Raju D. Vallikappan v. The District Collector Malappuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 5TH DAY OF AUGUST 2014/14TH SRAVANA, 1936 WP(C).No. 20021 of 2014 (C) ---------------------------- PETITIONER(S): ----------------- RAJU D. VALLIKAPPAN, AGED 80 YEARS S/O.V.D VALLIKAPPAN, VALLIKAPPIL HOUSE, KALKUNDU POST KARUVARAKUNDU, MALAPPURAM DIST. BY ADVS.SRI.JOHN NUMPELI (JUNIOR) SRI.VINOD VALLIKAPPAN SMT.K.M.MINIMOL RESPONDENT(S): ------------------- THE DISTRICT COLLECTOR MALAPPURAM, OFFICE OF THE DISTRICT COLLECTOR MALAPPURAM DIST, PIN-676506 BY GOVERNMENT PLEADER SMT.SANJEETHA K.A THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20021 of 2014 (C) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS: ------------------------------ - P1:-THE TRUE COPY OF THE QEUSTIONNARE SUBMITTED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT. - P2:-THE TRUE COPY OF THE INFORMATION RECEIVED FROM THE EXECUTIVE ENGINEER, POVERTY ALLEVIATION UNIT MALAPPURAM. - P3:-THE TRUE COPY OF THE REPORT SUBMITTED BY THE RESPONDENT BEFORE THE HONOURABLE HIGH COURT IN WPC NO. 2530 OF 2014. - P4:-THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. ## RESPONDENT(S)' EXHIBITS:NIL ---------------------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.20021 OF 2014 ==========================** Dated this the 5[th] day of August, 2014 ## **JUDGMENT** The contention of the petitioner is that his property abuts Kizhkkethala-Kalkundu Road and it was illegally encroached on 21.7.2013 and 28.7.2013 by a mob. In connection with the said incident, a crime was registered and now, it is pending as C.C.No.380 of 2014 by the Court of Judicial First Class Magistrate, Mancheri. Subsequently, a wall was constructed on that part of the boundary of the petitioner which lies conterminous with the public road. The petitioner submitted Ext.P1 application under the Right to Information Act to get details relating the ownership of the wall put up. That was answered as per Ext.P2. Having found that no notification was issued for acquisition and the property in question was virtually encroached upon, the petitioner approached this Court by filing W.P.(C).No.2530 **W.P.(C).20021/14** 2 of 2014 seeking for an enquiry by the Central Bureau of Investigation into the irregularities in the construction of the ThazhekannathPannikunnu road. Pursuant to an order in the said writ petition, Ext.P3 report was submitted by the fourth respondent/respondent therein. The contention of the petitioner is that it is evident from Ext.P3 that it was without any authorisation and without following the procedure mandated by law that the aforesaid wall was constructed encroaching upon his property. It amounts to a forcible acquisition of the land without following the mandate under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2014 (for short the 'Act') and therefore, the erring officers are liable to be prosecuted in terms of section 90 of the Act, it is contended. Raising such contention, he submitted Ext.P4 representation before the respondent. It is the inaction on Ext.P4 that constrained the petitioner to file the captioned writ petition with the prayer to issue a writ of mandamus commanding the respondent to act on his mandate to prosecute the officers responsible for contravening **W.P.(C).20021/14** 3 the provisions of the Act. 2. I have heard the learned counsel for the petitioner and the learned Government Pleader. The contention of the petitioner is that the action on the part of the erring officers under whose supervision the construction of the wall in question was effected amount to forcible acquisition of the land without observing the mandatory provisions under the Act. Essentially, the contention of the petitioner is that such actions violated Article 300A of the Constitution of India. True that, under Article 300A, nobody can be deprived of property save by authority of law. But regarding the right available under Article 300A, after the decision of the Hon'ble Apex Court in **M/s.Bishamber Dayal Chandra Mohan v. State of U.P** [ **AIR 1982 SC 33]** there cannot be any doubt with respect to the position that the right not to be deprived of property save by authority of law though no longer a fundamental right it still continues to be a constitutional right. Evidently, the contention of the petitioner is that section 90 of **W.P.(C).20021/14** 4 the Act provides for filing of a complaint in writing before the Collector of the concerned district in respect of an offence allegedly committed by such officers. In the contextual situation it is apposite to refer to section 90 of the Act and it reads thus:- **“Offences to be cognizable only on complaint filed by certain persons** - No court shall take cognizance of any offence under this act which is alleged to have been committed by a Requiring Body except on a complaint in writing made by the Collector or any other officer authorised by the appropriate Government or any member of the affected family.” 3. A perusal of section 90 of the Act would reveal that going by the same no court could take cognizance of any offence under the Act alleged to have committed by a requiring body except on a complaint in writing made by Collector/any officer authorised by appropriate, Government or any member of the affected family. Evidently, the petitioner or any member of his family has not chosen to lodge any complaint in writing before the competent court and instead the petitioner submitted Ext.P4 representation before the **W.P.(C).20021/14** 5 respondent requiring him to take appropriate steps for prosecuting the erring officers. 4. I have carefully gone through the pleadings in this writ petition. There is absolute absence of any averment regarding the details of offence and the identity of the persons who allegedly committed offence. Section 90 of the Act provides for initiation of such action allegedly committed by a requiring body. The expression 'requiring body' is defined under 3(zb) of the Act. It reads thus:- “Requiring body” means a company, a body corporate, an institution or any other organisation or person for whom land is to be acquired by the appropriate Government, and includes the appropriate Government, if the acquisition of land is for such Government either for its own use or for subsequent transfer of such land in for public purpose to a company, body corporate, an institution, or any other organisation, as the case may be, under lease, licence or through any other mode of transfer of land.” 5. Thus, it is obvious that it provides only for preferring a complaint alleging commission of offence by the requiring body and **W.P.(C).20021/14** 6 initiation of prosecution proceedings against such requiring body. True that the expression includes the appropriate Government. At the same time, a perusal of the writ petition would reveal that neither the appropriate Government nor any of the officers are made parties. There is no specific averment to the effect that as to which is the requiring body in respect of the said alleged acquisition. True that the learned counsel for the petitioner would contend that those aspects have been dealt with in Ext.P3 report. However, a scanning of Ext.P3 would reveal that it did not contain the details regarding the officers who supervised the construction in question. That apart, it is evident from the said report itself that the construction was effected with notice to the petitioner and he never objected to the construction and in fact, even helped the workers in construction as he was getting a pucca wall instead of the earlier weak wall. The report specifically stated that even the contractor had no role in orchestrating attack on the petitioner's property. In the absence of any specific averment in the writ petition regarding the specific offence committed and also in **W.P.(C).20021/14** 7 the absence of identity of persons who allegedly committed such offence and which exactly is the requiring body under section 90 of the Act so as to enable the District Collector to lodge a complaint in writing regarding the commission of an offence by a requiring body, I do not think that this Court would be justified in acting upon the aforesaid contentions of the petitioner which lacks specific details and to issue any such direction. That apart, it is evident from section 90 that the inaction on the part of the District Collector would not render an aggrieved party remediless as the court could take cognizance of any offence under the Act committed by the requiring body, at the instance of affected family. As noticed hereinbefore, the petitioner had not filed any such complaint. In such circumstances, I do not propose to exercise the jurisdiction owing to the fact that the crucial details are absolutely absent in the case on hand and therefore, I decline the jurisdiction. Accordingly, this writ petition is dismissed. **Sd/C.T. RAVIKUMAR (JUDGE)** ## **spc/** **W.P.(C).20021/14** 8 **C.T. RAVIKUMAR, J.** **W.P.(C).20021/14** 9 **JUDGMENT September, 2010**