Kerala High Court
Shamsudeen A vs State Of Kerala on 31 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
OP(C) NO. 1634 OF 2022
OS 247/2022 OF MUNSIFF COURT,ATTINGAL
PETITIONERS:
1 SHAMSUDEEN A.
AGED 60 YEARS
S/O ABDUL AZEES,
SHEREENA MANZIL, THATTUPALAM, NAVAIKULAM PO,
NAVAIKULAM, THIRUVANANTHAPURAM
PIN - 695603
2 SABEENA BEEVI
AGED 45 YEARS
D/O MUHAMMED SAHIB,
SHEREENA MANZIL, THATTUPALAM, NAVAIKULAM PO,
NAVAIKULAM, THIRUVANANTHAPURAM
PIN - 695603
BY ADV J.G.SYAMNATH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY DISTRICT COLLECTOR,
COLLECTORATE, CIVIL STATION, KUDAPPANAKUNNU,
THIRUVANANTHAPURAM
PIN - 695043
2 THE SPECIAL DEPUTY COLLECTOR / COMPETENT AUTHORITY
LAND ACQUISITION (NH),
CIVIL STATION, KUDAPPANAKUNNU, THIRUVANANTHAPURAM
PIN - 695043
3 THE EXECUTIVE ENGINEER
NATIONAL HIGHWAY DIVISION, P.M.G.,
THIRUVANANTHAPURAM
PIN - 695033
4 THE SPECIAL TAHASILDAR
LAND ACQUISITION (NH)- III,
ATTINGAL, THIRUVANANTHAPURAM
OP(C) NO. 1634 OF 2022 2
PIN - 695101
SMT.SYLAJA S.L, GOVERNMENT PLEADER
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 1634 OF 2022 3
JUDGMENT
The original petition is filed assailing the order
in I.A.No.3/2022 in O.S.No.247/2022(Ext.P4) of the
court of the Munsiff, Varkala.
2. The petitioners' case, in a nutshell, is that,
they are the plaintiffs in the above suit, filed against
the respondents for a decree of permanent
prohibitory injunction, to restrain the respondents
from demolishing their building until an Expert
Engineer values the plaint 'C' schedule property.
Along with the suit, the petitioners had filed
I.A.No.3/2022, to appoint an Advocate Commissioner
to be assisted by an Expert Engineer for the above
purpose. The petitioners also produced Ext.P3 panel
of experts. However, the court below, by the
impugned Ext.P4 order, only appointed an Advocate
Commissioner and declined the petitioners request to
appoint an Expert Engineer. If the building is
demolished before an assessment by an Expert
Engineer, it would cause severe prejudice and
pecuniary loss to the petitioners. Hence, the original
petition.
3. Heard; Sri. J.S. Syamnath, the learned counsel
appearing for the petitioners and the learned
Government Pleader appearing for the respondents.
4. The learned Government Pleader, on
instructions, submitted that an Engineer of the PWD
has already valued the building. There are two
reports which have been placed before the
competent authority. On the basis of reports,
compensation has been deposited in the bank
account of the petitioners. Therefore, there is no
necessity to appoint another Expert Engineer, to
value the building. Hence, the original petition may
be dismissed.
5. The petitioners have filed the suit, inter alia,
seeking determination of the actual area of the
plaint 'C' schedule residential building and its value
thereof, which is the subject matter of the
acquisition proceedings. The petitioners have also
filed Ext.P3 application to appoint an Advocate
Commissioner to be assisted by an Expert Engineer
to elucidate the matters stated in the application.
6. The court below, by the impugned Ext.P4
order, has only appointed an Advocate Commissioner
and declined the request to appoint an Expert
Engineer. I find the course adopted by the court
below to be improper.
7. The very purpose of the suit is to have an
independent valuation of property on the allegation
that the assessment made by the respondents is on
the lower side, and this aspect can be established
through an independent Expert. Surprisingly, the
court below has appointed an Advocate
Commissioner and deferred the appointment of the
expert to a latter date. I don't see any purpose in
appointing an Advocate Commissioner without any
expert. Furthermore, as the possession of the
property will have to be taken immediately, to
achieve the purpose of the acquisition, the inspection
and assessment cannot be further delayed, which will
cause hardship to both sides. Thus, to do complete
justice to both sides, I am of the definite view that an
Expert has to be forthwith be appointed, to assist the
Advocate Commissioner, from the panel produced by
the petitioners or a person of court's choice. I find
sufficient force in the contention of the petitioners
that they would be put to pecuniary loss, if valuation
at their instance is not carried out by a competent
Engineer instead of relying on the valuation made
out by the respondents. In the above factual
background, in exercise of the supervisory powers of
this Court under Article 227 of the Constitution of
India, I allow the original petition in the following
manner:-
(i) Ext.P4 order is set aside.
(ii) Ext.P3 application is allowed.
(iii) The court below shall appoint an Advocate
Commissioner to be duly assisted by an Engineer
either from the panel submitted by the petitioners or
a person to be appointed by the court below, on a
remuneration to be fixed by the court below.
(iv) The Advocate Commissioner and the
Engineer shall ascertain and report the matters that
are sought to be elucidated in Ext.P3 application and
file the report before the court below as
expeditiously as possible.
(v) The entire exercise shall be completed by the
Advocate Commissioner and the Engineer within a
period of three weeks from today.
(vi) Immediately after the inspection is
completed, the respondents would be at liberty to
proceed with the acquisition proceedings.
Sd/-
C.S.DIAS, JUDGE
rmm/31/08/2022
APPENDIX OF OP(C) 1634/2022
PETITIONER EXHIBITS
Exhibit-P1 A TRUE COPY OF THE PLAINT IN O.S.
247/2022 FILED BY THE PETITIONERS
Exhibit-P2 A TRUE COPY OF THE I.A. 3/2022 FILED
BY THE PETITIONERS
Exhibit-P3 A TRUE COPY OF THE EXPERT PANEL FILED
BY THE PETITIONERS
Exhibit-P4 A CERTIFIED COPY OF THE ORDER DATED
29-07-2022 OF THE MUNSIFF COURT,
VARKALA IN I.A. 3/2022
