IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 WP(C).No. 13932 of 2010(N) ------------------------------------- PETITIONER(S): ------------------------ 1. JEMINI N.V., S/O.N.D.VARKEY, AGED 32, NIRAPPEL HOUSE, ATHIRAMPUZHA P.O., KOTTAYAM DISTRICT. 2. BETTY CHARLEY, W/O.CHARLEY, AGED 45 YEARS, MATHIRAMPUZHA HOUSE, ATHIRAMPUZHA P.O, KOTTAYAM DISTRICT. BY ADV. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, 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, KOTTAYAM DISTRICT. 6. AMBIRAJ SEBASTIAN, CHIRAYIL HOUSE, ETTUMANOOR, KOTTAYAM DISTRICT. 7. THE EXECUTIVE ENGINEER, K.S.E.B., ETTUMANOOR SECTION,KOTTAYAM. R1 TO R4 BY GOVT. PLEADER SRI. MATHEW GEORGE VADAKKEL R5 BY ADVS. SRI.MATHE JOHN R6 BY SRI.K.SANEESH KUMAR R7 BY SRI.P.P.THAJUDEEN, SC, K.S.E.B THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.13932/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT DTD. 18.11.2008 IN WPC. 32329/2008. P2:- COPY OF THE JUDGMENT DTD. 18./11.2008 IN WPC. 30182/2008. P3:- COPY OF THE INTERIM ORDER DTD. 17.3.09 IN WRIT APPEAL NO.506/2009. P4:- COPY OF THE REPORT SUBMITTED BY THE 3RD RESPONDENT IN W.A. 506/2008. P5:- COPY OF THE JUDGMENT IN WPC. NOS. 16853 & 16865/2009 DTD. 2.7.09. P6:- COPY OF THE NOTICE DTD. 24.3.2010. P7:- COPY OF THE OBJECTION TO EXT.P6 DTD. 1.4.2010. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE JUDGMENT DTD. 26.6.09. R3(b):- COPY OF THE L.A. AWARD NO.3/08/(2), B5-287/06 DTD. 31.3.08. R3(c):- COPY OF THE LETTER DTD. 6.4.10. R5(a):- COPY OF THE JUDGMENT IN WA. NO.506/2009 DTD. 26.6.09. TRUE COPY P.A. TO JUDGE tss P.R.RAMACHANDRA MENON, J --------------------------- W.P(C) No.13932 of 2010-N ---------------------------- Dated this the 22nd day of June, 2010. J U D G M E N T The building consisting of eight different rooms in the down stairs and upstair, belonging to the fifth respondent in this Writ Petition and his brothers got involved in the process of acquisition so as to widen the M.C Road. In the course of the steps taken under the Land Acquisition Act, issuing notification under Section 4(1), followed by the declaration under Section 6, the owner of the property concerned ie. the fifth respondent submitted an application to have the remaining portion also acquired in view of the fact that the portion left over after acquisition was not liable to be used or enjoyed properly and further that the building itself was an old and dilapidated one. The application preferred by the fifth respondent/ landlord was accepted and necessary orders were passed under Section 49 of the Act, by the Acquisitioning Authority. It is stated that an award was passed accordingly, granting compensation and that the matter has become final and the acquired property came to W.P(C) No.13932 of 2010-N 2 the hands of the Acquisitioning Authority/ Government by virtue of the mandate under Section 16 of the Land Acquisition Act. 2. The dispute arose in the meanwhile. The tenants occupying the portion owned by the fifth respondent chose to challenge the option exercised by the concerned respondent under Section 49(1) by filing W.P(C) No.32329 of 2008, which was dismissed as per Ext.P1 judgment, placing reliance on the verdict passed by the Full Bench in Saramma Itticheriya V. State of Kerala (2008(1) KLT 6). Then the brothers of the fifth respondent herein filed W.P(C) No.30182 of 2008 on similar grounds; wherein also interference was declined by this Court and the respondents 1 and 2 were directed to accept the option submitted by the third respondent (who is the fifth respondent in this Writ Petition), under Section 49(1) of the Land Acquisition Act, in respect of the concerned rooms and to demolish the rooms and up stair portions at the earliest. Being aggrieved of the said verdict, it was challenged by the petitioners therein (brothers of the fifth respondent herein) by filing W.A.No.506 of 2009 wherein an interim order was passed, as borne by Ext.P3 on 17.3.2009 intercepting the proceedings. During the pendency of the Writ Appeal, the Division W.P(C) No.13932 of 2010-N 3 Bench directed the Executive Engineer of the Kerala State Transport Project Division to submit a report as to the technical aspects including the nature and durability of the building. Ext.P4 report was submitted before the Division Bench on 3.6.2009 stating that the building was very old, with wetting of walls, which may lead to total collapse of the structure; that there are no cross walls in the first floor of the building, along the line to be separated between the two parts, though there was a partition wall in the ground floor. It was also observed that on dismantling major portion of the existing building, which is very old and constructed with laterite in lime mortar, there was every chance of becoming it unstable, which may in turn lead to collapse of the building totally. Accordingly, it was reported that the Executive Engineer was of the opinion that, it was not technically feasible to retain any part of the building; simultaneously observing that the cost to be incurred for retaining part of the building was not calculated separately in the said circumstances. Taking note of the turn of events, including the various steps taken to have the matter amicably settled, the Division Bench as per Exts.R3(a) and R5(a) observed that the prayer sought for by the appellants to withdraw the Writ Appeal (on being W.P(C) No.13932 of 2010-N 4 confronted with the report submitted by the ‘Expert’ as above) after having heard the matter on merits, would not be proper and accordingly, permission was granted to withdraw, subject to the satisfaction of cost of Rs.25,000/-. 3. Later, the petitioners herein who are the tenants approached this Court by filing W.P(C) No.16853 and 16865 of 2009 referring to the change in circumstances and after considering the merits and events pointed out, interference was declined in the said Writ Petition as well; as borne by Ext.P5. The prayer of the petitioners to continue the occupation of the premises enjoying the benefit of electricity connection was observed as a point to be considered by the District Collector; if at all any such request was made, making it clear that it was for the District Collector to decide whether the building was to be pull down as a whole. The finality of the matter by virtue of Ext.P2 judgment and Ext.R5(a) verdict passed by the Division Bench in the Writ Appeal was also taken note of. Leaving open such rights of the petitioners/tenants, if any, and claims raised before the District Collector for any relief relatable to the occupation of a portion of the building belonging to the fifth respondent herein and without prejudice to the right of the W.P(C) No.13932 of 2010-N 5 Collector to decide such issues untrammeled by anything stated in the said judgment, the Writ Petition was disposed of, without entering into any findings on merit. 4. The learned counsel for the petitioners submits that pursuant to Ext.P5 judgment, representation was preferred by the petitioners. It is without any regard to the said representation, that Ext.P6 notice dated 24.3.2010 was issued by the fourth respondent to the seventh respondent, seeking to dismantle the electric connection provided to the building in question, which is stated as in the occupation of the petitioners as tenants. It is in the said circumstances, that the petitioners chose to prefer Ext.P7 representation dated 1.4.2010 before the concerned respondents including the District Collector referring to Exts.P5 and P6. Though no such reference is made to the earlier representation stated as preferred by the petitioners, the petitioners have approached this Court seeking for immediate interference to direct the respondents not to disconnect the electric connection to the building in question. 5. The learned counsel for the fifth respondent narrated the sequence of events in detail, stating that the course and conduct pursued by the petitioners is to be taken serious note of. It is also W.P(C) No.13932 of 2010-N 6 stated that the matter has become final by virtue of Ext.P2 judgment passed by this Court directing to demolish the premises and that the same has been confirmed by the Division Bench vide Ext.R5(a) judgment. This being the position, nothing further remains to be decided by the District Collector; submits the learned counsel. 6. It is also brought to the notice of this Court that no further representation was preferred by the petitioners pursuant to Ext.P5 judgment and that Ext.P7 has been preferred only after issuance of Ext.P6 by the Tahsildar, to dismantle the electric supply. It is also asserted that there is absolutely no direction, whatsoever in Ext.P5 judgment, to cause the matter to be considered by the District Collector. 7. The learned Government Pleader appearing for the authorities of the State submits that the idea and understanding of the petitioners as to the scope of the various judgments passed by this Court is quite wrong and misconceived. The absence of merits or bonafides on the part of the petitioners is also sought to be asserted; stating that the request made by the Tahsildar vide Ext.P6 is very much in conformity with the legal provisions and also the direction given by this Court. W.P(C) No.13932 of 2010-N 7 8. Heard the learned standing counsel appearing for the Board as well, who submits that the Board is only to act in conformity with the requisition to be given by the consumer and since the acquisition proceedings are completed, Ext.P6 notice issued by the Tahsildar to effect the disconnection of the supply is sought to be given effect to, which however was intercepted by this Court as per interim order dated 27.4.2010, subsequently extending the same from time to time. 9. The learned counsel for the petitioners submits that the property having already been acquired from the hands of the fifth respondent and since the same has been exclusively vested with the Government by virtue of Section 16 of the Land Acquisition Act, the fifth respondent can't have any 'say' with regard to the demolition of the building; nor can he raise any valid objection with regard to the claim put forth by the petitioners vide Ext.P7. The learned counsel also submits that some other tenants in the very same building have already approached this Court by filing W.P.(C) No. 14704 and 14716 of 2010, which were disposed as per common judgment dated 28.5.2010. Taking note of the fact that the matter was finally heard by the District Collector pursuant to the notice bearing No.GI- W.P(C) No.13932 of 2010-N 8 13237/06 dated 19.5.2010 causing the matter to be heard on 25.7.2010 at 3 pm. and that the petitioners therein, as well as all others concerned have already been heard on the previous day, the second respondent was directed to pass final orders pursuant to the above notice as expeditiously as possible, at any rate within two weeks from the date of receipt of a copy of this judgment, simultaneously ordering to maintain the 'status quo' as on that date, to continue till such final orders are passed. The learned counsel for the petitioners submits that the petitioners were also heard on 25.7.2010 as above and that final orders are yet to be passed by the District Collector. 10. In the above facts and circumstances, this Court finds that it will only be proper to have a consistent course by directing the second respondent to communicate the final order to be passed as directed in W.P.(C) No.14704 and 14716 of 2010 and to maintain the 'status quo' till such time. Subject to this limited interference, the Writ Petition is disposed of. Sd/- P.R.RAMACHANDRA MENON JUDGE ab //True Copy//