Kerala High Court
Dr.Mathew Zachariah vs State Of Kerala on 6 March, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 6TH DAY OF MARCH 2024 / 16TH PHALGUNA, 1945
WP(C) NO. 3456 OF 2020
PETITIONERS:
1 DR.MATHEW ZACHARIAH,AGED 77 YEARS
S/O. ZACHARIAH, KARTHIKA HOUSE, KANICHUKATTIL,
TRIPUNITHURA, NADAMA VILLAGE, ERNAKULAM.
2 VALSA MATHEW,W/O. MATHEW ZACHARIA, KANICHUKATTIL,
TRIPUNITHURA, NADAMA VILAGE, ERNAKULAM.
BY ADVS.
C.P.WILSON
ROSE MICHAEL
RESPONDENTS:
1 STATE OF KERALA,REPRESENTED BY THE SECRETARY,
DEPARTMENT OF REVENUE, STATE SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE DISTRICT COLLECTOR
ERNAKULAM-682 032.
3 THE LAND ACQUISITION OFFICER (SPECIAL TAHSILDAR)
LA NO.1, CIVIL STATION, KAKKANAD, ERNAKULAM-682 030.
4 THE MANAGING DIRECTOR
KOCHI METRO RAIL LTD. 8TH FLOOR, REVENUE TOWER, PARK
AVENUE, KOCHI-682 011.
BY ADVS.
SRI.K.JAJU BABU (SR.)
SMT.M.U.VIJAYALAKSHMI, SC, KOCHI METRO RAIL LTD.
OTHER PRESENT:
GP - AJITH VISWANATHAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).No.3456 of 2020 2
VIJU ABRAHAM,J
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W.P.(C).No.3456 of 2020
---------------------------------
Dated this the 6th day of March, 2024
JUDGMENT
The above writ petition is filed seeking the
following reliefs:
(I) Issue a writ of mandamus or any
other appropriate writ, direction or order
commanding the respondents to process and
adjudicate Exhibits P1 and P2
representations in accordance with Section
94 of the Right to Fair Compensation and
Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.
(II) Issue a writ of Certiorari or any
other appropriate, writ, direction or
order calling for the records leading to
Exhibits P3 and P4 awards and quashing the
same.
(III) Issue such other further reliefs
as the necessary in the interest of
justice.
2. In connection with construction of Kochi
Metro Project properties of the petitioners were
proposed to be acquired and the petitioners
contend that if acquisition proceedings are
carried out, a portion of the hospital building
owned by the petitioners will have to be
demolished and that will badly affect the
structure and strength of the hospital building.
In the said circumstances, petitioners preferred
Exts.P1 and P2 essentially contending that if the
property is to be acquired the entire building
including land should be acquired. Petitioners
submit that without considering Exts.P1 and P2,
Ext. P3 and P4 awards were passed.
3. When the matter came up for consideration
on 7.2.2020 there was an interim order directing
that the possession has not been taken so far, it
shall not be taken from the petitioners without
leave of this Court. Later, the said order was
modified as per order dated 26.08.2020 wherein
based on the contention of the 4 th respondent that
they decided to modify the alignment for road
widening in front of the petitioners' property so
that the demolition of even a small portion of the
building can be avoided, and by such modification
only the front portion of the land need to be
acquired and the building and a portion of the
land would be spared, modified the interim order
granted on 7.7.2020 permitting the 4th respondent
to go forward with the construction.
4. A counter affidavit has been filed by the 4 th
respondent, wherein paragraphs 10,11 and 12 reads
as follows:
"10. It is submitted that the
partial acquisition of the building,
being a negligible portion will not
affect the functioning of the hospital
and all the contra averments are
baseless and preposterous. Partial
acquisition of a number of buildings
have already been done successfully by
this respondent for road widening and
the apprehensions of the petitioners
that the partial acquisition will
affect the strength of the building is
baseless. Partial demolition of the
building will be undertaken after
proper analysis and conducting
structural studies and will be executed
in the most feasible and secure manner
so that the strength of the building is
not adversely affected. However, for
structural analysis, approved building
plan and permit of the building is
highly necessary which the petitioners
are reluctant to submit for reasons
best known to them.
11. It is submitted that acquisition of
the entire land and building as
demanded by the petitioners will entail
exorbitant costs, which will affect the
financial viability of the project
itself and will only be a wastage of
public money. Moreover, this
acquisition is for road widening and
not for metro project. In view of the
inordinate delay caused in acquisition
of said land due to the dispute of the
petitioner including the demand for
acquisition of the entire building and
the cost implications of such demand,
this respondent is willing to modify
the alignment for the road widening,
infront of the petitioners' property so
that demolition of even a small portion
of the building can be avoided. The
modification can be made possible by
reducing the width of the footpath in
front of the said property to 0.50
meter instead of the planned 1.50
meter. By such modification, the front
portion of the land only need to be
acquired and the building and a portion
of the land can be fully avoided. A
detailed sketch showing the initial
alignment and the modified alignment is
produced herewith and marked as
Ext.R4(a) and Ext.R4(b) respectively.
Though the width of foot path will be
reduced in that small stretch, the said
change may not materially affect the
pedestrian movement and there may not
be any immediate chances of further
widening of the said road in view of
the proposal of PWD National Highways
Wing for a bypass from Kundannur to
Mattakuzhi near Puthencruz.
12. It is submitted that though
the Award is passed by Land Acquisition
Officer, the possession of the
petitioners' property has not been
taken so far and this Court has passed
an interim order to the effect that
possession shall not be taken without
leave of this Court. Accordingly,
possession of the land has not been
taken and no portion of the building is
demolished by this respondent so far.
In view of the proposed modification
whereby part of the land and the
building can be avoided, the Land
Acquisition Officer may be directed by
this Court to modify the award to cover
only the reduced extent of land and to
reduce the compensation
proportionately, within a time line to
be fixed by this Court."
5. The learned counsel for the petitioners
would submit that the alignment has been changed
and only a small portion of the property alone is
required for undertaking the construction. The
statement further state that in view of the
proposed modification the Land Acquisition
Officer, may be directed by this Court to
modify the award to cover only the reduced extent
of land and to reduce the compensation
proportionately.
6. Heard the learned Government Pleader also.
7. After hearing both sides, in view of the
intervening circumstances whereby the alignment
itself was modified whereby necessitating only
acquisition of a very small portion of the
property of the land, I am of the view that the
modified awards are to be passed in this case by
the Land Acquisition Officer in time with the
contention in the statement filed by the 4 th
respondent.
Therefore, the writ petition is disposed of with
a direction to the 2nd and 3rd respondents to issue
modified award in place of Exts.P3 and P4 in view
of the change of alignment by the 4th respondent. A
decision in this regard shall be taken by
respondents 2 and 3 after affording an opportunity
of being heard to the petitioners and the 4 th
respondent. A decision in this regard modifying
the award shall be passed within an outer limit of
2 months from the date of receipt of a copy of the
judgment.
sd/-
VIJU ABRAHAM,
JUDGE
pm
APPENDIX OF WP(C) 3456/2020
PETITIONERS' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE IST PETITIONER TO THE
3RD RESPONDENT DATED 25.6.2019.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE 2ND PETITIONER TO THE
3RD RESPONDENT DATED 25.6.2019.
EXHIBIT P3 TRUE COPY OF THE AWARD NOTICE ISSUED IN
FAVOUR OF THE IST PETITIONER DATED
18.12.2019.
EXHIBIT P4 TRUE COPY OF THE AWARD NOTICE ISSUED IN
FAVOUR OF THE 2ND PETITIONER DATED
18.12.2019.
EXHIBIT P5 TRUE COPY OF THE OTICE OF TAKING OVER
POSSESSION OF THE LAND DATED 18.12.2019
ISSUED TO THE IST PETITIONER.
EXHIBIT P6 TRUE COPY OF THE NOTICE OF TAKING OVER
POSSESION OF THE LAND DATED 18.12.2019
ISSUED TO THE 2ND PETITIONER.
RESPONDENTS EXHIBITS
EXHIBIT-R4(A) TRUE COPY OF THE DETAILED SKETCH
SHOWING THE INITIAL ALIGNMENT
EXHIBIT-R4(B) TRUE COPY OF THE DETAILED SKETCH
SHOWING THE MODIFIED ALIGNMENT
