Amina M.K. and Others v. The State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY,THE 28TH DAY OF NOVEMBER 2018 / 7TH AGRAHAYANA, 1940** ## **WP(C).No. 6149 of 2018** ## **PETITIONER/S:** |**1**|**AMINA.M.K**| |---|---| ||**AGED 52 YEARS, W/O.LATE ASKA ABDUL RAHIMAN**| ||**HAJI,RESIDING AT ASKA COTTAGE,**| ||**KOLAVAYAL(P.O),KASARAGOD DISTRICT.**| |**2**|**MUHAMMED SADIQUE P**| ||**AGED 29 YEARS, S/O.LATE ASKA ABDUL RAHIMAN**| ||**HAJI,RESIDING AT ASKA COTTAGE,**| ||**KOLAVAYAL(P.O),KASARAGOD DISTRICT.**| |**3**|**SHAHID RAHMAN P**| ||**AGED 22 YEARS,S/O.LATE ASKA ABDUL RAHIMAN**| ||**HAJI,RESIDING AT ASKA COTTAGE,**| ||**KOLAVAYAL(P.O),KASARAGOD DISTRICT.**| ||**BY ADVS.**| ||**SRI.JAWAHAR JOSE**| ||**SMT.CISSY MATHEWS**| ||**SRI.SARUN RAJAN**| ## **RESPONDENT/S:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY,REVENUE DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. PIN.695**| ||**001.**| |**2**|**THE SPECIAL TAHSILDAR LAND ACQUISITION**| ||**KASARAGOD. PIN.671 123.**| 2 _**WP(C).6149/18**_ **3 THE KERALA ROADS AND BRIDGES DEVELOPMENT CORPORATION SECOND FLOOR, PREETHI BUILDING,MAHAKAVI VAILOPPILLI ROAD, KOCHI, PIN.682 025,REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADVS.** **GOVERNMENT PLEADER SRI.SHYSON P.MANGUZHA,SC,ROADS & BRI SRI.SHYSON P.MANGUZHASCROADS BRI** ## **OTHER PRESENT:** **SR.GP B VINOD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.10.2018, THE COURT ON 2811.2018 DELIVERED THE FOLLOWING:** 3 _**WP(C).6149/18**_ ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 6149 of 2018 ----------------------------------------------Dated this the 28[th] day of November, 2018** ## **JUDGMENT** The issue raised for consideration in this writ petition is whether when a portion of a building is acquired under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, 'the 2013 Act'), the owner of the property will have the right, after receipt of compensation calculated in respect of entire building, to contend that the portion of the building standing in the unacquired property is liable to be left intact, at his option. The contention of the petitioner is that the compensation is paid to the owner of the land for the injuries affected to the building as a whole. That does not preclude the right of the land owner to contend that portion of the building situated in the unacquired property leaving all statutory set backs as required under law can be retained intact by him. 2. The petitioner along with five others were the owners of 7¾ cents of property in Balla Village, Kasaragod District. An extent of 3.4 cents of property was acquired for constructing a Railway bridge at Kasaragod in terms of the 2013 Act. It is stated that there is a commercial building having three floors with a total plinth area of 50 square metres covering almost 80% of the total extent of the property less than half of the stance in the acquired portion of the property. 4 _**WP(C).6149/18**_ Exhibit P3 award dated 23.11.2016 was passed granting compensation to the petitioner both in respect of the value of the building and the value of the land. When the 3[rd] respondent attempted to demolish the entire structure, the petitioner submitted Exhibit P4 representation seeking that the portion of the building standing in the unacquired portion of the property may be left intact, since it can be used independently after all set backs are provided. A structural stability certificate to that effect was also produced by the petitioner. When the 3[rd] respondent proceeded to attempt demolition, the petitioner had approached this Court and an order directing to maintain status quo with respect to the portion of the building in unacquired portion of the property was issued. 3. A detailed counter affidavit has been placed on record by the respondents. It is contended therein that compensation for the entire structure in the acquired as well as unacquired portion of the property had been calculated and disbursed to the petitioner and that the contention that the building cannot be demolished is therefore misconceived. It is stated that since compensation was awarded for the land and the building at two times the existing market value of the property and granting of statutory additions, the 3[rd] respondent has every right to demolish the entire building. 4. A reply affidavit is also filed by the petitioner. The Form-2 notice issued under the 2013 Act is produced to demonstrate that only 1.4 Ares corresponding to 3.4 cents of property had been acquired. It is contended 5 _**WP(C).6149/18**_ by learned counsel for the petitioner that the fixation of compensation with regard to the entire building is made taking note of the injurious affection likely to be caused to the building by the acquisition and resultant demolition of a portion thereof. It is contended that only because compensation has been awarded in respect of the entire building, that does not affect the right of the petitioner to contend that if the portion of the building in the unacquired property can be utilised after leaving all statutory set backs, the same is to be permitted. It is contended that since admittedly only a portion of the land has been acquired, the respondents have no manner of right to insist that the portion of the building standing in the unacquired land belonging to the petitioners should also be demolished in spite of the option of the petitioner exercised to leave the structure standing. 5. Learned counsel for the petitioners relies on Section 3(p) of the 2013 Act as also Sections 11, 12, 18 and 19 to contend that the acquisition involves only the land acquired and the standings on the said land and the respondents would have no right to contend that portion of a building standing in unacquired portion of the property should be demolished. It is stated that Section 29 provides only for the determination of the market value of the building. Section 28 provides for the award of compensation taking into consideration, among other factors, the damage, if any, sustained by the person interested by reason of the acquisition affecting his other property, movable or immovable, in 6 _**WP(C).6149/18**_ any manner or his earnings. The learned counsel also places reliance on the decision of the Apex Court in _**State of Maharashtra v. Reliance Industries Limited**_ [(2017)10 SCC 713] and of a Full Bench of this Court in _**Damodaran v. Executive Officer**_ [2008(1) KLT 16] to contend that the owner of the building is fully competent to contend even after compensation is received in respect of the entire building that the building situated in the unacquired property is liable to be left in tact. 6. I have considered the contentions advanced on either side. Section 3(p) of the 2013 Act defines 'land' as follows: _“3(p). 'land' includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth.”_ Section 11 provides for publication of notification of requirement of land in any area for a public purpose. Further proceedings for preliminary survey and declaration with summary of rehabilitation and resettlement is also provided. Section 20 provides for marking out of the land and Section 21 for issuance of notice to persons interested. Section 27 states that the Collector having determined the market value as provided in Section 26 shall calculate the total amount of compensation to be paid to the land owner whose land has been acquired by including all assets attached to the land. Section 28 prescribes the parameters to be considered by the Collector in determination of award. The market value, the damage, if any, sustained by reason of severing such land from his other land etc. are the parameters to be considered while determining 7 _**WP(C).6149/18**_ the amount of compensation. Section 28 provides that damage, if any, sustained by the person interested at the time of Collector's taking possession of the land by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings, is also a matter which is to be taken note of. The change of residence or place of business and the expenses thereof and diminution of the profits as also any other amount which may be in the interest of equity, justice and beneficial to the affected families is also to be taken note of. Section 29 provides for determining the market value of the building which is to be acquired. 7. The learned counsel would contend that the entire value of the building situated in the property belonging to the petitioner had been calculated by the respondents while passing the award specifically due to the injurious affection which was likely to be caused by the demolition of a portion thereof. It is submitted that the calculation of the market value of the building in its entirety cannot result in any right on the land acquisition authorities to contend that the building standing on the unacquired portion of land has also necessarily to be demolished. In a case where the building is structurally suitable, in spite of demolition of a portion thereof lying in the acquired property, the land owner is well within his rights to contend that the portion of the building is to be left standing without demolition. 8. A Full Bench of this Court, considering the provision in Section 8 _**WP(C).6149/18**_ 49(1) of the Land Acquisition Act, 1894, held that the option to require acquisition of the entire building is the prerogative of the owner of the building and is an absolute right. It is contended that the Apex Court, considering the same provision, held in _**State of Maharashtra v. Reliance Industries Limited (supra)**_ that land includes any building or structure standing therein and where only a portion of the building is sought to be acquired, in determining the valuation, all the aspects of the owner's interest and the bundle of other rights can be taken into consideration for arriving for a proper compensation. Considering the decision of this Court in _**Saramma Itticheriya v. Stae of Kerala**_ [2008(1) KLT 6 (FB)] also, the Apex Court held that the option to require the acquisition of the entire building is available to the owner of the building and without such an option being exercised, the land acquisition authority cannot insist that the building on unacquired portion of the land is also to be demolished. 9. On a consideration of all the contentions advanced on either side, I am of the opinion that the mere fact that compensation had been awarded to the petitioners taking note of the acquisition of the entire building can only be a due consideration of the injurious affection likely to be caused to the building as a whole and the same cannot be pleaded as a reason to contend that the portion of the building in unacquired land is also compulsorily to be demolished. There is nothing in Exhibit P3 award to suggest that the petitioners had agreed to demolish the entire 9 _**WP(C).6149/18**_ building. No case has been set up by the respondents that the demolition of the entire building is required for the public purpose for which the land was acquired. In case the building standing in the unacquired land is stable by itself and if it is possible to use the same even after providing all statutory set backs, I see no reason why the 3[rd] respondent should insist that the entire building be demolished. The broad intentions of the 2013 Act as well as the provisions thereof do not permit such an interpretation. The right of the respondents is only with regard to the acquired land as defined in the Act and cannot extend to insist that portion of the building in the land belonging absolutely to the petitioner is also to be demolished. I am therefore of the opinion that the prayers sought for are liable to be granted. There will accordingly be a direction to the respondents to consider the request of the petitioners for leaving appropriate portion of the building standing in the unacquired land in tact. Orders shall be passed on the request made by the petitioners within a period of one month from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN** _vgs_ 10 _**WP(C).6149/18**_ ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED DATED 3.6.1994. EXHIBIT P2 TRUE COPY OF THE SALE DEED DATED 19.4.1994.** **EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF THE AWARD PASSED BY THE LAND ACQUISITION OFFICER DATED 23.11.2016.** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE STRUCTURAL STABILITY CERTIFICATE TOGETHER WITH THE PLAN SPECIFICALLY SHOWING THE ACQUIRED PORTION AND UNAQUIRED PORTION OF THE BUILDING.** **EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 19.09.2016 ISSUED BY THE 2ND RESPONDENT.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3 (a)** TRUE COPY OF THE SALE CONFIRMATION LETTER DATED 01.02.2018 ISSUED TO THE AUCTION PURCHASER. **EXHIBIT R3 (b)** THE TRUE COPY OF THE SALE ORDER DATED 03.02.2018 ISSUED TO THE AUCTION PURCHASER.