W.P.(C) No. 995 of 2013 (Y) – Jojo Kuruvila & Tomy Kuruvila v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 11TH DAY OF SEPTEMBER 2020 / 20TH BHADRA, 1942** ## **W.P.(C)No.995 OF 2013(Y)** ## **PETITIONERS:** - **1 JOJO KURUVILA, AGED 50 YEARS VADAKKUMCHERI HOUSE, SREEMOOLANAGARAM P.O., ALUVA, PIN-683560.** - **2 TOMY KURUVILA VADAKKUMCHERI HOUSE, SREEMOOLANAGARAM P.O., ALUVA, PIN-683560.** - **BY ADVS. SRI.THOMAS JOHN AMBOOKEN SRI.B.SAJEEV KUMAR SMT.BLOSSOM MATHEW** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001** - **2 THE DISTRICT COLLECTOR ERNAKULAM, CIVIL STATION P.O., KAKKANAD, ERNAKULAM-682 030** - **3 SPECIAL TAHASILDAR LAND ACQUISITION (RAILWAY), PERUMBAVOOR-683 542** - **4 THE CHIEF ENGINEER/CONSTRUCTION SOUTHERN RAILWAYS, ERNAKULAM JUNCTION-682016 (REQUISITIONING AUTHORITY).** - **5 THE SOUTHERN RAILWAYS REPRESENTED BY THE GENERAL MANAGER, PARK TOWN, SOUTHERN RAILWAYS HEAD QUARTERS, CHENNAI-400 001.** **R1-R3 BY SMT K.AMMINIKUTTY-SR GOVERNMENT PLEADER R4-R5 BY SRI.S.PRASHANTH, SC, RAILWAYS** - **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** - **11.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.995 of 2013(Y) 2 ## **JUDGMENT** The petitioners owned 21.5 cents of land in Survey No.362/14-25A, Block No.28 of Vadakkumbagam Village in Aluva Taluk, out of which, an extent of 16.5 cents was acquired for Sabari Rail Project, in an acquisition proceedings initiated pursuant to notification issued under sub-section (1) of Section 4 of the Land Acquisition Act, 1894. The document marked as Ext.P1 is a notice dated 16.10.2009 issued by the 3[rd] respondent Special Tahsildar, Land Acquisition (Railways), Perumbavoor, under subsection (3) of Section 9 of the said Act. Under Fast Track Scheme, the District Level Purchase Committee fixed Rs.25,30,990/- as land value for 06.65 ares of land; Rs.1,42,319/- as value of structure (without depreciation); and Rs.160/- as value of improvements, as evident from Ext.P2 final calculation statement. The document marked as Ext.P3 is the sketch of the property owned by the petitioners, showing the land acquired having an extent of 06.65 ares and the balance extent of 02.06 ares. The amount of compensation was apportioned among the petitioners equally, and they received a sum of Rs.13,36,734/- each, vide Ext.P4 cheque dated 26.12.2012 and Ext.P5 cheque dated 30.11.2012. W.P.(C)No.995 of 2013(Y) 3 2. The 1[st] petitioner submitted a representation before the Requisitioning Authority, i.e., the Deputy Chief Engineer (Construction), Southern Railway, Ernakulam, with a request to acquire the balance extent of 02.06 ares. The Requisitioning Authority, vide Ext.P6 reply dated 18.02.2010, informed the 1[st] petitioner that land acquisition is being done as per actual requirement. Further land acquisition will be done as and when required. On 09.01.2013, the petitioners have filed this writ petition, under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to acquire 5 cents of land in Survey No.362/14-25A, Block No.28 of Vadakkumbagam Village, Aluva Taluk remaining unacquired and to pay appropriate compensation. The petitioners have also sought for a writ of mandamus commanding the respondents to pay compensation by reason of severance of the acquired land having an extent of 16.5 cents from the unacquired land having an extent of 5 cents, both in Survey No.362/14-25A, Block No.28 of Vadakkumbagam Village, due to land acquisition. 3. On 10.01.2013, when the writ petition came up for admission, the learned Government Pleader sought time to get instructions from respondents 1 to 3 and the learned Standing W.P.(C)No.995 of 2013(Y) 4 ## Counsel for Southern Railway took notice for respondents 4 and 5. 4. A counter affidavit has been filed by the 3[rd] respondent opposing the reliefs sought for in this writ petition. Paragraphs 2 to 4 of the counter read thus: “2. It is submitted that an extent of 06.65 ares of land in Re-Survey No.362/14-25A, Block 28 of Vadakkumbhagam Village Aluva Taluk has been acquired for Angamaly-Sabari railway Line under fast track scheme from the petitioners from a total extent of 08.71 ares leaving 2.06 ares of land. The petitioners gave consent for the DLPC rate and the land was got registered by the Railway and the compensation amount were paid to the petitioners. The petitioners filed this writ petition for acquiring the 5 cents of balance land left after acquisition. 3. It is submitted that a lot of petitions had been received in this office and the Office of the District Collector, Ernakulam requesting to acquire the small extent of balance land left after acquisition. There are no Government Orders or directions to acquire additional land left after acquisition. In the DLPC meeting chaired by the District Collector, Ernakulam held on 09.09.2009 the Requisitioning Authority Railway agreed to consider the acquisition of balance land measuring below 3 cents and to give relaxations in the rules and conditions of constructions in the remaining land that comes after acquisition. The balance land is more than three cents in case of the petitioners. 4. It is the Requisitioning Authority who has to consider the acquisition of remaining land. The land taken by W.P.(C)No.995 of 2013(Y) 5 Requisitioning Authority cannot be modified by Special Tahsildar. The balance land of 5 cents is not a small area and in the DLPC meeting held on 09.09.2009 Railway Authority has agreed to consider relaxation in the rules for construction. The land was got registered by railway under FTP. The provisions of LA act cannot be applied.” 5. Heard the learned counsel for the petitioners, learned Senior Government Pleader appearing for respondents 1 to 3 and also the learned Standing Counsel for respondents 4 and 5. 6. The property owned by the petitioners, having an extent of 06.65 ares in Survey No.362/14-25A, Block No.28 of Vadakkumbagam Village was acquired for Sabari Rail Project, under Fast Track Scheme. The petitioners gave consent for fixation of land value, etc. by the District Level Purchase Committee. Accordingly, the District Level Purchase Committee fixed Rs.25,30,990/- as land value for 06.65 ares of land; Rs.1,42,319/as value of structure (without depreciation); and Rs.160/- as value of improvements, as evident from Ext.P2 final calculation statement. The amount of compensation was apportioned among the petitioners equally, and they were paid a sum of Rs.13,36,734/- each, vide Ext.P4 cheque dated 26.12.2012 and Ext.P5 cheque dated 30.11.2012. The 1[st] petitioner submitted a W.P.(C)No.995 of 2013(Y) 6 representation before the Requisitioning Authority, with a request to acquire the balance extent of 02.06 ares. The Requisitioning Authority, vide Ext.P6 reply dated 18.02.2010 informed the 1[st] petitioner that land acquisition is being done as per actual requirement and that, further land acquisition will be done as and when required. 7. When land acquisition by the Requisitioning Authority is done as per the actual requirement for Sabari Rail Project, the petitioners have no legal right to seek a writ of mandamus commanding the respondents to acquire the balance extent of 02.06 ares in Survey No.362/14-25A, Block No.28 of Vadakkumbagam Village and pay appropriate compensation. The land owned by the petitioners, having an extent of 06.65 ares was acquired under Fast Track Scheme. The petitioners gave consent for fixation of land value, etc. by the District Level Purchase Committee, which fixed Rs.25,30,990/- as land value for 06.65 ares of land; Rs.1,42,319/- as value of structure (without depreciation); and Rs.160/- as value of improvements. The amount of compensation, which was apportioned among the petitioners equally, was also paid vide Ext.P4 cheque dated 26.12.2012 and Ext.P5 cheque dated 30.11.2012. Much prior to W.P.(C)No.995 of 2013(Y) 7 such payment, the Requisitioning Authority, vide Ext.P6 reply dated 18.02.2010, turned down the request made by the 1[st] petitioner to acquire the balance extent of 02.06 ares. Therefore, the petitioners have no legal right to seek a writ of mandamus commanding the respondents to pay compensation by reason of severance of the acquired land having an extent of 16.5 cents from the unacquired land having an extent of 5 cents, both in Survey No.362/14-25A, Block No.28 of Vadakkumbagam Village, due to land acquisition. 8. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. Paragraph 10 of the said decision reads thus; W.P.(C)No.995 of 2013(Y) 8 "10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the court came to hold that the list does not expire after a period of one year which on the face of its erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist." 9. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory W.P.(C)No.995 of 2013(Y) 9 provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. In such circumstances, the petitioners are not entitled for the reliefs sought for in the writ petition. The writ petition fails and the same is dismissed. No order as to costs. Sd/- jv **ANIL K. NARENDRAN JUDGE** W.P.(C)No.995 of 2013(Y) 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **PHOTOCOPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT UNDER SECTION 9(3) OF LAND ACQUISITION ACT DATED 16.10.2009** **EXHIBIT P2 PHOTOCOPY OF THE DLPC FINAL CALCULATION STATE SHOWING THE DETAILS OF HTE COMPENSATION AWARDED** **EXHIBIT P3** **A ROUGH SKETCH SHOWING HTE LAND ACQUIRED AND THE BALANCE LAND LEFT WITH THE PETITIONERS** **EXHIBIT P4** **PHOTOCOPY OF THE CHEQUE ISSUED TO THE 1ST PETITIONER FOR RS.13,36,734/-** **EXHIBIT P5 PHOTOCOPY OF THE CHEQUE ISSUED TO THE 2ND PETITIONER FOR RS.13,36,735/-** **EXHIBIT P6 A PHOTOCOPY OF THE LETTER DATED 18.02.2010 BY THE DEPUTY CHIEF ENGINEER (CONSTRUCTION) TO THE 1ST PETITIONER**