IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WP(C).No. 6947 of 2010(P) ------------------------- PETITIONER: --------------- RAJAN ANTONY, AGED 52 YEARS, S/O. ANTONY, KOTTAKKAL, KOCHAL, KOONANMAVU.P.O., ERNAKULAM DISTRICT. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, P.W.D. DEPARTMENT, GOVERNMENT SECRETATIAT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, NATIONAL HIGHWAY SUB DIVISION, NORTH PARAVUR. ADDL.R3 3. THE DISTRICT COLLECTOR, ERNAKULAM. (ADDL.R3 SUO MOTU IMPLEADED AS PER ORDER DATED 13.7.10 IN W.P.(C) No.6947/10) BY GOVERNMENT PLEADER SHRI K.RAMESH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.6947 of 2010 P --------------------------------- DATED THIS THE 13th DAY OF JULY, 2010 JUDGMENT The main challenge in this Writ Petition is Exhibit P5, a communication issued by the Land Acquisition Officer directing the petitioner to demolish the building mentioned therein within a period of 15 days. The reason stated therein is that the petitioner was granted compensation for the entire building and therefore the same has to be demolished. 2. The petitioner's case shortly is the following: The petitioner is the owner in possession of 2.49 Ares of land comprised in Survey No.409/11C of Kottuvally Village. The petitioner constructed a two storeyed building in the portion, viz; 4.74 Ares behind the old building. The old building was also purchased along with the property. The respondents acquired an extent of 2.25 ares of property for the purpose of construction of NH-17 from Varappuzha to Cheriyapally. The old building as well as a substantial portion of the new building were thus included in the portion of the property acquired by the Government. Exhibit P2 is the photograph of the existing building constructed by the W.P.(C)No.6947/10 -2- petitioner in the unacquired portion of the property. 3. The respondents have filed a statement and the petitioner has filed a reply affidavit also. In the statement filed by the respondents, it is mentioned that even though the petitioner's building No.1/563 A was affected only 26.1% of the structure, full compensation was accepted by the petitioner. There are two buildings evidently - one in Survey No.1/563 and the other in Survey No.1/563A. It is averred in paragraph 5 of the statement that the building in Survey No.1/563 has fully been dismantled by the petitioner. For the building in Survey No.1/563A also due compensation was paid. But the petitioner has only partly dismantled the structure of building in Survey No.1/563A after receiving full compensation of Rs.17,07,747/-. 4. The reply affidavit shows that a valuation statement for submission before the Sub Court was prepared by an Assistant Engineer(Retd.). In paragraph No.2 of the valuation statement, the Assistant Engineer has mentioned that he has collected the details for the preparation of estimate from the abstract estimate prepared by the N.H.Department “since the buildings at site have already been demolished”. This is relied on W.P.(C)No.6947/10 -3- by the petitioner to contend that the plea raised by the respondents is not correct. 5. It is submitted by the learned counsel for the petitioner that both the buildings were demolished and what is constructed now is a new building in the unacquired portion. The 2nd respondent maintains the stand that the petitioner after receiving the entire compensation for the building has not demolished the entire building, but has reconstructed the same and therefore he will have to be asked to re-deposit the compensation. 6. In the light of the disputed questions of facts, the same cannot be resolved in a proceedings under Article 226 of the Constitution of India. The issue will have to be considered, therefore, by a superior Officer. Therefore, the District Collector, Ernakulam is suo moto impleaded as additional respondent No.3. The matter will have to be considered by the District Collector after conducting a local inspection by a competent Officer of the Department so as to get a report. The petitioner and the 2nd respondent will be issued notice, before a decision is taken by the District Collector in the matter. Due enquiry will be conducted W.P.(C)No.6947/10 -4- and appropriate decision will be taken within a period of two months. The petitioner will produce a copy of the Writ Petition along with a copy of the judgment before the District Collector, Ernakulam for compliance. Till a decision is taken, further action pursuant to Exhibit P5 will be kept in abeyance. The Writ Petition is disposed of as above. T.R.RAMACHANDRAN NAIR, JUDGE. dsn