Skaria K.M v. Special Deputy Collector (LA), NHDP Thrissur & The National Highway Authority of India

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 12[TH] DAY OF JANUARY 2024 / 22ND POUSHA, 1945 WP(C) NO. 15375 OF 2015`** ## **`PETITIONER:`** ``` SKARIA.K.M AGED 68 YEARS S/O.MARKOSE, KATHANIKKAD, VANIAMPARA, KAYARADI PO,OLIPARA, PALAKKAD DISTRICT BY ADV SRI.P.R.VENKATESH ``` ## **`RESPONDENTS:`** ``` 1SPECIAL DEPUTY COLLECTOR(LA) (NHDP), CHEMPUKAVU, THRISSUR 20 2THE NATIONAL HIGHWAY AUTHORITY OF INDIA REPRESENTED BY ITS PROJECT DIRECTOR, CHANDRA NAGAR, PALAKKAD DISTRICT-678 001. BY ADVS.SRI.ROYAL DEVASSY, GOVERNMENT PLEADER SMT.I. SHEELA DEVI, CGC SRI.THOMAS ANTONY K.A.SALIL NARAYANAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.15375/2015 **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.15375 of 2015** ## **---------------------------------------------Dated this the 12[th] day of January, 2024** ## **JUDGMENT** This writ petition is filed with following prayers: - i. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to disburse the compensation to the petitioner in Sy. No.1479/3A of Peechi Village in respect of the balance 1 ¼ cent also. - ii. issue such other or further orders as this Hon'ble Court may deem just and fit in the circumstances of the case. (SIC) 2. According to the petitioner, he was the owner in possession of an immovable property as per Ext Pl registered assignment deed. In the description to the schedule to Ext.P1, the extent/area of the property is shown to be 1 Are equivalent to 2½ cents, which is part of a larger extent of 17½ cents is the submission. According to the petitioner, there is clear boundary to his property and on the northern side, the National Highway is situated. It is also submitted that there is WP(C).No.15375/2015 **3** clear boundary on all four sides in accordance with the description in the schedule itself. The National Highway Authorities issued notification way back in 2004 for acquiring the plots for the purpose of forming four lane in the ThrissurPalakkad stretch. In the declaration under Section 2(d) of notification itself, the properties sought to be acquired were mentioned. According to the petitioner, the extent sought to be taken from the petitioner was 152 sq. mtr. equivalent to 3¾ cents. Now the grievance of the petitioner is that though in the title deed, the extent was shown as 2½ cents, actually within the four boundaries, the extent was 3¾ cents equivalent to 152 sq. mtr. There is no dispute with regard to the extent or the boundaries is the submission. But the 1[st] respondent released the compensation excluding 1¼ cents. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. I also heard the learned Standing Counsel for NHAI. 4. A counter affidavit is filed by the 1[st] respondent. It will be better to extract the relevant portion of the same: “It is submitted that an extent of 0.0152 Hectares WP(C).No.15375/2015 **4** of land has been acquired from the possession of petitioner. But the petitioner had produced the Sale Deed before the first respondent is only for an extent of 0.0101 Hectare as per document No.865 of 2005 of SRO, Ollukara instead of 0.0152 Hectares acquired. Hence this respondent has sanctioned compensation for an extent of 0.0101 Hecters only. Compensation for 0.00051 Hectares (01.260 cents) of land has deferred by this respondent for non production and want of title Deed. The structure building was having a plinth area of 133.26 sq.m and the affected area 133.26 sqm, was valued by a well experienced approved valuer in terms of the norms and provisions laid down by the Public Works Department. The land value is worked out to Rs. 1,58,166/- for 101m2 @ Rs.1,56,000 per Are and structural value is worked out is Rs.4,34,884/- and other improvements of Rs.175/-. A 10% of the total compensation was also sanctioned as users right in addition to the above as specified in Section 3G(2) of the Act. Thus the total compensation was arrived due to petitioner is Rs.6,52,548/-, after deducting the Income Tax.” 5. The counsel for the petitioner relied on the judgment of a Division Bench of this Court in **State of Kerala v. Kuruvila [2005 (3) KLT 580]** . The relevant portion of the WP(C).No.15375/2015 **5** ## above judgment is extracted hereunder: “8. Now, we will consider the dispute regarding the area of the land acquired. The Government had not, in respect of the property taken possession from the claimant, given notice to anyone else having interest in the property. Necessarily, the claimant alone is having interest in the entire area taken from his possession. It is an admitted case that the area taken in possession from the claimant had been compounded on all the four sides with well built walls. It was his residential plot. It is seen from Ext.C1 that the area so lying within the compound wall and acquired from the claimant was 22.464 cents. There is no objection filed by the State to Ext.C1. Necessarily, we have to accept such evidence on record as contained in Ext.C1 with regard to the area. It is the only evidence available concerning the area taken from his possession. The contention of the Government Pleader that the claimant did have title over 18 cents alone is no answer when the area taken possession from the claimant extends to 22.454 cents and when the State had not given notice regarding the interest in the property to anyone else. Therefore, we have to conclude that the land taken possession from the claimant from his occupation extends to 22 cents equivalent to 8.94 Ares. Necessarily, the balance area in excess of that mentioned in the title deed executed in the year WP(C).No.15375/2015 **6** 1964 taken from his possession within his compound walls had been in his possession for about more than 35 years. Therefore, he had, on that strength of possession as well, entitlement for the compensation in respect of that area.” 6. Petitioner also relied the judgment of the Apex Court in **Sasidharan v. Union of India** [2020 (4) KLT 329]. Based on the above principle, it is submitted that the petitioner is entitled compensation because the petitioner is in possession of the property. I do not want to make any observation about the same. The petitioner can file a representation before the 1[st] respondent narrating the grievance and there can be a direction to consider the same in the light of the principle laid down in **Kuruvila's case** (supra) and also in **Sasidharan's** case (supra). Therefore, this writ petition is disposed of with following directions: 1. The petitioner is free to file a representation before the 1[st] respondent narrating his surviving grievance, within one month from the date of receipt of a certified copy of this judgment. WP(C).No.15375/2015 **7** 2. Once such a representation is filed, the 1[st] respondent or the competent authority will consider the same in the light of the dictum laid down in **State of** **Kerala v. Kuruvila [2005 (3) KLT 580]** and in **Sasidharan v. Union of India** [2020 (4) KLT 329]. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** WP(C).No.15375/2015 **8** ## **`APPENDIX OF WP(C) 15375/2015`** ``` PETITIONER EXHIBITS ``` ``` P1:TRUE COPY OF THE REGISTERED ASSIGNMENT DEED NO.865/2005 AT THE SRO, OLLUKARA DATED 21.02.2005. P2:TRUE COPY OF THE ENQUIRY NOTICE LAC NO.14+92/2009 DATED 10.05.2015 FROM THE SPECIAL DEPUTY COLLECTOR P3:TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER EARLIER AFTER THE PASSING OF THE AWARD BY THE PETITIONER BEFORE THE SPL. DEPUTY COLLECTOR ``` ``` P4:TRUE COPY OF THE REPRESENTATION DATED 28.06.2014 SUBMITTED BY THE PETITIONER BEFORE THE SPL DY. COLLECTOR ```