IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 8895 of 2009(F) ------------------------------------- PETITIONER: ------------------- PADMAVATHY AMMA, AGED 66, D/O.LAKSHMI AMMA, PINARUM MOODU VEEDU, AMBALAM MUKKU, TRIVANDRUM. BY ADVS. MR.BALACHANDRAN.R.B, MR.SANU.S.PANICKER. RESPONDENTS: ------------------------ 1. SPECIAL TAHSILDAR, (LA) GENERAL, THIRUVANANTHAPURAM. 2. TRIDA, NEAR POLICE HEADQUARTERS, VAZHUTHAKADU, TRIVANDRUM. 3. P.W.D. REPRESENTED BY ITS CHIEF ENGINEER, KERAL ROAD FUND BOARD, BELHAVAN GARDEN, KOWDIAR, TRIVANDRUM. R1 BY GOVERNMENT PLEADER MR. V. MANU, R3 BY ADV. MR.K.JAJU BABU, SC,KERAL ROAD FUND BOARD, R2 BY MR.M.RAJAGOPALAN NAIR, SC, TRIDA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.8895/2009-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTICE DT. 26/11/2007 ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.2: COPY OF THE NOTICE ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.3: COPY OF THE RECEIPT ISSUED BY THE CORPORATION OF TRIVANDRUM. EXT.P.4: COPY OF THE RECEIPT ISSUED BY THE CORPORATION OF TRIVANDRUM. EXT.P.5: COPY OF THE RECEIPT ISSUED BY THE CORPORATION OF TRIVANDRUM. EXT.P.6: COPY OF THE CHALLAN ISSUED TO THE PETITIONER. EXT.P.7: COPY OF THE CHALLAN ISSUED TO THE PETITIONER. EXT.P.8: COPY OF THE CHALLAN ISSUED TO THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOTTATHIL B. RADHAKRISHNAN, J ........................................... WP(C).NO. 8895 OF 2009 ............................................ DATED THIS THE 9TH DAY OF SEPTEMBER, 2009 JUDGMENT An item of land belonging to the petitioner is the subject matter of acquisition for widening of a road. Kerala Road Fund Board, the nodal agency, is also represented by the counsel. The first respondent Tahsildar has placed a counter affidavit on record. 2. The pleading of the petitioner and the pleadings of the first respondent show that Ext.P2 award dated 29.11.2008 was passed including amounts towards value of three structures that stood in the property, which is the subject matter of acquisition. According to the petitioner, those structures were demolished and removed by a Contractor under the third respondent and the learned counsel for the petitioner now states that what is meant by the word `contractor' is that an employee of the third respondent had done that act. Per contra, the plea of the first respondent is that though Ext.P1 notice was issued, no possession was taken and in fact no possession has been taken Wpc 8895/2009 2 until now and that the award amount is fixed on the basis of the initial inspection reports which is the preliminary mahazar dated 27.9.2007. 3. The short issue therefore, is as to whether the petitioner was deprived of the possession of the property by the State. If not, as to who demolished the buildings. The State asserts that it has not done so. Obviously, therefore the issue raises a disputed question of fact which could be decided only on the basis of legal competing evidences. Even if the matter does not come for a reference under Section 18, or 31 of the Land Acquisition Act, 1894, the civil rights of the petitioner would be available for adjudication in terms of Section 9 of the Code of Civil Procedure, in accordance with law, may be including Section 80 of Code of Civil Procedure, before the competent civil court. It would also be open to the petitioner to insist that possession had been, as a matter of fact, taken by the respondents. I also record the submission on behalf of the Kerala Road Fund Board that it has not taken possession and that the third respondent is incompetent to take possession. All issues on merits are left open and the petitioner's right to seek relief and remedy before Wpc 8895/2009 3 appropriate forum is preserved. Respondents will be at liberty to proceed with the acquisition, subject to what is stated above. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/10/9