IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 WP(C).No. 462 of 2007(E) ------------------------ PETITIONER: ------------ M.V.ABDUL NAZAR, MUTTUKARAN VAYALIE, P.O.CHERUKUNNU, KANNUR DISTRICT. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: ------------- 1. THE DISTRICT COLLECTOR, KANNUR DISTRICT, KANNUR. 2. THE SPECIAL TAHSILDAR (LA), N.H., KANNUR. 3. THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, KERALA STATE TRANSPORT PROJECT DIVISION, OPP. MILITARY HOSPITAL, WELLESLEY ROAD, KANNUR. 4. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SR.GOVERNMENT PLEADER SRI.BASANT BALAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.C.NO.462 of 2007 PETITIONER'S EXHIBITS EXT.P1 TRUE PHOTOCOPY OF THE VALUATION STATEMENT. RESPONDENT'S EXHIBITS EXT.R2(A) TRUE COPY OF THE STATEMENT GIVEN BY SRI..M.V.RAFIQUE BEFORE THE SPECIAL TAHSILDAR, LA (NH), KANNUR EXT.R2(B) TRUE COPY OF THE PETITION DATED 3-1-07 /True Copy/ PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No. 462 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of June, 2008 JUDGMENT The grievance which the petitioner voices in this writ petition is that though he had expressed a desire under Section 49(1) much before the passage of the award, before the land acquisitoin officer for acquisiton of the entire building and not the 35 cm wide portion of the zinc sheet which is now proposed to be acquired, the land acquisition officer has not inclined to accede to the above request. 2. Detailed counter affidavits have been filed both by the land acquisition officer as well as by the requisitioning authority - the KSTP. It is contended by the land acquisition officer on the basis of the claim statement which was filed by the petitioner during the award enquiry that the petitioner did not express the desire to have the entire building acquired at the appropriate time which according to the land acquisition officer is the time of the award enquiry. It is contended by the Land Acquisition Officer as well as by the KSTP that what is proposed to be acquired is only 35 cm wide sink sheet forming part of WPC.No.462/07 2 the room of the petitioner's building abuting the road now proposed to be widened. That portion, it is contended, cannot be treated as part of the building for the purposes of Section 49(1) of the Land Acquisition Act. It is pointed out that if it is inisisted that respondents should acquire the entire building, the financial commitment to the government will be more than Rs. 7,50,000/- as against the present commitment of Rs. 1950/-. It is also pointed out that since acquisition of the entire building will necessitate eviction of the tenants, the government will become obliged to rehabilitate the tenants which again will enhance the government's financial burden. 3. Heard Sri.K.Jayesh Mohankumar and the learned Government Pleader Sri.Basant Balaji. Drawing my attention to the statutory provisions and to the various judicial precedents including the judgment of the Full Bench in Saramma Itticheriya v. State of Kerala ( 2008 (1)KLT 6 (F.B.), Sri.Jayesh would submit that it is the statutory right of the petitioner to have the entire building acquired, once he expresses the desire to have such acquisition, at any point of time prior to the passage of award. Sri. Jayesh submitted that award is WPC.No.462/07 3 yet to be passed in this case and therefore the time is yet to be over for expression of desire by the petitioner to have the entire building acquired. Sri.Jayesh submitted therefore that in view of the conceded position that atleast after the award enquiry, desire has been expressed by the petitioner through his mother Rabiya to have the entire building acquired, there is no reason that the said desire should not be given effect to. Learned counsel lastly submitted that the petitioner does not have any objection in the site of the entire building also being acquired. 4. Sri.Basant Balaji, learned Government Pleader, would resist the submissions of Sri.Jayesh Mohankumar. According to him, it is not a portion of the “building” which is now proposed to be taken, instead it is only the portion of the zinc sheet which forms part of the protruding eaves of the building. The portion which is now proposed to be acquired is not attached to the earth and therefore is not liable to be construed as part of the building . Government Pleader lastly submitted that the Collector of the district can be directed to decide the issue. He submitted that if the situation comes to that, the Collector can even decide to exclude the portion now proposed to be acquired WPC.No.462/07 4 from the acquisition for financial reasons. 5. Having considered the rival submissions addressed at the Bar, I am of the view that the question whether the portion now proposed to be acquired by the respondents forms part of the building for the purposes of Section 49(1) need not be decided at present by this court. That question and the further question whether in acceptance of the desire expressed by the petitioner, the entire building of the petitioner should be acquired should be decided first by the district collector. 6. I dispose of the writ petition directing the first respondent - District Collector, Kannur, to hear the petitioner and take a decision on the following questions; 1) Whether the portion of the building ( the zinc sheet portion) forms part of a larger building belonging to the petitioner. 2) Whether the Government should in view of Section 49(1) proceed to acquire the entire building of the petitioner. Hearing will be conducted and decision as directed above will be taken by the District Collector at the earliest and at any rate within two WPC.No.462/07 5 months of receiving copy of this judgment. Till such time as District Collector decides as directed above, the order of stay issued by this court will continue. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.462/07 6