Research › Search › Judgment

Kerala High Court · body

2015 DIGILAW 287 (KER)

Safia v. State of Kerala

2015-03-30

A.M.SHAFFIQUE

body2015
JUDGMENT : A.M. Shaffique, J. This Writ Petition has been filed seeking the following reliefs: (i) Issue a writ of mandamus or other appropriate writ orders or direction to the respondents 1 to 4 not to trespass upon any portion of the petitioner's property in old Sy. No. 397 (Re Sy. No. 144) of Parathodu Village, Udumpumchola Taluk and covered by Exts. P2 and P3 plans or to demolish or cause any sort of damage to any portion of the buildings or other improvements in the property for the purpose of widening the public road or otherwise without acquiring the required land by resorting to the provisions of the Land Acquisition Act. (ii) Issue a writ of mandamus or other appropriate writ orders or directions commanding the respondents to pay a the sum of Rs. 25 lakhs or any other amount ascertained through the Commissioner by way of compensation to the petitioner for the damages caused to the petitioner on account of the illegal acts of demolition and destruction done by them to the buildings of the petitioner situated in her property and further directing the 1st respondent to pay such compensation to the petitioner in the first instance. (iii) to grant such other reliefs which the petitioner may seek from time to time and this Hon'ble Court may deem fit to be granted in the circumstances of the case. The Writ Petition has been filed inter alia contending that the property belonging to the petitioner was encroached into by the PWD Authorities. A portion of the building has been demolished without any notice for the purpose of widening a road. It is inter alia contended that the petitioner has valid title to the property having an extent of 1 acre and 90 cents situated in Sy. No. 397 of Parathodu Village in Udumbanchola Taluk. When a 3rd party attempted to trespass into the property, she had filed a suit as OS No. 172/1995 before the Sub Court, Thodupuzha and obtained a decree. While so, it is alleged that respondents 2 to 4 having commenced widening works in the Kallar-Ramakkalmedu Road at Thookkupalam Junction, with the assistance of the contractor started demolishing private properties of several persons using heavy machines like JCB, on the ground that the buildings are situated in purambokku land. While so, it is alleged that respondents 2 to 4 having commenced widening works in the Kallar-Ramakkalmedu Road at Thookkupalam Junction, with the assistance of the contractor started demolishing private properties of several persons using heavy machines like JCB, on the ground that the buildings are situated in purambokku land. Petitioner, therefore, apprehending that an attempt might be made by respondents 2 to 4 to demolish the building, has filed the Writ Petition and an interim order of status quo was passed by this Court. Though the order was attempted to be served on the respondents, they did not receive the same. Thereafter, the order was served through the Sub Inspector of Police. In the meantime, a portion of the shop room and the residential building of the petitioner was demolished. This, according to the petitioner, is a high-handed action of the respondent authorities, and therefore, the petitioner has invoked the public law remedy, seeking damages as well. 2. Counter-affidavit has been filed by respondents inter alia stating that they have not demolished any portion of the residential building. Road work was undertaken by PWD authorities but they have not engaged any person to demolish any portion of the building at any stage. The demolition has been done by some persons in the locality for which the respondents are not responsible. 3. During the pendency of the Writ Petition, an Advocate Commission has been deputed to verify and report the factual aspects involved in the matter. It is reported that a survey measurement was conducted by the Taluk Surveyor who opined that the building constructed by the petitioner was in her property. A contention was apparently urged that the building had protruded into the purambokku portion, which was found to be incorrect. It is also pointed out that constructions were demolished by using heavy machineries like JCB and other equipments by the Contractor engaged by the PWD. The Commissioner has also assessed damages at Rs. 2 lakhs. 4. A contention was apparently urged that the building had protruded into the purambokku portion, which was found to be incorrect. It is also pointed out that constructions were demolished by using heavy machineries like JCB and other equipments by the Contractor engaged by the PWD. The Commissioner has also assessed damages at Rs. 2 lakhs. 4. Though it is argued by the learned Government Pleader that the PWD authorities were not responsible for the demolition of the building belonging to the petitioner, having regard to the fact that, heavy machineries were used by the Contractor engaged by the PWD to demolish the structure which according to them, was forming part of purambokku land and the same has been done without notice to the petitioner, the said action clearly amounts to abuse of process of law. If at all, the PWD or any other revenue authorities require to take over the property, which is in the possession of a private individual, it has to be done in accordance with the procedure prescribed, that is, by initiating the process under the Land Conservancy Act. No such action has been initiated in the present case and despite an order of status quo issued, the building belonging to the petitioner has been demolished. 5. In such circumstances, the respondents are bound to compensate the petitioner for the loss she has suffered on account of such an illegal action. The right to claim compensation for the loss suffered by invoking public law remedy is well settled as held by the various judgments of this as well as the Apex Court in Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, (1993) ACJ 787 : AIR 1993 SC 1960 : (1993) 76 CLT 98 : (1993) CriLJ 2899 : (1993) 2 JT 503 : (1993) 2 SCALE 309 : (1993) 2 SCC 746 : (1993) 2 SCR 581, Rudul Sah Vs. State of Bihar and Another, AIR 1983 SC 1086 : (1983) CriLJ 1644 : (1983) 2 SCALE 103 : (1983) 4 SCC 141 : (1983) 3 SCR 508 , Rajkot Municipal Corporation Vs. Manjulben Jayantilal Nakum and Others, (1997) 2 ACC 1 : (1997) ACJ 721 : (1997) 1 JT 580 : (1997) 115 PLR 785 : (1997) 1 SCALE 370 : (1997) 9 SCC 552 : (1997) 1 SCR 304, etc. Manjulben Jayantilal Nakum and Others, (1997) 2 ACC 1 : (1997) ACJ 721 : (1997) 1 JT 580 : (1997) 115 PLR 785 : (1997) 1 SCALE 370 : (1997) 9 SCC 552 : (1997) 1 SCR 304, etc. Under such circumstances, I am of the view that though an actual quantification of the loss suffered by the petitioner is not possible, having regard to the fact that the Advocate Commissioner has estimated the loss at Rs. 2 lakhs, the respondents are bound to pay the said amount to the petitioner. In the result, this Writ Petition is disposed of as under: The first respondent shall pay amount of Rs. 2,00,000/- (Rupees two lakhs only) to the petitioner within a period of two months from the date of receipt of copy of the judgment. The said amount shall carry interest at the rate of 9% per annum from the date of filing the Writ Petition. It shall be open for the first respondent to effect recovery of the said amount from the concerned officers who are responsible for the aforesaid illegal activities, if so advised.