Jacob Mathew vs Special Tahsildar
2021 Latest Caselaw 1414 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

                     WP(C).No.231 OF 2021(D)


PETITIONER:

               JACOB MATHEW,
               AGED 81 YEARS
               S/O.MATHAI, PALATHINKAL VEEDU, MULANTHURUTHY
               VILLAGE, KANAYANNUR TALUK, ERNAKULAM-682 314,
               PRESENTLYAT PRINCE BUSINESS BUREAU, OVERSEAS
               MANPOWER RECRUITING AGENTS, 10413, 1ST FLOOR,
               RIZVI HOUSE, HILL ROAD, BANDRA EAST, MUMBAI.

               BY ADVS.
               SRI.V.K.PEERMOHAMED KHAN
               SHRI.GIRISH KUMAR V.C

RESPONDENTS:

      1        SPECIAL TAHSILDAR,
               LAND ACQUISITION, KOCHI CORPORATION, VYTTILA,
               KOCHI-682 019.

      2        MULANTHURUTHY GRAMA PANCHAYATH,
               REPRESENTED BY ITS SECRETARY, MULANTHURUTHY
               P.O., ERNAKULAM-682 314.


               SMT K.AMMINIKUTTY -SR GOVERNMENT PLEADER

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C)No.231 of 2021

                                      2

                                  JUDGMENT

The petitioner has filed this writ petition under Article 226 of

the Constitution of India, seeking a writ of mandamus

commanding the respondents to consider and pass order in

Ext.P5 claim statement dated 10.09.2010 submitted by the

petitioner under sub-section (3) of Section 9 of the Land

Acquisition Act, 1894, within the time limit to be fixed by this

Court.

2. Going by the averments in the writ petition, the 1 st

respondent initiated proceedings for the acquisition of 18 Ares of

land comprised in Block No.23 in Re.Sy.No.109/12 of

Mulanthuruthy Village in Kanayannur Taluk, for construction of

bus stand by the 2nd respondent Mulanthuruthy Grama

Panchayat. The brother of the petitioner, namely, Mathai Elias,

was the owner and occupant of the property having total extent

of 24 Ares situated on the side of Mulanthuruthy-Nadakkavu

road. At the initial stage of the proceedings, the petitioner in the

capacity as guardian of Mathai Elias, who was mentally ill,

submitted objection against the acquisition. That objection was WP(C)No.231 of 2021

directed to be considered by Ext.P1 judgment of this Court dated

21.07.2008 in W.P.(C)No.21551 of 2008. That objection was

rejected and the 1st respondent decided to continue with the

process of acquisition, which culminated in Ext.P2 award dated

16.09.2010 of the 1st respondent, granting a total compensation

of Rs.1,01,72,632.92/- and the award amount was decided to be

deposited in court, as provided under Section 31 of the Land

Acquisition Act, 1894. The document marked as Ext.P3 is a copy

of the award notice dated 23.09.2010 and that marked as Ext.P4

is a copy of the warrant of eviction issued by the Revenue

Divisional Officer, Fortkochi dated 13.10.2010. The petitioner

filed Ext.P5 claim statement dated 10.09.2010 under sub-section

(3) of Section 9 of the Land Acquisition Act. Later, Mathai Elias

died on 29.09.2014. The proceedings before the Sub Court,

Ernakulam in LAR No.3 of 2011 regarding apportionment of

compensation culminated in Ext.P6 judgment dated 29.11.2012.

The proceedings in LAR No.4 of 2012 with respect to

apportionment of compensation of the balance property out of 24

cents culminated in Ext.P7 judgment dated 13.12.2013. The WP(C)No.231 of 2021

document marked as Ext.P8 is the succession certificate issued

by the Sub Court, Ernakulam dated 22.08.2016 in O.P.No.2 of

2016. The grievance of the petitioner is that Ext.P5 claim

statement is still pending consideration before the 1 st respondent

Special Tahasildar.

3. On 06.01.2021, when this writ petition came up for

admission, the learned Government Pleader was directed to get

instructions as to whether Ext.P5 claim statement is still pending

consideration.

4. Heard the learned counsel for the petitioner, the

learned Government Pleader appearing for the 1 st respondent and

also the learned Standing Counsel for the 2 nd respondent Grama

Panchayat.

5. The learned Government Pleader would submit that

Ext.P5 claim statement filed by the petitioner is still pending

consideration before the 1st respondent and that, the said

respondent shall take an appropriate decision in the matter after

affording the petitioner, other legal heirs of late Mathai Elias, and

also the 2nd respondent Grama Panchayat an opportunity of being WP(C)No.231 of 2021

heard.

6. Having considered the submissions made by the

learned counsel on both sides, this writ petition is disposed of by

directing the 1st respondent to consider Ext.P5 claim statement

made by the petitioner, with notice to the petitioner, other legal

heirs of late Mathai Elias, and also the 2 nd respondent Grama

Panchayat and after affording them an opportunity of being

heard, as expeditiously as possible, at any rate, within a period of

two months from the date of receipt of a certified copy of this

judgment.

7. In State of U.P. v. Harish Chandra [(1996) 9 SCC

309] the Apex Court held that no mandamus can be issued to

direct the Government to refrain from enforcing the provisions of

law or to do something which is contrary to law. In Bhaskara

Rao A.B. v. CBI [(2011) 10 SCC 259] the Apex Court

reiterated that, generally, no Court has competence to issue a

direction contrary to law nor can the Court direct an authority to

act in contravention of the statutory provisions. The courts are

meant to enforce the rule of law and not to pass the orders or WP(C)No.231 of 2021

directions which are contrary to what has been injected by law.

8. Therefore, in terms of the direction contained in this

judgment, the 1st respondent shall take a decision in the matter,

strictly in accordance with law, taking note of the relevant

statutory provisions and also the law on the point.

No order as to costs.

Sd/-

ANIL K. NARENDRAN JUDGE

yd WP(C)No.231 of 2021

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WPC NO.21551/2008.

EXHIBIT P2            TRUE COPY OF THE AWARD.

EXHIBIT P3            TRUE COPY OF THE AWARD NOTICE.

EXHIBIT P4            TRUE COPY OF THE WARRANT OF EVICTION
                      ISSUED BY THE REVENUE DIVISIONAL
                      OFFICER FORT KOCHI.

EXHIBIT P5            TRUE COPY OF THE CLAIM STATEMENT
                      SUBMITTED BY THE PETITIONER UNDER
                      SECTION 9(3) OF THE LAND ACQUISITION
                      ACT.

EXHIBIT P6            TRUE COPY OF THE JUDGMENT AND DECREE OF
                      THE SUB COURT ERNAKULAM IN LAR
                      NO.3/2011.

EXHIBIT P7            TRUE COPY OF THE JUDGMENT IN LAR
                      NO.4/2012.

EXHIBIT P8            TRUE COPY OF THE SUCCESSION CERTIFICATE

NO.2/2016 OF THE SUB COURT, ERNAKULAM.

RESPONDENTS' EXHIBITS:NIL

TRUE COPY

P.A. TO JUDGE