T.K. Mathew and others v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ## **`TUESDAY,THE 20[TH] DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944`** ## **`WP(C) NO. 11398 OF 2012`** ## **`PETITIONERS:`** - `1 T.K.MATHEW AGED 55 YEARS S/O.KUNJUKUNJU, THARAYIL VEEDU, PATHANAMTHITTA.` - `2 T.E.EASOW AGED 63 YEARS S/O.EASOW, THEVER VELIL, SANTHOSH JUNCTION, PATHANAMTHITTA.` - `3 P.K.VISWANATHAN AGED 62 YEARS S/O.SARASWATHAMMA, PUTHUPARAMBIL, MANNARAMALA, PATHANAMTHITTA.P.O.` - `4 BABU GEORGE AGED 65 YEARS S/O.K.M.GEORGE, KUZHIMARIYIL, MANNARAMALA, PATHANAMTHITTA.` - `5 SARAMMA BABU AGED 59 YEARS W/O.BABU GEORGE, KUZHIMARIYIL, MANNARAMALA, PATHANAMTHITTA.` - `6 K.J.ABRAHAM AGED 59 YEARS S/O.K.M.JOHN, KUZHIMURIYIL JOB BHAVAN, SANTHOSH JUNCTION, PATHANAMTHITTA.` - `7 CHINNAMMA ABRAHAM AGED 54 YEARS W/O.K.J.ABRAHAM, KUZHIMURIYIL JOB BHAVAN, SANTHOSH JUNCTION, PATHANAMTHITTA.` - `8 PROF.T.T.DANIEL AGED 72 YEARS GREEN HOUSE, SANTHOSH JUNCTION, PATHANAMTHITTA.` - `9 T.G.THANKACHAN AGED 56 YEARS S/O.GEORGE, THYKOOTTATHIL MANNIL, SANTHOSH JUNCTION, PATHANAMTHITTA.` - `10 DR.T.P.JOSEPH AGED 52 YEARS S/O.T.N.PIPPY, THYKOOTTATHIL, SANTHOSH JUNCTION, PATHANAMTHITTA.` WP(C).No.11398/2012 **2** - `11 THOMAS VARGHESE AGED 65 YEARS S/O.VARGHESE, VELAVINAL ROY BHAVAN, SANTHOSH JUNCTION, PATHANAMTHITTA.` - `12 KUNJAMMA JOHN AGED 70 YEARS W/O.JOHN, VILAVINAL, SANTHOSH JUNCTION, PATHANAMTHITTA.` - `13 MARY KOSHY AGED 72 YEARS W/O.KOSHY, THAVALATHIL HOUSE, SANTHOSH JUNCTION, PATHANAMTHITTA.` ``` 14SAVIOUR K.JACOB AGED 54 YEARS S/O.K.G.JACOB, KIZHAKETHIL, PUTHENPEEDIKA, OMALLOOR. 15DR.E.RAJAN AGED 45 YEARS S/O.EASOW, NELLIMALA, PUTHENPEEDIKA, OMALLOOR. 16ABRAHAM MATHEW AGED 70 YEARS S/O.MATHEW, AMAIL MANOJ COTTAGE, PUTHENPEEDIKA, OMALLOOR. 17JOSE K.JACOB AGED 60 YEARS S/O.K.G.JACOB, KIZHAKETHIL, PUTHENPEEDIKA, OMALLOOR. 18JOSEPH JOHN AGED 65 YEARS S/O.K.G.JOHN, KIZHAKKETHIL, PUTHENPEEDIKA, OMALLOOR. 19ZACHARIAH JOHN AGED 55 YEARS S/O.JOHN, VALLI VEETTIL ANJU COTTAGE, PUTHENPEEDIKA, OMALLOOR. 20SANJU JOY AGED 42 YEARS S/O.JOY, MAMANKAYYATH, OMALLOOR. 21K.K.VIJAYAN AGED 64 YEARS S/O.KUNJU KUNJU, PATTAYIL HOUSE, PUTHENPEEDIKA, OMALLOOR. ``` WP(C).No.11398/2012 **3** - `22 K.A.GEORGE AGED 61 YEARS S/O.ABRAHAM, KENKIRETH JOBY NIVAS, PUTHENPEEDIKA, OMALLOOR.` - `23 ADV.G.AJITHKUMAR AGED 57 YEARS S/O.ADV.GOPINATHAN NAIR, KAIRALY, PUTHENPEEDIKA, OMALLOOR.` ``` 24GEORGE VARGHESE AGED 70 YEARS S/O.VARGHESE, VADAKEDATH ATHIKARATHIL, PUTHENPEEDIKA, OMALLOOR. 25MARY JOHN AGED 63 YEARS W/O.JOSEPH OOMMEN, PUTHENPURACKAL, PUTHENPEEDIKA, OMALLOOR. 26M.V.SAMUEL AGED 65 YEARS S/O.VARGHESE, MANNILETH, PUTHENPEEDIKA, OMALLOOR. 27K.J.PHILIP AGED 68 YEARS S/O.JOHN, KULANGARA HOUSE, OMALLOOR.P.O. 28SAM VARGHESE AGED 55 YEARS S/O.V.K.VARGHESE, VALIYAVEETTIL, PUTHENPEEDIKA, OMALLOOR. 29K.T.JOSEPH AGED 85 YEARS S/O.K.E.THOMAS, KIZHAKETHIL, PUTHENPEEDIKA, OMALLOOR. 30K.E.JOSEPH AGED 83 YEARS S/O.K.M.EASOW, KIZHAKETHIL, PUTHENPEEDIKA, OMALLOOR. 31MATHEWS JOSE AGED 50 YEARS S/O.K.E.JOSEPH, KIZHAKETHIL, PUTHENPEEDIKA, OMALLOOR. 32THANKACHAN V.JOHN AGED 48 YEARS S/O.JOHN, VALLIAVEETTIL, KIZHAKETHIL, PUTHENPEEDIKA, OMALLOOR. ``` WP(C).No.11398/2012 **4** - `33 N.RADHAKRISHNAN NAIR AGED 58 YEARS S/O.NARAYANAN NAIR, DEVAKEE MANDIRAM, KIZHAKETHIL, PUTHENPEEDIKA, OMALLOOR.` - `34 SANTHSOH.V.S. AGED 30 YEARS S/O.SAMUEL, VIRUPUKALAYIL PUTHEN VEEDU, KIZHAKETHIL, PUTHENPEEDIKA, OMALLOOR.` - `35 T.K.KOSHY AGED 52 YEARS S/O.T.K.KOSHY, THOTTAKUNNEL, PATHANAMTHITTA.` - `36 BABU VARGHESE AGED 55 YEARS S/O.K.G.OONNOONNY, VALLIAVEETTIL, PUTHENPEEDIKA, OMALLOOR.` - `37 PASTOR I.P.C., CARMEL HAL, PUTHENPEEDIKA, OMALLOOR.` - `38 OMANA AMMA AGED 65 YEARS W/O.SADASIVAN NAIR, OMANA VILASAM, PUTHENPEEDIKA, OMALLOOR.` - `39 DR.VALSAMMA GEORGE AGED 55 YEARS W/O.GEORGE VARGHESE, BATHANIA HOUSE, SANTHOSH JUNCTION, PATHANAMTHITTA.` - `40 V.RAJEEV AGED 56 YEARS S/O.VASU PILLAI, P.N.PURAM, PUTHENPEEDIKA, OMALLOOR. BY ADVS. SRI.A.BALAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED SRI.M.N.MANMADAN SRI.A.RAJAGOPALAN` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY, PUBLIC WORKS DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. ``` WP(C).No.11398/2012 **5** - `2 THE DISTRICT COLLECTOR PATHANAMTHITTA.` - `3 THE EXECUTIVE ENGINEER B & R DIVISION, PUBLIC WORKS DEPARTMENT, PATHANAMTHITTA.` - `4 OMALLOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, OMALLOOR.` ``` 5PRESIDENT OMALLOOR GRAMA PANCHAYATH, OMALLOOR. BY ADVS. GOVERNMENT PLEADER SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.N.SANTHA ``` ## **`OTHER PRESENT:`** ## `SRI.K.M.FAISAL, GP` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.11398/2012 **6** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.11398 of 2012 ---------------------------------------------Dated this the 20[th] day of December, 2022** ## **JUDGMENT** This writ petition is filed with following prayers: - i. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction, directing respondents 2 and 3 to conduct a study and prepare a report regarding the present position of Kaippattoor - Pathanamthitta Road and whether widening of the said road can be done with the available space lying on either side of the road and without disturbing possession of the petitioners over their respective properties. - ii. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the first respondent to initiate proceedings under the Land Acquisition Act before taking possession of the properties of the petitioners, if the study conducted by respondents 2 and 3 reveals that any portion of the properties of the petitioners are required for widening Kaippattoor - Pathanamthitta Road. iii. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction, WP(C).No.11398/2012 **7** directing the 4[th] respondent Panchayath to refrain from taking forcible possession of the properties of the petitioner without complying with the modes known to law for acquiring the properties. iv. Issue any other appropriate order or direction as this Honourable Court may deem fit for meeting the ends of justice. - v. Award the costs of the petitioners in these proceedings. (SIC) 2. When this writ petition came up consideration, the Government Pleader submitted that the road work is already over. The Government Pleader also submitted that the petitioners’ properties are not taken for the purpose of constructing the road. This is disputed by the counsel for the petitioners. According to the petitioners, their properties are already taken possession by the respondents for the purpose of construction of the road without any acquisition proceedings. 3. This is a matter to be decided by measuring the properties. Therefore the petitioners are free to submit a representation before the 2[nd] respondent and the 2[nd] respondent will depute an officer to measure the properties WP(C).No.11398/2012 **8** and find out whether any property of the petitioners are taken for construction of the road and if any such property is taken, the 3[rd] respondent will take appropriate steps to pay compensation to them. Therefore, this writ petition is disposed of in the following manner: 1. The petitioners are free to file a representation before the 2[nd] respondent for measuring the disputed property and road constructed, within one month from the date of receipt of a copy of this judgment. The 2[nd] respondent will conduct a measurement of the disputed properties by deputing an officer. 2. After the measurement, the 1[st] respondent will serve a copy of the details of measurement to the petitioners and will also afford an opportunity of hearing to them. Thereafter the 2[nd] respondent will pass WP(C).No.11398/2012 **9** appropriate orders in accordance to law, as expeditiously as possible, at any rate, within two months from the date of the report from the competent authority. 3. If any properties of the petitioners are seen to be taken for the construction of the road, appropriate compensation shall be paid to the petitioners in accordance to law. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** WP(C).No.11398/2012 **10** ## **`APPENDIX OF WPC 11398/2012`** ## **`PETITIONER’S EXHIBITS:`** ``` EXHIBIT P1: TRUE PHOTOSTAT COPY OF SALE DEED NO.3096/2010 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P2: TRUE PHOTOSTAT COPY OF SALE DEED NO.1245/1979 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P3: TRUE PHOTOSTAT COPY OF PARTITION DEED NO. 4346/1968 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P4: TRUE COPY OF THE SAID SALE DEED NO.1546/1983 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P5: TRUE COPY OF THE SAID SETTLEMENT DEED NO.1461/1985 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P6: TRUE COPY OF THE SAID SALE DEED NO.3435/1969 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P7: TRUE COPY OF THE RELEASE DEED NO.2054/2002 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P8: TRUE COPY OF THE RELEASE DEED NO. 1850/2002 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P9: TRUE COPY OF THE SALE DEED NO.772/1985 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P10: TRUE PHOTOSTAT COPY OF THE TAX PAID RECEIPT NO.1298891 DATED 28.9.2011 ISSUED BY THE VILLAGE OFFICER, OMALLOOR. ``` ``` EXHIBIT P11: TRUE PHOTOSTAT COPY OF THE TAX PAID RECEIPT NO.1288901 DATED 20.9.2011 ISSUED BY THEVILLAGE OFFICER, OMALLOOR. ``` ``` EXHIBIT P12: TRUE PHOTOCOPY OF THE PARTITION DEED NO.2502/1995 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P13: TRUE COPY OF THE SALE NO.1909/2002 OF THE S.R.O., PATHANAMTHITTA. ``` WP(C).No.11398/2012 **11** ``` EXHIBIT P14: TRUE PHOTOCOPY OF THE SALE DEED NO.2733/1972 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P15: TRUE PHOTOCOPY OF THE EXCHANGE DEED NO.474/2009 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P16: TRUE COPY OF THE PARTITION DEED NO.847/2001 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P17: TRUE PHOTOCOPY OF THE SALE DEED 1 NO.1395/1989 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P18: TRUE COPY OF THE SALE DEED NO. 1951/2002 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P19: TRUE PHOTOCOPY OF THE SALE DEED NO.2679/1989 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P20: TRUE COPY OF THE PARTITION DEED NO.1218/2004 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P21: TRUE PHOTOSTAT COPY OF THE TAX PAID RECEIPT NO.0389385 DATED 30.5.2008 ISSUED BY THE VILLAGE OFFICER, OMALLOOR. ``` ``` EXHIBIT P22: TRUE PHOTOCOPY OF THE PARTITION DEED NO.1527/1985 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P23: TRUE PHOTOCOPY OF TAX PAID RECEIPT NO.1397054 DATED 9.12.2011 ISSUED BY THE VILLAGE OFFICER, OMALLOOR. ``` ``` EXHIBIT P24: TRUE PHOTOCOPY OF TAX PAID RECEIPT NO.1853249 DATED 24.7.2010 ISSUED BY THE VILLAGE OFFICER, OMALLOOR. ``` ``` EXHIBIT P25: TRUE PHOTOCOPY OF TAX PAID RECEIPT NO.2201877 DATED 22.11.2011 ISSUED BY THE VILLAGE OFFICER; OMALLOOR. ``` ``` EXHIBIT P26: TRUE PHOTOCOPY OF TAX PAID RECEIPT NO. 1958991 DATED 13.6.2011 ISSUED BY THE VILLAGE OFFICER; OMALLOOR. ``` WP(C).No.11398/2012 **12** ``` EXHIBIT P27: TRUE PHOTOCOPY OF WILL NO.3/1957 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P28: TRUE PHOTOCOPY OF THE WILL NO.29/1968 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P29: TRUE PHOTOCOPY OF THE PARTITION DEED NO.2110/1995 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P30: TRUE PHOTOCOPY OF TAX PAID RECEIPT NO.8670193 DATED 27.5.2009 ISSUED BY THE VILLAGE OFFICER; OMALLOOR.. ``` ``` EXHIBIT P31: TRUE PHOTOCOPY OF TAX PAID RECEIPT NO 2201891 DATED 22.11.2011 ISSUED BY THE VILLAGE OFFICER, OMALLOOR. ``` ``` EXHIBIT P32: TRUE PHOTOCOPY OF THE SALE DEED NO.1344/1959 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P33: TRUE PHOTOCOPY OF THE SETTLEMENT DEED NO.1213/1994 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P34: TRUE PHOTOCOPY OF THE SALE DEED NO.1778/1112 ME. OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P35: TRUE PHOTOCOPY OF TAX PAID RECEIPT NO.0988487 DATED 16.5.2011 ISSUED BY THE VILLAGEOFFICER; OMALLOOR FOR THE SAID PROPERTY. ``` ``` EXHIBIT P36: TRUE PHOTOCOPY OF THE SALE DEED NO.1718/1989 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P37:TRUE PHOTOCOPY OF THE PARTITION DEED NO.444/1977 OF THE S.R.O., PATHANAMTHITTA. ``` ``` EXHIBIT P38 SERIES: PHOTOGRAPHS SHOWING THE COMPOUND WALLS CONSTRUCTED BY THE PETITIONERS ON THE BOUNDARIES OF THEIR RESPECTIVE PROPERTIES. ``` ``` EXHIBIT P39: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS DATED 25.1.2012 BEFORE THE 2ND RESPONDENT. ``` ``` EXHIBIT P40: TRUE COPY OF THE REPRESENTATION SUBMITTED BY ``` WP(C).No.11398/2012 **13** ``` THE PETITIONERS DATED 10.2.2012 BEFORE THE HONOURABLE CHIEF MINISTER. ``` ``` EXHIBIT P41 SERIES: PHOTOGRAPHS SHOWING THE DEMOLISHED COMPOUND WALLS. ``` ``` EXHIBIT P42: TRUE COPY OF THE NOTICE NO.B1- 20285/2012 DATED 75.2012 ISSUED BY THE 2[ND] RESPONDENT. ``` ``` EXHIBIT P43: TRUE COPY OF THE REPRESENTATION DATED 20.9.2013 SUBMITTED BY SOME OF THE PETITIONERS AND OTHER PROPERTY OWNERS TO THE 3RD RESPONDENT. ``` ``` EXHIBIT P44 SERIES: TRUE PHOTOGRAPHS SHOWING THE DEMOLISHED PORTIONS OF THE COMPOUND WALLS. THE SAID PHOTOGRAPHS. ``` ``` EXHIBIT P45: TRUE COPY OF THE PROCEEDINGS OF THE KERALA STATE HUMAN RIGHTS COMMISSION BEARING NO.HRMP 1897/FTA DATED 5.4.2013. ``` ``` EXHIBIT P46: TRUE COPY OF THE PROCEEDINGS OF THE KERALA STATE HUMAN RIGHTS COMMISSION BEARING NO.1897 DATED 23.4.2013. ``` ``` EXHIBIT P47: TRUE COPY OF THE PROCEEDINGS NO.1897 DATED 23.8.2013.. ``` ``` RESPONDENT’S EXHIBITS: ``` ``` EXHIBIT-R5(A): TRUE COPY OF THE REPLY NOTICE DATED 27.12.2012. ```