IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 WP(C).No. 2828 of 2006(J) ------------------------- PETITIONER: ------------ 1. THE SPORTS ENTERPRISES CO-OPERATIVE LTD.NO.T.397, T.C.26/182, M.G. ROAD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, BHOOTHANANDAN. 2. SEENA TOMY, PROPRIETRIX, BOOTS COMPANY, T.C.28/178, PECHI NIKETHAN BUILDING, M.G. ROAD, THIRUVANANTHAPURAM. 3. P.M.K. REGHUNATH, PARTNER, SANTHA BAKERY AND STORES, T.C.28/177, PECHI NIKETAN BUILDING, M.G. ROAD, THIRUVANANTHAPURAM. 4. RUBY SEBASTIAN, PROPRIETOR, REMY FOOT WEAR, T.C.28/187, PECHI NIKETHAN BUILDING, M.G. ROAD, THIRUVANANTHAPURAM. 5. R. CHANDRIKA NAIR, PROPRIETOR, CENTURY SPORTS, T.C.28/188, PECHI NIKETHAN BUILDING, M.G. ROAD, THIRUVANANTHAPURAM, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, SOBHANA NAIR, SOBHANA, T.C.29/1045,PALKULANGARA, THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, ROADS & BUILDINGS, THIRUVANANTHAPURAM. 4. THE SPECIAL TAHSILDAR (L.A), ADDITIONAL LA UNIT, VANCHIYOOR, THIRUVANANTHAPURAM. 5. SRI. KHANANYAM MAHADEV, PECHI NIKETHAN BUNGLAW, PAZHAVANGADI MURI, VANCHIYOOR, THIRUVANANTHAPURAM. 6. NAGASENA SHYAM KANYA DEV, PECHI NIKETHAN BUNGLAW, PAZHAVANGADI MURI, VANCHIYOOR, THIRUVANANTHAPURAM. 7. SHARIPOOTHA SHYAMKANYA MAHADEV, PECHI NIKETHAN BUNGLAW, PAZHAVANGADI MURI, VANCHIYOOR, THIRUVANANTHAPURAM. * ADDL. R8 THE THIRUVANANTHAPURAM DEVELOPMENT AUTHORITY REPRESENTED BY ITS SECRETARY, VAZHUTHACAUD, THIRUVANANTHAPURAM. (IMPLEADED AS ADDITIONAL RESPONDENT NO.8 AS PER ORDER DT. 3.3.06 IN IA.2712/06). BY ADV. SRI.K.A.JALEEL, SC., TRIDA FOR ADDL.R8 SENIOR GOVERNMENT PLEADER SRI.BASANT BALAJI FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS : P1 RENT RECEIPT OF THE 1ST PETITIONER. P1(A) RENT RECEIPT OF THE 2ND PETITIONER. P1(B) - DO - OF THE 3RD PETITIONER. P1(C) - DO - OF THE 5TH PETITIONER. P2 NOTICE DT.23.1.06 ISSUED BY R4 TO THE 1ST PETITIONER. P3 NOTICE DT.23.1.06 TO THE 2ND PETITIONER. P4 NOTICE DT.23.1.06 TO THE 3RD PETITIONER. P5 NOTICE DT.23.1.06 TO THE 4TH PETITIONER. P6 NOTICE DT.23.1.06 TO THE 5TH PETITIONER. P7 NOTICE DT.27.1.06 TO THE 2ND PETITIONER. P8 NOTICE OF AWARD DT.19.12.05. P9 SALE DEED DT.24.8.06 IN FAVOUR OF THE 2ND PETITIONER. P10 TAX RECEIPT. P11 SALE DEED IN FAVOUR OF SRI.PMK.PREMNATH. P12 TAX RECEIPT. P13 SALE DEED IN FAVOUR OF SMT.SOBHANA NAIR. P14 TAX RECEIPT. P15 LETTER SUBMITTED TO SPECIAL TAHSILDAR. /TRUE COPY/ P.A.TO JUDGE K.PADMANABHAN NAIR,J. ========================= W.P.(C)NO.2828 OF 2006 ========================= Dated this the 28th day of March 2008 JUDGMENT The tenants, who are occupying portions of a building which is the subject matter of land acquisition and the petitioners in this writ petition. The first petitioner is a Co-operative Society conducting a shop dealing with the business of sports goods. The second petitioner is the tenant who is running a shop room in the name and style `Boots'. The third petitioner is conducting a bakery and store in the name and style `Santha Bankery & Stores' and 4th petitioner is the proprietrix of a Shoe Shop in the name and style `Century Sports'. A portion of the land in which the shop building situates was acquired for the purpose of widening of road. An award was passed on 17.12.2005 and an award notice was served on the persons interested on 19.12.2005. According to the petitioners on 26.12.2005 i.e. after the passing of the award, the landlord of the building filed a petition under Section 49(1) exercising the option and the Land Acquisition Officer accepted that option and valued the entire W.P.(C)2828/2006 2 building and steps are being taken to demolish the entire building. It is submitted that on 17.11.2006, the tenants/petitioners purchased the right of the landlord in respect of the entire land and building and hence it is not necessary to demolish the entire building. The learned Government Pleader, on instructions, submits that the statement made by the petitioners that the option was exercised on 26.12.2005 is not correct and the petition under Section 49(1) was filed on 17.10.2005 i.e. long prior to the passing of the award. It is also submitted that the possession of the land and building portion situated at that portion was taken possession on 26.12.2005. It is also admitted that the entire building consists of two units and the portion of the unit which comes within the area to be widened had already been demolished. It is submitted that in view of the interim order passed by this Court, the portion which falls within the area of acquisition alone was demolished and the two units were separately valued. After hearing both sides, I am of the view that it is only W.P.(C)2828/2006 3 just and proper that the value of the one unit which was subsequently fixed is deducted from the compensation awarded and that unit excluded from the acquisition. But if any portion of the unit which has already been valued and the portion which demolished remains in the unacquired area, that portion is to be demolished as the value for that unit was fixed. It is not disputed that the area which falls outside the widening portion is not acquired and no compensation was fixed for that land. it is true that the decision reported in Saramma Itticheriya v State of Kerala (2008(1) KLT 6 F.B.), this court has held that whenever a building is to be acquired under Sec.49(1) of the Act, the land in which the building is situated also has to be acquired. But in this case, the award was passed long prior to the full bench decision and the land was not acquired and it is not possible to take possession of the land which was not acquired. In the result, the writ petition is disposed of in the following manner. There will be a direction to the respondents to exclude the compensation fixed for one unit which falls completely outside W.P.(C)2828/2006 4 the area of acquisition and deduct the same from the compensation awarded. That unit shall also be excluded from acquisition. If any portion of the other units, portion of which was already been demolished remains the same is to be demolished and the land is to be returned to the owner of the same. K.PADMANABHAN NAIR, JUDGE css/