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2025 DIGILAW 746 (KER)

P. T. AYSHA v. NATIONAL HIGHWAY AUTHORITY OF INDIA

2025-03-26

HARISANKAR V.MENON

body2025
JUDGMENT : These writ petitions are filed at the instance of the owners of certain properties which have been acquired for the purpose of development of NH 66 by the National Highways Authority of India (NHAI). 2. The petitioners state that along with the acquisition proceedings, mahazar was prepared making reference to the property otherwise proposed to be acquired, and on the basis of the afore, the property was also surrendered. After surrendering the property, boundary was also constructed on the western side of the property abutting the National Highway. It is at that point of time, a notice came to be issued by the Special Tahsildar (LA), as seen from Ext.P11 followed with Exts.P13 and P15 notices (W.P.(C) No.14963 of 2023). A reading of these proceedings/notices would show that the Special Tahsildar has alleged that the petitioner/s in these writ petitions had encroached into the acquired properties.Therefore, ultimately, in Ext.P15, there is a direction to demolish the compound wall as well as the basement, with reference to the acquired property within a period of seven days. 3. It is challenging the notice/s issued as above, that W.P.(C) No.14963 of 2023 is filed by the petitioner therein. WP(C) No.15853 of 2023 is filed by the neighbouring property owner, seeking to challenge an identical proceeding/notice issued by the Special Tahsildar. 4. Noticing that the allegations contained in these writ petitions were with reference to the legality or otherwise of the proceedings/notices issued without pointing out the actual extent of encroachment if any, this Court appointed an Advocate Commissioner for measuring the property, etc., as also, for reporting on various points as noticed in the order. The learned Advocate Commissioner has placed on record the initial report followed with a detailed report dated 11.07.2023 along with the field sketch with reference to the properties involved. The Advocate Commissioner has concluded that there is some extent of encroachment, as pointed out in the second page of the sketch with reference to the properties marked as A1, B1, C1 and D1. As regards the petitioner in W.P.(C) No.14963 of 2023, the area allegedly encroached is seen marked as B1 and C1. As regards the petitioner in W.P.(C) No.15853 of 2023, the encroachment is seen identified as A1. 5. As regards the petitioner in W.P.(C) No.14963 of 2023, the area allegedly encroached is seen marked as B1 and C1. As regards the petitioner in W.P.(C) No.15853 of 2023, the encroachment is seen identified as A1. 5. I have heard Sri.V.V.Asokan, learned Senior counsel for the petitioner in W.P.(C) No.14963 of 2023 and Sri.P.M.Ziraj, learned counsel for the petitioner in W.P.(C) No.15853 of 2023, Sri. Krishnan for respondents 1 and 2, Sri.Vishnu Pradeep for the NHAI and Smt. Deepa, learned Government Pleader for the State. 6. This Court notices that in these writ petitions, the challenge is essentially with reference to the notices/ proceedings issued by the Special Tahsildar, directing the removal of encroachments by demolishing the compound wall as well as the basement. On a perusal of the notices/ proceedings issued by the Special Tahsildar, I notice that though there is an allegation with reference to the alleged encroachments, the details thereof have not been provided therein. True, on the basis of certain orders issued by this Court, the learned Government Pleader has placed on record a memo dated 19.02.2025 enclosing the sketch, with respect to the alleged encroachments, which is stated to be the basis for issuing notices impugned in these writ petitions. On the face of the afore, I notice that it is the settled principle of law that the notices/proceedings impugned in a writ petition cannot be supplemented by producing additional documents along with a counter affidavit, etc. In the case at hand, I find that the proceedings impugned in these writ petitions do not contain the details of the allegations as regards the encroachment. 7. On the face of the afore, I further record the submission made by Sri.V.V. Asokan, learned Senior counsel for the petitioner as well as Sri.Krishna, on behalf of respondents 1 and 2 and Sri. Vishnu Pradeep, Government Counsel for the 5 th respondent that, as of now, they are accepting the findings contained in the report/s of the Advocate Commissioner. In the light of the afore, I am of the opinion that these writ petitions can be disposed of as under: (i) The impugned notice/s in these writ petitions would stand set aside. (ii) The Special Tahsildar (LA) will be entitled to issue fresh notices with the required details in tune with the report/s of the Advocate Commissioner to the respective petitioners, within a period of six weeks from today. (ii) The Special Tahsildar (LA) will be entitled to issue fresh notices with the required details in tune with the report/s of the Advocate Commissioner to the respective petitioners, within a period of six weeks from today. (i) Upon receipt of such notices, the respective petitioners would be entitled to file appropriate replies and the respondents would be entitled to proceed in accordance with law. These writ petitions are disposed of as above.