Disposed

Dr.Mathew Zachariah v. State of Kerala

Kerala HC6 Mar 2024WP(C)/3456/2020

Case brief

AI extract

What is this about?

The High Court directed the Land Acquisition Officer to issue modified awards after the alignment of the road widening for Kochi Metro was changed, thereby reducing the quantum of land acquired. The Court ordered the authorities to afford a hearing and pass fresh orders within two months.

What did the court decide?

Direction issued to Land Acquisition Officer to pass modified awards for the reduced extent of land acquired in view of the changed alignment.

Dr.Mathew Zachariah Vs State of Kerala — Land Acquisition | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

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WEDNESDAY, THE 6^TH DAY OF MARCH 2024 / 16TH PHALGUNA, 1945

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WP(C) NO. 3456 OF 2020

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PETITIONERS:

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1 DR.MATHEW ZACHARIAH,AGED 77 YEARS S/O. ZACHARIAH, KARTHIKA HOUSE, KANICHUKATTIL, TRIPUNITHURA, NADAMA VILLAGE, ERNAKULAM.

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2 VALSA MATHEW,W/O. MATHEW ZACHARIA, KANICHUKATTIL, TRIPUNITHURA, NADAMA VILAGE, ERNAKULAM.

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BY ADVS. C.P.WILSON ROSE MICHAEL

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RESPONDENTS:

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1 STATE OF KERALA,REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, STATE SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE DISTRICT COLLECTOR ERNAKULAM-682 032.

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3 THE LAND ACQUISITION OFFICER (SPECIAL TAHSILDAR) LA NO.1, CIVIL STATION, KAKKANAD, ERNAKULAM-682 030.

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4 THE MANAGING DIRECTOR KOCHI METRO RAIL LTD. 8TH FLOOR, REVENUE TOWER, PARK AVENUE, KOCHI-682 011.

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BY ADVS.

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SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI, SC, KOCHI METRO RAIL LTD.

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OTHER PRESENT:

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GP - AJITH VISWANATHAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

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06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).No.3456 of 2020 2

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VIJU ABRAHAM,J

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W.P.(C).No.3456 of 2020

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Dated this the 6^th day of March, 2024

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JUDGMENT

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The above writ petition is filed seeking the

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following reliefs:

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(I) Issue a writ of mandamus or any

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other appropriate writ, direction or order

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commanding the respondents to process and adjudicate Exhibits P1 and P2

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representations in accordance with Section 94 of the Right to Fair Compensation and

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Transparency in Land Acquisition,

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Rehabilitation and Resettlement Act, 2013.

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(II) Issue a writ of Certiorari or any other appropriate, writ, direction or order calling for the records leading to Exhibits P3 and P4 awards and quashing the same.

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(III) Issue such other further reliefs as the necessary in the interest of justice.

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In connection with construction of Kochi

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Metro Project properties of the petitioners were

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W.P.(C).No.3456 of 2020 3

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proposed to be acquired and the petitioners contend that if acquisition proceedings are carried out, a portion of the hospital building

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owned by the petitioners will have to be demolished and that will badly affect the structure and strength of the hospital building. In the said circumstances, petitioners preferred

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Exts.P1 and P2 essentially contending that if the property is to be acquired the entire building including land should be acquired. Petitioners submit that without considering Exts.P1 and P2, Ext. P3 and P4 awards were passed.

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When the matter came up for consideration on 7.2.2020 there was an interim order directing

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that the possession has not been taken so far, it shall not be taken from the petitioners without leave of this Court. Later, the said order was modified as per order dated 26.08.2020 wherein based on the contention of the 4^th respondent that they decided to modify the alignment for road widening in front of the petitioners' property so that the demolition of even a small portion of the

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W.P.(C).No.3456 of 2020 4

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building can be avoided, and by such modification

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only the front portion of the land need to be acquired and the building and a portion of the land would be spared, modified the interim order granted on 7.7.2020 permitting the 4^th respondent to go forward with the construction.

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A counter affidavit has been filed by the 4^th

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respondent, wherein paragraphs 10,11 and 12 reads as follows:

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“10. It is submitted that the

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partial acquisition of the building, being a negligible portion will not affect the functioning of the hospital and all the contra averments are baseless and preposterous. Partial acquisition of a number of buildings have already been done successfully by this respondent for road widening and the apprehensions of the petitioners that the partial acquisition will affect the strength of the building is baseless. Partial demolition of the building will be undertaken after proper analysis and conducting structural studies and will be executed in the most feasible and secure manner so that the strength of the building is not adversely affected. However, for structural analysis, approved building

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W.P.(C).No.3456 of 2020 5

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plan and permit of the building is highly necessary which the petitioners are reluctant to submit for reasons best known to them.

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It is submitted that acquisition of the entire land and building as demanded by the petitioners will entail exorbitant costs, which will affect the financial viability of the project itself and will only be a wastage of public money. Moreover, this acquisition is for road widening and not for metro project. In view of the inordinate delay caused in acquisition of said land due to the dispute of the petitioner including the demand for acquisition of the entire building and the cost implications of such demand, this respondent is willing to modify the alignment for the road widening, infront of the petitioners' property so that demolition of even a small portion of the building can be avoided. The modification can be made possible by reducing the width of the footpath in front of the said property to 0.50 meter instead of the planned 1.50 meter. By such modification, the front portion of the land only need to be acquired and the building and a portion of the land can be fully avoided. A detailed sketch showing the initial alignment and the modified alignment is produced herewith and marked as

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W.P.(C).No.3456 of 2020 6

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Ext.R4(a) and Ext.R4(b) respectively. Though the width of foot path will be reduced in that small stretch, the said change may not materially affect the pedestrian movement and there may not be any immediate chances of further widening of the said road in view of the proposal of PWD National Highways Wing for a bypass from Kundannur to Mattakuzhi near Puthencruz. 12. It is submitted that though the Award is passed by Land Acquisition Officer, the possession of the petitioners' property has not been taken so far and this Court has passed an interim order to the effect that possession shall not be taken without leave of this Court. Accordingly, possession of the land has not been taken and no portion of the building is demolished by this respondent so far. In view of the proposed modification whereby part of the land and the building can be avoided, the Land Acquisition Officer may be directed by this Court to modify the award to cover only the reduced extent of land and to reduce the compensation proportionately, within a time line to be fixed by this Court.”

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The learned counsel for the petitioners

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would submit that the alignment has been changed

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and only a small portion of the property alone is

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W.P.(C).No.3456 of 2020 7

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required for undertaking the construction. The statement further state that in view of the proposed modification the Land Acquisition Officer, may be directed by this Court to

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modify the award to cover only the reduced extent of land and to reduce the compensation proportionately.

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Heard the learned Government Pleader also.

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After hearing both sides, in view of the intervening circumstances whereby the alignment itself was modified whereby necessitating only

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acquisition of a very small portion of the property of the land, I am of the view that the modified awards are to be passed in this case by

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the Land Acquisition Officer in time with the contention in the statement filed by the 4^th respondent.

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Therefore, the writ petition is disposed of with a direction to the 2^nd and 3^rd respondents to issue modified award in place of Exts.P3 and P4 in view of the change of alignment by the 4^th respondent. A

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decision in this regard shall be taken by

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W.P.(C).No.3456 of 2020 8

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respondents 2 and 3 after affording an opportunity of being heard to the petitioners and the 4^th respondent. A decision in this regard modifying the award shall be passed within an outer limit of 2 months from the date of receipt of a copy of the judgment.

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sd/-

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VIJU ABRAHAM, JUDGE

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W.P.(C).No.3456 of 2020 9

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APPENDIX OF WP(C) 3456/2020

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PETITIONERS' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE IST PETITIONER TO THE 3RD RESPONDENT DATED 25.6.2019. EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER TO THE 3RD RESPONDENT DATED 25.6.2019. EXHIBIT P3 TRUE COPY OF THE AWARD NOTICE ISSUED IN FAVOUR OF THE IST PETITIONER DATED 18.12.2019. EXHIBIT P4 TRUE COPY OF THE AWARD NOTICE ISSUED IN FAVOUR OF THE 2ND PETITIONER DATED 18.12.2019. EXHIBIT P5 TRUE COPY OF THE OTICE OF TAKING OVER POSSESSION OF THE LAND DATED 18.12.2019 ISSUED TO THE IST PETITIONER. EXHIBIT P6 TRUE COPY OF THE NOTICE OF TAKING OVER POSSESION OF THE LAND DATED 18.12.2019 ISSUED TO THE 2ND PETITIONER. RESPONDENTS EXHIBITS EXHIBIT-R4(A) TRUE COPY OF THE DETAILED SKETCH SHOWING THE INITIAL ALIGNMENT EXHIBIT-R4(B) TRUE COPY OF THE DETAILED SKETCH SHOWING THE MODIFIED ALIGNMENT

Dr.Mathew Zachariah v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr.Mathew Zachariah v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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