SOSAMMA ABRAHAM v. Special Tahsildar, Land Acquisition Act (National Highway), Changanassery; District Collector, Collectorate Building, Kottayam; Assistant Executive Engineer, Kerala State Transport Project (KSTP), Division Office, Rest House Compound, Muvattupuzha; Executive Engineer, Kerala State Transport Project (KSTP), Division Office, Rest House Compound, Muvattupuzha; State Bank of Travancore, Kottayam Main Branch

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 25TH DAY OF OCTOBER 2017/3RD KARTHIKA, 1939 WP(C).No. 13874 of 2016 (H) ---------------------------- PETITIONER: ------------SOSAMMA ABRAHAM W/O.LATE ABRAHAM, CHEMUTHARAYIL HOUSE, PALLOM POST, NATTAKAM VILLGE, KOTTAYAM DISTRICT. BY ADV. SRI.A.K.ALEX RESPONDENTS: -------------- 1. THE SPECIAL TAHSILDAR THE LAND ACQWUISTION ACT, (NATIONAL HIGHWAY), CHANGANASSERY. 2. THE DISTRICT COLLECTOR COLLECTORATE BUILDING, KOTTAYAM. 3. THE ASSISTANT EXECUTIVE ENGINEER KERALA STATE TRANSPORT PROJECT (KSTP), DIVISION OFFICE,REST HOUSE COMPOUND, MUVATTUPUZHA P.O., ERNAKULAM,PIN-686 661. 4. THE EXECUTIVE ENGINEER KERALA STATE TRANSPORT PROJECT (KSTP), DIVISION OFFICE,REST HOUSE COMPOUND, MUVATTUPUZHA P.O., ERNAKULAM,PIN-686 661. 5. STATE BANK OF TRAVANCORE KOTTAYAM MAIN BRANCH, THIRUNAKKARA, KOTTAYAM-686 001, REPRESENTED BY ITS MANAGER. R5 BY ADV. SRI.R.S.KALKURA, SC, SBT R1,R4 BY GOVERNMENT PLEADER SRI. C.S.ASHARAF R BY SRI.SANTHOSH MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 5- 10-2017, THE COURT ON 25-10-2017 DELIVERED THE FOLLOWING: WP(C).No. 13874 of 2016 (H) ---------------------------- ## APPENDIX PETITIONER'S EXHIBITS ----------------------P1. TRUE COPY OF THE PETITIONERS WRITTEN OBJECTION DATED 28./2/2005 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT P2. TRUE COPY OF THE NOTICE NO.KSTP/M/83/04 DTED 19/1/2013 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER P3. TRUE COPY OF THE LETTER DTED 28/5/2013 SENT BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT P4. TRUE COPY OF THE LETTER NO.KSTP/M/83K/09 DATED 28/12/2015 SENT BY 3RD RESPONDENT TO THE PETITIONER P5. TRUE COPY OF THE REQUEST DATED 24/3/2015 SENT TO THE 2ND RESPONDENT BY THE PETITIONER P6. TRUE COPY OF THE LETTER DTED 4/12/2009 SENT BY PETITIONER TO THE 5TH RESPONDENT P7. TRUE COPY OF THE REPRESENTTION DTED 13/2/2016 SENT BY PETITIONER TO THE HONOURABLE MINISTER FOR TRANSPORT P8. TRUE COPY OF THE POSSESSION CERTIFICATE DATED 17/10/2P012 ISSUED BY THE VILLGE OFFICE, NATTKOM TO PETITIONER P9. TRUE COPY OF THE REPRESENTTION DTED 25/3/2016 SENT BY PETITIONER TO THE 2ND RESPONDENT ## RESPONDENTS' EXHIBITS ----------------------- - R1A: TRUE COPY OF THE DOCUMENT MAHAZAR DATED 25.08.2007 - R1B: TRUE COPY OF THE NOTICE DATED 2.8.2007 - R1C: TRUE COPY OF THE NOTICE OF AWARD DATED 2.8.2007 - R4A: TRUE COPY OF GRC - R4B: TRUE COPY OF THE BUILDING PLAN - R4C: TRUE COPY OF THE PHOTOGRAPHS /TRUE COPY/- PA TO JUDGE ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).No.13874 of 2016** **= = = = = = = = = = = = = = = Dated this the 25[th] day of October, 2017** ## **JUDGMENT** 1. This writ petition is filed with the following prayers:- - i. to issue a writ declaring that Act 30/2013 is applicable to the proposed acquisition of 86 sq.meters of petitioner's property in R.S.193/3-1 of Nattakom village. - ii. To issue a writ declaring that Land Acquisition Act of 1894 lapsed in the case of petitioner in connection with the acquisition of petitioner's property in R.S.193/3-1 of Nattakom village. - iii. To issue a writ of mandamus or any other appropriate writ, order or direction directing the 2[nd] respondent to consider and pass orders on Ext.P9.” 2. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 4 and the learned Standing Counsel for the 5[th] respondent. 3. It is the case of the petitioner that the 1[st] respondent issued notification for acquiring 86 sq.metres of property possessed by the petitioner with a residential building in the year 2004. The petitioner submitted Exhibit P1 objection and suggested an alternate route which is less expensive. Respondents 1 to 4 W.P.(C).No.13874/16 2 proceeded with the acquisition and directed the petitioner to demolish the portion of her house and compound wall situated in the said property. Award was passed in the year 2007 and possession was not taken from the petitioner so far. She is still in possession of the property. It is submitted that she is entitled to the benefit of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, because she has neither been given the compensation payable under the Award nor has her property been taken possession of by the Authorities. 4. A counter affidavit had been filed on behalf of the 4[th] respondent contending that the land of 86 m[2] with tiled roof building in Survey No.193/3-1 in Nattakom village was taken possession by KSTP on 25.08.2007 as per Land Acquisition Act 1894 under Mahazar by Special Tahsildar. It is stated that the land value was fixed in the DLPC conducted by the District Collector, Kottayam dated 08.06.2005 after direct discussion and negotiation with the concerned land owners. The land value recommended by the District Collector was approved by The W.P.(C).No.13874/16 3 State Level Empowered Committee vide Government Order (Rt) No.669/2005/PWD dated 12.07.2005. Notice was issued to the petitioner to demolish the building and compound wall and to handover the land to the contractor. 5. This Court, by interim order dated 20.03.2017, had directed the Government Pleader to place sufficient materials to show that possession was taken prior to commencement of 2013 Act. Thereafter, a statement dated 03.04.2017 was filed by the 1[st] respondent producing Exhibit R1(a) Mahazar dated 25.08.2007. The Mahazar would show that the property had been taken possession of and handed over to the KSTP. The petitioner has also affixed her signature to Annexure R1(a). It is stated that in the instant case, the Mahazar amounted to physical taking over of possession from the petitioner and that the amount of compensation deposited by the respondent had not been disbursed only because of the dispute raised by the creditor bank that the amounts are to be paid to the bank. It is therefore a case where in spite of the compensation being offered, it was not accepted by the petitioner. Later, in pursuance of a consent W.P.(C).No.13874/16 4 executed by the petitioner, the compensation had been paid over to the 2[nd] respondent bank towards amounts due from the petitioner. 6. The petitioner has not filed any reply affidavit to the statement dated 03.04.2017. However, at the time of the arguments, it is stated that the signature in Annexure R1(a) is suspect. I am not prepared to accept the said contention. Section 24 (2) of 2013 Act provides for the lapse of proceedings initiated under the 1894 Act in cases where awards are passed and compensation remains unpaid or possession is retained with the owner of the property. For Section 24(2) to be applicable, the non-payment of compensation and the failure to take possession should be acts in the normal course and cannot be a result of attempts by land owners to protract or defeat the proceedings. 7. The learned counsel for the petitioner relied on the decisions of the Apex Court and of this Court in **Balwant Narayanan Bhagde v. Bhagwat** [1975 KLT SN 30 (Case No.73) SC.], **P.C.Jacob v. Greater Cochin Development Authority and** W.P.(C).No.13874/16 5 **others** [1993 (3) ILR 88], **Pune Municipal Corporation and another v. Harakchand Misirimal Solanki and others** [(2014) 3 SCC 183], **Government of N.C.T. of Delhi v. Jagjit Singh** [2015 (2) KLT 180 (SC)] and **Jeevan v. State of Kerala** [2015(4) KLT 1013] to contend that the possession has to be physical possession and the compensation has to be actually paid or offered to the person interested. 8. The learned Government Pleader would, on the other hand, contend that it has been specifically held by the Apex Court that the mode of taking possession would differ from case to case and in a case like the instant one where only a portion of the property had been acquired, the actual dispossession of the petitioner from the residential house in the property would not be necessary for taking possession as provided in the Land Acquisition Act and Rules. Actual possession of the property having been taken from the petitioner and handed over to the KSTP in her presence, the arguments of the petitioner cannot be sustained. As regards compensation also, the compensation had been duly deposited in the Treasury and the claimant was W.P.(C).No.13874/16 6 directed to produce title deeds for the release of the same to her. She refused to do so and further steps could not be taken in the matter only due to the delay on the part of the petitioner. In the above circumstances, the instant case does not fall under Section 24(2) of the 2013 Act. 9. Having considered the pleadings and the materials on record, I am of the opinion that the contentions raised by the respondents are liable to be accepted. The possession of the property had been duly taken over and the Mahazar showing the same bears the signature of the petitioner as well. It is therefore not open to the petitioner to contend that possession is still with her. Evidently due to the petitioner's interventions, possession has been taken only of the small extent of the property and the rest of the building was not demolished. The refusal on the part of the petitioner to produce title deeds and claim compensation cannot be later pleaded as a ground to nullify the entire proceedings as well. The further contention urged by the learned counsel for the petitioner that 6(1) declaration in the instant case was published more than a year after the 4(1) notification also cannot W.P.(C).No.13874/16 7 be countenanced at this distance of time to defeat the acquisition which has long taken effect. The petitioner had legal remedies available to her in terms of the Land Acquisition Act, 1894 itself which ought to have been availed of by her at the proper time. The contentions raised after 13 years of the 4(1) notification and more than ten years after the award are hopelessly belated. I find no merits in the contentions urged. In the result, the writ petition fails and is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj