IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 WP(C).No. 25899 of 2008(G) -------------------------- PETITIONER(S): --------------- EBRAHIM KHALEEL, S/O. LATE T.ABDULLAKUNHI, THALAGARA BUNGALOW, THALANGARA P.O., KASARAGODE - 671 122. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.ANIL D. NAIR RESPONDENT(S): --------------- 1. SPECIAL TAHSILDAR (LA), KASARAGODE. 2. THE DEPUTY CHIEF ENGINEER, SOUTHERN RAILWAYS, KANNUR. 3. DISTRICT COLLECTOR, KASARAGODE. ADV. SRI.N.B.SUNIL NATH,SC, RAILWAYS FOR R2 GOVERNMENT PLEADER SRI.BENNY VARGHESE, FOR R1 & 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX:- EXT.P1 TRUE COPY OF THE NOTICE OF AWARD DT. 24-11-2005 EXT.P2 TRUE COPY OF THE LETTER DT. 3-2-2004 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P3 TRUE COPY OF THE LETTER DT. 13-2-2004 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P4 TRUE COPY OF THE OBJECTION DATED 11-1-2006 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P5. TRUE COPY OF THE NOTICE DATED 19-6-2006 IN LAR. No..12/2006 OF SUB COURT, KASARAGODE. EXT.P6 TRUE COPY OF THE COMMON JUDGMENT IN LAR. NOS. 11 AND 12 OF 2007 DATED 29-11-2007 OF SUB COURT, KASARAGOD. PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C) No. 25899 OF 2008 ----------------------------------------------- Dated this the 10th day of December, 2008 J U D G M E N T The grievance voiced by the petitioner is that his claim under section 49 of the Land Acquisition Act for acquisition of the entire building having door No.KMC.21/3 for the purposes of railway was turned down and that his request for a reference to the court of the question whether the claim is eligible for consideration was also did not find favour with the respondents. The following is the prayer in the writ petition. “Issue a writ of mandamus directing the respondents (The Special Tahsildar (LA), Kasaragode (R1), The Deputy Chief Engineer, Southern Railways, Kannur (R2) and the District Collector, Kasaragode (R3) to refer the claim of the petitioner under section 49(1) of the L.A. Act as per Exts.P2 and P5 to the Sub Court for adjudication.” Ext.P1 is copy of the award notice dated 24-11-2005. Ext.P2 is copy of the petition which the petitioner had filed before the Chief Engineer, Railway, copy marked to the 2nd respondent calling upon them to take the entire building having door No.KMC.21/3. Ext.P3 is copy of the reply dated 13-12-2004 sent by the second respondent to the petitioner informing that only minimum land required for rebuilding the bridge is proposed to be acquired. Ext.P4 is copy of the objection WP(C)N0. 25899/08 -2- submitted by the petitioner before the first respondent stating that the entire building should be acquired. Ext.P5 is copy of the notice received by the petitioner from the Sub Court, Kasaragode in LAR. No. 12/06. Petitioner submitted that the notice is in respect of a reference under section 18 only. Ext.P6 is copy of the judgment of the reference court wherein the reference court has found that it is not possible to consider the petitioner's claims for value for the entire building since there was no reference under section 49(1). 2. A detailed counter affidavit was filed on behalf of the first respondent by the Valuation Assistant. It is pointed out therein that the option under section 49 was not submitted by the petitioner before the L.A. Officer before he passed the award. It is pointed out that Ext.P2 is a request before the requisitioning authority and the same cannot be construed as a request request under section 49(1). It is also pointed out in the counter affidavit that against the judgment of the reference court the State has preferred an appeal as L.A. A. No. 677 of 2008 before this court and that the same is pending. Lastly it is contended that in the absence of a request before the Land acquisition Officer before passage of the award no reference could have been made under section 49 at the instance of the petitioner. WP(C)N0. 25899/08 -3- 3. Even though several chances were given including a peremptory chance, no reply affidavit was filed by the petitioner. Having considered the pleadings it is clear that the petitioner did not submit any option under section 49 before the L.A. Officer who passed the award. Ext.P2 submitted before the requisitioning authority cannot be construed as an option submitted before the L.A. Officer. Under the above circumstances the respondents are not at fault in not referring the issue to the reference court under section 49(1). The writ petition fails and the same stands dismissed. It is made clear that this judgment will not stand in the way of the petitioner working out his remedies in L.A.A. No. 677 of 2008 by filing memorandum of cross-objections or otherwise. (PIUS C.KURIAKOSE, JUDGE) ksv/ WP(C)N0. 25899/08 -4-