2020:KER:19787
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
FRIDAY, THE 29TH DAY OF MAY 2020 / 8TH JYAISHTA, 1942
WP(C).No.7035 OF 2020(D)
PETITIONER:
ANILKUMAR,
AGED 58 YEARS
S/O. GEORGE, PALATHINKAL HOUSE, TRIPUNITHURA KARA,
NADAMA VILLAGE, ERNAKULAM.
BY ADVS.
SRI.C.P.WILSON
SMT.ROSE MICHAEL
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE,
STATE SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE DISTRICT COLLECTOR,
ERNAKULAM-682032.
3 THE LAND ACQUISITION OFFICER,
(SPECIAL TAHSILDAR), LA NO.1, CIVIL STATION, KAKKANAD,
ERNAKULAM-682030.
4 THE MANAGING DIRECTOR ,
KOCHI METRO RAIL LIMITED, REVENUE TOWER, ERNAKULAM, 4TH
FLOOR, JLN STADIUM METRO STATION, KALOOR, KOCHI-682017.
R4 BY ADV. SRI.K.JAJU BABU (SR.)
R4 BY SMT.M.U.VIJAYALAKSHMI, SC, KOCHI METRO RAIL LTD.
BY GOVERNMENT PLEADER SRI.K.P.HARISH,SR.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.05.2020, ALONG WITH WP(C).8049/2020(E), THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2020:KER:19787
W.P.(C).No.7035 of 2020
&
W.P.(C).No.8049 of 2020 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
FRIDAY, THE 29TH DAY OF MAY 2020 / 8TH JYAISHTA, 1942
WP(C).No.8049 OF 2020(E)
PETITIONER:
ANILKUMAR,
AGED 59 YEARS
S/O. GEORGE, PALATHINKAL HOUSE, TRIPUNITHURA KARA,
NADAMA VILLAGE, ERNAKULAM.
BY ADVS.
SRI.C.P.WILSON
SMT.ROSE MICHAEL
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE,
STATE SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE DISTRICT COLLECTOR
ERNAKULAM-682 032.
3 THE LAND ACQUISITION OFFICER
(SPECIAL TAHSILDAR) LA NO.1, CIVIL STATION, KAKKANAD,
ERNAKULAM-682 030.
4 THE MANAGING DIRECTOR, KOCHI METRO RAIL LTD.
REVENUE TOWER, ERNAKULAM, 4TH FLOOR, JLN STADIUM METRO
STATION, KALOOR, KOCHI-682 017.
R4 BY ADV. SRI.K.JAJU BABU (SR.)
R4 BY SMT.M.U.VIJAYALAKSHMI, SC, KOCHI METRO RAIL LTD.
BY GOVERNMENT PLEADER SRI.K.P.HARISH,SR.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.05.2020, ALONG WITH WP(C).7035/2020(D), THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
As both these writ petitions involve a common issue, they are
taken up for consideration together and disposed by this common
judgment.
2. The petitioner in both these Writ Petitions is the same and in
these Writ Petitions he is aggrieved by the action taken by the
requisitioning authorities in acquiring only portions of a building, that
in partly under his ownership and refusing to accede to his request
for acquiring the balance portion of the building. After the Writ
Petitions were admitted, and on receipt of a notice asking him to
surrender the portions that were acquired, he preferred Interlocutory
Applications seeking for a stay of dispossession from the portions of
the building that were acquired from him by the respondents.
3. Through a statement/counter affidavit filed on behalf of the
3rd and 4th respondents, it is brought to the notice of this Court that
what was acquired was a part of the building in which the petitioner
herein and his brother Sri.Shaji Kumar had rights over separate
portions. In other words, the two rooms on either side of the
acquired part of the building are in the ownership of the petitioner
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and the room in the centre is owned by Sri.Shaji Kumar. The
petitioner seeks to invoke the provisions of Section 94 of the Right to
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as
“the 2013 Act”) to contend that, inasmuch as acquisition of only a
portion of the property under his ownership will deprive him of the
benefit of the entire property owned by him, the respondents should
be directed to acquire the entire portion of the building under his
ownership. He relies on the decision of a Full Bench of this Court in
Saramma Itticheriya v. State of Kerala [2008 (1) KLT 6] to
contend that once a desire is exercised by the owner of a building to
acquire the entire building, then the only option for the Land
Acquisition Officer is either to acquire the entire building or to
withdraw from the acquisition.
4. I have heard Sri.C.P.Wilson, the learned counsel for the
petitioner, Sri.Jaju Babu, the learned Senior counsel for the 4 th
respondent and the learned Senior Government Pleader for the official
respondents of the State.
On a consideration of the facts and circumstances of the case and
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the submissions made across the Bar, I am of the view that for the
reasons that are to follow the Writ Petitions must necessarily fail. The
provisions of Section 94 of the 2013 Act clearly stipulate that where a
building under the ownership of an owner is partly acquired, the owner
can request that the whole building be acquired, and if there is any
dispute as regards whether any land proposed to be taken does not form
part of the building, the Collector shall refer the determination of such
question to the authority concerned and possession of such land shall
not be taken till such time as the question has been determined. On a
reading of the provision, it is apparent that the beneficial provision
under the 2013 Act in favour of an owner of a building is intended to
operate only if the request for acquiring the whole building is made by
the owner of the building concerned or, if the building is under
ownership of several persons, by all such owners. In the instant case,
the building is under the joint ownership of both, the petitioner as well
as his brother Sri.Shaji Kumar. While the petitioner seeks to exercise
the option under Section 94, there is nothing on record to suggest that
the other owner of the building, namely, Sri.Shaji Kumar has any such
interest. Under the said circumstances, if the requisitioning authority is
directed to acquire the entire building on the sole request of the
petitioner it would lead to the undesirable situation of the portion of the
building owned by Sri.Shaji Kumar also being taken over by the
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acquisition authority without his consent. This cannot be the legislative
intent under Section 94 of the Act. I, therefore, find that the prayer
sought for by the petitioner cannot be granted. The Writ Petitions
therefore fail and are accordingly dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
mns/29.5.2020
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APPENDIX OF WP(C) 7035/2020
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER TO THE 3RD
RESPONDENT DATED 09/07/2019.
EXHIBIT P2 TRUE COPY OF THE AWARD NOTICE ISSUED
IN FAVOUR OF THE 1ST PETITIONER DATED
10/10/2019.
EXHIBIT P3 TRUE COPY OF THE NOTICE TAKING OVER
POSSESSION OF THE LAND ISSUED TO THE
PETITIONER.
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APPENDIX OF WP(C) 8049/2020
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER TO THE 3RD
RESPONDENT DATED 9.7.2019.
EXHIBIT P2 TRUE COPY OF THE AWARD NOTICE ISSUED
IN FAVOUR OF THE PETITIONER DATED
23.09.2019.
EXHIBIT P3 TRUE COPY OF THE NOTICE OF TAKING OVER
POSSESSION OF THE LAND AND BUILDING
DATED 10.10.2019 ISSUED TO THE
PETITIONER.
