L.S.Anilkumar vs The Land Acquisition Officer
2023 Latest Caselaw 3258 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
     THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                       WP(C) NO. 38411 OF 2022
PETITIONER:

          L.S.ANILKUMAR.,
          AGED 56 YEARS,
          S/O. K.G. SIVAN NAIR, KAILASAM, EARAM, BHOOTHATHAN
          TEMPLE ROAD, CHATHANNUR, KOLLAM DISTRICT, PIN- 691 572.
          BY ADVS.
          GOPAKUMAR R.THALIYAL
          P.SASIDHARAN NAIR(CHERUNNIYOOR)


RESPONDENTS:

    1     THE LAND ACQUISITION OFFICER & DEPUTY COLLECTOR (LA),
          COLLECTORATE, THIRUVANANTHAPURAM, PIN-695 043.
    2     THE DISTRICT COLLECTOR,
          COLLECTORATE, THIRUVANANTHAPURAM, PIN-695 043.
    3     STATE OF KERALA,
          REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
          GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
          PIN-695 001.
          SMT. C S SHEEJA (SR GP)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 38411 OF 2022
                                   2

                             JUDGMENT

The petitioner claims to be the owner of undivided share in 0.91

Ares of land, forming part of 9.65 Ares of land in Sy.No.27/2 of

Cheruvaikkal Village, Thiruvananthapuram District along with a

commercial building, having a built up areas of 3700 square feet with

building No.TC 4/4770(1) of the Corporation of Thiruvananthapuram.

According to the petitioner, a portion of the land on which the

building is situated along with a portion of the building and some

amenities are being acquired for the purpose of construction of an

over-bridge at Sreekaryam. According to the petitioner, the 1 st

respondent had passed an award without any notice to the petitioner

and without affording to the petitioner any opportunity of being

heard.

2. The record of the case shows and this is not disputed, that

the petitioner had not effected mutation in his favour, as a result of

which no personal notice was issued by the 1 st respondent before

passing the award. The petitioner was living abroad and therefore, he

claims that he was also not aware of the public notice / gazette

notification etc.

3. When this matter is taken up for consideration today, it is WP(C) NO. 38411 OF 2022

the submission of the learned counsel appearing for the petitioner that

if the portion of the building which is affected by the acquisition is

demolished, the petitioner will not be in a position to establish his

claim for higher amount of compensation. It is submitted that the

matter is already before the Reference Court (the Additional District

Court, Thiruvananthapuram ) as LAR No.279/2022 and the petitioner

has already filed an interlocutory application as I.A.No.5/2023 in LAR

No.279/2022 in the said LAR for appointment of an Advocate

Commissioner to inspect the building before the building (to the

extent it is affected by the acquisition) is demolished. It is submitted

that the said commission application is coming up for consideration of

the 2nd Additional District Court, Thiruvananthapuram on

29.03.2023.

4. The learned Senior Government Pleader would submit

that the petitioner cannot complain of non receipt of notice before the

award as notice was issued to all registered holders and it was not

pointed out before the 1st respondent that a portion of the building in

question together with undivided interest in the land had been

conveyed to the petitioner. It is also pointed out that though the

petitioner had purchased the area in question together with the

undivided interest in land as early as in the year 2013, mutation was WP(C) NO. 38411 OF 2022

not effected in favour of the petitioner till date.

5. Having heard the learned counsel appearing for the

petitioner and the learned Government Pleader appearing for the

respondents, I am of the opinion that the petitioner's claim for any

enhanced compensation has to be adjudicated in the pending

reference case and to enable the petitioner to establish his case, it

would only be appropriate that an Advocate Commissioner is

appointed to ascertain the matters set out in the commission

application, a copy of which has been handed over to me by the

learned counsel for the petitioner. If the Advocate Commissioner

requires any expert assistance for determining the value of the

building or improvements, the Advocate Commissioner must have

access to such expert as well.

6. Therefore, this writ petition will stand disposed of

directing that the 2nd Additional District Court, Thiruvananthapuram

shall pass appropriate orders on I.A.No.5/2023 in LAR No.279/2022

by deputing an Advocate Commissioner for assessment of the building

in question and for filing a report regarding the matters set out in the

commission application with the assistance of an appropriate expert

at the cost of the petitioner. Orders on I.A.No.5/2023 in LAR

No.279/2022 shall be passed not later than 05.04.2023. It is made WP(C) NO. 38411 OF 2022

clear that immediately after the inspection is over, the acquisition

authorities may take over possession of a portion of the land and

building, which has been acquired and in respect of which an award

have already been issued. The Reference Court shall ensure that the

inspection by the Advocate Commissioner as directed above shall not

be delayed and shall be completed not later than 30.04.2023.

All the contentions of the petitioner are left open to be

adjudicated.

Sd/-

GOPINATH P.

JUDGE DK WP(C) NO. 38411 OF 2022

APPENDIX OF WP(C) 38411/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SALE DEED DATED 20.12.2013.

Exhibit P2 TRUE COPY OF THE MUTATION CERTIFICATE DATED 26.08.2022 ISSUED BY THE VILLAGE OFFICER, CHERUVAIKKAL.

Exhibit P3 TRUE COPY OF THE CERTIFICATE OF THE ENCUMBRANCE DATED 25.08.2022.

Exhibit P4 TRUE COPY OF THE AFFIDAVIT DATED 02.07.2014.

Exhibit P5 TRUE COPY OF THE NOTICE DATED 13.08.2021 ISSUED BY THE 1ST RESPONDENT.

Exhibit P6 TRUE COPY OF THE AWARD PASSED BY THE 1ST RESPONDENT IN LAC NO. 89/2019.

Exhibit P7 TRUE COPY OF THE NOTICE DATED 26.03.2022 ISSUED BY THE 1ST RESPONDENT.

Exhibit P8 TRUE COPY OF THE NOTICE DATED 30.03.2022 ISSUED BY THE 1ST RESPONDENT.

Exhibit P9 TRUE COPY OF THE NOTICE DATED 24.05.2022 ISSUED BY THE 1ST RESPONDENT.

Exhibit P10 TRUE COPY OF THE REPRESENTATION DATED 07.10.2022 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.