Petitioner challenged demolition notice regarding property acquired for the Thiruvalla Bypass. Court found survey measurements showed petitioner possessed more land than claimed, dismissing the writ petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
WP(C) NO. 507 OF 2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 3RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943 WP(C) NO. 507 OF 2021
PETITIONER/S:
MRS. LALITHAMMA, AGED 65 YEARS, W/O.SUKUMARAN, KARPPAKUZHIYIL HOUSE, IRUVELLIPPARA, THIRUMOOLAPURAM P.O., THIRUVALLA, PIN - 689 115.
BY ADVS. P.M.JOSHI SMT.SIJI K.PAUL SMT.ELIZABETH KOSHY
RESPONDENT/S:
WP(C) NO. 507 OF 2021
2
*5 ADDL.R5. THE TALUK SURVEYOR, THIRUVALLA. * (ADDL.R5 SUO MOTU IMPLEADED AS PER ORDER DATED 7-4-2021 IN WP(C).
SRI K V MANOJ KUMAR, SR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 507 OF 2021
3
JUDGMENT
The petitioner was served with a notice by the Executive Engineer, Kerala State Transport Project calling upon her to remove the encroachments from an item of property having an extent of 115 sq.mts. falling in Sy. No.112/11-49, which was earlier acquired from her possession for the purpose of construction of the Thiruvalla Bypass. On receipt of the notice, the petitioner has approached this Court seeking the following reliefs:
I. Issue a writ of mandamus or appropriate writ or direction to the respondents not to demolish the building or to encroach the property of the petitioner otherwise directed by this Hon’ble Court.
II. The 2nd respondent may be directed to consider and dispose Exhibit-P7 complaint/representation after affording reasonable opportunity of being heard the petitioner within a reasonable period that may be fixed by this Hon’ble Court.
III. The 3rd respondent may be directed to measure the property acquired and petitioner’s property and fix the boundary in the light of Exhibit-P3 and Exhibit-P4.
iv) Set aside Exhibit P6 notice and grant such other relief that this Hon’ble Court may deem fit in this case.
2. The case of the petitioner as is borne out from the averments are
as under:
The petitioner along with her husband purchased 6 Ares 6 sq. mts. of property as per Sale Deed Nos. 2323/1989, 2789/1989 and 2811/1989 of the Thiruvalla SRO. The property covered under the title deeds lies contiguously
WP(C) NO. 507 OF 2021
4
and falls in Old Sy. No. 113/5. After re-survey, the property was included in Re-Sy. No.11 and its extent was considerably reduced to 5.90 Ares. It is stated that 115 sq. mts of land was acquired for the widening of the Thiruvalla Bypass and after the acquisition of the above extent, the total extent was reduced to 4.75 Ares in Block No.112, Re-Sy. No.11 of Thiruvalla Village. Ext.P1 and P2 are the tax receipts issued by the revenue authorities in the name of the petitioner and her husband. As per Ext.P1, the total extent of property over which the petitioner is remitting tax is 4.34 Ares in Thandaper No. 7654. The husband of the petitioner is remitting tax in respect of 4 Ares and 20 sq.mts in Thandaper No. 7655. From Exts.P1 and P2, it is evident that the property in the name of the petitioner and her husband are lying in Sy. No. 10,11 and 24 in Block No. 112 of Thiruvalla Municipality. At the risk of repetition, it has to be mentioned that the definite case of the petitioner is that she and her husband are having rights over 4.75 Ares in Block No.112, Re-Sy. No. 11 of Thiruvalla Village.
WP(C) NO. 507 OF 2021
5
WP(C) NO. 507 OF 2021
6
WP(C) NO. 507 OF 2021
7
building put up by the petitioner. It is contended that in the land covered by Annexure- R1(a) and R1(b), no structures have been put up. The building which was constructed by the petitioner on the strength of Ext.P5 permit is situated away from the acquired land. The petitioner has paved some tiles in the encroached portion and it was that portion that was ordered to be removed.
WP(C) NO. 507 OF 2021
8
of the sketch along with the counter affidavit of the 1st respondent.
WP(C) NO. 507 OF 2021
9
Block No. 112 is 0.0478 Ha. The side measurements are also noted.
WP(C) NO. 507 OF 2021
10
counsel are without basis. He would refer to paragraph No.1 of the writ petition and it is pointed out that the specific case of the petitioner is that after the acquisition, the petitioner and her husband owns a total extent of 4.75 Ares in Block No. 112 in Re-Sy. No. 11. The learned standing counsel would then refer to the possession certificate produced by the petitioner and it was argued that the property in her possession in Sy. No. 11 has been clearly detailed therein. Reference is then made to Ext.P3, FM Sketch of the property in Sy. No. 11, Annexure- R1(c) prepared by the Taluk Surveyor on 15.12.2020 and the sketches prepared by the Taluk Surveyor pursuant to orders issued by this Court on 7.4.2021 and it is argued that the side measurements all tally. Finally, placing reliance on the sketches produced along with the memo, it is pointed out that as against the claim of the petitioner for entitlement of 4.75 Ares of land in Re Sy. No. 11 in Block No. 112, she is having possession of 4.78 Ares. This according to the learned standing counsel would seal the issue and the petitioner cannot be heard to contend that she has lost even an inch of land to which she is entitled to.
WP(C) NO. 507 OF 2021
11
Thiruvalla Bypass. The acquired portion of the land has been allotted in ReSy. No. 11/49 in Block No. 112. Ext.P3 is the FM Sketch produced by the petitioner showing the nature and lie of properties in Re-Sy No. 10,11 and 24 in Block No. 112 of Thiruvalla Village. In Ext.P4, the acquired property has been shown as falling in Subdivision 49 and having an extent of 115 sq.mts. The specific case of the petitioner is that the respondents are now encroaching upon the property in Re-Sy. No. 11 in Block No.112. On going through Annexure- R1(c) sketch prepared by the Taluk Surveyor on 15.12.2020 and the sketches prepared by the Taluk Surveyor pursuant to orders issued by this Court on 7.4.2021, I find that the side measurements in the sketches prepared clearly tally with Ext.P3 FM Sketch produced by the petitioner. Furthermore, the fact that property which is now in the possession of the petitioner in Re-Sy. No. 11 in Block No. 112 is having an extent of 4.78 Ares clearly demolishes the very substratum of the case set up by the petitioner. If the contentions are correct, the extent of property in the possession of the petitioner would have been reduced. But, the survey on the basis of the revenue records shows that instead of 4.75 Ares, the petitioner and her husband is having in their possession 4.78 Ares of land.
WP(C) NO. 507 OF 2021
12
circumstances, I find no reason to disbelieve the said version.
Having considered all the relevant facts, I am of the view that the petitioner has not made out any case for interference. This writ petition will
stand dismissed.
SD/-
RAJA VIJAYARAGHAVAN V
JUDGE
ps
WP(C) NO. 507 OF 2021
13
APPENDIX OF WP(C) 507/2021
PETITIONER(S) EXHIBITS:
EXHIBIT P1 THE TRUE PHOTOCOPY OF THE LAND TAX RECEIPT DATED 22/7/2020 OF THE PETITIONER. EXHIBIT P2 THE TRUE PHOTOCOPY OF THE LAND TAX RECEIPT DATED 2/7/2020 OF PETITIONER'S HUSBAND. EXHIBIT P3 THE TRUE COPY OF THE F.M.SKETCH OF BLOCK NO.112 OF THIRUVALLA MUNICIPALITY. EXHIBIT P4 THE TRUE COPY OF THE APPROVED LAND ACQUISITION SKETCH. EXHIBIT P5 THE TRUE COPY OF THE BUILDING PERMIT DATED 16/9/2014 ISSUED FROM THE THIRUVALLA MUNICIPALITY. EXHIBIT P6 THE TRUE COPY OF THE NOTICE DATED 22/12/2020 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P7 THE TRUE COPY OF THE REPRESENTATION DATED 30/12/2020 TO THE 2ND RESPONDENT. EXHIBIT P8 THE TRUE PHOTO THE PREMISES AND BUILDING BEFORE GRANTING THE INTERIM ORDER. EXHIBIT P9 THE TRUE PHOTO OF THE PREMISES AND BUILDING AFTER GRANTING THE INTERIM ORDER EXHIBIT P10 THE TRUE PHOTO SHOWING IRON STUMPS WITH RED RIBBONS.
RESPONDENT(S) ANNEXURES:
ANNEXURE R1(a) TRUE COPY OF THE MAHAZAR. ANNEXURE R1(b) TRUE COPY OF THE PLAN PREPARED FOR THE PURPOSE OF AWARD AND TAKING POSSESSION OF THE LAND. ANNEXURE R1(c) A TRUE COPY OF THE PLAN PREPARED BY THE TALUK SURVEYOR.
2 issues framed by the court
Whether the petitioner is entitled to interfere with the acquisition authorities' action to remove encroachments on acquired land.
Whether the survey conducted by the Taluk Surveyor established that the petitioner encroached upon acquired property.
MRS. LALITHAMMA
THE EXECUTIVE ENGINEER, KERALA STATE TRANSPORT PROJECT
THE DISTRICT COLLECTOR
THE DISTRICT SURVEY SUPERINTENDENT
M/s.EKK AND COMPANY
RAJA VIJAYARAGHAVAN V
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
