P.M. Mathew and Chinnama Mathew v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 WP(C).No. 907 of 2008(G) ------------------------ PETITIONER(S): - --------------- 1. P.M.MATHEW, AGED 76, S/O.MATHEW, PERUMATTIKUNNEL (H), VELLILAPILLY VILLAGE, AIMKOMPU KARA, MEENACHIL TALUK, PALAI. 2. CHINNAMA MATHEW, AGED 70 YEARS, W/O.P.M.MATHEW, PERUMATTIKUNNEL (H), VELLILAPILLY VILLAGE, AIMKOMPU KARA, MEENACHIL TALUK, PALAI. BY ADV. SRI.K.S.HARIHARAPUTHRAN - SRI.M.D.SASIKUMARAN SRI.P.J.JOSEPH SRI.GEORGE MATHEW SRI.SUNIL KUMAR A.G RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, PUBLIC WORKS DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER (PROJECT), - KERALA STATE TRANSPORT PROJECTS (KSTP), RAJADHANI COMPLEX, KARAMANA P.O., THIRUVANANTHAPURAM. 3. DISTRICT COLLECTOR, CIVIL STATION, KOTTAYAM. 4. SPECIAL TAHSILDAR, LAND ACQUISITION, NATIONAL HIGHWAYS, POOKUNNAM. 5. EXECUTIVE ENGINEER, KSTP, KANJIRAPILLY-686 507. 6. WORLD BANK, INDIAN OPERATIONS, - 70, LODHI ESTATE, NEW DELHI-3, REPRESENTED BY ITS COUNTRY DIRECTOR, INDIA. GOVERNMENT PLEADER SMT.LATHA THANKAPPAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 4 /11 /2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.907/2008 ## APPENDIX ## PETITIONERS EXHIBITS: EXT.P1: COPY OF THE DISCHARGE SUMMARY DATED 11/8/2004. EXT.P2: COPY OF THE DISCHARGE SUMMARY DATED 5/8/2005. EXT.P3: COPY OF THE LETTER DATED 3/3/2003 EXT.P4: COPY OF THE REPRESENTATION WITH SKETCH DATED 15/10/2003. EXT.P5: COPY OF THE LETTER DATED 31//01/2006. EXT.P6: COPY OF THE LETTER DATED 16/2/2006. EXT.P7: COPY OF NOTICE DATED 15/7/2006. EXT.P8: COPY OF REPRESENTATION DATED 18/7/2006. EXT.P9: COPY OF NOTICE DATED NIL RECEIVED ON 26/11/2007. EXT.P10: COPY OF THE UNDATED INTIMATION RECEIVED IN 2003. EXT..P11: COPY OF THE LETTER DATED 18/12/2007. EXT.P12: COPY OF THE LETTER DATED 2/01/2008. EXT.P13: COPY OF SKETCH PREPARED BY THE PETITIONER. EXT.P13(A): COPY OF SKETCH PREPARED BY THE PETITIONER. EXT.P13(B): COPY OF SKETCH PREPARED BY THE PETITIONER. EXT.P13(C): COPY OF SKETCH PREPARED BY THE PETITIONER. EXT.P14: ORIGINAL PHOTOGRAPH EXT.14(A): ORIGINAL PHOTOGRAPH. /TRUE COPY/ P.A. TO JUDGE. ## **PIUS.C.KURIAKOSE,J. -----------------------W.P.(C)No.907 of 2008 ------------------------** Dated this the 4[th] day of November, 2008 ## **JUDGMENT** The grievance of the petitioners, who are husband and wife, is that on account of the proposal to acquire a portion of their holding extending to 70.42 cents of land in Rs.No.115/4/-1 of Vellilapilly Village in Meenachil Taluk, they will be deprived of various amenities which they are presently enjoying. Their request, therefore, was to shift the alignment to a certain extent so that their grievance can be mitigated to a considerable extent. The proposed acquisition is under the KSTP and is intended to facilitate widening of the Punalur –Thodupuzha State Highway in its reach from Thodupuzha to Palai. The prayers in the writ petition are the following; i). To call for the records which lead to the issuance of Ext.P9 and to issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing the same. WPC.No.907/2008 2 ii). To issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to consider and change the alignment as proposed by the petitioners as per Ext.P13(c). iii). To issue such other writ, order or direction as this Hon'ble Court deems fit and proper to grant in the nature and circumstances of the case. 2. A detailed counter affidavit has been filed by the fifth respondent – Executive Engineer, who is implementing the project under the second respondent Chief Engineer. After refuting the various grounds raised, it is stated in the counter affidavit that award has been passed and possession has been taken over and that the compensation amount of Rs.3,01,513/determined by the awarding officer has been deposited also. It is also pointed out that as per R & R policy adopted for this project, the petitioners are eligible for replacement value of Rs.6,66,801/-. To the counter affidavit, the petitioners have filed WPC.No.907/2008 3 a detailed reply affidavit reiterating their contentions and denying the contentions raised in the counter affidavit. 3. Heard both sides. Sri.George Mathew, learned counsel for the petitioners has addressed me very strenuously on the basis of the various grounds raised. My attention was drawn by him to the various documents placed on record. The learned counsel submitted that both the petitioners are senior citizens who are living alone on the portion of the property which is now proposed to be acquired. He further submitted that the petitioners are not opposed to proposal to widen the State highway. Their only request is that a minor shift be made in the alignment so that the acquisition will be less injurious from their point of view. 4. Smt.Latha Thankappan, learned Government Pleader submitted that it is not the petitioners alone, who are being affected. Thousands of other peoples' properties also are being acquired. Many of them are being deprived of their residential houses. She further submitted that under the R & R policy, which is applicable to the present acquisition for KSTP project, the affected persons are getting many benefits, which persons WPC.No.907/2008 4 affected by the acquisition under the ordinary provisions of the Land acquisition Act will not be getting. The learned counsel for the petitioners would lastly submit that the petitioners are not very keen on opting for DLPC rate. According to the counsel if it comes to that, they would like to have the compensation redetermined in terms of Section 18 of the Land acquisition Act. 5. The essential request of the petitioners is that a shift be made in the alignment for the purpose of saving a well and septic tank which are said to be located in the front yard of the petitioners' building. According to them, though the property which will remain with the petitioners even after the acquition is about 50 cents, there will not be a suitable place to locate the septic tank or the well. According to them, the terrain of the land will not permit relocating the well or the septic tank. The request of the petitioners, as already indicated, is to make a shift in the alignment which has been fixed obviously on the basis of the plan prepared on the basis of the technical advice given by M/s. L.B.I. The project is part of a larger project of widening the entire State Highway from Punalur to Muvattupuzha. Several people are being affected and many of WPC.No.907/2008 5 them are being deprived of their residential houses. The public nature of the purpose can never be doubted and even the petitioners do not question to that. The correctness of the alignment of an existing highway or realignment of a highway which is proposed to be widened are all matters to be decided by the requisitioning authority on the basis of the technical advice received by him. In the instant case, the requisitioning authority had the best available technical advice and accepting that advice only they have fixed the alignment. Any shift in the alignment will necessitate realignment of the highway not only of the portion which lies immediately in front of the petitioners' property, but also other portions. I am not persuaded despite the submissions of Sri.Geroge Mathew, counsel for the petitioner, that there is justification for permitting such a realignment. 6. The result is that the writ petition will stand dismissed. If the petitioners want to have the question of determining the correct compensation payable to them for the acquired property decided by a competent civil court, the petitioners are permitted to make a regular application for reference under Section 18 to the Land Acquisition Officer within three weeks of receiving a 6 WPC.No.907/2008 copy of this judgment. If such application is received by the Land Acquisition Officer within the stipulated time, he will entertain that application and consider the same favourably as though the same is filed on time. For granting the above relief, I have relied on the judgment of the **Nasik Municipal Corporation v. Harbanslal Laikwent Rajpal & others** (1974(4) SCC 199). ## **(PIUS.C.KURIAKOSE,JUDGE)** dpk