HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE HARISANKAR v. MENON WEDNESDAY, THE

BY ADV B.G.BIDAN CHANDRAN R1 BY ADV. KRISHNA R5 BY VISHNU PRADEEP SMT. DEEPA NARAYANAN SENIOR GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.03.2025, ALONG WITH WP(C) NO.15853 OF 2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.14963/2023 & 15853/2023 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON WEDNESDAY, THE 26TH DAY OF MARCH 2025 / 5TH CHAITHRA, 1947 PETITIONER: WP(C) NO.15853 OF 2023 SABAH ABDUL SAMAD AGED 42 YEARS, S/O. ABDUL SAMAD, ANAPPADICKAL HOUSE, KALPAKANCHERI P.O, KALPAKANCHERI VILLAGE, TIRUR TALUK, MALAPPURAM DISTRICT,PIN - 676551, REPRESENTED BY POWER OF ATTORNEY HOLDER LUKMAN MOOSA, S/O.MOOSA, AGED 53 YEARS, ASARIPALLATH, VELIYATHUNADU KARA, KARUMALLOOR VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT. BY ADVS. P.M.ZIRAJ IRFAN ZIRAJ VISHNU P.S. NIMISHA ANTONY MOHAMMED SHEHIN.S.S BIPIN KRISHNAKUMAR ABHIJITH P.A. RESPONDENTS: 1 NATIONAL HIGHWAY AUTHORITY OF INDIA G-586, SECTOR-10, DWARAKA P.O. NEW DELHI-110075, REPRESENTED BY ITS CHAIRMAN. 2 3 4 5 PROJECT DIRECTOR, NATIONAL HIGHWAYS AUTHORITY OF INDIA TC - 29/ 1539/1, RAJASREE KAIRALI, PERUMTHANNI, VALLAKKADAVU P.O. THIRUVANANTHAPURAM-695008. SPECIAL DEPUTY COLLECTOR (LA ) NH 66 (OLD NH 17), KAKKANAD P.O., ERNAKULAM-682030. THE SPECIAL DEPUTY COLLECTOR (LA) NH 66 UNIT -1, NORTH PARAVUR P.O., ERNAKULAM-683513. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAWAN, 1, PARLIAMENT STREET, NEW DELHI-110001. R5 BY ADV VISHNU PRADEEP R1 & R2 BY KRISHNA SMT.DEEPA NARAYANAN, SR. GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.03.2025, ALONG WITH WP(C)NO.14963 OF 2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.14963/2023 & 15853/2023 3 JUDGMENT [WP(C) Nos.14963/2023, 15853/2023] 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. WP(C) Nos.14963/2023 & 15853/2023 4 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 WP(C) Nos.14963/2023 & 15853/2023 5 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. 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 WP(C) Nos.14963/2023 & 15853/2023 6 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 WP(C) Nos.14963/2023 & 15853/2023 7 for the petitioner as well as Sri.Krishna, on behalf of respondents 1 and 2 and Sri. Vishnu Pradeep, Government Counsel for the 5th 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. (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. Skk//28.03.2025 HARI SANKAR V. MENON, JUDGE Sd/- WP(C) Nos.14963/2023 & 15853/2023 8 APPENDIX OF WP(C) NO.15853 OF 2023 PETITIONER’S EXHIBITS: EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF DOCUMENT NO.5002 OF 2005 DATED 30.08.2005 TRUE COPY OF THE TAX RECEIPT DATED 02.06.2022 ISSUED BY THE VILLAGE OFFICER, ALANGAD VILLAGE TRUE PHOTOGRAPHS (TAKEN SHORTLY AFTER ITS DEMOLITION) DISCLOSING THE THEN EXISTED COMPOUND WALL ON THE WESTERN BOUNDARY LINE OF THE PETITIONER’S PROPERTY EXHIBIT P4 AN EYE SKETCH TO DEMONSTRATE THE ORIGINAL LIE OF THE PETITIONER’S PROPERTY WITH SIDE MEASUREMENTS EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT P9 EXHIBIT P10 EXHIBIT P11 A TRUE COPY OF THE SAID AWARD DATED 01.08.2022 AND THE RELEVANT PAGES OF MAHASAR APPENDED TO IT TRUE PHOTOGRAPHS SHOWING THE ALIGNMENT OF THE NEWLY CONSTRUCTED COMPOUND WALL FOR THE REMAINING PROPERTY OF THE PETITIONER TRUE PHOTOGRAPHS SHOWING THE MARKS AND STONES PUT BY THE FOURTH RESPONDENT A TRUE COPY OF THE SAID NOTICE DATED 29.3.2023 A TRUE COPY OF THE NOTICE DATED 11.4.2023 ISSUED BY THE FOURTH RESPONDENT TRUE COPY OF THE SAID NOTICE/PROCEEDINGS OF THE FORTH RESPONDENT DATED 26.4.2023 TRUE COPY OF THE INTERIM ORDER OF THIS HONORABLE COURT DATED 2.5.2023 IN WPC NO.14963 OF 2023 WP(C) Nos.14963/2023 & 15853/2023 9 EXHIBIT P12 TRUE COPY OF THE SKETCH OF THE PROPERTY PREPARED BY THE PETITIONER ON THE BASIS OF TITLE DEED EXHIBIT P13 TRUE COPY OF THE PONNUMVILA MAHASSAR NO. LAC 44/2021/ALGD RESPONDENTS ANNEXURES: ’ ANNEXURE C1 TRUE COPY OF THE LETTER DATED 09/06/2023 ANNEXURE C2 ANNEXURE C3 TRUE COPY OF THE NOTICE DATED 30-05-2023 ISSUED BY THE ADVOCATE COMMISSIONER

8. SKETCH WITH DESCRIPTION PREPARED BY THE TALUK SURVEYOR IN WPC 15853 AND 14963 OF 2023 WP(C) Nos.14963/2023 & 15853/2023 10 APPENDIX OF WP(C) NO.14963 OF 2023 PETITIONER’S EXHIBITS: EXHIBIT P1 TRUE COPY OF DOCUMENT NO. 5003/2005 OF ALANGAD SUB REGISTRY OFFICE DATED 30.8.2005 OF ALANGAD SRO EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT DATED EXHIBIT P3 EXHIBIT P3(A)

27.4.2022 IN RESPECT OF THE PETITIONER’S PROPERTY AS COVERED UNDER EXT.P1 PHOTOGRAPHS (TAKEN SHORTLY BEFORE ITS DEMOLITION) DISCLOSING THE ALIGNMENT OF THE THEN EXISTED COMPOUND WALL ON THE WESTERN BOUNDARY LINE OF THE PETITIONER’S PROPERTY PHOTOGRAPHS (TAKEN SHORTLY BEFORE ITS DEMOLITION) DISCLOSING THE OLD COMPOUND WALL AND THE BUILDING SITUATED IN THE PETITIONER’S PROPERTY. EXHIBIT P4 EYE SKETCH TO DEMONSTRATE THE ORIGINAL LIE EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 OF THE PETITIONER’S PROPERTY WITH SIDE MEASUREMENTS TRUE COPY OF THE AWARD AND MAHAZAR DATED 10.5.2022 ISSUED BY THE 4TH RESPONDENT TRUE COPY OF THE REVISED AWARD ALONG WITH MAHAZAR DATED 25.6.2022 ISSUED BY THE 4TH RESPONDENT TRUE COPY OF THE ADDENDUM AWARD DATED 19.8.2022 ISSUED BY THE 4TH RESPONDENT. PHOTOGRAPH SHOWING THE ALIGNMENT OF THE NEWLY CONSTRUCTED COMPOUND WALL FOR THE REMAINING PROPERTY OF THE PETITIONER EXHIBIT P8(A) PHOTOGRAPH SHOWING THE NEWLY CONSTRUCTED BASEMENT ON THE SOUTHERN SIDE EXHIBIT P8(B) PHOTOGRAPH SHOWING THE PRESENT CONDITION OF THE NEWLY CONSTRUCTED BASEMENT AND POLES WP(C) Nos.14963/2023 & 15853/2023 11 EXHIBIT P9 PHOTOGRAPHS SHOWING THE MARKS AND STONES PUT BY THE 4TH RESPONDENT TO MARK THE EDGES OF THE ACQUIRED LAND. EXHIBIT P10 PHOTOGRAPHS SHOWING THE REMNANTS OF THE OLD COMPOUND WALL EXHIBIT P10(A) PHOTOGRAPH TAKEN FROM SOUTHERN SIDE TO SHOW THE AVAILABITY OF REMNANTS OF THE OLD COMPOUND WALL EXHIBIT P11 EXHIBIT P12 EXHIBIT P13 EXHIBIT P14 EXHIBIT P15 EXHIBIT P16 TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 29.3.2023 TRUE COPY OF THE REPRESENTATION / EXPLANATION GIVEN BY THE PETITIONER TO THE 4TH RESPONDENT DATED 13.4.2023 TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 11.4.2023 PHOTOGRAPHS DISCLOSING THE MARKS MADE BY THE 4TH RESPONDENT AS WELL AS THE PULLING DOWN OF THE POLE TRUE COPY OF THE PROCEEDINGS/ NOTICE ISSUED BY THE 4TH RESPONDENT DATED 26.4.2023 PHOTOGRAPHS DISCLOSING THE EXISTENCE OF THE REMNANTS OF THE ORIGINAL BOUNDARY WALL ON THE WESTERN SIDE OF THE SUBJECT PROPERTY EXHIBIT P16(A) PHOTOGRAPHS DISCLOSING THE EXISTENCE OF THE REMNANTS OF THE ORIGINAL BOUNDARY WALL ON THE WESTERN SIDE OF THE SUBJECT PROPERTY EXHIBIT P16(B) PHOTOGRAPHS DISCLOSING THE CONSTRUCTION OF THE NEW COMPOUND WALL DEMARCATING EXHIBIT P16(C) PETITIONER’S PROPERTY AND KEEPING OUT THE ACQUIRED PROPERTY PHOTOGRAPHS DISCLOSING THE SIDE VIEW OF THE EXISTING REMNANTS OF THE ORIGINAL BOUNDARY WALL ON THE WESTERN SIDE OF THE SUBJECT PROPERTY WP(C) Nos.14963/2023 & 15853/2023 12 EXHIBIT P16(D) EXHIBIT P16(E) PHOTOGRAPHS DISCLOSING THE EXISTENCE OF THE REMNANTS OF THE ORIGINAL BOUNDARY WALL ON THE WESTERN SIDE OF THE SUBJECT PROPERTY TAKEN FROM THE EASTERN SIDE PHOTOGRAPHS DISCLOSING THE EXISTENCE OF THE REMNANTS OF THE ORIGINAL BOUNDARY WALL ON THE WESTERN SIDE OF THE SUBJECT PROPERTY TAKEN FROM THE SOUTHERN SIDE RESPONDENTS EXHIBITS: ’ EXHIBIT R1(A) TRUE COPY OF THE LAND ACQUISITION MAHAZAR DATED 18.06.2022 EXHIBIT R1(B) TRUE COPY OF THE SUBDIVISION SKETCH ISSUED FROM THE OFFICE OF THE SPECIAL TAHSILDAR, NORTH PARAVUR EXT.P17 EXT.P17(A) COPY OF THE PHOTOGRAPH SHOWING THE PROGRES OF THE DRAINAGE WORKS ON THE EASTERN SIDE OF THE HIGHWAY COPY OF THE PHOTOGRAPH SHOWING THE PROGRESS OF THE DRAINAGE WORKS ON THE EASTERN SIDE OF THE HIGHWAY OF ANOTHER VIEW EXHIBIT P17 PHOTOGRAPHS DEMONSTRATING THE PRESENT STATE OF AFFAIRS OF THE SITE RESPONDENTS ANNEXURES: ’ ANNEXURE C1 TRUE COPY OF THE LETTER DATED 09/06/2023 ANNEXURE C2 ANNEXURE C3 TRUE COPY OF THE NOTICE DATED 30-05-2023 ISSUED BY THE ADVOCATE COMMISSIONER SURVEY SKETCH WITH DESCRIPTION PREPARED BY THE TALUK SURVEYOR IN WPC 15853 AND 14963 OF 2023