Thayat Suhara v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 27[TH] DAY OF MARCH 2024 / 7TH CHAITHRA, 1946** **WP(C) NO. 12884 OF 2020** ## **PETITIONER/S:** **THAYAT SUHARA AGED 60 YEARS** **W/O N.M.HAMZA,RAAZI MANZIL HOUSE, MADAPALLY COLLEGE.P.O, VADAKARA, KOZHIKODE DISTRICT,PIN673102.** **BY ADV M.MUHAMMED SHAFI** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REP.BY THE SECRETARY,PUBLIC WORKS DEPARTMENT,THIRUVANANTHAPURAM,PIN-695001.** - **2 THE SECRETARY, CHORODE GRAMA PANCHAYATH,CHORODE, MUTTUNGAL.P.O, KOZHIKODE DISTRICT,PIN-673106.** - **3 THE CHORODE GRAMA PANCHAYATH, REP.BY ITS' SECRETARY,CHORODE, MUTTUNGAL.P.O,KOZHIKODE DISTRICT, PIN-673106.** - **4 THE ASSISTANT ENGINEER, PWD,NATIONAL HIGHWAY SECTION, VADAKARA,KOZHIKODE DISTRICT, PIN-673101.** - **5 THE EXECUTIVE ENGINEER, PWD,NH DIVISION,KOZHIKODE,PIN-673101.** - **6 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, KOZHIKODE DT.676515.** - **7 THE URALUNGAL LABOUR CONTRACT CO-OPERATIVE SOCIETY LIMITED,** - **MADAPPALLY COLLEGE P.O., KOZHIKODE, DISTRICT-673 102. REP.BY ITS MANAGING DIRECTOR.** - **8 SMT.K.K.THULASI MEMBER, CHORORDE GRAMA PANCHAYATH, THIRUVATHU MEETHAL HOUSE, CHORODE EAST P.O., VADAKARA, KOZHIKODE DISTRICT-673 106.** - **9 ADDL.R9: THE TAHASILDAR, TALUK OFFICE, VADAKARA, KOZHIKODE DISTRICT-673 101.** W.P.(C) No.12884 of 2020 -2- **10 ADDL.R10:THE TALUK SURVEYOR, MINI CIVIL STATION, VADAKARA, KOZHIKODE DISTRICT 673 101 (ARE IMPLEADED AS PER ORDER DATED 04-112020 IN IA 1/2020) BY ADVS. ADVOCATE GENERAL OFFICE KERALA SRI.T.SETHUMADHAVAN (SR.) SMT.PREETHI. P.V. SRI.M.V.BALAGOPAL** ## **OTHER PRESENT:** **SR.GP.PREETHA K.K.; SC FOR PANCHAYAT SUJAI SATHYAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **28.02.2024, THE COURT ON 27.03.2024 DELIVERED THE FOLLOWING:** W.P.(C) No.12884 of 2020 -3- ## **JUDGMENT** Dated this the 27[th] day of March, 2024 This writ petition projects the plight of a citizen, whose property has been expropriated by State functionaries, without following the due process of law. The essential facts are as under; The petitioner is in possession and ownership of 55 cents of land in Re-Sy.No.22/28 of Chorode Village in Vadakara Taluk. The land is situated by the side of the Malolmukku-Chorode PWD road and within the limits of the third respondent Panchayat. According to the petitioner, about 12 years back, she had relinquished a portion of her property for widening and straightening of the PWD road. She had protected the remaining property by constructing a compound wall. While so, in December, 2018, certain persons under the leadership of the 8[th] respondent, the Panchayat ## W.P.(C) No.12884 of 2020 -4- member of the ward in which the petitioner's property is situated, approached her demanding surrender of more extent of land on the eastsouth corner, for the alleged purpose of straightening the curve of the road at that point. The petitioner thereupon told those persons about the earlier surrender and assured that she would surrender more extent if similarly placed other persons in the locality also surrender their properties. To the utter dismay and shock of the petitioner, during January, 2019, her property was encroached upon and a portion annexed to the existing PWD road by the workers of the 4[th] respondent, at the instance of the 8[th] respondent and officials of the Panchayat. In the process, the granite compound wall constructed by the petitioner was demolished for about 100 metres, some trees in her property were cut and red earth dug up and removed from the encroached portion. As the petitioner is W.P.(C) No.12884 of 2020 -5- residing away from the property, she came to know about the encroachment only after two days. By that time, the respondents had concreted and made the encroached portion of the PWD road. Adding to the petitioner's woes, she was prevented by the 8[th] respondent and others from constructing a compound wall to secure the remaining property. When the issue was brought to the notice of the Secretary of the third respondent Panchayat, the petitioner was told that the Panchayat had not encroached her property and the remedy was to approach the police or court for redressal of her grievance. For ascertaining the true facts, Ext.P4 queries were raised before the Panchayat under the Right to Information Act. To that, the Panchayat gave Ext.P5 reply stating that the Melolmukku-Chorode road is not included in its Asset Register and no amount was set apart or expended for repair/reconstruction of the road. In view of the stand taken by the Panchayat, the W.P.(C) No.12884 of 2020 -6- same queries were raised before the Assistant Engineer, PWD National Highway Section also. In Ext.P7, issued in reply to the queries, the Assistant Engineer stated that the Public Works Department had not acquired land for widening the road and the same was done utilising the portions of land voluntarily surrendered by the property owners. Thereafter, the Assistant Engineer issued Ext.P9 communication stating that the land utilised for reconstruction of the road had been acquired and handed over by the Panchayat. As it became evident from the evasive replies received from the Panchayat and the Public Works Department that, the said authorities were glovein-hand and were not prepared to own the responsibility of the encroachment, this writ petition was filed seeking the following reliefs; _“(i) To issue a writ of mandamus or any other writ, order or direction directing the respondents 4 and 5 to construct the demolished portion of the compound wall of_ W.P.(C) No.12884 of 2020 -7- _the property of the petitioner comprised in Re Survey No. 22/28 Chorode Village in Vadakara Taluk._ _(ii) To issue a writ of mandamus or any other writ, order or direction directing the 2[nd] respondent not to insist for any permit for the construction of the compound wall on the encroached portion of the property of the petitioner comprised in Re Survey No. 22/28 Chorode Village in Vadakara Taluk._ _(iii) To issue a writ of mandamus or any other writ, order or direction directing the 6[th] respondent to take action against the respondents 4,5,7 and 8 for encroaching upon the property of the petitioner and constructing the road on the said property without any authority._ _(iv) To issue a writ of mandamus or any other writ, order or direction directing the_ _1[st] respondent to pay compensation to the petitioner for the illegally acquired property of the petitioner for the widening and straightening of Malolmukku - Chorode PWD Road.”_ **==> picture [381 x 10] intentionally omitted <==** petitioner, learned Senior Government Pleader and learned Standing Counsel for the Panchayat. ## W.P.(C) No.12884 of 2020 -8- 3. Learned Counsel for the petitioner reiterated the allegations and averments in the writ petition and submitted that, even the respondents admit that the petitioner's property was encroached upon and annexed to the PWD road. Referring to the sketch prepared by the Taluk Surveyor, Vadakara pursuant to this Court's direction, it is contended that the petitioner has lost 0.0039 Hectares of her land due to the encroachment. Attention is drawn to Ext.P10 photographs of the property to demonstrate the extent of encroachment. It is contended that the high handed action of the Panchayat and the Public Works Department militates against the right to property guaranteed by Article 300A of the Constitution of India and hence, the respondents should be made to compensate the petitioner for the loss sustained. Relying on the decision of the Apex Court in _**Kalyani (Dead)**_ W.P.(C) No.12884 of 2020 -9- ## _**through L.Rs and Ors. v The Sulthan Bathery**_ ## _**Municipality and Others [2022 SCC OnLine SC 516],**_ it is argued that the compensation should be assessed and paid in accordance with the Land Acquisition Act, 1894 or the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Finally it is contended that, having demolished the petitioner's compound wall illegally, the Panchayat cannot prevent the petitioner from reconstructing the compound wall to secure the balance portion of the property. 4. Learned Government Pleader submitted that the road was widened by utilising the land handed over by the Panchayat, consequent upon the voluntary surrender of those portions by the respective land owners. 5. According to the learned Standing Counsel, the Panchayat has nothing to do with the W.P.(C) No.12884 of 2020 -10- widening and reconstruction of the road and had not handed over any land to the PWD for that purpose. 6. The averments in the writ petition and the documents produced lead to the definite conclusion that the petitioner's property was encroached upon and utilised for widening of the Melolmukku-Chorode road without her consent. While the Panchayat submits that it has nothing to do with the encroachment or the widening, the PWD's stand is that the road was widened utilising the land handed over by the Panchayat. Obviously, this shirking of responsibility by the statutory authorities, is with the intention of depriving the petitioner of her right to be compensated for the illegal encroachment. The contention that the petitioner had voluntarily surrendered portion of her property cannot be countenanced in view of Rule 77(2) of the Kerala Panchayat Buildings Rules, 2011, as per which the W.P.(C) No.12884 of 2020 -11- surrender of land should be in accordance with the relinquishing procedure prescribed by the Government and the surrender should be followed by taking over possession and demarcation of the surrendered portion. In the case at hand, other than the vague statements made in the counter affidavits, neither the PWD nor the Panchayat has produced any scrap of paper to prove that the petitioner had relinquished her rights over any portion of her land. Therefore, the encroachment over the petitioner's property, that too under the aegis of statutory functionaries, is nothing but an affront to the rule of law, one of the fundamental features of our democracy. 7. The framers of our Constitution had envisaged right to property as a fundamental right and had guaranteed it by incorporating Article 31 in Part III of the Constitution. The right to property ceased to be a fundamental right after the introduction of the Constitution ## W.P.(C) No.12884 of 2020 -12- (Forty-Fourth Amendment) Act, 1978. However, right to property continued to be a constitutional right under Article 300A. The Constitutional Courts have held expropriation of a person's private property, without following the due process of law, to be violative of not only the constitutional right under Article 300A, but also of the human right to possess and enjoy one's property without let or hindrance ( _see_ ## _**Vidya Devi v. State of H.P. and Others [(2020) 2**_ _**SCC 569]**_ ). Based on the discussion, it can unequivocally be held that the encroachment over petitioner's property was a blatant act of highhandedness on the part of the respondents. 8. Now, the question arises as to how the petitioner can be compensated for her loss. Guidance for resolving this question can be derived from the decision in _**Kalyani** (supra)_ rendered under almost similar circumstances. The W.P.(C) No.12884 of 2020 -13- appellants therein had sought compensation for their land taken over by the Sulthan Bathery Municipality. The contention of the Municipality that the land was voluntarily surrendered was rejected by the Single Judge, finding that the Municipality and the PWD had failed in producing a single piece of document or evidence in support of the contention regarding free surrender of land. Further, no evidence, either regarding any acquisition or transfer of rights by the appellants by way of sale, gift or otherwise, was made available. The Division Bench set aside that judgment and the writ petitioners filed appeal before the Supreme Court. The Apex Court upheld the findings of the Single Judge as well as the direction to the State and the Local Self Government Institutions to disburse the amount as may be fixed by the Collector after determining the market value of the property. The liberty granted to the appellants by the Single Judge to ## W.P.(C) No.12884 of 2020 -14- challenge the determination of market value by filing a suit before the civil court and the further direction that, such suit, if filed, should be decided by the civil court on the same lines on which an application for reference under Section 18 of the erstwhile Land Acquisition Act, 1984 is disposed of, was also affirmed. The facts involved in the present case being similar, the directions of the Single Judge as affirmed by the Apex Court in _**Kalyani** (supra)_ are squarely applicable. 9. The only other question is whether the petitioner can be prevented from constructing the compound wall to secure her balance property. In this regard, it is pertinent to note that the petitioner has every right to secure her property. Her compound wall having been illegally demolished, the petitioner cannot be prevented from reconstructing the wall. The Panchayat cannot refuse permission for such construction on W.P.(C) No.12884 of 2020 **==> picture [23 x 8] intentionally omitted <==** the premise that the new wall would abut the road in its widened condition, since the widened portion was part of petitioner's land till it was illegally encroached and annexed. The writ petition is accordingly disposed of, with the following directions; (i) The petitioner shall submit an application before the first respondent seeking compensation for the encroached portion of her land within two weeks of receipt of a copy of this judgment. (ii) The first respondent shall thereupon forward the application to the District Collector, Kozhikode or such other competent authority for determining the market value of the property and fixing the quantum of compensation to be paid. (iii) If the petitioner is not satisfied with the quantum of compensation fixed, she can approach the jurisdictional civil court. W.P.(C) No.12884 of 2020 -16- **==> picture [381 x 12] intentionally omitted <==** jurisdictional court shall treat it as a reference application under Section 18 of the Land Acquisition Act, 1894 and decide the matter in accordance with the provisions of that Act. (v) If the petitioner is satisfied with the compensation fixed, the first respondent shall ensure payment of the amount due, within two months of fixing the compensation amount. **==> picture [381 x 13] intentionally omitted <==** petitioner to construct the compound wall on the boundary of her property abutting the MelolmukkuChorode road as it now exists. Sd/- ## **V.G.ARUN JUDGE** Scl/ W.P.(C) No.12884 of 2020 -17- ## **APPENDIX OF WP(C) 12884/2020** **PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 12.02.2019 ALONG WITH THE RECEIPT EXHIBIT P2 TRUE COPY OF THE AD CARD EXHIBIT P3 COPY OF THE REPLY DATED 05.03.2019 EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 25/3/2019 EXHIBIT P5 TRUE COPY OF THE REPLY DATED 17.04.2019 EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 14.06.2019 EXHIBIT P7 TRUE COPY OF THE REPLY DATED 01.07.2019 EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 31.07.2019 EXHIBIT P9 TRUE COPY OF THE REPLY DATED 18.09.2019 EXHIBIT P10 TRUE COPIES OF THE PHOTOGRAPHS.**