Kerala High Court
T.M.Francis vs The Secretary, Corporation Of ... on 23 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
WP(C) NO. 23989 OF 2012
PETITIONERS:
1 T.M.FRANCIS
AGED 58 YEARS
S/O.T.A.MANUEL, THOTTAPPILLIL HOUSE, KATHRIKADAVU
WEST, KOCHI-17.
2 SMT.MARY MERCY
W/O.P.A.CLEMENT, PUTHENVEEDU, KATHRIKADAVU WEST,
KOCHI-17.
BY ADVS.
SRI.R.LAKSHMI NARAYAN
SMT.R.RANJANIE
RESPONDENTS:
1 THE SECRETARY, CORPORATION OF KOCHI
PARK AVENUE ROAD, ERNAKULAM-682011.
2 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
3 REVENUE DIVISIONAL OFFICER
FORT KOCHI-682001.
BY ADVS.
C.N.PRABHAKARAN
GOVERNMENT PLEADER
JIBU P THOMAS
SHRI.S.SUDHEESH KUMAR, SC, KOCHI MUNICIPAL
CORPORATION
OTHER PRESENT:
SRI.Y.JAFAR KHAN, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.23989/2012
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C).No.23989 of 2012
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Dated this the 23rd day of July, 2021
JUDGMENT
This writ petition is filed with following prayers:
i. Issue to writ of certiorari and quash Ext.P8 to the
extent it affects the properties of the petitioners',
as covered under Ext.P4 order passed by the 3 rd
respondent.
ii. Declare that the petitioners' properties are not
liable to be categorized as 'free surrender
properties', and the respondents are bound to
refer the matter to the Spl. Tahsildar (Land
acquisition), treating advance possession. the
surrender of these properties as advance
possession.
iii. Direct the respondents to refer the matter relating
to the petitioners' properties covered under
Ext.P4, to the Spl. Tahsildar (Land Acquisition) for
determining the value of the properties in terms
of Land Acquisition Act and Rules.
iv. Stay the operation of Ext.P8 so far as it relates to
petitioners' properties covered under Ext.P4 order
passed by the 3rd respondent.
v. Pass such other orders as this Hon'ble Court may
W.P.(C).No.23989/2012
deem fit and necessary in the facts and
circumstances of this case.
vi. Allow this writ petition.
2. Short facts for disposal of the writ petition are like
this:
The petitioners are the residents on the side of
Thammanam - Pulleppady road and having their properties in
Survey Nos.282/1 and 280/3 of Elankulam Village. In 1998-99,
the 1st respondent initiated a scheme for widening the road
and the 1st respondent approached the petitioners and
requested them to surrender a portion of their respective
properties for widening of Pulleppady - Thammanam Road. It
is stated in the writ petition that because of the persuasive
request from the Mayor of the 1st respondent and their public
figures, and also on a misrepresentation that 75% of the land,
for the purpose of widening of the road, was surrendered by
the persons in the locality, free of cost, to the 1 st respondent,
the 1st petitioner offered to surrender 0.0048 and 0.0137
hectors of land and the 2 nd petitioner offered to surrender
0.0071 hectors in the above mentioned survey numbers. It is
also stated that they were forced to sign land relinquishment
applications, along with declaration dated 16.12.1999 and
W.P.(C).No.23989/2012
21.09.1999 for relinquishment of the lands.
3. In the writ petition it is stated that, subsequently,
no widening work commenced. It is also stated that, on
enquiry, the petitioners came to know that only very few
persons offered to surrender lands for the purpose of
widening and extensive properties were to be acquired, as
owners of the land refused to surrender. Relinquishment
letters got signed by the 1st respondent from the petitioners in
favour of the 2nd respondent is not valid, according to the
petitioners, because there is no privity of contract between the
petitioners and the 2nd respondent. The petitioners
approached the 1st respondent with representations. There
was no response. Consequently, the petitioners filed
O.P.No.5366 of 2003 before this Court. This Court, as per
Ext.P2 judgment, passed the following order:
"If it is free surrender then of course, there is no
need for the respondents to pay compensation to
the land owner. It is for the respondents to take a
decision on compensation-claim depending on the
terms of surrender and the land owners are free to
challenge such decisions; if they feel aggrieved.
However, I make it clear that any dispute should be
confined to claim of compensation and no one
W.P.(C).No.23989/2012
should be permitted to interfere with the
construction of the Bridge and the Police should
ensure this.
Original Petition is disposed of as above."
4. Thereafter the petitioners filed a review petition in
the above case. The review petition was disposed as per
Ext.P3 judgment. The relevant portion of Ext.P3 judgment is
extracted hereunder:
"The petitioner has raised another contention that
there is no free surrender as claimed by the
respondents and observed in the judgment. This is
a matter to be considered by the third respondent.
The petitioner is directed to approach the third
respondent who will call for the records or refer the
matter to the third respondent and the third
respondent will verify the records and if he is
satisfied that there is no free surrender, then of
course, the third respondent will refer the matter to
the Special Tahsildar (Land Acquisition) for fixing
the compensation as if there is no acquisition and
taking over advance possession.
The review petition is disposed of with the above
observation. "
5. Thereafter, according to the petitioners, Ext.P4
order is passed by the Revenue Divisional Officer, Fort Kochi,
by which land relinquishment applications of the petitioners
W.P.(C).No.23989/2012
were rejected. Therefore, according to the petitioners, the
directions in Ext.P3 order will come into play and the only
remedy available to the respondents is to refer the matter to
the Special Tahsildar (Land Acquisition) for fixing the
compensation as if there is acquisition and taking over
advance possession. But, as per Ext.P8 order, the 3 rd
respondent accepted the relinquishment applications of the
petitioners along with some others. Serial Nos.28 and 29 in
Ext.P8 are the petitioners. According to the petitioners, Ext.P8
is unsustainable and without authority. The counsel submitted
that after the 3rd respondent passed Ext.P4 order, he has no
authority to review the same and pass Ext.P8 order. The
counsel also submitted that once Ext.P4 order is passed,
Ext.P3 order of this Court in the review will come into play
and therefore, Ext.P8 order is unsustainable.
6. Heard the counsel for the petitioner and the
Government Pleader.
7. The counsel for the petitioner reiterated their
contentions in the writ petition. The Government Pleader
submitted that a detailed counter affidavit is filed and relevant
portion of the counter affidavit is extracted hereunder:
W.P.(C).No.23989/2012
"3. It is submitted that when the 83 applications
including the application of these petitioners to
relinquish the land for the widening of Thammanam
- Pulleppady road, enquiry was being made through
the Village Officer and the Tahsildar. Neither the
Village Officer, nor the Tahsildar, Kanayannur or the
Secretary, Cochin Corporation has pointed out the
fact that petitioners applications were rejected as
per J-1073/04 dated 03.01.2005. But the Tahsildar
and Village Officer reported that the applications
were eligible to relinquish the land. On receipt of
the report, Form C notice was published inviting
objections if any. But objections were not raised by
anybody including the petitioners. Thus, after
observing all the formalities under the Kerala Land
Relinquishment Act, orders were issued accepting
the applications for relinquishment and the
Tahsildar, Kanayannur and Village Officer,
Elamkulam were directed to make necessary
changes in the records.
4. The petitioners have submitted applications
for relinquishment of the above described lands in
Elamkulam Village in Sy. Nos. 282/1 and 280/3.
The land relinquishment process gets initiated only
on receipt of an application in the prescribed form
duly attested by the Village Officer and after
enquiry and report under Section 7 of the Kerala
Land Relinquishment Act. On receipt of the report,
notices in Form C appended to these rules calling
W.P.(C).No.23989/2012
upon all persons who may have any objections to
the relinquishment of the land or who may have any
claim to the land to appear before the Revenue
Divisional officer, before a date to be specified in
the notice to prefer their claims or objections, if
any. The notices are published by affixing copies of
the same in the notice board in the Revenue
Divisional Office, Taluk Office, Village Office, Office
of the local bodies and on the land relinquished. In
this case, all the procedures as per Kerala Land
Relinquishment Act and Rules were followed. Form
C notices were published on 25.05.2012 and
sufficient time was allowed to file objections. The
Tahsildar, Kanayannur or the Village Officer,
Elamkulam did not report that the petitioners were
not willing to relinquish the surrendered land.
Subsequently, the Sub Collector, Fort Kochi issued
orders vide K.dis. 10972/11/F dated 07.09.2012 by
accepting the 44 applications in Elamkulam Village
including the above two applications of the
petitioners.
5. In the Writ Petition, the petitioners stated that
as per Exhibit P4 order No. J-1073/04 dated
03.01.2005 of the Revenue Divisional Officer, Fort
Kochi, the land relinquishment application of the
petitioners were rejected. This fact was known to
this respondent only on receipt of the copy of the
Writ Petition. As this file has been destructed, any
explanation in this regard cannot be furnished from
W.P.(C).No.23989/2012
this Office. But for the land surrendered, the
petitioners have received an amount of Rs.
1,92,000/- and Rs. 25,000/- as compensation for
demolishing a portion of the building and for the
construction of compound wall from the Cochin
Corporation authorities."
8. I cannot accept the stand of the 3 rd respondent in
the counter affidavit. According to me, once Ext.P4 order is
passed after Ext.P3 order in the review by this Court, the 3 rd
respondent has no authority to review Ext.P4 order. In effect,
Ext.P8 is an order of review. According to me, Ext.P8 as far as
the petitioners are concerned, will not stand. The only remedy
to the respondents is to act based on the directions in Ext.P3
order. Therefore, according to me, Ext.P8 order as far as the
petitioners are concerned, is to be set aside and the
authorities can be directed to proceed based on the direction
in Ext.P3.
Therefore, this writ petition is allowed in the following
manner:
1. Ext.P8 order as far as the petitioners are
concerned, is quashed.
2. Respondents are directed to take appropriate
W.P.(C).No.23989/2012
steps as directed by this Court in Ext.P3 order,
as expeditiously as possible, at any rate, within
one month from the date of receipt of a copy of
this judgment.
3. If the respondents are not interested to
acquire the land of the petitioners, the
respondents are free to communicate the same
within the above period to the petitioners.
Sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
W.P.(C).No.23989/2012
APPENDIX OF WP(C) 23989/2012
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE O.P.NO.5366/2003
EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN OP
NO.5366/2003 DATED 14.3.2003
EXHIBIT P3 TRUE COPY OF THE ORDER IN RP NO.299/03
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 3.1.2005
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 2.3.2005
EXHIBIT P6 TRUE COPY OF THE LETTER DATED
17.6.2010
EXHIBIT P7 TRUE COPY OF THE LETTER DATED
28.9.2012
EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS DATED
7.9.2012
