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Kerala High Court · body

1993 DIGILAW 127 (KER)

Mohammed v. Revenue Divisional Officer

1993-03-01

PAREED PILLAY

body1993
Judgment :- Petitioner challenges Ext.P-5 notice of the first respondent directing him to stop constructions in his property. This is a case where petitioner had filed O.P. 10321 of 1988 and obtained stay of dispossession on the ground that his property is not included in the notification under S.4 of the Land Acquisition Act. He contends that even if the property is included in the notification and is held liable to be acquired, the said notice is illegal and cannot be enforced as the property has not vested in the Government so far since possession was not taken by the Government. 2. It is common case that this Court by Ext. P-4 order stayed the dispossession of the petitioner from the property. In Ext. P-5 it is admitted that the petitioner could not be dispossessed from the property in view of the stay granted by this Court in O.P. 10321 of 1988. 3. Contention of the petitioner is that the Government have not obtained possession of the property and so the first respondent cannot prohibit him from effecting any improvements thereon. S.16 postulates that when the Collector has made an award under S.11 he can take possession of land which then would vest absolutely in the Government from all encumbrances. Dispossession of the property pursuant to the acquisition proceedings is very crucial for vesting it in the Government. The effect of Ss.16,17 and 48 is that it is only on taking of possession of the property that it vests in the Government. As the petitioner was not divested of his possession of the property, it has to be necessarily held that there was no vesting of the property in the Government. 4. It is argued by the petitioner that so long as he has not been dispossessed from the property he has unfettered liberty to make improvements in the property at his risk as the only consequence of such action is that he will not be entitled to any value of improvements effected after the date of the publication of the notification under S.4(1). This is the essential matter that requires consideration in this O.P. 5. Merely on account of a declaration that the land has to be acquired for a public purpose as envisaged under S.6 of the Act a person in possession of the property is not deprived of his right of its enjoyment. This is the essential matter that requires consideration in this O.P. 5. Merely on account of a declaration that the land has to be acquired for a public purpose as envisaged under S.6 of the Act a person in possession of the property is not deprived of his right of its enjoyment. There is no provision in the Act which can be invoked by the State to prohibit effecting of improvements in the property on the ground that necessary declaration under the Act has already been made. The only thing is that if any one effects any improvements in the property for which a preliminary notification has been made under S.4 it would be completely at his risk. S.24 VII thly makes the position abundantly clear. From the above provision it can be seen that any improvement effected without the sanction of the Collector after the date of the publication of the notification under S.4(1) will be ignored for determining the compensation. Improvements made after the notification will have to be necessarily ignored in order to defeat the claims of scheming landowners who effect improvements with the avowed purpose of getting higher compensation. 6. In Ext. P-6 the petitioner has made it clear that if his land is found included in the acquisition proceedings he will not claim any value of improvements. Petitioner's undertaking that he would not claim any value of improvements after S.4(1) notification is recorded. 7. Ext. P-5 order to the effect that the petitioner will not be entitled to any kind of compensation for the improvements made after S.4(1) notification has to be sustained. But the direction to stop the construction cannot be upheld as the first respondent is not clothed with any power to do so. As the improvements made after S.4(1) notification will not be taken into consideration for determining the compensation of the acquired property it is entirely for the petitioner to take a decision whether he should go on with the venture. Direction in Ext. P-5 to stop the construction is quashed. The Original Petition stands allowed as state above.