IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 WP(C).No. 18215 of 2009(V) -------------------------- PETITIONER(S): --------------- 1. C.T.VARGHESE S/O.C.K.THOMAS, AGED 60, EVEREST SEWING MACHINES, SHOP ROOM NO.XXX /95 M.C.ROAD(COLLEGE ROAD), CHANGANASSERY MUNICIPALITY. 2. RAMASWAMY CHETTIAR S/O. PAPPU CHETTIAR AGED 72, XXX1/94, M.C.ROAD (COLLEGE ROAD,) CHANGANASSERY MUNICIPALITY. 3. RAJU GEORGE, S/O.GEORGE AGED 72, WESTERN TAILORING WORKS, XXX1/93, M.C.ROAD (COLLEGE ROAD,) CHANGANASSERY MUNICIPALITY. 4. K.J.SCARIA S/O.JOSEPH, AGED 60, BETTO TRADERS, SHOP NO.XXX1/91, MC ROAD (COLLEGE ROAD), CHANGANASSERY MUNICIPALITY. 5. BABU DEVASSIA S/O.DEVASSIA AGED 43, PRAKASH TAILORING SHOP ROOM NO.XXXI/89 M.C.ROAD(COLLEGE ROAD.) CHANGANASSERY MUNICIPALITY. 6. BENNY PHILIP S/O.PHILIP, PHILIPS AGENCIES, SHOP NO.XXX1/87,M.C.ROAD (COLLEGE ROAD) CHANGANASSERY MUNICIPALITY, 7. ANTONY ABRAHAM @ SHERLY S/O. ABRAHAM MATHEW, JOSEL REFRIGERATION WORKS, SHOP NO. XXX1/85, M.C.ROAD(COLLEGE ROAD) CHANGANASSERY MUNICIPALITY BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH WPC.18215/09 2 RESPONDENT(S): --------------- 1. THE STATE OF KERALA REP,. BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE KERALA STATE TRANSPORT PROJECT(KSTP) DIVISION OFFICE, REST HOUSE COMPOUND, MUVATTUPUZHA PO, 3. THE SPECIAL TAHASILDAR(LA) NATIONAL HIGHWAY, CHANGANASSERY. 4. ALEXANDER SEBASTIAN THACHANKERI S/O.LATE KURIAN SEBATIAN UNITY ROAD, UNITY NAGAR, KURIACHIRA PO, THRISSUR. R1, R3 BY GOVT. PLEADER SRI.V.MANU. R4 BY ADV. SRI.VIVEK VARGHESE P.J. SRI.VARUGHESE M EASO SRI.P.J.VINOD JOSEPH SMT.REEJA RANI SMT.MANEESHA KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.18215/09 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF PLAINT IN O.S.NO.202/07 BEFORE the SUB COURT, KOTTAYAM FILED BY R5 AND OTHERS. EXT.P2: TRUE COPY OF AD INTERIM ORDER OF INJUNCTION IN IA.ANO. 1493/07 IN O.S.NO.202/07. EXT.P3: TRUE COPY OF PHOTOGRAPHS SHOWING THE SHOP ROOMS AND SURVEY STONE PLANTED BY R3. EXT.P4: TRUE COPY OF INFORMATION DATED 26.3.2007 FURNISHED BY R2. EXT.P5: TRUE COPY OF NOTICE DATED 30.5.09 ISSUED BY R3 TO THE FATHER OF THE 5TH PETITIONER. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.18215 OF 2009 ------------------------------------------- Dated this the 24th day of November, 2009 JUDGMENT Petitioners are tenants of shoprooms which are in a row. A portion of that land is notified for acquisition. The third respondent Tahsildar has issued Ext.P4 stating that land beyond the boundary stones planted for the alignment is not required for the acquisition. Ext.P1 shows that the owners of the land have disputes between them and they filed a suit for partition. A declaration is also sought for in Ext.P1 suit regarding the validity of a partition deed. The petitioners state that the 4th respondent alone, among the owners, has made an application under Section 49 of the Land Acquisition Act and Ext.P5 and similar notices are issued pursuant to that application. The decisions of this Court in Shaji C.Varkey v. Collector [2007(1) KLT 790] and the Full Bench in Saramma Itticheriya v. State of Kerala [2008(1) KLT 6(FB)] are pressed into service by the petitioners to contend that Section 49 application cannot be acted upon as WPC.18215/09 2 done by the third respondent. Taking into consideration the pendency of Ext.P1 suit, Ext.P5 is quashed and it is directed that the application of the 4th respondent under Section 49 will be decided upon and orders issued only after hearing any other co- owners of the land in terms of the revenue records. The writ petition is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.1/12.