MARY PHILIP Vs. K S H B

JUDGEMENT

(1.) In these Original Petitions, petitioners pray for issue of writ of mandamus, directing respondents to pass the award in respect of acquisition of petitioners' land covered by Exts.Pl and P2 immediately and disburse the compensation with solatium and interest due to petitioners forthwith. For convenient sake I will be referring to the documents as they are marked in O.P. 10380/90;

(2.) In order to appreciate the contentions raised by the parties, it is necessary to state briefly the facts leading to the filing of these Original Petitions. 1st respondent, Kerala State Housing Board, Thiruvananthapuram published a notification Ext. P1 dated 15-3-1982 under S.50 of Kerala State Housing Board Act, -stating that the lands mentioned therein are included in a housing accommodation scheme and directing the persons affected thereby to file objection, if any, within a period of 30 days. Petitioners filed objection. It is the case of petitioners that the ancestral properties belonging to the petitioners were included in Ext. P1 notification. One of the owners, A.J. Joseph, who is predecessor-in-interest of the petitioners in O.P.11058/90 made an offer that he would offer 4 acres of land belonging to him, provided the Housing Board was willing to release the balance of the property belonging to him. It is his case that it was done as a threat was held out by the Housing Board that all the ancestral properties belonging to him would be acquired. 1st respondent accepted the offer. Thereupon, petitioners in O.P.10380/90 also volunteered to surrender an extent of 6 acres on conditions enumerated in Ext. P9 offer. The conditions are (1) out of 6 acres agreed to be surrendered, 4 acres will be surrendered by John Abraham and 2 acres by John Philip at mutually agreeable locality within the notified area, (2) offer is made without prejudice to the right of the petitioners to get maximum compensation under the" Land Acquisition Act, (3) the remaining extent included in the notification will be released from acquisition proceedings; and (4) the 1st respondent would grant a permanent right of way sufficiently wide enough for truck traffic to the remaining lands belonging to the petitioners. 1st respondent sent a reply Ext. P10 accepting the offer. Pursuant to this, 1st respondent requisitioned to the Collector on 15.-3-1982 to acquire the lands agreed to be surrendered. This will be seen from Ext.Rl(b) produced by 1st respondent along with the counter affidavit. By Ext. P2., Executive Engineer, K.S.H. Board Division, II, Thiruvalla intimated one of .the petitioners that the Secretary has directed to take advance possession of 10 acres of land from A.J. Joseph, John Abraham and John Philip, and the Revenue Surveyor had demarcated the land at site and the Revenue Divisional Officer, Thiruvalla has been requested to take necessary arrangements to take advance possession of the above land. He was requested to hand over possession of the land at an early convenient date. Ext. P3 is another letter sent by Executive Engineer to 4th petitioner stating that it was decided to. take over advance possession of land on or before 15-3-1985 and requesting him to make necessary arrangements in the matter. On 15-3-1985, under Exts.P4(a) and P4(b) Mahazars advance possession was taken. It is stated in the mahazars that the properties are under land acquisition proceedings. It is in the case of the petitioners that they had planted the lands with rubber and it is after cutting and removing the trees possession was given. However, notification under S.4(1) was published only on 2-7-1985. Since there was delay in completing the acquisition, fresh notifications were issued from time to lime. Advance payment of Rs.5 lakhs was made to petitioners on 18-4-1987 representing approximately 80%, of the value of the properties. Ext. P5 is the proceedings of the Land Acquisition Officer relating to this. It is stated in Ext. P5 that it was an advance payment made as per Clause.3A(e) of S.17 of Land Acquisition Act, 1894 as amended in 1984.

(3.) The petitioners appear to have addressed to the District Collector requesting for balance payment. Ext. P6 is the reply given by the District Collector stating that the funds required for passing the award in the case have not been placed at the disposal of the Special Tahsildar, Land Acquisition, Pathanamthitta by the Board and the compensation .could be paid only on receipt of the required funds. Thereafter, Ext. P7 communication was issued to the 2nd petitioner stating that on sanctioning the funds, petitioners would be given the compensation amount. Finding that no effective steps were taken by the authorities to disburse the compensation, Ext. P8 notice was sent by the petitioners through a lawyer highlighting their difficulties and calling upon the authorities to pay the compensation amount at the earliest, at any rate, within 10 days of receipt of the notice.