Abraham George v. Kerala State Electricity Board and The Assistant Executive Engineer, 400 KV Sub Station, Madakkathara

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH DAY OF SEPTEMBER 2012/13TH BHADRA 1934 RSA.No. 1376 of 2010 ( ) -----------------------AS.190/2002 of ADDL.DISTRICT COURT-I, THRISSUR OS.386/1991 of I ADDL.MUNSIFF COURT,THRISSUR APPELLANT(S)/APPELLANT/PLAINTIFF: ------------------------------------------ ABRAHAM GEORGE, S/O.KURUVINAKUNNEL GEORGE, MADAKKATHARA DESOM, THRISSUR TALUK. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S)/RESPONDENTS/DEFENDANTS: ------------------------------------- 1. KERALA STATE ELECTRICITY, REPRESENTED BY ITS SECRETARY, KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM, PIN-695001. 2. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, 400 KV SUB STATION, MADAKKATHARA, THRISSUR, PIN - 680 651. BY SENIOR ADV. SRI.P.SANTHALINGAM, STANDING COUNSEL FOR KSEB BY ADV. SHRI S.SARAN, STANDING COUNSEL FOR KSEB THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.1376 of 2010 -------------------------------------Dated this the 4[th] day of September, 2012.** ## **JUDGMENT** The second appeal is admitted on the following substantial questions of law: i. Whether a property dedicated as a road ceases to be a road or way by virtue of alleged land acquisition in the facts and circumstances of this case? ii. Can the appellant be diverted or dispossessed from the plaint schedule property without payment of land acquisition compensation? iii. What is the legal effect of acceptance of quit rent from the appellant? 2. The second appeal arises from the judgment and decree of the I Additional Munsiff's Court, Thrissur in O.S.No.386 of 1991, confirmed by the I Additional District Court, Thrissur in A.S.No.190 of 2002. 3. The suit property (as described in the plaint) is a motorable road with length of 1094 links, width of 20 links and having a total extent of 22 cents in sy.No.272/1. The said property and other items originally belonged to the Maharaja of Cochin who granted a perpetual lease in favour of the Cochin 2 RSA No.1376/2010 Rubber Company. That lease hold right was purchased by one Thattil Kochuvareed who executed a Will bequeathing his right to his wife. The wife of Thattil Kochuvareed assigned her right to the father of the appellant and others as per assignment deed No.3783 of 1967. There was a partition among the father of the appellant and others as per deed No.1591 of 1988. The suit property was allotted to the share of the father of appellant. There was a further partition among the father of appellant and others as per which the suit property (along with other items) was allotted to the share of the appellant as C schedule to Ext.A4. It is the further case of the appellant that the wife of Thattil Kochuvareed assigned some other items belonging to her to K.M.Augustine, Kayyalakkakom and others as per document No.1791 of 1966 (a copy of which is Ext.A2). The appellant claimed that he is in possession and enjoyment of the suit property as its absolute owner. While so, the respondents constructed compound wall enclosing the suit property. That affected the proprietory and possessory right of the appellant. Enclosure of the suit property has resulted in blocking entrance to the rest of the property of the appellant. Hence the suit for prohibitory and mandatory injunction. 4. Respondents, the Kerala State Electricity Board and its Assistant Executive Engineer in charge of Madakkathara 400 KV Sub Station claimed that the appellant has no subsisting right, title, interest or possession of the suit property. They claimed that the suit property was part of the property acquired 3 RSA No.1376/2010 by the State Government for installation of the 400 KV Sub Station. The property was taken possession by the respondents. They denied that the suit property is a road. The father of the appellant had filed O.S.No.1133 of 1985 in respect of the same subject matter. But, that suit was dismissed for default. It is contended that hence the present suit is barred by res judicata. 5. Initially the trial court had granted a decree in the suit. On appeal at the instance of the respondents, there was a remand directing the trial court to decide whether the entire property in survey No.272 was acquired or not. Thereafter, the trial court dismissed the suit which the first appellate court has confirmed. Hence the Second Appeal. 6. The learned counsel for the appellant contends that there is no evidence to show that any property in survey No.272/1 was acquired by the State Government on behalf of the respondents. It is also contended that the remand made by the first appellate court was to enable the respondents produce documents relating to acquisition of the land in survey No.272/1. But no such document is produced until now. The documents relied on by the respondents are not sufficient to show that there was acquisition of property comprised in survey No.272/1. At any rate, there is no evidence to show that notice of acquisition was given to the appellant or his predecessor-in-interest. Instead, the persons to whom notices were issued in connection with the acquisition are those to whom the wife of Thattil Kochuvareed had assigned certain other items 4 RSA No.1376/2010 as per document No.1791 of 1966. No compensation was awarded to the appellant or his predecessor-in-interest for alleged acquisition of any land belonging to him in survey No.272/1. At any rate, there is no evidence to show the entire land in survey No.272/1 was acquired. 7. Another argument the learned counsel has advanced is that as the appellant is not paid compensation for the acquisition if any, he could not have been dispossessed. The learned counsel, placing reliance on Ext.A11 series argued that the appellant was paying quit rent for the property comprised in survey No.272. 8. It is further argued by the learned counsel that even if it is assumed that the suit property is part of the property acquired by the State Government on behalf of the respondents, that acquisition cannot affect the right of way of the appellant. According to the learned counsel, the appellant is entitled to have access to every inch of the Government land that abuts the property belonging to him. 9. The learned counsel for the respondents contends that sufficient evidence is adduced to show that the property comprised in survey No.272 is also acquired. According to the learned counsel, the acquisition is free of all encumbrances as per Sec.16 of the Land Acquisition Act (for short, “the Act”). That 'encumbrance' includes a right of access as well. Therefore, even if it is 5 RSA No.1376/2010 assumed that the appellant had any right of access through the suit property, it is free of that right that the acquisition was made by the State Government on behalf of the respondents. The learned counsel submits that it is after dismissal of O.S.No.386 of 1991 that the respondents have constructed compound wall enclosing the property acquired. It is pointed out that construction of the compound wall is necessary to protect the Sub Station having regard to its security aspects. 10. Ext.A1 is the assignment deed No.3783 of 1967 as per which the father of appellant and others purchased the properties mentioned therein. Ext.A7 is the sketch of the property referred to in Ext.A1. Ext.A3 is the copy of partition deed No.1591 of 1988 executed between the appellant and others. It is under Ext.A3 that appellant has claimed title and possession of the suit property. Ext.A6 is the certificate issued by the Tahsildar , Thrissur on 07.02.1991 which states that enquiry revealed that 22 cents in survey No.272 of Madakkathara Village is in the possession of Annamma Antony and others. 11. As against the documents produced by the appellant, respondents produced Exts.B1 to B5. Ext.B1 is the plan of the property in the possession of the respondents where the 400 KV Sub Station is established. Exts.B2 and B3 are the copy of gazette notifications. Ext.B4 is the copy of sketch of the property comprised in survey No.272. Ext.B5 is produced to show that respondents are paying revenue for the property acquired. 6 RSA No.1376/2010 12. When A.S.No.190 of 2002 was pending before the learned Additional District Judge-I, Thrissur, respondents produced Exts.B6 to B8 as per I.A.No.2385 of 2010 to receive the said documents as additional evidence. The said application was preferred on 02.07.2010. In the affidavit in support of the application it is stated that the respondents could trace out Exts.B6 to B8 only then and hence could not produce the same in the trial court. On the request of the respondents, the first appellate court appointed an Advocate Commissioner to inspect the property. The Advocate Commissioner submitted a report and sketch - Exts.C2 and C2(a) (I am told that the purpose of inspection was to show that appellant has other access to the property belonging to him). Learned Additional District Judge disposed of the appeal on 17.08.2010. Exts.B6 to B8 were admitted in evidence and relied upon. Ext.B6 is a certificate of possession dated 17.06.2010 issued by the Village Officer. As per Ext.B6, the property in the possession of the respondents takes in 43.08.14 hectares in survey No.272/1 as well. Ext.B7 is a location certificate dated 17.06.2010 issued by the same authority. As per Ext.B7, the total extent of 48.10.34 hectares (allegedly acquired by the State Government for the purposes of the respondents) takes in the property comprised in survey No.272/1 as well. Ext.B8 is the copy of award in L.A.2-830 of 1983. That document is produced to show that the property comprised in survey No.272/1 was also acquired. 13 . The first question that requires decision is whether the suit property - 22 cents in survey No.272/1 was acquired by the State Government. 7 RSA No.1376/2010 It is asserted by the learned counsel for the appellant that in Ext.B8, copy of award neither the appellant nor his predecessor-in-interest is a party. It is stated in page 2 of Ext.B8 that the land under acquisition involves about 107 Acres of puramboke land given under long term lease to Kayyalakkakam Rubber Estate (appellant claims no connection with that Rubber Estate) and ten acres of patta land belonging to the same Estate. It also involves five acres of land owned by four different occupants. In page 19 of Ext.B8, details of the land acquired from survey No.272/1 are given. The extent is 43.08.14 hectares (which according to the respondents formed part of the total extent of 48.10.34 hectares). It is relevant to note that in page 19 of Ext.B8, it is stated that notice under Sec.9(3) of the Act was given to the persons referred to therein who does not include the appellant and as the learned counsel for the appellant asserts, his predecessor-in-interest. If the argument of the learned counsel for the appellant is accepted, it follows that neither the appellant nor his predecessorin-interest is a party to Ext.B8. 14. The notification issued by the Government for acquisition of the land is not seen produced by the respondents. Ext.B2 is only an erratum to the notification and is dated 10.09.1980. There, reference is to 47.75.46 hectares in survey No.272/D part. I do not find any reference to the property in survey No.272/1. 8 RSA No.1376/2010 15. At this juncture it is relevant to refer to the evidence of DW4, the Village Officer. He has given evidence that the total extent of land available in all the sub-divisions of survey No.272 is 117.69.43 hectares, as per Ext.B4, what is shown as acquired is 43.34.18 hectares in survey No.272 and that the rest of the property in survey No.272 has not been acquired. The property not acquired is in the possession of several persons. 16. Ext.B3 is only a notification dated 18.05.1994 issued by the State Government declaring the areas mentioned therein as prohibited area (in view of installation of the 400 KV Sub Station). There ofcourse, the property comprised in survey No.272/1 is also mentioned. Ext.B4 also states that 43.08.14 hectares in survey No.272/1 was also acquired. 17. DW1, the 2[nd] respondent stated that Ext.B4, sketch of the land taken possession for the respondents though mentions survey No.272 as well (without mentioning the sub-division), that sketch is not capable of identifying the property described in the plaint schedule. 18. So far as Exts.B6 to B8 are concerned, the said documents are admitted in evidence in the first appellate court. The officials connected to Exts.B6 to B8 are not examined. Nor did not the appellant get an opportunity to controvert Exts.B6 to B8 or examine/cross-examine the persons connected with 9 RSA No.1376/2010 Exts.B6 to B8. In that circumstances, the first appellate court should not have acted upon Exts.B6 to B8 without giving the appellant an opportunity to controvert it. Similar is the situation as regards Exts.C2 and C2(a). 19. It is not shown what is the total extent of land comprised in survey No.272/1 (in which, according to the appellant, the suit property is comprised), whether the acquisition concerns the property in survey No.272/1 and if so whether the entire property in survey No.272/1 is acquired or not. I stated that the notification under Sec.4(1) ) of the Act is not produced and what is produced is only Exts.B2 and B3. Ext.B2, erratum notification only refers to the land in survey No.272/D part (and not survey No.272/1). Ext.B3 by itself, may not be sufficient (I am not concluding on this point) to say whether the property in survey No.272/1 is acquired and assuming so, whether the entire property in survey No.272/1 is acquired or not. 20. Having regard to the facts and circumstances above stated, I am inclined to think that certain aspects require consideration and decision: whether the property comprised in survey No.272/1 was acquired or not; whether such acquisition, if any, was of the entire property in survey No.272/1 or not, and assuming that the entire property in survey No.272/1 is not acquired, whether the suit property forms part of the property not acquired? Only by entering appropriate finding regarding the above, there could be a final resolution of the dispute involved in this case. If the suit property is not part of the property 10 RSA No.1376/2010 acquired by the State Government, I am inclined to think that respondents could not lay hands on the suit property whether it is lying as a road or not. This aspect of the matter requires attention of the trial court. 21. So far as Exts.B6 to B8 are concerned, since I propose to remit the case to the trial court for fresh decision it is open to the parties concerned to examine those connected with Exts.B6 to B8, if the parties are so advised. If not, it is for the trial court to decide upon the probative value of the said documents. So far as Exts.C2 and C2(a) are concerned, it is open to the appellant to raise objection if any to the said report and sketch and substantiate the same. 22. The other argument learned counsel has advanced is as to the effect of the acquisition (if any) of the suit property on the right of way appellant has claimed over the said property. Since the trial court is required to enter a finding on other aspects referred to above, it is not necessary for me to go into other questions raised in this appeal. All other contentions raised by the appellant are left open to be decided by the trial court. 23. The substantial questions of law framed are answered as above. Resultantly, this Second Appeal is allowed by way of remand as under: 11 RSA No.1376/2010 i. Judgment and decree of the I Additional District Court, Thrissur in A.S.No.190 of 2002 and of the I Additional Munsiff's Court, Thrissur in O.S.No.386 of 1991 are set aside. ii. O.S.No.386 of 1991 is remitted to the I Additional Munsiff's Court, Thrissur for fresh decision in the light of the observations made above after giving both sides opportunity to adduce evidence in respect of the contentious issues. iii. The trial court is directed to expedite the disposal of the suit. iv. Parties shall appear in the trial court on 03.10.2012. v. Registry shall send the records of the case to the trial court forthwith. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**