T. M. Francis and Mary Mercy v. Secretary, Corporation of Kochi, State of Kerala, Revenue Divisional Officer, Fort Kochi and Kochi Municipal Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943** ## **WP(C) NO. 23989 OF 2012** ## **PETITIONERS:** 1 T.M.FRANCIS AGED 58 YEARS S/O.T.A.MANUEL, THOTTAPPILLIL HOUSE, KATHRIKADAVU WEST, KOCHI-17. 2 SMT.MARY MERCY W/O.P.A.CLEMENT, PUTHENVEEDU, KATHRIKADAVU WEST, KOCHI-17. BY ADVS. SRI.R.LAKSHMI NARAYAN SMT.R.RANJANIE ## **RESPONDENTS:** 1 THE SECRETARY, CORPORATION OF KOCHI PARK AVENUE ROAD, ERNAKULAM-682011. 2 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 3 REVENUE DIVISIONAL OFFICER FORT KOCHI-682001. BY ADVS. C.N.PRABHAKARAN GOVERNMENT PLEADER JIBU P THOMAS SHRI.S.SUDHEESH KUMAR, SC, KOCHI MUNICIPAL CORPORATION ## **OTHER PRESENT:** SRI.Y.JAFAR KHAN, GP **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).No.23989/2012** **2** ## **P.V.KUNHIKRISHNAN, J. ------------------------------W.P.(C).No.23989 of 2012 ---------------------------------------------Dated this the 23[rd ] day of July, 2021** ## **JUDGMENT** This writ petition is filed with following prayers: - _i. Issue to writ of certiorari and quash Ext.P8 to the extent it affects the properties of the petitioners', as covered under Ext.P4 order passed by the 3[rd] respondent._ - _ii. Declare that the petitioners' properties are not liable to be categorized as 'free surrender properties', and the respondents are bound to refer the matter to the Spl. Tahsildar (Land acquisition), treating advance possession. the surrender of these properties as advance possession._ - _iii. Direct the respondents to refer the matter relating to the petitioners' properties covered under Ext.P4, to the Spl. Tahsildar (Land Acquisition) for determining the value of the properties in terms of Land Acquisition Act and Rules._ - _iv. Stay the operation of Ext.P8 so far as it relates to petitioners' properties covered under Ext.P4 order passed by the 3[rd] respondent._ - _v. Pass such other orders as this Hon'ble Court may_ **W.P.(C).No.23989/2012** **3** _deem fit and necessary in the facts and circumstances of this case._ _vi. Allow this writ petition._ 2. Short facts for disposal of the writ petition are like this: The petitioners are the residents on the side of Thammanam - Pulleppady road and having their properties in Survey Nos.282/1 and 280/3 of Elankulam Village. In 1998-99, the 1[st] respondent initiated a scheme for widening the road and the 1[st] respondent approached the petitioners and requested them to surrender a portion of their respective properties for widening of Pulleppady - Thammanam Road. It is stated in the writ petition that because of the persuasive request from the Mayor of the 1[st] respondent and their public figures, and also on a misrepresentation that 75% of the land, for the purpose of widening of the road, was surrendered by the persons in the locality, free of cost, to the 1[st] respondent, the 1[st] petitioner offered to surrender 0.0048 and 0.0137 hectors of land and the 2[nd] petitioner offered to surrender 0.0071 hectors in the above mentioned survey numbers. It is also stated that they were forced to sign land relinquishment applications, along with declaration dated 16.12.1999 and **4** ## **W.P.(C).No.23989/2012** ## 21.09.1999 for relinquishment of the lands. 3. In the writ petition it is stated that, subsequently, no widening work commenced. It is also stated that, on enquiry, the petitioners came to know that only very few persons offered to surrender lands for the purpose of widening and extensive properties were to be acquired, as owners of the land refused to surrender. Relinquishment letters got signed by the 1[st] respondent from the petitioners in favour of the 2[nd] respondent is not valid, according to the petitioners, because there is no privity of contract between the petitioners and the 2[nd] respondent. The petitioners approached the 1[st] respondent with representations. There was no response. Consequently, the petitioners filed O.P.No.5366 of 2003 before this Court. This Court, as per Ext.P2 judgment, passed the following order: _“If it is free surrender then of course, there is no need for the respondents to pay compensation to the land owner. It is for the respondents to take a decision on compensation-claim depending on the terms of surrender and the land owners are free to challenge such decisions; if they feel aggrieved. However, I make it clear that any dispute should be confined to claim of compensation and no one_ **W.P.(C).No.23989/2012** **5** _should be permitted to interfere with the construction of the Bridge and the Police should ensure this._ _Original Petition is disposed of as above.”_ 4. Thereafter the petitioners filed a review petition in the above case. The review petition was disposed as per Ext.P3 judgment. The relevant portion of Ext.P3 judgment is extracted hereunder: _“The petitioner has raised another contention that there is no free surrender as claimed by the respondents and observed in the judgment. This is a matter to be considered by the third respondent. The petitioner is directed to approach the third respondent who will call for the records or refer the matter to the third respondent and the third respondent will verify the records and if he is satisfied that there is no free surrender, then of course, the third respondent will refer the matter to the Special Tahsildar (Land Acquisition) for fixing the compensation as if there is no acquisition and taking over advance possession._ _The review petition is disposed of with the above observation. ”_ 5. Thereafter, according to the petitioners, Ext.P4 order is passed by the Revenue Divisional Officer, Fort Kochi, by which land relinquishment applications of the petitioners **6** ## **W.P.(C).No.23989/2012** were rejected. Therefore, according to the petitioners, the directions in Ext.P3 order will come into play and the only remedy available to the respondents is to refer the matter to the Special Tahsildar (Land Acquisition) for fixing the compensation as if there is acquisition and taking over advance possession. But, as per Ext.P8 order, the 3[rd] respondent accepted the relinquishment applications of the petitioners along with some others. Serial Nos.28 and 29 in Ext.P8 are the petitioners. According to the petitioners, Ext.P8 is unsustainable and without authority. The counsel submitted that after the 3[rd] respondent passed Ext.P4 order, he has no authority to review the same and pass Ext.P8 order. The counsel also submitted that once Ext.P4 order is passed, Ext.P3 order of this Court in the review will come into play and therefore, Ext.P8 order is unsustainable. 6. Heard the counsel for the petitioner and the Government Pleader. 7. The counsel for the petitioner reiterated their contentions in the writ petition. The Government Pleader submitted that a detailed counter affidavit is filed and relevant portion of the counter affidavit is extracted hereunder: **W.P.(C).No.23989/2012** **7** _“3. It is submitted that when the 83 applications including the application of these petitioners to relinquish the land for the widening of Thammanam – Pulleppady road, enquiry was being made through the Village Officer and the Tahsildar. Neither the Village Officer, nor the Tahsildar, Kanayannur or the Secretary, Cochin Corporation has pointed out the fact that petitioners applications were rejected as per J-1073/04 dated 03.01.2005. But the Tahsildar and Village Officer reported that the applications were eligible to relinquish the land. On receipt of the report, Form C notice was published inviting objections if any. But objections were not raised by anybody including the petitioners. Thus, after observing all the formalities under the Kerala Land Relinquishment Act, orders were issued accepting the applications for relinquishment and the Tahsildar, Kanayannur and Village Officer, Elamkulam were directed to make necessary changes in the records._ _4. The petitioners have submitted applications for relinquishment of the above described lands in Elamkulam Village in Sy. Nos. 282/1 and 280/3. The land relinquishment process gets initiated only on receipt of an application in the prescribed form duly attested by the Village Officer and after enquiry and report under Section 7 of the Kerala Land Relinquishment Act. On receipt of the report, notices in Form C appended to these rules calling_ **W.P.(C).No.23989/2012** **8** _upon all persons who may have any objections to the relinquishment of the land or who may have any claim to the land to appear before the Revenue Divisional officer, before a date to be specified in the notice to prefer their claims or objections, if any. The notices are published by affixing copies of the same in the notice board in the Revenue Divisional Office, Taluk Office, Village Office, Office of the local bodies and on the land relinquished. In this case, all the procedures as per Kerala Land Relinquishment Act and Rules were followed. Form C notices were published on 25.05.2012 and sufficient time was allowed to file objections. The Tahsildar, Kanayannur or the Village Officer, Elamkulam did not report that the petitioners were not willing to relinquish the surrendered land. Subsequently, the Sub Collector, Fort Kochi issued orders vide K.dis. 10972/11/F dated 07.09.2012 by accepting the 44 applications in Elamkulam Village including the above two applications of the petitioners._ _5. In the Writ Petition, the petitioners stated that as per Exhibit P4 order No. J-1073/04 dated 03.01.2005 of the Revenue Divisional Officer, Fort Kochi, the land relinquishment application of the petitioners were rejected. This fact was known to this respondent only on receipt of the copy of the Writ Petition. As this file has been destructed, any explanation in this regard cannot be furnished from_ **9** ## **W.P.(C).No.23989/2012** _this Office. But for the land surrendered, the petitioners have received an amount of Rs. 1,92,000/- and Rs. 25,000/- as compensation for demolishing a portion of the building and for the construction of compound wall from the Cochin Corporation authorities.”_ 8. I cannot accept the stand of the 3[rd] respondent in the counter affidavit. According to me, once Ext.P4 order is passed after Ext.P3 order in the review by this Court, the 3[rd] respondent has no authority to review Ext.P4 order. In effect, Ext.P8 is an order of review. According to me, Ext.P8 as far as the petitioners are concerned, will not stand. The only remedy to the respondents is to act based on the directions in Ext.P3 order. Therefore, according to me, Ext.P8 order as far as the petitioners are concerned, is to be set aside and the authorities can be directed to proceed based on the direction in Ext.P3. Therefore, this writ petition is allowed in the following manner: 1. Ext.P8 order as far as the petitioners are concerned, is quashed. 2. Respondents are directed to take appropriate **10** ## **W.P.(C).No.23989/2012** steps as directed by this Court in Ext.P3 order, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. 3. If the respondents are not interested to acquire the land of the petitioners, the respondents are free to communicate the same within the above period to the petitioners. JV Sd/- **P.V.KUNHIKRISHNAN JUDGE** **W.P.(C).No.23989/2012** **11** ## **APPENDIX OF WP(C) 23989/2012** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE O.P.NO.5366/2003 EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN OP NO.5366/2003 DATED 14.3.2003 EXHIBIT P3 TRUE COPY OF THE ORDER IN RP NO.299/03 EXHIBIT P4 TRUE COPY OF THE ORDER DATED 3.1.2005 EXHIBIT P5 TRUE COPY OF THE LETTER DATED 2.3.2005 EXHIBIT P6 TRUE COPY OF THE LETTER DATED 17.6.2010 EXHIBIT P7 TRUE COPY OF THE LETTER DATED 28.9.2012 EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS DATED 7.9.2012