IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 WP(C).No. 5403 of 2009(U) ------------------------- PETITIONER(S): --------------- 1. E.P.SHAMSUDHEEN, S/O.UMMER, 42 YEARS, TRADER, SAJITHA MANZIL, PALOOTTUPALLI, MATTANNUR P.O., THALASSERY TALUK. 2. E.P.UMMERKUTTY, S/O.MAMMU HAJI, AGED 58 YEARS, TRADER, ASHRAF MANZIL, PALOOTTUPALLI, MATTANNUR P.O., THALASSERY TALUK. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENT(S): --------------- 1. SPECIAL TAHSILDAR & LAND ACQUISITION OFFICER, LA (NH), THALASSERI, P.O.THALASSERI. 2. SUB DIVISIONAL MAGISTRATE, THALASSERI, P.O.THALASSER. 3. K.P.RASHEED, S/O.KHADEER, AGED 46 YEARS, NASEERA MANZIL, MATTANNUR P.O., THALASSERI TALUK. 4. K.P. JALEEL, S/O.KHADER, 43 YEARS, NASEERA MANZIL, MATTANNUR P.O., THALASSERI TALUK. 5. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. 6. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.P.K.BABU FOR R1,2,5 & 6 SRI.GRASHIOUS KURIAKOSE FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - W.P.(C).No.5403 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of May, 2009 JUDGMENT Pius.C.Kuriakose, J. The tenants in occupation of buildings belonging to respondents 3 and 4 are the petitioners and in this writ petition under Article 226 of the Constitution, they are seeking quashment of Exts.P6 and P6(a) notices issued by the land acquisition authority to them demanding surrender of the buildings occupied by them purporting to be in pursuance to the land acquisition award. According to the petitioners, the buildings occupied by them did not fall within the alignment of acquisition. The stand taken by the Government as well as by respondents 3 and 4 is that, though the entirety of the buildings occupied by the petitioners as tenants did not fall within the alignment of acquisition, a request was submitted under Section 49(1) of the Land Acquisition Act by respondents 3 and 4 that the entire building belonging to them and occupied by the petitioners be acquired and that the impugned notices have been issued in the light of the request/option WPC.No.5403/2009 2 submitted by respondents 3 and 4. Noticing the controversy as to whether the entire land as well as the buildings occupied by the petitioners is covered by the award passed by the land acquisition officer, this court directed the Government Pleader by order dated 18-02-2009 to make available copies of the request submitted by respondents 3 and 4 under Section 49(1) and also the award passed by the land acquisition officer in acceptance of the request. Such direction was passed so as to enable this court to understand whether the award presently passed takes in the entire buildings occupied by the petitioners as well as the land occupied by those buildings. Despite directions, documents were not submitted. Accordingly, this court directed the land acquisition officer to file an affidavit and accordingly a detailed counter affidavit has been filed. The counter affidavit also does not clearly state as to whether the award presently passed pertains to the land occupied by the entirety of the buildings in the possession of the petitioners. 2. It has been settled by the judgment of the Full Bench of this court in Saramma Itticheriya v. State of Kerala ( 2008(1) KLT 6(F.B.) WPC.No.5403/2009 3 that when option is given by the owner of the land under Section 49(1) for acquisition of the entire building, a portion of which alone is required by the government for public purpose, the government will become bound to acquire not only the remaining portions of the building, but also the land occupied by such remaining portions. 3. Having gone through the pleadings, it is clear to us that under the award presently passed, no compensation has been determined for the land occupied by the entire building under the possession of the petitioners. The first respondent is bound to acquire and pass award in respect of the balance portion and also the land occupied by the balance portion in terms of the judgment of the Full Bench. In other words, respondents 3 and 4 should not be allowed to retain ownership over the land occupied by those portions of the building which are being acquired only because of the option given by them under Section 49(1). Under the above circumstances, this writ petition is disposed of issuing the following directions; The order of stay presently passed will continue for a period of thirty days more from today. The first respondent is directed to hear WPC.No.5403/2009 4 respondents 3 and 4 as well as the petitioners and take a fresh decision on the application under Section 49(1) submitted by respondents 3 and 4. At any rate, in view of the urgency of the need which is definitely for a public purpose, the first respondent will ensure that the acquisition proceedings are completed and possession is taken of the property covered by the award and supplementary award if any passed at the earliest and at any rate within three months from today. PIUS.C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. WPC.No.5403/2009 5