O K SREEDHARAN NAMBIAR Vs. GOVT OF KERALA

JUDGEMENT

(1.) The petitioner owns a property situated in R. S. No. 112/6 of Keezhalloor village. There are 9 shop rooms in this property which are numbered as 129 to 129H of Keezhalloor Panchayat. There was a proposal to acquire part of this survey number for the purpose of constructing an approach road to the aqueduct at Keezhallur. The property proposed to be acquired was a small portion of the survey number on which was situated room No. 129-H. The petitioner came to know of this proposal and therefore filed a representation to the Executive Engineer, Pazhassi Project, on 13-9-1977, with copy to the Superintending Engineer, informing them that if only a portion of the building constructed in the survey number was acquired, that would have the effect of putting the remaining portion useless and requesting that the entire rooms be acquired. It is averred in the petition that this representation was brought to the notice of the Collector and the legality of the acquisition of a portion of the property was even then considered. In the meantime, the Land Acquisition Officer issued Ext. P1 notification under S.3(1) of the Land Acquisition Act, for short, the Act, in Form III on 31-10-1977. It is stated in the petition that an objection was filed by the petitioner to Ext. P1 notice, not objecting to the acquisition but objecting to the acquisition of only a portion of the building. Since nothing took place pursuant to the objection so filed, the petitioner filed another representation before the Land Acquisition Officer, the 3rd respondent, on 30-3-1978 as per Ext. P-2. The award, Ext. P3, was passed on 1-4-1978 under which the petitioner was awarded Rs. 2734.07 for the portion of the building acquired. The petitioner accepted the amount under protest on 17-4-1978.

(2.) Thereafter the petitioner filed another representation to the 3rd respondent with a request that his objection be referred to the appropriate civil Court since the acquisition was only of a portion and since he wanted compensation for the entire building affected by the acquisition. Since nothing took place, he filed Ext. P5 on 18-1-1979 to the 2nd respondent. District Collector, Cannanore, mentioning therein about the petition filed by him to the Superintending Engineer and requesting for appropriate steps being taken under S.53 of the Act. This was followed by a reminder, Ext. P6. The rooms which were not acquired are now re-numbered as KLP VI 83 A to 83H. The building, according to the petitioner, is worth Rs. 75,000/-. The very foundation of the building is shaken by the proposed acquisition. This petition is filed for the issuance of an appropriate direction to respondents 1 to 3 to acquire on reasonable compensation the remaining portion of the building and to dispose of the representations filed by the petitioner.

(3.) The counter affidavit filed by the first respondent discloses the following facts: Pursuant to the proposal to acquire the property in question, a joint inspection of the property was conducted by the 3rd respondent and the Junior Engineer, Section No. II, Tellicherry, at which time the petitioner was also present at the site. The total extent of the property required for the purpose of acquisition from the petitioner's holding was only 0.0050 hectare (1-1/4 cent). A notice under S.3 of the Act, read with R.3 of the Rules was duly served on the petitioner. No objection was filed by the petitioner in response to the said notice. Instead he gave advance possession of the land on 18-10-77 and the land was handed over to the PWD, for the purpose of formation of approach road on that day itself. The petitioner did not indicate his desire-nor put forward his objections-about the need to acquire the entire portion of the building at the time the property was surrendered voluntarily to the authorities In fact, he gave a consent statement while surrendering the land. Shop Nos. 129, 129A to 129-G were constructed during the year 1973-74 and the new addition numbered as 129-H was constructed in the year 1976-77, as is disclosed from the register of building kept by the Panchayat. The award enquiry notice under S.9 (5) was published at pages Nos. 801-803 of Kerala Gazette No. 12 dated 21-3-1978 and the enquiry was held on 25-3-1978 to 31-3-1978. The petitioner was present at the enquiry on 25-3-1978. He did not demand acquisition of the entire building on that day. The award was made on 1-4-1978 after this enquiry. The authorities were satisfied that the acquisition of shop room No. 129-H which was only an addition put up subsequently touching the main building would not affect the land or its structural stability The main building is a two-storied one containing 8 rooms which are tenanted. The acquisition of the main building will result in the dispossession of the tenants in occupation. The petitioner did not file before the Land Acquisition Officer any objection within time in response to S.3 notice. It is true that he sent a petition on 13-9-1977 to the Executive Engineer, Cannanore. The entire building was not acquired for the reason that it was not reasonably required and the acquisition of this portion would not impair the use of the main building. It is further averred in the counter affidavit that it was not necessary to acquire a huge two-storied building which would result in eviction of the occupants of the shop rooms. The belated objection of the petitioner against the acquisition of a portion is only to get compensation for the building in the possession of tenants paying low rents. The petitioner had sent a petition on 30-3 1978 demanding acquisition of the entire building and payment of compensation urgently. This was not considered since it was belated. The subsequent representations were not considered since they were not statutorily entertainable. The Executive Officer of Keezhalloor Panchayat bad certified that room No. 129-H was put up in 1976-77. This room was put upon a separate foundation with separate walls. No reference to the civil Court was necessary because the petitioner had not moved the authorities in time under S.53 of the Act.