K.P. Asma & Others v. Special Tahsildar, LA (NH), Unit-2, Collectorate, Kannur; District Collector, Kannur; Project Director, National Highway Authority of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 14TH DAY OF DECEMBER 2020 / 23RD AGRAHAYANA, 1942** ## **W.P.(C)No.23924 OF 2020(M)** ## **PETITIONERS:** **1 K.P.ASMA, AGED 66 YEARS, D/O ASEEMA, K.P.HOUSE, CHELORA, THILANOOR, KANNUR DISTRICT. 2 DR.K.P.AKBAR, AGED 60 YEARS, S/O ASEEMA, K.P.HOUSE, CHELORA, THILANOOR, KANNUR DISTRICT. 3 K.P.MUNEER, AGED 51 YEARS, S/O ASEEMA, K.P.HOUSE, CHELORA, THILANOOR, KANNUR DISTRICT. BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH)** ## **RESPONDENTS:** **1 THE SPECIAL TAHSILDAR, LA,(NH), UNIT-2,COLLECTORATE, KANNUR-670 001. 2 THE DISTRICT COLLECTOR, KANNUR-1. 3 THE PROJECT DIRECTOR, THE NATIONAL HIGHWAY AUTHORITY OF INDIA, P.O.CIVIL STATION,KOZHIKODE-673 020. R3 BY ADV. SRI.MATHEWS K.PHILIP R1&R2 SMT A.C.VIDHYA, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.23924 OF 2020(M) -2- ## **JUDGMENT** The petitioners, who are stated to be the co-owners of a property having an extent of 0.0101 hectares in Re.survey No.63/2 (new No.63/9) of Thilanoor Desom of Chelora Village of Kannur Taluk, with structures situated therein, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P10 reference letter dated 23.06.2020 issued by the 1[st] respondent Special Tahsildar (LA). The petitioners have also sought for a writ of mandamus commanding the 1[st] respondent to release the compensation awarded to the petitioners for the land referred to in Ext.P10. 2. On 06.11.2020, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for respondents 1 and 2 and the learned Standing Counsel for the National Highway Authority of India took notice for the 3[rd] respondent. 3. The 1[st] respondent Special Tahsildar has filed a statement. Paragraphs 4 and 5 of that statement read thus; “4. It is submitted that the land owners had produced only part of title deed in original (only 1[st] page of the Document No.2901/1981 of SRO Kadachira) saying that the deed was W.P.(C) No.23924 OF 2020(M) -3- irrecoverably lost. Though they were asked to furnish the title deed in original and purchase certificate for proving the title of the property, they failed to do so. Hence the matter was referred to the Hon'ble Principal Civil Court, Thalassery for adjudication vide lr.No.LAC-5852 dated 23.06.2020 of this office as per Section 3H(4) of National Highway Act, 1956 and the order is awaiting from the Hon'ble Court. Further, in this LA case, all proceedings, except determination of compensation, are to be carried out as per provisions contained in sections in National Highway Act, 1956. The determination of compensation is done in accordance with the provisions in the FIRST schedule of the RFCTLARR Act, 2013. 5. It is true that the District Collector (2[nd] respondent) had directed to consider the matter based on the certified copy of the title deed based on the petition from the land owners. In this connection it is submitted that the land owners failed to produce not only the original title deed but the purchase certificate also for proving the title of the land to be acquired. Hence the matter was referred to the Hon'ble Principal Civil Court, Thalassery. The land owners were required to produce the purchase certificate for proving the jenmam right over the land to be acquired.” 4. A statement has been filed on behalf of the 3[rd] respondent Project Director, National Highway Authority of India. Paragraphs 5 to 7 of that statement read thus; “5. With regard the averments in paragraph 2 of the writ petition it is true that land owners had produced only part of W.P.(C) No.23924 OF 2020(M) -4- title deed in original (only 1[st] page of the title 2901/1981 of SRO Kadachira) saying that the deed was irrecoverably lost. Though they were asked to furnish the title deed in original and purchase certificate for proving the title of the property, they failed to do so. Hence the matter was referred to the consideration of the Hon'ble Principal Civil Court, Thalassery for adjudication vide lr.No.LAC-5852 dated 23.06.2020 of this office as per Section 3H(4) of NH Act 1956 and the order is awaiting from the Hon'ble Court. Further, in this LA case, all proceedings except determination of compensations which is done as per provisions in the FIRST schedule of the RFCTLARR Act 2013, are to be carried out as per provisions contained in sections in NH Act 1956. 6. With regard the averments in paragraph 3 & 4 of the writ petition it is submitted that the matter was referred to the adjudication of the Hon'ble Principal Civil Court, Thalassery as per Section 3H(4) of NH Act 1956 since the land owners failed to prove the title of the land to be acquired. The order of the Hon'ble court is awaiting in this regard. Moreover it is submitted that all proceedings except determination of compensations which is done as per provisions in the FIRST schedule of the RFCTLARR Act 2013, are to be carried out as per provisions contained in sections in NH Act 1956. 7. With regard the averments in paragraph 5 of the writ petition, it is true that the District Collector (2[nd] respondent) had directed to consider the matter based on the certified copy of the title deed based on the petition from the land owners. In this connection it is submitted that the land owners failed to produce not only the original title deed but W.P.(C) No.23924 OF 2020(M) -5- the purchase certificate also for proving the title of the land to be acquired. Hence the matter was referred to the Hon'ble Principal Civil Court, Thalassery.” 5. Heard the learned counsel for the petitioners, the learned Government Pleader appearing for respondents 1 and 2 and also the learned Standing Counsel for National Highway Authority of India, for the 3[rd] respondent. 6. From the the pleadings and materials on record and also the submissions made by the learned counsel on both sides, this Court finds that, before the 1[st] respondent Special Tahsildar, the petitioners could produce only part of their title deed, i.e., Document No.2901/1981 of the Sub Registrar Office, Kadachira, in original. They produced only the 1[st] page of that document in original, saying that the deed is irrecoverably lost. Though the petitioners were asked to furnish the title deed in original and purchase certificate for proving their title over the property, they failed to do so. Hence, the 1[st] respondent, vide Ext.P10 reference letter dated 23.06.2020, referred the matter to the Principal Civil Court, Thalassery, for adjudication, as per the provisions under sub-section (4) of Section 3H of National Highways Act, 1956. The specific stand taken by the 1[st] respondent in the statement filed W.P.(C) No.23924 OF 2020(M) -6- before this Court is that, since the petitioners failed to produce not only the original title deed, but also the purchase certificate, in order to prove their title over the land to be acquired, the matter could not be considered based on the certified copy of the title deed. 7. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. 8. In view of the law laid down in the decisions referred to supra, the petitioners are not entitled to seek a writ of mandamus commanding the 1[st] respondent Special Tahsildar to release the compensation awarded for the land referred to in Ext.P10, without the petitioners proving their title over that property by producing W.P.(C) No.23924 OF 2020(M) -7- the original title deed and the purchase certificate, since no mandamus can be issued to the 1[st] respondent to do something contrary to law. Therefore, no interference is warranted on Ext.P10 reference letter dated 23.06.2020 of the 1[st] respondent, whereby the matter is referred to the Principal Civil Court, Thalassery, for adjudication, as per the provisions under sub-section (4) of Section 3H of National Highways Act. In the result, this writ petition fails and the same is accordingly dismissed. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** **bpr** W.P.(C) No.23924 OF 2020(M) -8- ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE KUZHIKANAM PATTAM THEER DEED NO.207/1926 DATED 29.1.1926 EXHIBIT P2 TRUE COPY OF THE ASSIGNMENT DEED NO.1347/1955 EXHIBIT P3 TRUE COPY OF THE JENM ASSIGNMENT DEED NO.46/1963 DATED 10.1.1963 EXHIBIT P4 TRUE COPY OF THE REGISTERED PARTITION DEED NO.54/1963 DATED 9.1.1963 EXHIBIT P5 TRUE COPY OF THE 1ST AND 2ND PAGE OF THE ASSIGNMENT DEED NO.2901/81 EXHIBIT P6 TRUE COPY OF THE REGISTRATION COPY OF THE DEED NO.2901/81 EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT FURNISHED BEFORE 1ST RESPONDENT EXHIBIT P8 TRUE COPY OF THE CANCELLED CHEQUE NOS.02199242 AND 605644 EXHIBIT P9 TRUE COPY OF THE SURVEYOR REGISTER ISSUED FROM LAND TRIBUNAL,KUTHUPARAMBA EXHIBIT P10 TRUE COPY OF THE REFERENCE LETTER U/S 18 OF KLR ACT DATED 23.06.2020. RESPONDENTS' EXHIBITS: NIL**