KALYANI Vs. KERALA STATE

JUDGEMENT

(1.) The petitioners are the wife and children of late Kelappan. They were in joint possession of an item of property measuring 1.7078 hectares originally held by Kelappan. Ext.P2 basic tax receipt indicates that on the death of Kelappan, the property was mutated in the joint names of the petitioners. The case of the petitioners is that the erstwhile Sulthan Bathery Grama Panchayat requested them to give a portion of their property for the purpose of constructing Sulthan Bathery bye pass road. According to the petitioners, they were assured by the representatives of the Grama Panchayat that they will be given adequate compensation for the land acquired for the road. It is also the case of the petitioners that believing the words of the representatives of the Panchayat, they have permitted the road to be constructed through a portion of their property. It is stated by the petitioners that immediately thereupon, the Public Works Department of the State constructed the road. According to the petitioners, since they were not disbursed the compensation for the land acquired from them, they have preferred Ext.P3 representation during the course of construction work of the road itself to the Chief Engineer of the Public Works Department, requesting him to take appropriate action in the matter. It is alleged by the petitioners that the enquiries made by them thereafter revealed that the Public Works Department maintains the stand that the land made use for the construction of the road is a land made available by the local Grama Panchayat and that therefore, the State has no obligation to pay compensation to the owners of the land. It is stated by the petitioners that though they have taken up the matter thereafter with the erstwhile Sulthan Bathery Grama Panchayat, the Panchayat has not taken any action to disburse the compensation payable to the petitioners. Ext.P8 is the representation submitted by the petitioners in this connection before the Sulthan Bathery Grama Panchayat. According to the petitioners, approximately 39 cents of property owned by them have been utilised for the construction of the road and that they are entitled to compensation for the said land. The writ petition is instituted in the circumstances, seeking directions to the respondents to acquire their property which was made use of for the purpose of the road and disburse them the compensation payable in respect of the same.

(2.) A counter affidavit has been filed in this matter on behalf of the Public Works Department. The stand taken by the Public Works Department which constructed the road is that the road has been constructed by the Department as requested for by the third respondent Panchayat based on the decision taken on 28.4.2009. According to the Department, the road was handed over to the Panchayat after its formation and the road is presently owned and possessed by the Grama Panchayat. Paragraph 2 of the counter affidavit reads thus:

(3.) It is seen that the third respondent Grama Panchayat became a Municipality after the institution of the writ petition. A counter affidavit, in the circumstances, has been filed on behalf of the third respondent Municipality, contending, among others, that the Panchayat has not taken any decision to take over the land from the petitioners for the purpose of construction of the road referred to in the writ petition and that the land required for the formation of the road was surrendered by the owners voluntarily, free of cost. The relevant portion of the counter affidavit reads thus: