Thomas Joseph v State of Kerala & Kerala State Industrial Development Corporation Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933** ## **OP(C).No. 3261 of 2011(O)** ## **-------------------------** ## **I.A.NO.1362/2011 IN LAR.154, 155,156 & 158/2003 of SUB COURT, CHERTHALA** **....................** ## **PETITIONER (S):** **-------------------------** **THOMAS JOSEPH, AGED 64, S/O.LATE THOMAS, PANICKASSERIL HOUSE, PALLIPPURAM VILLAGE, CHERTHALA TALUK.** **BY ADV. SRI.ABRAHAM P.GEORGE** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REP BY THE SPECIAL TAHSILDAR (LA) INDUSTRIAL GROWTH CENTRE CHERTHALA 683 001.** **2. KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD, KENSTON ROAD, KAWDIYAR, THIRUVANANTHAPURAM REP BY ITS MANAGING DIRECTOR 695 001.** **R2 BY SRI.M.PATHROSE MATTHAI, SENIOR ADVOCATE, BY ADV.SRI.SAJI VARGHESE, SMT.MARIAM MATHAI.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Kss** ## **OPC.NO.3261/2011 O** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 THE TRUE COPY OF THE COMMISSION REPORT AND THE COPY OF THE REPORT OF GEOLOGIST IN LAR 154/2003 (JOINT TRIAL ALONG WITH 155/03,156/03 AND 158/03) EXT.P2 THE TRUE PHOTOCOPY OF THE REPLY ISSUED BY THE GEOLOGIST, DISTRICT OFFICE, MINING AND GEOLOGIST, ALAPPUZHA 19.8.2011. EXT.P3 THE TRUE PHOTOCOPY OF THE PETITION (IA.1362/2011) FILED UNDER ORDER 26 RULE 10(3)OF THE CODE OF CIVIL PROCEDURE TO REMIT BACK THE COMMISSION REPORT. EXT.P4 THE TRUE PHOTOCOPY OF OTHE ORDER PASSED IN IA.1362/2011 DT.28.9.2011. RESPONDENTS' EXHIBITS : N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C) No.3261 of 2011 -------------------------------------Dated this the 13[th] day of October, 2011.** ## **JUDGMENT** Petitioner is the claimant in L.A.R.Nos.154, 155, 156 and 158 of 2003 of the court of learned Sub Judge, Cherthala. He is aggrieved by Ext.P4, order dated 28.09.2011 on I.A.No.1362 of 2011 in that learned Sub Judge refused to remit the reports submitted by the Advocate Commissioner and the Geologist for further assessment of depth of silica allegedly found in the acquired land and regarding which also petitioner claimed compensation. 2. 1.20 acres of land belonging to the petitioner was acquired by the 1[st] respondent for the purpose of 2[nd] respondent and possession of the property was taken on 03.09.2000. Since the award passed by the Land Acquisition Officer, according to the petitioner, was not sufficient request for reference was made and accordingly, reference was made and the cases were taken on file by the learned Sub Judge. To ascertain the presence and depth of silica petitioner filed application for appointment of a Commission with the assistance of an expert and accordingly, a Commissioner was appointed and the Geologist was directed to assist him. The Commissioner and Geologist submitted their report (Ext.P1). Petitioner is not satisfied with Ext.P1 since according to him, depth of silica in the acquired land was not assessed by the Geologist with scientific methods. Hence, petitioner filed Ext.P3, application. **OP(C)No.3261/2011** 2 That application was dismissed by the learned Sub Judge for various reasons including that an earlier application for similar purpose was filed as I.A.No.285 of 2011 and that was dismissed on 01.04.2011. Learned Sub Judge also stated that since the land was acquired and possession was taken much earlier no purpose will be served by remitting the report dated 17.12.2010 after about ten years of possession being taken. 3. Learned counsel has contended that reasons stated by the learned Sub Judge are not correct. It is pointed out that I.A.No.285 of 2011 was not for the purpose for which I.A.No.1362 of 2011 was filed. It is also submitted by the learned counsel that even as per report submitted by the Geologist he was not able to properly assess depth of silica in the land acquired. Learned counsel has invited my attention to Ext.P2, letter dated 19.08.2011 addressed to the counsel for petitioner in the court below by the Geologist, District Office, Mining and Geology, Alappuzha. 4. Learned Government Pleader appearing for the 1[st] respondent submitted that no purpose will be served by remitting the reports as prayed for in I.A.No.1362 of 2011. It is pointed out by the learned Government Pleader that one objection that petitioner raised to the reports is that the Geologist was not able to ascertain from the photograph of the heap of silica its quality and depth which a Geologist also could not assess from a photograph. It is also the apprehension of the learned Government Pleader that no exploration could be done affecting the existing structures if any in the land acquired. **OP(C)No.3261/2011** 3 5. Learned counsel for the 2[nd] respondent submitted that so far as deposit of silica is concerned, it is the property of Government over which petitioner cannot lay hands. 6. Presently I am not concerned with the question whether claim for compensation made by petitioner for deposit of silica, if any is sustainable or not. That is a matter which the trial court has to decide at the appropriate stage. 7. Question for consideration is whether Ext.P1, report must be remitted so that a fresh report could be obtained with the assistance of the expert suggested by petitioner using scientific methods. 8. In Ext.P1, report the Geologist stated that depth of silica he could find in the land acquired is up to 2.5 metres. It is seen from clause-I of the report of the Geologist that to ascertain the depth, he depended on an open well in a nearby area and measured the depth of stagnant water column in the wet land adjacently situated on the southern side of the land in question. The Geologist says that due to seasonal monsoon water table is high in the area and hence only visible depth of reserve is assessed. To assess further deep, drilling is necessary which is an expensive process. In clause-II of the report the Geologist states that so far as the heap of silica of which a photograph was shown to him is concerned, he was not able to assess the reserve from the materials available. It is stated that assessing the reserve from a photographic image will not be a correct assessment. **OP(C)No.3261/2011** 4 9. In Ext.P2, letter dated 19.08.2011 referred to above, the Geologist, District Office, Mining and Geology, Alappuzha states that Directorate of Mining and Geology, Thiruvananthapuram is having a good team of exploration Geologists, drilling technicians and a well equipped chemical laboratory, etc. exclusively for mineral exploration. The Geologist suggested that learned Sub Judge may give necessary instruction to the Director of Mining and Geology, Thiruvananthapuram for conducting a detailed survey in the area to assess the quantity and quality of silica. Going by Ext.P1, report of the Geologist, I found that the only matter in which inability expressed by him is to find the reserve from a photograph of heap of silica. Regarding the depth of deposit of silica in the land acquired, the assessment made by the Geologist is not based on any scientific method and instead, based on examination of an open well and the water level. That does not appear to be a scientific assessment of deposit of silica. On the other hand in Ext.P2, it is stated that the Director of Mining and Geology, Thiruvananthapuram is able to arrange a proper exploration of the land to find the quality and depth of silica. In that situation I do not find reason why petitioner should be denied the assistance of a better expert in the matter of exploration and assessment of quantity and quality of silica in the land acquired. 10. So far as decision on I.A.No285 of 2011 is concerned, learned counsel has given me a copy of the application and a copy of the order dated 01.04.2011 passed by the learned Sub Judge. On going through the application and order I notice that it was not with reference to the request made by the petitioner in I.A.No.1362 of 2011. I.A.No.285 of 2011 and the order passed **OP(C)No.3261/2011** 5 thereon concerned only the incorrect description of property and its nature, whether it is dry or wet land. That order does not have any bearing on the decision on I.A.No.1362 of 2011. But I make it clear that question of appointment of another expert to ascertain the quality and depth of silica from a photograph of the heap of silica does not arise. To that extent I.A.No.1362 of 2011 cannot be entertained and was rightly disallowed by the learned Sub Judge. 11. In other respects, I am satisfied that the order passed by learned Sub Judge calls for interference. ## Resultantly this Original Petition is allowed as follows: i. Ext.P4, order dated 28.09.2011 on I.A.No.1362 of 2011 (in L.A.R.Nos.154, 155, 156 and 158 of 2003) of the court of learned Sub Judge, Cherthala is set aside to the extent it concerned ascertainment of quality and depth of silica in the land acquired (except ascertaining quality and depth of the heap of silica through photograph). ii. The report submitted by the Advocate Commissioner is remitted to the same Commissioner who shall ascertain the quality and depth of silica in the land acquired with the assistance of an expert to be appointed by the learned Sub Judge. **OP(C)No.3261/2011** 6 iii. Learned Sub Judge shall issue necessary direction to the Director of Mining and Geology, Thiruvananthapuram to render assistance to the Advocate Commissioner in the matter of exploration of minerals (silica) in the land acquired but without affecting the structures if any. The bata if any payable to the Commissioner and the Expert shall be met by petitioner. iv. The contention of 2[nd] respondent that the silica is the property of the Government and hence petitioner cannot claim compensation for that shall be decided by the trial court at the appropriate stage. v. Learned Sub Judge shall issue necessary direction to the Advocate Commissioner and Expert to complete their work as early as possible so that the references could be disposed of at the earliest. **THOMAS P.JOSEPH, Judge.** **cks**