(C).No. 525 of 2011 2 redelivery of the excess land. To show this, the claimants took a commission and commissioner filed C1 commission report and C1(a) to C plan. In this connection it is seen that this is only a reference Court competent to answer the reference alone. If any excess land is taken possession without notification or without paying compensation the remedy available to the claimants is to file a suit for recovery of possession. The Reference Court is not competent to direct the LA Officer to redeliver possession of the property. Hence point No.2 is found accordingly. 3. The learned counsel appearing for the petitioner relying on Section 18 of the Land acquisition Act contended that the court below was bound determined the issue by ascertaining the extent of land. 4. Section 18 of the Land acquisition Act reads as follows: Reference to Court:-(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2). The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made: (a). If the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award; O.P(C).No. 525 of 2011 3 (b). in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub- section(2), or within six months from the date of the Collector's award, whichever period shall first expire. 5. That section applies only to a situation where the dispute is with regard to the measurement of the property taken possession of which is notified for acquisition. It does not contemplate a situation where land was taken possession by the State wrongly and which is not included in the notification. In such type of cases, a reference is not the remedy. Therefore, the lower court was fully justified in passing Ext.P3 order. 6. The learned counsel appearing for the petitioner pointed out that, in that case, liberty of the petitioner to take such steps as are available to him in law to seek recovery of possession of the property maybe left open. There is no reason as to why the same shall not be granted. In the result, the Original Petition is dismissed reserving the liberty of the petitioner to take such steps as are available under law for redressal of his grievance. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln