IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WA.No. 462 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.8895/2009 Dated 09/09/2009 .................... APPELLANT: -------------- PADMAVATHI AMMA, AGED 66, D/O. LAKSHMI AMMA, PINRUM MOODU VEEDU, AMBALAMUKKU, THIRUVANANTHAPURAM. BY ADV. SRI.BALANCHANDRAN R.B. SRI.SANU.S.PANICKER RESPONDENTS: --------------- 1. THE SPECIAL TAHSILDAR, (LA)GENERAL, THIRUVANANTHAPURAM. 2. TRIDA, NEAR POLICE HEADQUARTERS, VAZHUTHAKADU, THIRUVANANTHAPURAM. 3. P.W.D., REPRESENTED BY ITS CHIEF ENGINEER, KERALA ROAD FUND BOARD, BELHAVAN GARDEN, KOWDIAR, THIRUVANANTHAPURAM. 4. THE DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM. SR. G.P. SMT.K.MEERA FOR R1&R4 ADV. SRI.M.RAJAGOPALAN NAIR FOR R2 SRI.M.RAJAGOPALAN NAIR FOR R2 SRI.K.JAJU BABU,SC,KERALA ROAD FUND BOA FOR R3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. .................................................................... Writ Appeal No.462 of 2010 .................................................................... Dated this the 16th day of September, 2010. JUDGMENT Ramachandran Nair, J. Appeal is filed against judgment of the learned Single Judge directing the appellant and respondents to seek remedy in respect of the matter before the civil court. We have heard counsel for the appellant and Government Pleader appearing for the respondents. 2. The facts leading to the filing of the Writ Petition are the following. Appellant's 23 sq. metres of land with a small building thereon situated on the road side in Trivandrum was acquired for widening the road. The total compensation fixed by the Land Acquisition Officer for the small extent of land and building was Rs.2,59,739/-. The case of the Land Acquisition Officer is that even though notice was issued for taking over advance possession and compensation was also fixed, possession was in fact not taken over. However, when possession was taken, the small building situated in the W.A. No.462/2010 2 land was seen demolished. Therefore, the Land Acquisition Officer by a subsequent order reduced the compensation originally fixed and payable to the appellant from Rs.2,59,739/- to Rs.1,34,332/-. It is against the reduction of compensation the appellant filed the Writ Petition contending that the Land Acquisition Officer has no authority to do so. The case of the Land Acquisition Officer is that building would have been demolished and taken away by the appellant and so much so, appellant is not entitled to compensation for the building and the eligibility for compensation for her is only for the land. The appellant had specifically denied having demolished or taken away the building materials and on this ground appellant opposed reduction in the compensation amount. After hearing both sides, learned Single Judge felt that the question to be decided is a pure civil dispute as to who has in fact demolished and taken away the building materials, which will certainly involve a finding as to whether physical possession was really taken by the Land Acquisition Officer in terms of notice for taking over advance possession. 3. After hearing both sides we feel the relief granted by the W.A. No.462/2010 3 learned Single Judge is neither justified nor desirable or practical because appellant, an old lady in her 70s, if sent to the civil court for settling this issue, probably will have to spent rest of her life in litigation. Besides this, we find one more reason to interfere with the judgment of the learned Single Judge because the order impugned in the W.P.(C) i.e. reduction of compensation, is not sustainable for the reasons which are discussed hereunder. 4. Admittedly the land involved is a small extent of 23 sq. metres and the building also would have been a very small building and the same is evident from the fact that the total compensation fixed for the land and building was only Rs.2,59,739/-. When land is acquired with building, the building necessarily has to be valued to compensate the building owner for the acquisition of the building. However, the beneficiary in land acquisition will not get corresponding benefit in value for the acquired building when the building acquired is only to be demolished. Admittedly, acquisition is for construction of the road and after acquisition building should be demolished for road widening and respondents do not deny this position. From the reduction granted it is W.A. No.462/2010 4 clear that the value of building fixed was Rs.1,25,407/-. The question to be considered is whether the value of the building awarded as cost to the building owner is a gain for the land acquisition authority when the building is taken over for demolition. No one can dispute that when a building is demolished, the value that could be recovered is only by sale of the materials obtained after demolition which is concrete rubble, broken bricks and probably the windows and doors. Compared to the value of the building assessed for granting compensation, the price that could be obtained on sale of the demolished building materials will be insignificant. In fact, demolition cost itself has to be borne by the Government. If the building is a pucca structure made of concrete, then probably the demolition cost may exceed what little could be recovered by sale of the rubble, broken bricks and other materials obtained on demolition of the building. So much so, factually and logically we feel the order reducing the compensation equal to the compensation awarded for the building is absolutely arbitrary and untenable. Of course once compensation is received for the building, the building owner has no authority to demolish it or take away the building W.A. No.462/2010 5 materials. However, in our view, the compensation that could be reduced on account of unauthorised demolition and removal of the building, if at all done by the building owner, could be limited to the value of the demolished building materials after setting off cost of demolition. Therefore, fundamentally the order impugned in the W.P. (C) is liable to be interfered with. 5. The question now to be considered is whether in view of the controversy on facts as to whether the demolition of the building and removal of the building materials was done by the appellant or was done by somebody else for want of care and protection of the acquired building by the Land Acquisition Authority, the matter should be referred to the civil court. We asked a specific question to counsel for the appellant as to whether the appellant has filed reference application for getting enhanced compensation. Counsel submitted that appellant is willing to forgo right to approach the civil court for enhancement of compensation provided the compensation originally granted is restored. We feel the offer is quite reasonable and should be accepted by the respondents because invariably enhanced compensation will be granted W.A. No.462/2010 6 by the civil court on reference, if pursued by the appellant. Secondly, we have already found that respondents have not lost any sizable amount on account of demolition and removal of the rubble and building materials by the appellant, if at all the same was done by her. We are of the considered view that as far as possible writ petitions entertained and heard by the High Court should be decided on merits. Further, before relegating the party to civil court for redressing grievance, the High Court should take into account the long time taken by the civil courts in settling the matter, the chances of appeals, revisions, etc., the heavy cost involved in protracted litigation and the ultimate gain the party can expect. If in the opinion of the court the relief if at all obtained by the party in civil court will be offset by the cost involved in litigation before civil courts and the time taken and the suffering for the party, then certainly such a course should not be advised by the High Court to the party. Ill-advised litigation in civil courts leading to loss and sufferings to the parties will only cause erosion in the faith of the people in the courts and in judicial process. The High Court under Article 226 of the Constitution of India enjoys W.A. No.462/2010 7 the power to mould relief to suit the requirements of the situation and we feel justified in doing it on the facts of this case. Accordingly we allow the Writ Appeal by vacating the judgment of the learned Single Judge and dispose of the W.P.(C) by quashing the order impugned therein and by restoring the compensation originally granted to the appellant on the specific condition that she shall not go to court in reference for enhancement of the compensation originally awarded and restored by us conditionally under this judgment. C.N.RAMACHANDRAN NAIR Judge K.SURENDRA MOHAN Judge pms