IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 WP(C).No. 31664 of 2006(T) -------------------------------------- PETITIONER(S): ---------------------- JOHN MATHEW, AGED 55, S/O. LATE N.J.MATHEW, NIRAYATHVEETTIL, ALAPPUZHA. BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.P.J.JOSEPH SRI.GEORGE MATHEW SRI.A.V.TELLES SRI.VIJO JOSE RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, CIVIL STATION, ALAPPUZHA. 3. SPECIAL TAHSILDAR, NATIONAL HIGHWAYS, CIVIL LANE, KOLLAM. 4. SPECIAL TAHSILDAR (LA), NATIONAL HIGHWAYS, ALAPPUZHA. R1 TO R4 BY ADV. SRI.P.FAZIL, GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DG WP(C).No. 31664 of 2006(T) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - COPY OF AWARD NOTICE DATED 26.05.89 EXT.P2 - COPY OF PROCEEDINGS DATED 26.05.89 OF THE 3RD RESPONDENT. EXT.P3 - COPY OF LETTER DATED 09.08.99 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT. EXT.P4 - COPY OF LETTER DATED 23.10.01 ISSUED BY 2ND RESPONDENT TO 3RD RESPONDENT. EXT.P5 - COPY OF PETITION FILED BY PETITIONER BEFORE THE 3RD RESPONDENT DATED 10.01.02. RESPONDENT'S EXHIBITS - NIL /TRUE COPY/ P.A.TO JUDGE DG S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.31664 of 2006 ---------------------------------------------- Dated this the 3rd day of December, 2011 JUDGMENT Certain properties belonging to the petitioner’s father were acquired by the respondents for construction of the Alappuzha Town By-pass road. An amount of Rs.1,90,811/- was awarded as compensation for the said land. But, it was not paid to the petitioner’s father. After the death of his father, the petitioner claimed the same. It was not paid to him. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: i) to issue a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the respondents 2 to 4 to refer the matter involved in L.A.10/89-90 to the Sub Court, Alappuzha, for determination of the claim of the petitioner regarding the payment of and also for considering the question of enhancement of compensation; ii) to issue a writ in the nature of mandamus or any other appropriate writ order or direction directing the respondents to release the award amount of Rs.1,90,991/- to the petitioner; iii) to issue a direction to pay interest at the rate of 18% per annum to the petitioner from 25.6.1989, the date of issuance of Ext.P2 till realization, from the respondents, in the event finding that the petitioner is entitled to W.P.(C)No.31664/06 2 compensation.” 2. The contention of the 3rd respondent in the counter affidavit filed is that the concerned Tahsildar was of the opinion that the land acquired form part of the excess land surrendered by the petitioner’s father. Although the award file was forwarded to the District Collector for correction, it was not corrected. The stand of the respondent is that it is for the petitioner to prove that the land is not excess land of his father. 3. I have considered the rival contentions in detail. Nobody can prove a negative fact. If the respondents are of the opinion that the acquired land forms part of the excess land surrendered by the petitioner’s father, it is for them to prove that it is so especially when it is admitted that land belonging to the petitioner's father was acquired. It is not for the petitioner or his late father to prove the same. In fact the State would have the files relating to the ceiling case of the petitioner's father, from which it can be easily ascertained whether the land acquired forms part of the excess land W.P.(C)No.31664/06 3 surrendered. In the above circumstances, this writ petition is disposed of with a direction to the 2nd respondent to consider the question as to whether the land acquired from the petitioner’s father is excess land surrendered by the petitioner’s father by calling for the relevant file relating to the petitioner’s father’s ceiling case and take a decision as to whether the same is excess land surrendered by the petitioner’s father. If the documents reveal that it is actually surrendered land, copies of those documents shall be supplied to the petitioner and the petitioner shall be given an opportunity to controvert the stand of the respondents. The petitioner shall be afforded an opportunity of being heard also. Orders in this regard shall be passed, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. If the 2nd respondent concludes that the land was not excessl land surrendered by the petitioner’s father, the compensation amount shall be disbursed to the petitioner within a further period of one month therefrom. In case, the decision is in W.P.(C)No.31664/06 4 favour of the petitioner, it would be open to the 2nd respondent to insist on the petitioner producing appropriate documents regarding succession to the estate of the petitioner's father. S. SIRI JAGAN, JUDGE acd W.P.(C)No.31664/06 5