IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 16853 of 2009(B) --------------------------------------- PETITIONER: ------------------- BETTY CHARLEY, AGED 44 YEARS, W/O.CHARLEY, ATHIRAMPUZHA HOUSE, ATHIRAMPUZHA P.O., KOTTAYAM DISTRICT. BY ADVS. MR.RENJITH B.MARAR, MR.L.RAJESH NARAYAN, SMT.LAKSHMI.N.KAIMAL. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, COLLECTORATE, KOTTAYAM. 3. THE EXECUTIVE ENGINEER, K.S.T.P., MUVATTUPUZHA. 4. THE SPECIAL TAHSILDAR (L.A.) (N.H.), CHANGANASSERY, KOTTAYAM DISTRICT. 5. BENNY RAJ SEBASTIAN, CHIRAYIL HOUSE, ETTUMANOOR. 6. AMBIRAJ SEBASTIAN, S/O.LATE C.L.SEBASTIAN, CHIRAYIL HOUSE, ETTUMANOOR, KOTTAYAM DISTRICT. R1, R2 & R4 BY GOVT. PLEADER MR. V. MANU, R5 BY ADVS. MR.MATHEW JOHN (K), MR.AJEESH K.SASI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2009, ALONG WITH W.P.(C). NO. 16865 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.16853/2009-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGEMENT DTD. 18/11/2008 IN W.P.(C).NO.30182/2008. EXT.P.2: COPY OF THE INTERIM ORDER DTD.07/03/2009 IN W.A. NO. 506/2009. EXT.P.3: COPY OF THE REPORT SUBMITTED BY THE R.3. IN W.A. NO. 506/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOTTATHIL B. RADHAKRISHNAN, J ........................................... WP(C).NOs. 16853 & 16865 OF 2009 ............................................ DATED THIS THE 2nd DAY OF JULY, 2009 JUDGMENT Bennyraj, Ambiraj and Thankaraj, by blood, are brothers; but not by heart. They could not even find peace to see their mother together in spite of the learned Judges of the Division Bench trying to persuade these three brothers to an amicable settlement of the disputes between them. But the case in hand does not really concern those disputes. 2. The petitioner in WP(C)16853 of 2009 is a tenant of Ambi raj and the petitioner in WP(C)16865 of 2009 is one of the tenants of Benny Raj. He had, along with others, filed an earlier writ petition viz, WP(C)32329 of 2008, which was dismissed by the judgment dated 18.11.2008, on the ground that the tenants are not entitled to challenge the option exercised by the land owner, under Section 49(1) of the Land Acquisition Act 1894, following the Full Bench decision in Saramma Itticheriya V. State of Kerala (2008(1) KLT 6). 3. On the basis of a notification under Section 4(1) of the Land acquisition Act, a portion of the building which is a shop room, fell for acquisition. That parcel belonged to Benny Raj, who Wpc 16853/09 2 had a remaining portion of the building also with him. He therefore exercised the option under Section 49(1). No part of the building belonging to Ambiraj is dependent on any option exercised by the said person under Section 49(1). 4. The plea of the petitioners in these writ petitions is that notwithstanding the acquisition of the whole of the building belonging to Bennyraj by virtue of the option exercised by him under Section 49(1) of the Act, the Collector is not ipso facto obliged to pull down the entire building. The tenants accordingly contend that notwithstanding the option and the consequential acquisition by virtue of the decision of the Collector under Section 49, the question of demolition of that portion of the building which does not fall within the alignment covered by Section 4(1) notification has to be independently considered by the Collector, since the tenants would be entitled to different rights relatable to easement and other protective covers. These are matters which may arise for decision, if at all, only when the Collector decides to pull down the whole of the structure. It is a matter of record of this court that in Writ Appeals arising from the litigations between the brothers and also some other tenants including the Wpc 16853/09 3 petitioner in WP(C) 16865 of 2009, the Engineers had reported to the Division Bench of this court that it is not feasible to pull down only a portion of the entire holding of Ambiraj and Thankaraj having regard to the nature of the building and also its age. But it is not necessary for this court to go into those issues as of now, particularly when the petitioner in WP(C)16865 of 2009, in so far as his right to challenge the option exercised by his landlord under Section 49(1) stands concluded by the judgment afore referred to and because issues inter se the brothers, the landlords, no more survive the decision of the Division Bench. For the aforesaid reasons, leaving open the right of the petitioners, if any, to raise any claim before the Collector in accordance with law, for any relief relatable to their occupation of any portion of the buildings belonging to Benny Raj/Ambi Raj and without prejudice to the Collector deciding on such issues untrammelled by anything stated in this judgment, these writ petitions are disposed of without entering on merits. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/3/7