K.T. Hassankoya (Petitioner) v. District Collector, Kozhikode; Secretary to Government, Public Works Department; Secretary to Government, Revenue Department; Secretary, Kozhikode Corporation; T.P.M. Zahir (Ex-MLA) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 23[RD] DAY OF MAY 2023 / 2ND JYAISHTA, 1945** ## **WP(C) NO. 35932 OF 2015** ## **PETITIONER/S:** K.T.HASSANKOYA AGED 66 YEARS S/O. MOOSAKKUTTY HAJI, MENOTH HOUSE, PANNIYANKARA P.O., CALICUT-673003. BY ADVS. VINOD RAVINDRANATH MEENA.A. K.C.KIRAN M.R.MINI M.DEVESH ASHWIN SATHYANATH ## **RESPONDENT/S:** 1 DISTRICT COLLECTOR, KOZHIKODE CIVIL STATION, CALICUT-673020. 2 SECRETARY TO THE GOVERNMENT PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 3 SECRETARY TO THE GOVERNMENT REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM695001. 4 SECRETARY KOZHIKODE CORPORATION, CALICUT-673032. 5 T.P.M.ZAHIR EX-MLA, 5/1479, SHARAFATH, P.O. ERANHIPALAM, CALICUT-673006. BY ADVS. V.KRISHNA MENON SRI.K.M.FIROZ SMT.M.SHAJNA SMT.FEMINA K.M. ## **OTHER PRESENT:** SPL.GP. S.RENJITH **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.11.2022, THE COURT ON 23.05.2023 DELIVERED THE FOLLOWING:** W.P.(C) No.35932 of 2015 -2- ## **JUDGMENT** Dated this the 23[rd] day of May, 2023 The petitioner is the owner of 90 cents of land in R.S.No.21-9-182 of Panniyankara Village, Kozhikode Taluk, Kozhikode District. As per Ext.P2 letter dated 15.11.2003, the 5[th] respondent who was the elected member of the Kozhikode-2 Legislative Constituency, within which the petitioner's property is situated, requested to give advance possession of a portion of petitioner's land for widening the road connecting Anamad and Chulikkal. The petitioner was also informed that the acquisition papers are being processed through the Revenue Department and the 5[th] respondent also assured that the petitioner will get due compensation from the department. That the land will be utilised for a public purpose and would be beneficial for W.P.(C) No.35932 of 2015 -3- development of the petitioner's balance property was also pointed out. Based on the 5[th] respondent's request, the petitioner gave oral consent for acquiring 15 cents for widening of the road. According to the petitioner, before the land was taken possession, he suffered a heart ailment and was bedridden, making it impossible for him to take follow up action after giving oral consent. The petitioner later realised that, instead of 15 cents, the road had been widened by utilising 18 cents of land. To the petitioner's dismay, no compensation, as assured in Ext.P2 letter of the 5[th] respondent, was paid. He therefore took up the matter with the District Collector and the Secretary of Kozhikode Corporation through Exts.P3, P5, P10 representations, and followed it up with Ext.P11 lawyer notice. The representations and notice having failed to evoke any positive response, this writ petition is filed seeking the -4- ## W.P.(C) No.35932 of 2015 ## following reliefs; _“(i) declare that the act of the respondents in acquiring 18 cents of the petitioner's property is without complying with the requirements of the Land Acquisition Act, and therefore unconstitutional, without the authority of law and illegal._ _(ii) To issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents 1 to 4 to return the 18 cents of property acquired from the petitioner without complying with the requirements of the Land Acquisition Act;_ _(iii) in the alternative, to issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents 1 to 4 to pay compensation to the petitioner at the rate of Rs. 10 lakhs per cent for the 18 cents of property acquired from the petitioner_ _(iv) Grant such other and further reliefs as this Hon'ble Court deems fit and proper to grant in the light of the facts and circumstances of the case and in the interests of justice.”_ 2. Learned Senior Counsel, appearing for the petitioner, contended that the manner in which petitioner's property was acquired and W.P.(C) No.35932 of 2015 -5- utilised, militates against the petitioner's fundamental right under Article 21 and his constitutional right under Article 300A. It is submitted that Exts.P2 and P11 are proof of the fact that the petitioner was made to give consent by assuring payment of adequate compensation. Having thus made the petitioner grant permission for utilising his property and having constructed the road, respondents 1 to 4 cannot shirk away from their obligation of paying compensation to the petitioner. 3. Learned Special Government Pleader (Revenue) appearing for 1 to 3 submitted that the land having been utilised for construction of a Corporation road, the responsibility, for paying compensation is that of the Kozhikode Corporation. It is contended that, having voluntarily surrendered his land, the petitioner cannot seek compensation, that too at this highly belated stage. W.P.(C) No.35932 of 2015 -6- 4. Learned Counsel for the Kozhikode Corporation contended that the writ petition is not maintainable as the relief is barred by limitation. On merits, it is contended that the petitioner had benefited by the surrender, since, as a result of the construction/widening, the value of his land had increased manifold. Knowing this, the petitioner had voluntarily surrendered the land and having derived the benefit of road widening, the attempt to make illegal enrichment cannot be allowed. 5. Replying to the contention regarding delay and laches, learned Senior Counsel contended that, insofar as the petitioner is deprived of his property illegally, possession of the respondents is a continuing wrong and no question of delay or limitation arises. To buttress this contention, attention is drawn to the decision of the Supreme Court in _**Vidya Devi**_ W.P.(C) No.35932 of 2015 -7- _**v. State of H.P. and others [(2020) 2 SCC 569] and (Kalyani (Dead) through L.Rs and Ors. v. The Sulthan Bathery Municipality and others [2022 SCC OnLine SC 516])** ,_ 6. It is true that the petitioner had made his first representation in 2011, whereas the construction was completed in the year 2004. Hence whether the relief sought in this writ petition is barred by limitation would normally arise. It was precisely this question that was considered and answered by the Honourable Supreme Court in _**Vidya Devi** (supra)_ . Therein also, the appellant's land was acquired without taking recourse to acquisition proceedings or following the due process of law. Construction of the road was completed in the year 1975 and the appellant was not paid the compensation due to her. Aggrieved, the appellant filed a writ petition before the High Court for directing the State W.P.(C) No.35932 of 2015 -8- Government to pay compensation. The State opposed the prayer for compensation contending that it had been in continued possession of the property for the last 42 years and had acquired title by adverse possession. The High Court accepted the State's contention and rejected the appellant's writ petition. In appeal, the Apex Court dealt with the contention as to delay and laches raised by the State in detail and held as under; _“12.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional_ -9- ## W.P.(C) No.35932 of 2015 _jurisdiction to do substantial justice.”_ The Court also rendered the following finding on the plea of adverse possession raised by the State; _“12.11. We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over 42 years, it would tantamount to “adverse” possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case._ The Supreme court thus made it clear that illegal acquisition is a continuing wrong, the respondents having divested the appellant of her property without recourse to due process of law and without paying adequate compensation. W.P.(C) No.35932 of 2015 -10- 7. In _**Kalyani**_ ( _supra_ ), wherein the appellants sought compensation for their land taken over by the Sulthan Bathery Municipality, it was contended that the land was voluntarily surrendered, free of cost. The contention was rejected by the Apex Court finding the Municipality and the PWD to have failed in producing a single piece of document or evidence in support of the contention regarding free surrender of land. Further, there was neither any acquisition nor transfer of rights by the appellants by way of sale, gift or otherwise. 8. Applying the dictum laid down in the above decisions, the contention based on delay and laches is liable to be rejected. There is no dispute to the fact that a road has been constructed and no compensation was paid to the appellant. Ext.P1 shows that the appellant was made to give advance possession of his land on W.P.(C) No.35932 of 2015 ## -11- the assurance that the acquisition proceedings will be initiated and compensation paid. The 5[th] respondent, who had issued Ext.P2 letter containing the assurance, has reiterated the fact in Ext.P11 letter also. It is also pertinent to note that, making a vague averment that the petitioner had voluntarily surrendered his land, the Kozhikode Corporation or the PWD have no any scrap of paper evidencing such surrender. In this context, it is essential to note that Section 349 of the Municipality Act confers Municipalities conferred with the power to acquire land. As per Rule 3(2) of Kerala Municipality (Acquisition and Disposal of Property) Rules, 2000, the acquisition may either be in accordance with the Act for the time being in force and the Rules made thereunder or under bilateral agreement with the owner of the land. It is hence clear that Municipality/Corporation can acquire land only by resorting to the provisions of the Land ## W.P.(C) No.35932 of 2015 -12- Acquisition Act and Rules or under a written bilateral agreement. The Corporation having failed to resort to either of the above modes, deprivation of petitioner's right over a portion of his property, clearly violates the Constitutional right guaranteed under Article 300A. Having found the acquisition to be illegal, I am not directing to return the land to the petitioner's possession since the road is constructed and is being utilised by the public. The only other alternative is to pay reasonable compensation to the petitioner. In the result, the writ petition is disposed of directing the first respondent to initiate appropriate steps for determining the extent of petitioner's land utilised for the construction of the road and the market value of the land taken over. The said proceedings shall be completed within three months of receipt of a copy of this judgment. Once the market value of W.P.(C) No.35932 of 2015 -13- the property is determined, that amount shall be disbursed to the petitioner within one month. If the petitioner is dissatisfied with the quantum of market value fixed by the District Collector, he can approach the Civil Court seeking enhancement. In the event of such a suit being filed, the same shall be disposed in the manner in which applications for reference under Section 18 of the Land Acquisition Act, 1984 are decided. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.35932 of 2015 -14- ## **APPENDIX OF WP(C) 35932/2015** PETITIONER EXHIBITS EXHIBIT P1- TRUE COPY OF DOCUMENT NO. 1589/1986 OF SRO CHALAPPURAM. EXHIBIT P2- TRUE COPY OF LETTER DATED 15-11-2003 SENT BY THE 5TH RESPONDENT TO THE PETITIONER. EXHIBIT P3- TRUE COPY OF THE LETTER DATED 16-08-2011 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P4- TRUE COPY OF THE LETTER DATED 14-11-2011 SENT BY THE MINISTER OF PANCHAYATS AND SOCIAL WELFARE, GOVERNMENT OF KERALA TO THE 1ST RESPONDENT. EXHIBIT P5- TRUE COPY OF THE REPLY LETTER DATED 07-12-2011 SENT BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P6- TRUE COPY OF THE LETTER DATED 26-12-2011 SENT BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P7- TRUE COPY OF THE LETTER DATED 23-07-2012 SENT B THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P8- TRUE COPY OF THE POSSESSION CERTIFICATE DATED 27-09-2007 ISSUED BY THE VILLAGE OFFICER, PANNIYANKARA IN FAVOUR OF THE PETITIONER. EXHIBIT P9- TRUE COPY OF THE PLANTATION TAX RECEIPT DATED 02-02-2013 ISSUED BY THE THE SPECIAL VILLAGE OFFICER IN FAVOUR OF THE PETITIONER. EXHIBIT P10- TRUE COPY OF THE REPRESENTATION DATED 19-022014 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P11- TRUE COPY OF THE LEGAL NOTICE DATED 11-08-2015 ISSUED BY THE PETITIONER TO RESPONDENTS 1,2,4 AND 5. EXHIBIT P12- TRUE COPY OF THE REPLY DATED 26-08-2015 SENT BY THE 5TH RESPONDENT TO THE PETITIONER.