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2015 Supreme(Ker) 795
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. VINOD CHANDRAN, J.
LEELA ANTONY & OTHERS – Petitioners
Versus
STATE OF KERALA & OTHERS – Respondents
W.P. (C) No. 29755 of 2004
Decided On : 24.7.2015
Advocate Appeared:
For the Petitioner:Sri. S.V. Balakrishna Iyer, Senior Advocate and Sri. K.G. Pavithran, Advocate.
For the Respondent: Sri. Manoj P. Kunjachan, Government Pleader and Sri. Jayapradeep, Central Government Counsel.
The main legal point established in the judgment is the court's emphasis on the proper application and demarcation of land, the dismissal of the writ petition due to abuse of process of law, and the imposition of costs on the petitioners.
Headnote:
NH 49 Widening - Attempted Land Takeover - Land Dispute - [NH 49 Widening] - [Land Acquisition Act, Section 4] - The court discussed the attempted action of the 2nd respondent to take over certain properties for the widening of NH 49. The key legal provisions referenced were related to land acquisition under Section 4 of the Land Acquisition Act. The court emphasized the need for proper application and demarcation of the land, and ultimately dismissed the writ petition, citing abuse of process of law and suppression of material facts.
Fact of the Case:
The petitioners challenged the attempted action of the 2nd respondent to take over their properties for the widening of NH 49. The petitioners alleged that the attempt was to grab their lands for the widening of the highway, and they contended that the 2nd respondent could have initiated acquisition proceedings and paid compensation to the landowners.
Finding of the Court:
The court found that there was an abuse of process of law and suppression of material facts by the petitioners. It noted that the petitioners had filed two writ petitions on the same grounds within a short period, and that they were aware of the first writ petition which was pending. The court dismissed the writ petition and imposed costs on the petitioners.
Issues: The issues involved the attempted land takeover for the widening of NH 49, the dispute over the survey sketch and plan, and the abuse of process of law by the petitioners.
Ratio Decidendi: The court's decision was influenced by the petitioners' abuse of process of law, suppression of material facts, and the filing of multiple writ petitions on the same grounds. It emphasized the need for proper application and demarcation of the land and ultimately declined to exercise jurisdiction under Article 226 of the Constitution.
Final Decision: The writ petition was dismissed with costs imposed on the petitioners.
K. VINOD CHANDRAN, J.
1. The petitioners in the above writ petition challenge the attempted action of the 2nd respondent, to take over certain properties of the petitioners, for the widening of the road. The petitioners together had 4 cents of land, comprised in Survey No. 1012/6A/1 of Kothamangalam Village and certain shop rooms thereon. The title of the petitioners is asserted by two sale deeds.
2. The essential contention of the petitioners before this Court was that the attempt of the 2nd respondent is to grab their lands for the widening of National Highway 49 (for brevity "NH 49") on the ground that it is puramboke land; when the 2nd respondent could as well take acquisition proceedings and pay compensation to the land owners. When initially the attempt was made, the petitioners were before this Court with O.P. No. 1780 of 2003, which was disposed of by Exhibit P1 judgment. Exhibit P1 directed a proper application to be made before the 3rd respondent to demarcate the land and the same was directed to be done by the said respondent within one month. The 3rd respondent therein, the Survey Superintendent, is the 3rd respondent here also.
3. Alleging non-compliance of the order contained in Exhibit P1, a contempt case had been filed, as Cont. Case (C) No. 1294 of 2004. Alleged contemnor having retired from service, the then incumbent was made a party. Even the present incumbent submitted before Court that the 1st respondent, the alleged contemnor had in fact conducted a survey on 19.07.2004 prior to his retirement on 30.09.2004. The petitioners contended that certain documents were not available in the office of the contemnor and, therefore, submitted that the survey conducted cannot be accepted. The 2nd respondent in the contempt case contended before Court that the 1st respondent had merely sought for clarification and it was not as if the records were not available in the office of the Survey Superintendent. The Court noticed that the petitioners are disputing the correctness of the measurement. However, the Court felt that the same has to be adjudicated in a fresh proceeding and closed the contempt case without prejudice to the contentions of both the parties.
4. The aforesaid writ petition was filed challenging the survey said to have been conducted but, however, without producing the sketch prepared at the survey. The petitioners in the above writ petition contended that actually no survey was conducted and they did not receive any survey sketch. The above writ petition was filed on 08.10.2004 and a status quo order was passed on 11.10.2004. The 2nd respondent very alertly filed a counter affidavit on 28.10.2014, producing the survey sketch and plan prepared on the survey conducted in accordance with Exhibit P1 judgment, as Exhibits R2(A) & R2(B).
5. The sketch and plan were seriously disputed by the learned Senior Counsel appearing for the petitioners on the ground that the measurements are not correct and seeks to substantiate such contention on the basis of the documents received by the petitioners from the office of the Survey Superintendent and the Central Survey Officer, produced as Exhibits P17 and P18. In the course of hearing, however, Exhibit P6 was referred to, in which it was disclosed that a notice was issued by the District Survey Superintendent in pursuance of directions in another writ petition, bearing number W.P. (C) No. 32258 of 2004. In such circumstance, this Court called for the Judges Papers of W.P. (C) No. 32258 of 2004.
6. W.P. (C) No. 32258 of 2004 is seen to have been filed on 02.11.2004, within a month from the date on which the present writ petition was filed. Therein, Exhibits R2(A) and R2(B) produced in this writ petition were produced as Exhibits P12(a) and P12(b) and the same were challenged on the ground of defect in measurements. A learned Single Judge of this Court dismissed the writ petition with the following observations:-
"The dispute raised in this Writ Petition is a bou
