IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 WP(C).No. 8604 of 2006(Y) ------------------------- PETITIONER: ------------ ELSY ALEXANDER, KALLOTT HOUSE, VADACKADATHUCAVU (PO), KILIVAYAL, ADOOR. BY ADV. SRI.K.SASIKUMAR RESPONDENTS: ------------- 1. EXECUTIVE ENGINEER, KERALA STATE TRANSPORT PROJECT, KOTTARAKARA. 2. LAND ACQUISITION OFFICER, KERALA STATE TRANSPORT PROJECT, PATHANAMTHITTA. *ADDL.R3.K.PONNAMMA PAZHAVEETTIL, CHATHANNOOPUZHA MURI, ERATHU VILLAGE, ADOOR, PATHANAMTHITTA DISTRICT. *ADDL.R3 IS IMPLEADED AS PER THE ORDER DATED 5.10.2007 IN I.A.NO.13128/07. R1-R2 BY SR. GOVT. PLEADER MR.BASANT BALAJI ADDL.R3 BY ADV. SRI.M.SASINDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (WPC 8604/06) PETITIONER'S EXTS.: EXT.P1: TRUE COPY OF THE NOTICE DATED 13.1.2005 IN LAC 199/04 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P2: TRUE COPY OF THE STATEMENT DATED 13.7.2005 FILED BY THE PETITIONER AND HER DAUGHTERS IN LAR 53/05 OF PATHANAMTHITTA SUB COURT. EXT.P3: A TRUE COPY OF THE REPRESENTATION DATED 14.2.2006 SUBMITTED BY THE PETITIONER AND CHILDREN TO THE 1ST RESPONDENT. RESPONDENTS EXTS.(THIRD RESPONDENT): EXT.R3(a): TRUE COPY OF THE REPRESENTATION DATED 22.2.2005 TO THE CHIEF MINISTER. PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.8604 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 18th August, 2008 JUDGMENT The writ petitioner is the owner of a total extent of 00.40 ares of land in survey No.366/15 of Erathu village and a commercial building situated therein covered by the award of the 2nd respondent- Land Acquisition Officer. While the acquisition proceedings were underway, it was noticed by the petitioner that the proposal is to acquire only a portion of the building. Therefore the petitioner lodged a claim under Section 49 of the Land Acquisition Act before the Land Acquisition Officer for acquisition of the entire building which was under the occupation of three tenants. The case of the petitioner is that the above claim was upheld and it was decided by the Land Acquisition Officer to acquire the entire building. Ext.P1 is the award notice which mentions that after deducting tax a total amount of Rs.1,19,332/- was paid to the petitioner as compensation for the land as well as the entire building. According to the petitioner, on coming to know about the passage of the award, all the tenants vacated the building and pursuant to that almost the building was demolished by the requisitioning authority, the 1st respondent. But since a portion of the building occupied by the additional third respondent was not W.P.C.No.8604/06 - 2 - demolished, the additional third respondent who had vacated the building would come back and reoccupy that portion of the building. He has not vacated though requested by the petitioner several times so that the petitioner could enjoy the site of the building which is not covered by the acquisition. It is in the above circumstances that the Writ Petition has been filed with the following prayers: 1. Issue a writ in the nature of mandamus directing respondents to remove the acquired structure standing in the property as per Ext.P1 award and clear that property. 2. Issue a writ in the nature of mandamus directing 1st respondent to consider Ext.P3 representation and take immediate action on the requests made therein at the earliest. 2. A detailed counter affidavit has been filed by the additional third respondent wherein it is contended that the portion of the building presently under occupation by the additional third respondent is not covered by the award and that the petitioner is not entitled to insist that the Government shall demolish that portion. To the counter affidavit the petitioner has filed a reply affidavit denying the contentions in the counter affidavit and reiterating the averments in the Writ Petition. W.P.C.No.8604/06 - 3 - 3. I have heard Mr.K.Sasikumar, counsel for the petitioner, Mr.M.Sasindran, counsel for the additional third respondent and the learned Government Pleader for respondents 1 and 2. 4. In the wake of the rival positions taken by Mr.Sasikumar and Mr.Sasindran regarding the acquisition of the building portion presently occupied by the additional third respondent, I enquired of the Government Pleader as to whether the building portion presently occupied by the additional third respondent is covered by Ext.P1 award. The Government Pleader would place before me the letter addressed to him by the Land Acquisition Authority. The letter shows that the entire building which existed on the acquired land was valued and compensation for that building has been paid to the writ petitioner. The Government Pleader also submitted that since the acquisition was much prior to the judgment of the Full Bench of this court in Saramma Itticheriya v. State of Kerala (2008(1) KLT 6) what has been acquired is only the building and not the site of the building. The site of the building portion which was acquired in acceptance of the owner's claim under Section 49 continues to be under the ownership of the writ petitioner. 5. It is trite that the tenant in occupation of a building which is W.P.C.No.8604/06 - 4 - acquired under the Land Acquisition Act is not an interested person in the matter of determination of compensation. The order of the Land Acquisition Authority accepting the petitioner's claim for acquisition of the entire building under Section 49 of the Act has attained finality. It is noticed however that the additional third respondent is conducting a teashop in the premises. That teashop may perhaps be the additional third respondent's means of livelihood. But at the same the request of the petitioner who has already received the compensation for that portion cannot be ignored. Under the above circumstances, the Writ Petition is disposed of with the following directions: The additional third respondent is directed to give peaceful vacant surrender of the remainder portions of the building covered by Ext.P1 award notice within four months from today so as to enable the first respondent to demolish the building portions as requested in Ext.P3. If the additional third respondent does not put the first respondent in possession of the building within the time stipulated above, the 1st respondent is directed to demolish the building and remove the materials used for construction of the building so that the site of the building is cleared and made usable by the petitioner. The 1st respondent will be entitled to recover all charges incurred by that W.P.C.No.8604/06 - 5 - respondent for demolition of the building from the additional third respondent. srd PIUS C.KURIAKOSE, JUDGE