Considering that the subject land has already been utilized by the first respondent and that ‘Right to Property’ is no longer a Fundamental Right, Kerala High Court held that the petitioner (a retired army officer) and other apartment owners will not be prejudiced in any manner if the subject land is now made the subject matter of acquisition and compensation is paid to the persons entitled to the same in accordance with the provisions of the 2013 Act.

The High Court held so while considering the grievance of the petitioner, that without the knowledge of other apartment owners including him, some portion of land on which several apartment blocks were constructed by Army Welfare Housing Organization (AWHO), had been taken over and used by the Kochi Metro Rail Limited (KMRL) without subjecting the land to any process of acquisition under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and without the payment of any compensation.

A Single Judge Bench of Justice Gopinath P. observed that “as already found, the petitioner and other apartment owners will not be prejudiced in any manner if compensation is paid for the land taken over by the 1st respondent under the provisions of the 2013 Act. They also cannot object to the State exercising its right of eminent domain”.

The Petitioner appeared for himself, whereas Advocate M.U. Vijayalakshmi represented the respondents.

The brief facts of the case were that the petitioner is a retired army officer who had purchased an apartment in a residential complex put up by the AWHO. According to him, he had purchased the apartment together with undivided rights in the land on which the apartment was constructed in the month of May 2018 but about 30 cents of land which have been constructed by AWHO had been taken over and used by the KMRL without subjecting the land to any process of acquisition and without the knowledge of the petitioner and other apartment holders. Also, there was no payment of any compensation.

After considering the submission, the Bench noted that the petitioner is clearly not entitled to any relief, since the documents produced along with the counter affidavit of the KMRL clearly indicate that they were permitted to occupy the land pending finalization of the compensation amount that the AWHO initially claimed.

The Bench further found that none of the prayers seek a direction from this court to the competent authorities to remove the 'encroachment by KMRL' and to demolish the construction activities carried out by the KMRL on the property in question though such a prayer was made during the course of arguments.

Now, the Bench clarified that even if there were such relief prayed for, it would not be proper in the totality of the facts and circumstances of this case to grant such a relief as substantial public interest will be affected if a direction is issued to the authorities to demolish all constructions made on the land in question.

Highlighting that the metro viaduct rests on pillars erected on the said land, the Bench observed that where the grant of relief would be detrimental to good administration, relief can be withheld.

Hence, the High Court directed the KMRL to ensure that the land acquisition proceedings will be completed in accordance with the law within an outer time limit of 12 months.

Cause Title: Ciby George v. Kochi Metro Rail Limited and Ors. [Neutral Citation: 2023/ KER/ 47014]

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Kerala High CourtJustice Gopinath P

Pankaj Bajpai