IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 WP(C).No. 30182 of 2008(R) -------------------------- PETITIONERS: --------------- 1. THANKARAJ SEBASTIAN, S/O. LATE C.L. SEBASTIAN, CHIRAYIL HOUSE, ETTUMANOOR. 2. AMBIRAJ SEBASTIAN, S/O. LATE C.L. SEBASTIAN, CHIRAYIL HOUSE, ETTUMANOOR. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE RESPONDENTS: --------------- 1. THE EXECUTIVE ENGINEER, K.S.T.P., MUVATTUPUZHA. 2. THE SPECIAL TAHSILDAR (LA) (NH), CHANGANASSERY. 3. BENNY RAJ SEBASTIAN, S/O. LATE C.L. SEBASTIAN, CHIRAYIL HOUSE, ETTUMANOOR. R1-R2 BY GOVT. PLEADER MR.BENNY VARGHESE R3 BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.30182 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 18th November, 2008 JUDGMENT The subject matter of this Writ Petition is a line building having as many as 8 rooms. Produced along with the statement of instructions imparted by the Executive Engineer, KSTP to the Advocate General on 7.11.2008 is a sketch pertaining to this line building. Room Nos. 1 to 5 shown in the sketch belong to the third respondent and room Nos.6, 7 and 8 belong to the petitioners. The petitioners and the third respondent are direct brothers. The apprehension voiced by the petitioners in this Writ Petition is that on the strength of the option exercised by the third respondent under Section 49(1) of the Land Acquisition Act, rooms having door Nos.6, 7 and 8 which absolutely belongs to them will also be demolished by the requisitioning authority. The following are the prayers in this Writ Petition: 1. Issue a writ of mandamus or other writ or order or direction compelling the 2nd respondent to refer the question whether any part of the building other than the verandah forms and part of the acquisition to the Civil Court under Section 49 of the Land Acquisition Act. W.P.C.No.30182/08 - 2 - 2. Issue a writ of mandamus or prohibition or such other writ directing the respondents 1 and 2 not to demolish any part of the building owned by petitioners and 3rd respondent except verandah under the Land Acquisition Act. 2. The third respondent has filed a detailed counter affidavit wherein he states that the option exercised by him was only in respect of rooms having door Nos.1 to 5 and not in respect of room Nos.6, 7 and 8. What he wants is demolition of room Nos. 1 to 5 in acceptance of the option exercised by him. He never wanted room Nos.6, 7 and 8 to be demolished. Relevant portion of the written instructions dated 7.11.2008 imparted by the Executive Engineer, KSTP to the Advocate General is extracted below: “Of the above, Bennyraj Sebastian has opted for full acquisition and Ambiraj Sebastian and Thankaraj Sebastian has opted for only the portion i.e., verandha and steps falling within the acquisition boundary. Acquisition proceedings have been completed as above. The part of the building in first floor above rooms 1 to 5 is to be demolished. If rooms 6,7 and 8 and the part of the building in 1st floor W.P.C.No.30182/08 - 3 - above these rooms are to be retained, the same has to be repaired and maintained by the owners solely at their risk and cost. PWD-KSTP cannot assure the safety and stability of the remaining part after acquisition and consequent demolish.” 3. Mr.S.Sreekumar, counsel for the petitioners, Mr.Mathew John, counsel for the third respondent and Mr.Benny Varghese, Government Pleader for respondents 1 and 2 have addressed me on the basis of the rival pleadings and statements. Having considered the submissions in the light of the relevant statutory provision under Section 49(1) of the Land Acquisition Act, I am of the view that in view of the facts which have been admitted through pleadings and the submissions addressed at the Bar, it is not necessary to grant the prayers sought for in the Writ Petition. The Writ Petition, however, will stand disposed of issuing the following directions: Respondents 1 and 2 are directed to accept the option submitted by the third respondent under Section 49(1) of the Land Acquisition Act in respect of room Nos. 1 to 5 mentioned in the sketch appended to the statement of instructions dated 7.11.2008 as well as the corresponding upstair portions and demolish the rooms and W.P.C.No.30182/08 - 4 - the upstair portions at the earliest. The statement of instructions dated 7.11.2008 and the documents attached to the same which is placed before me by the learned Government Pleader, will form part of the records. srd PIUS C.KURIAKOSE, JUDGE