IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 35776 of 2007(H) -------------------------------------- PETITIONER: --------------------- PEERMOHAMMED P.S., PARAKKAVETTY, PERUNNA P.O., CHANGANACHERRY, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI.AKBAR SHERIEF, PARAKKAVETTY, PERUNNA P.O., CHANGANACHERRY. BY ADV. SRI.SIBY MATHEW SRI.A.A.MOHAMMED NAZIR RESPONDENTS: ----------------------- 1. THE SPECIAL TAHSILDAR, LAND ACQUISITION (GENERAL), KOTTAYAM. 2. THE EXECUTIVE ENGINEER, P.W.D. ROADS DIVISION, KOTTAYAM. 3. THE CHIEF ENGINEER (ROADS AND BRIDGES), CHANGANACHERRY, KOTTAYAM. GOVERNMENT PLEADER SRI.BASANT BALAJI FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.35776/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE AWARD NO.21/30-2005 DT. 29.10.2005 PASSED BY THE SPECIAL TAHSILDAR. EXT.P2;- COPY OF THE MAHAZAR PREPARED BY THE SPECIAL TAHSILDAR. EXT.P3:- COPY OF THE STATEMENT FILED BY THE PETITIONER BEFORE the SUB COURT, KOTTAYAM IN LAR. NO.26/2006. EXT.P4:- COPY OF THE LAWYER NOTICE, DT. 6.12.07. EXT.P5:- COPY OF THE ROUGH SKETCH. ANNEXURE A:- REPORT LR. NO.G2-13394/08 DT. 31.3.08 OF DISTRICT COLLECTOR, KOTTAYAM. ANNEXUREB:- SURCEY SKETCH OF FIELD NO. II FROM DISTRICT SUPERINTENDENT OF SURVEY & LAND RECORDS , KOTTAYAM. /TRUE COPY/ P.S. TO JUDGE tss PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 35776 OF 2007 ----------------------------------------------- Dated this the 28th day of August, 2008 J U D G M E N T The writ petitioner is a person whose land was acquired for the construction of Changanassery bye pass 3rd reach. According to him, he was absolute owner in possession of 8.46 Ares of land in Block No.139, Sy. No.11/1 as per schedule B to document No.471/1961 of Sub Registry Office, Changanassery. On the basis of request from the second respondent – Executive Engineer, PWD Roads Division, Kottayam steps were initiated for acquisition of a total extent of 2.1831 hectares of land comprised in various survey numbers of Changanasserry Village for the construction of Changanasserry bye- pass road. After the publication of the initial notification under Section 4(1), necessary survey was done and finally declaration under section 6 of the Land Acquisition Act was also promulgated. Thereafter, award enquiry was conducted and on participating in the award enquiry, the petitioner produced documents relating to title and possession over his property to be acquired and Ext.P1 award was passed by the Land Acquisition Officer. As per Ext.P1 award, total amount of Rs.2,43,51/- WP(C)N0. 35776/07 -2- is fixed as compensation for 8.46 Ares of land at the rate of Rs.20,646/- per Are. Thereafter, possession notice under 15(3) was given to the petitioner and pursuant to that, the petitioner's land was taken possession by the first respondent. Ext.P2 is a copy of the Mahazar prepared by the Tahsildar at the time of taking over the possession. Sketch of the land acquired from the petitioner is also shown in Ext.P2 Mahazar. The petitioner states that prior to the acquisition, through out the entire stretch of the land acquired on either side, a boundary wall having a width of 2 ft. was constructed with rubble and concrete. In the meanwhile, the petitioner received the award amount under protest and as requested by him a reference under Section 18 was made to the competent Sub Court. It is submitted that thereafter the land has been acquired upto the Kaviyoor road for the purpose of the bye-pass and the entire stretch of the land acquired has been filled with red earth. Though the proposed bye-pass road has not been formally inaugurated, the public have already started using the bye-pass road. Ext.P3 is the claim statement filed by the petitioner before the reference court and it will be seen there from that the petitioner has raised a claim for injurious affection of the remaining land before the reference court. The petitioner WP(C)N0. 35776/07 -3- submits that to his great surprise and agony during the weeks prior to the institution of the writ petition (during the last weeks of November 2007), some officials and staff of the office of the Special Tahsildar came to the petitioner's property and measured the petitioner's land lying adjacent to the acquired land. On enquiry, the petitioner's son was informed by those officials that three metres of land is taken possession over and above the land already taken. No convincing and sound reason has been given by the officials for their act. The specific request to the petitioner to give written notice has invited no response. After measurement, the personnel of the office of the first respondent has kept two poles in the petitioner's property, 3 metres away from the property already taken possession from the petitioner. The petitioner says that the present move to take possession of additional land from the petitioner is only to help adjacent land owner. The respondents are not entitled to take additional land from the petitioner without due notice and without referring to the provisions of the Land Acquisition Act. On the above averments, the petitioner raises various grounds and seeks following reliefs in the writ petition: i. Issue a writ of prohibition restraining the respondents from taking possession of any land from the petitioner other than the land already taken possession of from the petitioner on the basis of Ext.P1 award and Ext.P2 Mahazar. WP(C)N0. 35776/07 -4- ii) Issue a declaration that the respondents can take possession of any additional land from the petitioner only after resorting to the provisions in the Land Acquisition Act. 2. The respondent has filed a detailed counter affidavit through the Valuation Assistant (Deputy Tahsildar) attached to his office. It is contended therein that the acquired land was handed over to the Public Works Department, the requisitioning authority on 25-11-2005 by observing the prevailing rules under the Act. No constructions were made or allowed in the land acquired by the land acquisition officer before the date of handing over. On 25-11-2005, the date of handing over, the land stood vested with the Public Works Department and the land acquisition officer is not responsible for any activities said to have been done in the land acquired from the petitioner. It is further stated in the counter affidavit that on examining the alignment of the neighbouring plot which was handed over to the Public Works Department as per the order in WP(C). No. 30969/06 (the case in which one Mariamma Francis was the petitioner) the officials found that there is encroachment in Block No.139, survey No.11/1 in the land which had been acquired from the petitioner. On 10-12-2007 a notice from Sri.A.A.Mohammed Nazir, Advocate of the petitioner dated 6-12-2007 was received by the land acquisition officer alleging that the WP(C)N0. 35776/07 -5- land acquisition officer is dumping waster materials in the land belonging to the petitioner. On 10-12-2007 itself reply was given to the advocate refuting the allegations since the land acquisition officer's office is not involved in any of the alleged activities. PWD is the custodian of the land now and a sum of Rs.2,43,751/- has been awarded to the petitioner as compensation for the acquired land. At the instance of the petitioner the question of determination of the correct compensation has been referred to the Sub Court, Kottayam where L.A.R. No.26/06 is pending. The land acquisition officer has no intention to acquire the balance land belonging to the petitioner and the allegations levelled against the land acquisition officer are baseless. On considering the prayer for interim relief this court on5- 12-2007 passed an order of “interim stay” restraining the respondents from taking possession of any land from the petitioner other than the land already taken possession of from him on the basis of Ext.P1 award and Ext.P2 mahazar. That interim order is continuing. 3. To the counter affidavit submitted by the land acquisition officer the petitioner has through his power of attorney holder filed a reply affidavit. Ext.P4 produced along with the reply affidavit is copy of the lawyer notice dated 6-12-2007 which was issued allegedly when WP(C)N0. 35776/07 -6- it was noticed that waste was being dumped into the petitioner's property by the officials and staff of the first respondent. The reply affidavit denies the contentions in the counter affidavit that while examining the plot acquired from Smt.Mariamma Francis it was seen that there was encroachment into the property which had been taken over from the petitioner. That allegation is described in the reply affidavit as irresponsible, vague and totally incorrect. It is stated that when the officials of the first respondent were measuring the property of the petitioner, petitioner's son Zakir Hussain enquired about the reason for the measurement and even at that time it was not alleged that there was encroachment. If there is encroachment the same could be verified by conducting re-measurement. It is claimed that the petitioners residential house is situated on the southern extremity of the remaining property. The residential plot of the petitioner is having well defined boundaries on all the four sides. The said plot is bounded by compound wall on all the four sides. It is from the remaining 44 cents of the petitioner that the respondents have acquired 8.46 ares for the construction of Changanacherry Bypass 3rd Reach Part I. Having regard to the lie of the property of the petitioner described above, the allegation of encroachment made in the counter WP(C)N0. 35776/07 -7- affidavit can only be a pigment of imagination. Rough sketch showing the lie of the bypass road, railway station road and the petitioner's residential building and the remaining land belonging to the petitioner is produced as Ext.P5. Reply affidavit reiterates the allegation that the present attempt of the respondents is to take possession of land of the petitioner in addition to the land already acquired under Ext.P1 award. Petitioner does not want even an inch of land acquired from the petitioner. At the same time respondents are not entitled to take additional land from the petitioner without due notice and without resorting to the provisions in the Land Acquisition Act. 4. Considering the pleadings and on hearing initial submissions of the counsel for the petitioner and the learned Govt.Pleader, K.Padmanabhan Nair, J. passed the following interim order on 10-3- 2008. “The operation of interim order is extended by three months. In the nature of the contentions raised by the counsel for the petitioner, I am of the view that a joint inspection has to be conducted, by the District Collector or an officer not below the rant of ADM/RDO, with the superintendent of roads and Bridges, on the land acquired from the petitioner and near the neighbouring area. Hence, there will be a direction to the District Collector, Kottayam, and also to the Superintendent, Roads and Bridges, who is in charge of this particular area, to physically supervise, WP(C)N0. 35776/07 -8- to conduct inspection and to file a report, with due notice to the petitioner, and file a report with sketch countersigned by both sides. It is made clear that work shall not be entrusted to lower staff and the actual measurement shall be conducted either by the Superintendent of survey and land records or the senior officer attached to that office in the presence of District Collector or the Superintending Engineer. Inspection shall be conducted within three weeks from today with due notice to the petitioner and file a report. Post after three weeks.” Pursuant to that order inspection and measurement were conducted and the Govt. Pleader has filed Annexure-A report and Annexure-B sketch. It is reported in Annexure-A that the District Collector, Kottayam, the Superintendent of Survey, Kottayam, the Assistant Executive Engineer PWD (Roads) Changanacherry and the Special Tahsildar LA (General) Kottayam, the power of attorney holder of the petitioner and son of the petitioner were present at the time when inspection and survey were conducted. Total extent of land acquired from the petitioner as per the award is 8.46 ares. After acquisition of the land in Sy. No. 11/1 the property was divided into three parts. The western part which takes in the balance land in the possession of the petitioner including the site of his house – 25.61 ares, the middle part which is the acquired land – 8.46 ares and the eastern part which is balance property of the petitioner – 4.64 ares. At the time of the WP(C)N0. 35776/07 -9- inspection it was noticed that the petitioner had encroached into 0.074 ares which was already acquired and handed over to the PWD in the northern side. The retaining wall constructed by the PWD at the eastern side was moved to 3.4 metres into the property of the petitioner, i.e. 0.35 ares at the south eastern end. It is further reported that the petitioner has encroached into another 0.80ares of PWD purambokku land and attached the same to the property of the petitioner. Apparently the petitioner has stealthily replanted the boundary stones fixed by the land acquisition authorities in order to retain a good front yard for his residential building situated at the western side of the road. The department unaware of the secret plans of the petitioner, was on the wrong notion that the boundary stones planted by the land acquisition authorities were kept intact and constructed retaining walls at one side. The contentions of the petitioner are found to be incorrect. The above points were explained to the petitioner. It is pointed out in the report that survey was done in the presence of the surveyor who had been arranged by the petitioner and that surveyor was also convinced of the above facts. 5. Along with the above report a sketch prepared by the Surveyor attached to the District Superintendent of Survey and Land WP(C)N0. 35776/07 -10- Records, Kottayam is produced. To the report and the sketch the petitioner has filed a statement of objections taking exception to the allegation in the report that the petitioner had encroached into 0.74 Ares of land already acquired and handed over to the P.W.D. on the northern side. According to the objections, serious mistakes have crept into the report. Exception is taken to the allegation that the retaining wall constructed by the PWD at the eastern side was moved 3.4 metres into the property of the petitioner. It is pointed out that no details are given in the report indicating the correctness of the above allegation. Exception is taken to the allegation in the report that 0.80 Ares of PWD Purambokku has been further encroached upon and to the allegation that the petitioner had stealthily replanted the boundary stones fixed by the land acquisition authorities for the purpose of retaining a good front yard for his residential building situated at the western side of the road. It is submitted that in between the residential building of the petitioner and the railway station road on the eastern side there is a compound wall made of hard laterite stone with rubble foundation. It is further submitted that there is a mud wall on the northern boundary of the residential property. This laterite stone wall and the mud wall are more than 50 years old. It is pointed out WP(C)N0. 35776/07 -11- that the advocate commissioner deputed from the reference court has reported on these aspects. It is claimed that there is no Purambokku land in the area and the old survey records such as O.M. sketch, blue print measurement of the entire area, co-relation statement from the Village Officer, settlement register etc. will clearly show that there is no Purambokku land in the area. It is then submitted that the records produced by the L.A. Officer before the Sub Court in the reference case under section 18 will not tally with the sketch and report now produced by the respondent in this case. 6. Very strenuous arguments were addressed before me by the learned counsel for the petitioner Sri.A.A.Mohammed Nazir and Mr.Basant Balaji, learned senior Government Pleader. My attention was drawn by Mr.Nazir to the pleadings and to the documents. He submitted that the report and the sketch submitted before this court on the basis of the joint inspection conducted cannot be correct since there is considerable variation between the sketch prepared in connection with passage of award and taking over of possession which is available in the land acquisition file produced before the land acquisition reference court in L.A.R. No. 26/06 and the present sketch. Counsel submitted that it is a very innocuous prayer which has been WP(C)N0. 35776/07 -12- made in the writ petition and that there is every justification for confirming the interim order which was issued by this court on 5-12- 2007. 7. The prayers in the writ petition would certainly look innocuous. But granting those prayers will pre-suppose a finding by this court that the respondent Government has attempted to take possession of properties belonging to the petitioner not covered by the acquisition without recourse to the provisions of the Land Acquisition Law. I am not convinced on the basis of the materials produced in this case and the submissions addressed at the Bar that the apprehension voiced by the petitioner in this writ petition that there is an attempt on the part of the respondents to dispossess the petitioner of his property not covered by the award. The joint inspection and measurement was conducted with notice to the petitioner and it is not disputed that the measurement was conducted in the presence of the power of attorney holder of the petitioner, the son of the petitioner and a private surveyor who had been arranged by the petitioner. I am prima facie convinced that Annexure-B sketch produced along with the report of the District Collector has been prepared on the basis of the measurement and facts revealed on the inspection and discloses the WP(C)N0. 35776/07 -13- state of affairs existing as of now. This court under Article 226 of the Constitution is not expected to resolve complicated disputes regarding title and possession over immovable property which is raked up by the petitioner through the objections filed by him to the report and the sketch. The question which arises in this writ petition is only whether it can be stated on the basis of the available materials in this case whether there is warrant for interdicting the respondents from dispossessing the petitioner of his properties. The said question according to me, can only be decided in the negative. 8. The writ petition will stand dismissed. However, it is made clear that this judgment does not decide finally regarding the correctness of the allegations in the report submitted by the District Collector that the petitioner is an encroacher of Purambokku nor does it foreclose petitioner's remedy before a regular civil court in the event of accrual of any genuine cause of action against the Government or public officers. The parties will suffer their costs. (PIUS C.KURIAKOSE, JUDGE) ksv/dpk