*Expired, Krishnan N.T vs The District Collector
2024 Latest Caselaw 11285 Ker

Kerala High Court

*Expired, Krishnan N.T vs The District Collector on 19 April, 2024

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                 THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

         FRIDAY, THE 19TH DAY OF APRIL 2024 / 30TH CHAITHRA, 1946

                         WP(C) NO. 18627 OF 2022

PETITIONERS:

     1       *EXPIRED, KRISHNAN N.T
             AGED 78 YEARS
             S/O.AYYAPPAN, NELLIKKOTT THARAMMAL POTTA HOUSE,
             RAMANATTUKARA P.O., KOZHIKODE DISTRICT - 673 633. ADDL
             P2-PRADEEP N.T, AGED 51 YEARS, S/O.KRISHNAN N.T.,
             NELLIKKOTT THARAMMAL POTTA HOUSE, RAMATTUKARA P.O,
             KOZHIKKODE, DISTRICT 673 633.
     2       PRADEEP N.T
             AGED 51 YEARS, S/O.KRISHNAN N.T, RESIDING AT NELLIKKOTT
             THARAMMAL POTTA HOUSE, RAMANATTUKARA P.O. * LEGAL HEIR OF
             DICEASED PETITIONER IS IMPLEADED AS SECOND PETITIONER AS
             PER ORDER DATED 08-08-2023 IN IA 4/2023.
             BY ADVS.
             ABDUL JAWAD K.
             A.GRANCY JOSE

RESPONDENTS:
     1     THE DISTRICT COLLECTOR
           DISTRICT COLLECTOR OFFICE, KOZHIKODE COLLECTORATE,CIVIL
           STATION P.O., KOZHIKODE - 673 020.
     2     THE TAHSILDAR
           TALUK OFFICE, KOZHIKODE TALUK,
           KOZHIKODE DISTRICT - 673 020.
     3     THE VILLAGE OFFICER
           RAMANATTUKARA VILLAGE, RAMANATTUKARA - FAROOK COLLEGE
           ROAD, KOZHIKODE TALUK, KOZHIKODE DISTRICT - 673 633.
     4     THE TALUK SURVEYOR
           TALUK OFFICE, KOZHIKODE, KOZHIKODE DISTRICT 673 020.
     5     THE PROJECT DIRECTOR
           THE NATONAL HIGHWAY AUTHORITY OF INDIA, PROJECT
           IMPLEMENTATION UNIT (PIU) KOZHIKODE, PROVIDENCE WOMENS
           COLLEGE ROAD, KOZHIKODE - 673 009.
     6     THE NATIONAL HIGHWAY AUTHORITY OF INDIA
           REPRESENTED BY ITS CHAIRMAN, G-586, SECTOR-10, DWARAKA,
           NEW DELHI - 110 075.
           BY ADV K.A.SALIL NARAYANAN

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

19.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C). No.18627 of 2022      :2:



                           VIJU ABRAHAM, J.
         --     -- -- -- -- -- -- -- -- -- -- -- --
                       W.P.(C) No.18627 of 2022
         --     -- -- -- -- -- -- -- -- -- -- -- --
                   Dated this the 19th day of April, 2024

                             JUDGMENT

The petitioner is the absolute owner in possession of 6.49

Ares (16.03 cents) of land by Ext.P1 title deed. The petitioner was

originally holding 30 cents of land, that he obtained by way of

release deed executed by his sister. The National Highway

Authority had acquired 0.0565 hectares of land for the purpose of

widening the national highway in the year 1987 and clear

demarcation of the acquired land was made by laying survey

stones. The petitioner has been holding the remaining land of

16.03 cents after acquisition. The petitioner has constructed a

boundary wall just behind the survey stones laid by the authorities

to protect his remaining land. A house was existing in the

remaining land of the petitioner, apart from that a shop room

building, a well and a toilet are also existing in the land in the

possession of the petitioner. While so the petitioner and other

neighbours were served with Ext.P5 notice as part of conducting an

inspection in the land. Petitioner submits that no inspection was

required at all since the property has already been demarcated and

boundary survey stones were laid way back in 1987. On

30.05.2022, respondents 2 and 4 along with officers of the National

Highway planted a stick inside the land of the petitioner

approximately 1.10 metres away from the boundary survey stone

already laid in 1987. The petitioner contends that the action of the

respondents is a clear case of encroachment upon private property

and if they want any part of the land of the petitioner they ought to

have resorted to land acquisition proceedings. Petitioner relying on

Ext.P7 series of documents contended that no portion of the earlier

acquired land during 1987 is in the possession of the petitioner.

Petitioner relying on Ext.P8 series of photographs submits that the

compound wall has been constructed beyond the original survey

stone laid in 1987.

2. A detailed counter affidavit has been filed by the 5 th

respondent wherein it is contended that though the land was

acquired in the year 1988, it was not used for

development/widening of the highway and the petitioner has

removed the survey stones and encroached the high way and

constructed a compound wall illegally. When encroachment was

noticed, the NH authorities requested the 2 nd respondent to

conduct a survey and the same was conducted with notice to the

land owners and Ext.R5 (a) survey sketch was prepared to show the

encroached area in red ink.

3. A detailed reply was submitted by the petitioner wherein it

is submitted that no survey was conducted with notice to the

petitioner as averred in the counter affidavit. A survey if conducted

would be only after publishing a notice. Petitioner would submit

that though in Ext.P4 possession certificate, the extent of land in

possession of the petitioner is 0.0601 hectares, the said mistake in

the extent of land was corrected and a fresh possession certificate

is issued as Ext.P11 showing the extent of land as 0.0649 hectares

for which the petitioner has been paying tax. Petitioner also

submits that the residential building has been constructed after

obtaining necessary consent as per Ext.P12. The petitioner would

contend that though he has made the necessary application before

the Special Tahsildar LA Kozhikode regarding the location sketch

and plan relating to the property already acquired from the

petitioner, a reply was given as per Ext.P17 that such records are

not available in his office. Petitioner would further submit on the

basis of Ext.P21 reply that the survey conducted pursuant to the

direction issued by this Court on 19.01.2023, the original records

of land acquisition was never made available to the surveyor.

4. This Court as per order dated 19.01.2023 directed the

respondents to complete the resurvey proceedings based on the

original records. On the contention of the petitioner that survey has

not been conducted based on the original records of land

acquisition, an affidavit has been filed by the 2 nd respondent

wherein it is stated that as per the direction issued by this Court on

19.01.2023, a survey was conducted and found that there is no

change or difference in the encroached area which was marked

earlier as per survey report and sketch dated 18.06.2022. Even

though NH authorities have not handed over the original records of

the acquisition of the land to the Taluk Surveyor, as copies of

approved FMB (original acquisition records) were available in the

Taluk office, there was no need to hand over the original records by

the National Highway Authority to the Taluk surveyor for

conducting the survey. Ext.R2(b) encroachment sketch was also

produced whereby the encroachments were noted. It is also stated

in the affidavit that land records like FMB, a register of all lands

including Government Puramboke land are maintained and

possessed by the Revenue and Survey Department and it was

submitted that the survey was conducted based on the original

records regarding acquisition and the contention of the petitioner

cannot be accepted.

5. By an interim order dated 19.01.2023, this Court directed

to complete the resurvey proceedings based on original records.

The contention of the petitioner is that the same has not been done

based on the original records of acquisition and the apportionment

sketch made thereon. But in the affidavit filed by the Government

dated 20.12.2023 in paragraph 8, it was stated as follows:

"8. Based on the above said aspects, since the copies of the approved FMB (Original acquisition records) are available in the Taluk Office concerned there is no need to hand over the original records by the Project Director, NHAI, PIU, Kozhikode (5threspondent) to Taluk Surveyor for conducting survey of the disputed land. Hence the petitioners 3 rd query in Exhibit P20 is answered accordingly."

As per the direction issued by this Court on 19.01.2023, the

encroachment earlier noted was again verified and found to be

correct. The contention of the petitioner that the resurvey has been

done without the original records cannot be accepted since it is the

specific case of the 2nd respondent that copies of approved FMD

(original acquisition records) were available with the Taluk Office.

The authorities have twice measured the property, even on the

basis of an order passed by this Court. Further, based on the

affidavit filed to the effect that copies of approved FMD (original

acquisition records) were available with the Taluk Office, I am not

inclined to grant the relief sought for in this writ petition. If the

petitioner is aggrieved by the resurvey conducted pursuant to the

direction issued by this court on 19.01.2023, it is for him to

challenge the same in appropriate proceedings. If a challenge is

made by the petitioner, the appellate authority concerned shall

dispose of the same without any delay. Leaving open such right of

the petitioner, the writ petition is disposed of. To facilitate the

petitioner to approach the appellate authority, the interim order

granted by this Court on 08.06.2022 will remain in force for a

further period of one month from today.

Sd/-

VIJU ABRAHAM JUDGE sm/

APPENDIX OF WP(C) 18627/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE TITLE DEED OF THE PETITIONER DATED 07/08/1984.

Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF THE COMMON AWARD NO.16/88, DATED 26/09/1988 PASSED BY THE SPECIAL TAHSILDAR (LA) NATIONAL HIGH WAY, KOZHIKODE.

Exhibit P3          TRUE COPY OF THE TAX RECEIPT DATED
                    27/04/2022   ISSUED    IN    FAVOUR   OF   THE
                    PETITIONER.
Exhibit P4          TRUE COPY OF THE POSSESSION CERTIFICATE
                    DATED 18/01/2022 ISSUED IN FAVOUR OF THE
                    PETITIONER.
Exhibit P5          TRUE COPY OF THE COMMON NOTICE DATED NIL
                    ISSUED BY THE 4TH RESPONDENT ON THE
                    PETITIONER AND OTHER LANDOWNERS.
Exhibit P6          TRUE   COPY    OF    THE    COMPLAINT    DATED

01/06/2022 SUBMITTED BY THE PETITIONER AND OTHERS BEFORE THE 1ST RESPONDENT.

Exhibit P7 TRUE COPY OF THE FIELD MAP OF THE PROPERTY OF THE PETITIONER.

Exhibit P7A TRUE COPY OF THE SURVEY MAP PREPARED BY A PRIVATE SURVEYOR.

Exhibit P7B TRUE COPY OF THE FIELD MAP THAT THE PETITIONER CAUSED TO BE DRAWN BY A PRIVATE SURVEYOR.

Exhibit P8          TRUE COPY OF THE PHOTOGRAPHS SHOWING THE
                    STATE OF AFFAIRS IN THE LAND OF THE
                    PETITIONER   AFTER     DEMOLITION    OF    THE
                    BOUNDARY WALL.
Exhibit P9          TRUE COPY OF THE PHOTOGRAPHS OF THE SID
                    SURVEY STONE CAPTURED ON 06.07.2022
Exhibit P10         TRUE COPY OF THE ROUGH SKETCH PREPARED
                    UNDER THE INSTRUCTION OF THE PETITIONER

SHOWING THE WIDTH OF THE ACQUIRED LAND THE LAND LEFT UNUSED ON THE EASTERN SIDE.

Exhibit P11         TRUE COPY OF THE POSSESSION CERTIFICATE
                    DATED 14.06.2022
Exhibit P12         A TRUE COPY OF THE PERMISSION GRANTED FOR
                    CONSTRUCTION      BY     THE    RAMANATTUKARA
                    PANCHAYAT DATED 28/09/1984.




Exhibit P13                 A PHOTOGRAPH OF THE RESIDENTIAL BUILDING
                            CONSTRUCTED PURSUANT TO EXT P12.
Exhibit P14                 TRUE PHOTOGRAPHS OF A BATHROOM AND WELL
                            CONSTRUCTED IN 1984.
Exhibit P15                 TRUE COPY OF THE ROUGH SKETCH PREPARED BY
                            THE PETITIONER.
Exhibit - P16               A TRUE COPY OF THE POWER OF ATTORNEY DATED

30/06/2023 EXECUTED BY THE PETITIONER IN FAVOUR OF HIS SON SRI.PRADEEP N.T Exhibit - P17 A TRUE COPY OF THE LETTER DATED 29/09/2022 OF THE SPECIAL TAHSILDAR (LA), KOZHIKODE Exhibit - P18 A TRUE COPY OF THE PHOTOGRAPH SHOWING THE BOUNDARY DEMARCATED BY THE SURVEY STONE Exhibit - P19 A TRUE COPY OF THE PHOTOGRAPH SHOWING STONE PIECES LAID OVER THE SURVEY STONE Exhibit - P20 A TRUE COPY OF THE APPLICATION DATED 28/03/2023 AND SUBMITTED ON 30/06/2023 BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT BEFORE THE 2ND RESPONDENT Exhibit - P21 A TRUE COPY OF THE REPLY DATED 14/07/2023 AND RECEIVED BY THE PETITIONER ON 19/07/2023 FROM THE 2ND RESPONDENT Exhibit - P22 A TRUE COPY OF THE APPLICATION DATED 30/06/2023 SUBMITTED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT BEFORE THE SPECIAL TAHSILDAR FOR NATIONAL HIGHWAY Exhibit - P23 A TRUE COPY OF THE REPLY DATED 29/07/2023 RECEIVED BY THE PETITIONER FROM THE OFFICE OF THE SPECIAL TAHSILDAR Ext.P24 The petitioner is producing herewith a copy of Ext.R2 (b) original FMB along with the interpolations made by the petitioner therein based on the expert opinion and findings of a private surveyor for the sole purpose of showing the anomaly in Ext.R2 (a) and marking the same RESPONDENT EXHIBITS

Exhibit R5(A) TRUE COPY OF THE SURVEY SKETCH PREPARED BY THE SURVEYOR.

Exhibit R5(B) TRUE COPY OF THE SURVEY SKETCH IN THE F M B PERTAINING TO FILED 359 PREPARED BY THE SURVEYOR.

EXHIBIT R2(b) A true copy of the FMB of Re survey No.359 of Ramanattukara villege EXHIBIT R2(a) A true copy of the encroachment sketch prepared by the Taluk Surveyor.