S.K. Indira Devi vs The State Of Kerala
2021 Latest Caselaw 13866 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
        TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
                         WP(C) NO. 7905 OF 2014


PETITIONER:

            S.K. INDIRA DEVI, AGED 65 YEARS,
            W/O.SUKUMARAN, MANJAMANJUVATTIL HOUSE, EROOR KARA,
            NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

            BY ADVS.
            SMT.P.DEEPTHI
            SRI.SABU JOHN



RESPONDENTS:

    1       THE STATE OF KERALA
            REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM, CIVIL
            STATION, KAKKANAD-682030.

    2       SPECIAL TAHSILDAR (LA)
            SPECIAL TAHSILDAR OFFICE, ERNAKULAM-682301.

    3       TAHSILDAR
            KANAYANNUR TALUK, ERNAKULAM DISTRICT-682301.

    4       VILLAGE OFFICER
            NADAMA VILLAGE, TRIPUNITHURA P.O., KANAYANNUR TALUK,
            ERNAKULAM DISTRICT-682301.

 ADDL.R5    THE AREA MARKETING MANAGER
            BHARAT PETROLEUM CORPORATION LTD., DR.SALIM ALI ROAD,
            KOCHI - 14.(IS IMPLEADED AS PER ORDER DATED 16.02.2016
            IN I.A.NO.9900 OF 2014).

            BY ADVS.
            SRI.M.GOPIKRISHNAN NAMBIAR
            SRI.P.GOPINATH
            SRI.K.JOHN MATHAI
            SRI.JOSON MANAVALAN
            SRI.KURYAN THOMAS
 WP(C) NO. 7905/2014

                                         2

             SRI.PAULOSE C. ABRAHAM




      ADV.SMT.SHEEJA C.S, GOVERNMENT PLEADER

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   06.07.2021,      THE   COURT   ON       THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 7905/2014

                                        3


                     P.V.KUNHIKRISHNAN, J
              -------------------------------
                   W.P.(C)No.7905 of 2014
             --------------------------------
            Dated this the 06th day of July 2021

                              JUDGMENT

According to the petitioner, she own and possess

4.8 Ares of landed property in Nadama village in

survey Nos.194/12 and 194/13. The petitioner

obtained the property by virtue of Ext.P1 sale deed.

According to the petitioner, she is the absolute

owner and also in possession of the same as per the

records issued by the 4th respondent. Ext.P2 is the

possession certificate issued by the 4th respondent.

Ext.P3 is the land tax receipt. While so a portion

of the said property was subjected to land

acquisition proceedings for laying the pipe line for

Bharat Petroleum Corporation, Kochi. In connection

with the acquisition, a reference was made to the

Principal Sub Court, Ernakulam as per the Land

Acquisition Act, at the instance of the 2nd

respondent. As per the reference made in this

behalf, Ext.P4 award was passed by the reference WP(C) NO. 7905/2014

court. In the above land acquisition reference, the

petitioner had taken out a commission and Ext.P5 is

the commission report.

2. In the meanwhile the 2nd respondent initiated

land acquisition proceedings for the acquisition of

properties for the railway over bridge, Eroor.

Ext.P6 is the notification under section 4(1) of the

Land Acquisition Act which was published on

30.03.2013. It is submitted by the petitioner that,

while inspecting the properties, the petitioner

identified and located her property before the 2nd

respondent to her subjective satisfaction.

According to the petitioner, her property covered

under Exhibit P1 comprised in survey No.194/12 is

essential for the purpose of construction of railway

over bridge. The petitioner submitted Ext.P7 to the

special Tahsildar, Land Acquisition, in which it is

stated that her property situated in Survey

No.194/12 also may be included in the acquisition

proceedings and the same may be verified. Ext.P8 is

the reply to the same in which it is stated that no WP(C) NO. 7905/2014

such property of the petitioner need to be acquired

for the purpose of the construction of railway over

bridge because it is shown as "survey No.48 BPCL

pipe line (LA)" in the land register kept with the

3rd respondent.

3. The petitioner prepared Ext.P9 survey plan

with the help of a retired surveyor. According to

the petitioner, she is in possession of the property

which comes to an extent of 1.4 cents and the same

is lying along with the properties to be acquired

for the purpose of acquisition for the railway over

bridge, Eroor. According to the petitioner, the

description in the land register maintained by the

3rd respondent, is wrong and liable to be corrected

as per the documents produced by her. According to

the petitioner, without acquiring the property of

the petitioner comprised in survey No.194/12, the

respondents cannot construct the railway over

bridge. The submission of the petitioner is that

the respondents ought to have acquired the property

of the petitioner owned and possessed by her as per WP(C) NO. 7905/2014

Exts.P1 to P3 documents. Since the portion of the

property comprised in survey No.194/12 is to be

acquired for the construction of the railway over

bridge Eroor, the total extend of 1.4 cents need to

be acquired by the respondents, since the balance of

said property is injuriously affected. Hence, the

Writ petition is filed with the following prayers;

"I. To call for the records pertaining to EXHIBIT- P6 and P8 from the respondents.

II. To issue a writ of certiorari or any other appropriate writ or direction to quash EXHIBIT-P8. III. To issue writ of mandamus or any other writ or direction directing the 3rd respondent to correct land register to the effect that the petitioner has property as per EXHIBIT-P1, P2 and P3. IV. To issue a writ of mandamus or any other writ or direction directing the respondent to acquire the property for the purpose of construction of railway over bridge Eroor.

V. Such other relief which may deem fit and necessary for the disposal of the case."

4. The 2nd respondent filed a counter affidavit

on 20.06.2014. The relevant portion of the counter

affidavit extracted hereunder;

"3. It is submitted that, in the Order No.G.O.

(Rt).1884/2012/PWD dated 08.11.2012, the Government have accorded Administrative Sanction for the acquisition of land for the construction of Railway Overbridge at Eroor Mathoor Junction in Nadama WP(C) NO. 7905/2014

village of Kanayannur Taluk in Ernakulam District. The District Collector, Ernakulam appointed the Special Thahsildar (LA) Railways, Ernakulam as Land Acquisition Officer vide Prdgs No.C2-57487/11 dated 22.12.2012. In the light of the said order the Land Acquisition Officer published the notification u/s 4(1) of the Land Acquisition Act. The 4(1) notification was prepared as per the Resurvey records approved by the Survey Superintendent, Ernakulam. After the publication of 4(1)notification the petitioner approached this office with an application stating that her land comprised in Sy.No.194/12 ought to be included in the 4(1)notification for acquisition. On detailed study and field verification the surveyor of this office reported that the petitioner's land is recorded in the land register as BPCL LA. Hence the land in question need not be acquired for the said project. Hence the said petition was rejected, vide Ext.P8. Now the petitioner has approached this

Hon'ble Court against this order."

5. According to the 2nd respondent, on detailed

study and field verification, the surveyor of their

office reported that the petitioner's land recorded

in the land register as "BPCL(LA)". Hence the land

in question need not be acquired for the said

project. Hence the said petition was rejected as

per Ext.P8.

6. The learned Government Pleader submitted WP(C) NO. 7905/2014

that a suit is pending with the same relief. But

the learned counsel for the petitioner submitted

that the suit was already closed and the commission

report is Ext.P10.

7. The learned counsel for the additional 5th

respondent submitted that the BPCL acquired the

property only in survey No.194/15 and 194/16.

According to the counsel, they have no case that any

of their property is situated in survey No.194/12 or

194/13. The learned counsel submitted that a

counter is filed by the additional 5th respondent.

8. If that is the case, according to me, there

is some mistake in the records about the ownership

of the property in survey No.194/12. This is a

matter to be looked into by the 3 rd respondent.

According to me, the 3rd respondent can consider

these facts after hearing the petitioner and the 5 th

respondent. Thereafter, the 3rd respondent can pass

appropriate orders and if necessary, can correct the

records based on the above decision. Hence, the Writ

petition is disposed in the following manner. WP(C) NO. 7905/2014

i) The 3rd respondent will conduct an enquiry

about the contentions of the petitioner that the

property which is mentioned as BPCL(LA) in survey

No.194/12 is her property, after hearing the

petitioner and the additional 5th respondent. The 3rd

respondent is directed to pass an order, after the

above enquiry.

ii) The above exercise should be completed

within three months from the date of receipt of a

copy of this judgment.

iii) Based on the orders passed by the 3 rd

respondent, consequential steps also would be taken

by the authority concerned in accordance with law

forthwith.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

DM WP(C) NO. 7905/2014

APPENDIX OF WP(C) 7905/2014

PETITIONER ANNEXURE

EXHIBIT P1 TRUE PHOTO COPY OF THE SALE DEED NO.776/96 OF SRO THRIPPUNITHURA.

Exhibit P2 TRUE PHOTO COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE 4TH RESPONDENT DT.5-10-2013.

Exhibit P3 TRUE PHOTO COPY OF THE LAND TAX RECEIPT DT.30-7-2013 ISSUED BY 4TH RESPONDENT.

Exhibit P4 TRUE PHOTO COPY OF THE COMMON JUDGMENT IN LAR 80/2000 AND 81/2000 DT.24-11-2001.

Exhibit P5 TRUE PHOTO COPY OF THE COMMISSIONER REPORT IN LAR 80/2000 DATED 31-10-2001.

Exhibit P6 TRUE PHOTO COPY OF THE 4(1) NOTIFICATION DATED 30-3-2013.

Exhibit P7 TRUE PHOTO COPY OF THE LETTER OF PETITIONER DT.26-9-2013.

Exhibit P8 TRUE PHOTO COPY OF THE LETTER OF REJECTION OF CLAIM DT.30-11-2013 BY THE 2ND RESPONDENT.

Exhibit P9 TRUE PHOTO COPY OF THE SURVEY PLAN.

Exhibit P10 TRUE COPY OF THE COMMISSION REPORT IN O.S.NO.298/2015 AS PER ORDER IN I.A.NO.1977/15 OF THE MUNSIFF COURT, ERNAKULAM.

//TRUE COPY//

PA TO JUDGE