AFSATH Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners are the daughters of one Mariyumma, who owned properties in Re.Sy.No.194/2 and 194/105 of Pinarayi Amsom. The properties were assigned to the petitioners by the said Mariyumma. There are residential buildings situated in the properties of both the petitioners and they have been numbered as 18/325 and 18/394 by the Pinarayi Grama Panchayat. On the southern side of the properties, there is a road and a bridge. The road on the southern side was at the same level of the courtyard of the properties. According to the petitioners, the respondents propose to construct a new bridge and an approach road by retaining the old bridge in the same position with a height of 5 meters above the existing road. The writ petition was filed alleging that the property on one side of the road alone is being acquired for the purpose of development, due to political influence. It is stated that if the proposed construction is started, the petitioners will have no front-yard and access to their houses and their residential building will be under the level of the bridge, which is proposed to be constructed. Ext.P4 is the copy of the notification published in the Gazette on 1/2/2022 proposing to acquire the land. The petitioners submitted representations. On 15/7/2020, the 3rdrespondent issued a reply to the 1stpetitioner justifying the present alignment and stating that as per the alignment, the residential buildings of the petitioners will not be required to be acquired. It is further stated that even after acquisition, there will be a distance of 1.5 meters from the verandah of the house to the acquired portion. The 2ndrespondent on 9/11/2020 issued a letter to the petitioners stating that the proposed alignment is the best alignment possible and informing them that access will be provided to the residential building of the petitioners from the western side of the building since it will not be possible to provide access through the present gate. Ext.P6 is the letter. The petitioners thereafter approached this Court by filing WP(C) No.7598/2022. It was contended that the acquisition would injuriously affect the residential buildings. The petitioners applied under Sec. 94 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as "2013 Act"). Exts.P7 and P8 are the applications submitted by the petitioners before the 2ndrespondent. On 3/8/2022, the 2ndrespondent issued Ext.P9 rejecting the request of the petitioners. This writ petition has been filed being aggrieved by Ext.P9.

(2.) The 3rdrespondent has filed a counter affidavit stating that the design of the bridge is such that the approach road level will be at the same level as the petitioners' property at the location, in between their properties, which are adjacent to each other and they will get direct vehicular access. It is also stated that the petitioners will get courtyards with a minimum width of 1.5 meters even after the construction of the approach road. The petitioners have filed a reply affidavit.

(3.) The counsel for the petitioners submitted that Ext.P9 order is not in accordance with the statutory provision and intent. The reason stated in Ext.P9 for rejecting the requests are (i) the request that compensation should be as demanded by the petitioners for acquiring land invoking Sec. 94. (ii) The petitioners' buildings are not involved in the acquisition and hence there is no threat to the buildings. (iii) The construction of the bridge will not affect the freedom of movement of the petitioners.