Augustin Xavier v. State of Kerala & Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 16TH DAY OF AUGUST 2016/25TH SRAVANA, 1938 ## WP(C).No. 1518 of 2006 (E) --------------------------- ## PETITIONER : - ------------- AUGUSTIN XAVIER, S/O.LATE MICHAEL XAVIER, RESIDING AT TC.No.12/1602, RC STREET, KUNNUKUZHY, THIRUVANANTHAPURAM. ## BY ADV. SRI.JOHNSON GOMEZ RESPONDENTS : - -------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1. 2. THE DISTRICT COLLECTOR, VANCHIYOOR, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, BUILDING AND ROADS, THIRUVANANTHAPURAM. 4. THE SPECIALTAHSILDAR(LAND ACQUISITION ADDL. UNIT), THIRUVANANTHAPURAM. 5. DR.NALLATHAMPI, S/O.LATE MR.GAJAPATHY PILLAI, RENGALAYAM, OPP: AG'S OFFICE, STATUE, THIRUVANANTHAPURAM. 6. PADMAVATHY AMMAL, D/O.ALAMELU AMMAL, OPP: AG'S OFFICE, STATUE, THIRUVANANTHAPURAM. R1 TO R4 BY GOVERNMENT PLEADER SRI.MOHAMMAD SAVAD R5 & R6 BY ADV. SRI.MANOJ R.NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WP(C).No. 1518 of 2006 (E) ## APPENDIX ## PETITIONER'S EXHIBITS:- EXT.P1 : COPY OF THE JUDGMENT DTD.28TH OCTOBER, 1991 IN O.S.1310/1986 OF THE FIRST ADDL.MUNSIFF'S COURT, TRIVANDRUM. EXT.P2 : COPY OF THE NOTIFICATION UNDER SECTION 4(1) OF THE LAND ACQUISITION ACT 1 OF 1894 PUBLISHED IN THE KERALA GAZETTE EXTRAORDINARY, VOL.No.XIIX No.1399 DTD.3.7.2004. EXT.P3 : COPY OF THE REPRESENTATION DTD.12.1.2006 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXT.P4 : COPY OF THE INTERIM ORDER DTD.11.1.2006 IN W.P.(C)No.786/2006 OF THIS COURT. ## RESPONDENTS' EXHIBITS : EXT.R5(a) : COPY OF THE AWARD PASSED BY THE LAND ACQUISITION OFFICER DTD.19.12.2005. EXT.R5(b) : COPY OF THE HANDING OVER OF POSSESSION CERTIFICATE DTD.28.12.2005. True copy P.A to Judge ## **ANIL K.NARENDRAN, J. -----------------------------------W.P.(C)No.1518 of 2006 ---------------------------------------Dated this the 16[th] day of August, 2016** ## **JUDGMENT** The petitioner was conducting a juice stall in a shop room bearing TC No.26/40. The said shop room was originally taken on lease by the petitioner's father from the predecessor-in-interest of the 5[th] and 6[th] respondents, in the year 1954. There were series of litigation between the petitioner's father and the 5[th] respondent. The grievance of the petitioner in this Writ Petition is that based on Section 4(1) notification issued under the Land Acquisition Act a portion of the building in question is sought to be acquired. Though a portion of the building alone was required for the purpose of acquisition, the 5[th] and 6[th] respondents have requested the 4[th] respondent to acquire the entire extent covered by the building. In such circumstances, the petitioner has filed this Writ Petition seeking a writ of mandamus commanding respondents 2 to 4 to acquire only the land notified in Ext.P2 and not to demolish the entire shop room bearing No.26/40, by entertaining the desire of respondents 5 and 6 to demolish the entire building. The petitioner W.P.(C).No.1518 of 2006 2 has also sought for writ of mandamus commanding the 2[nd] respondent to consider Ext.P3 representation and to pass appropriate orders thereon. 2. A counter affidavit has been filed on behalf of respondents 5 and 6 producing therewith Exts.R5(a) and R5(b), as per which they have exercised their option under Section 49 of the Land Acquisition Act. The Land Acquisition Officer has passed an award and thereafter, the possession of the entire premises was also handed over to the 4[th] respondent. 3. In the Writ Petition, the petitioner has placed reliance on Ext.P4 order passed by this Court in W.P.(C)No.786/2006 on similar set of facts. Based on the aforesaid order, the petitioner was also granted an interim order dated 11.1.2006, which is extracted below:- “Till the service of notice on the owners, the petitioner shall not be evicted from the remaining portion which is not covered by Ext.P1 notification.” Thereafter the said order was not extended. 4. W.P.(C)No.786/2006 referred to above ended in dismissal by judgment dated 11.4.2011 of the Division Bench in W.P.(C).No.1518 of 2006 3 ## W.A.No.1762/1997 and connected cases. Paras.4 to 7 of the judgment read thus:- “4. The prayers in WP(C) Nos.786/06 and 5863/06 and OP.No.10776/97, against which WA No.1762/97 is filed, are mainly to strike down Section 49 of the Land Acquisition Act as unconstitutional and to restrain the respondents from enforcing Section 49 of the Act in Kerala. Further, a writ of prohibition restraining respondents 1 to 4 from acquiring any land in excess of what is notified in Section 4(1) notification of the Act is also sought for. 5. As far as the prayer to strike down Section 49 of the Land Acquisition Act on the ground that the provision is unconstitutional is concerned, the contention raised by the learned counsel for the petitioners/appellants is that Section 49 of the Land Acquisition Act is repugnant to the provisions of Section 11(1) of the Kerala Building (Lease and Rent Control) Act, 1964. According to the learned counsel, the Rent Control Act falls within Entry 18 of list 2 of the VIIth Schedule to the Constitution and Land Acquisition Act falls within Entry 42 of List III. It was contended that, since Rent Control Act has received the assent of the President as provided in Article 254(2) , the State law has to prevail in this State. Therefore, according to him, Section 49 of the Land Acquisition Act or an option exercised by the landlord cannot affect the tenant's rights under the Rent Control Act. W.P.(C).No.1518 of 2006 4 6. Now that the counsel for the tenants themselves have contended that the Rent Control Act falls under the state list and the Land Acquisition Act under the concurrent list, it does not need any elaborate reasoning to reject the argument of repugnancy except to state that the theory of repugnancy has no application when the two legislations are not under the concurrent list. This is too well settled a principle of constitutional law and we do not wish to burden this judgment by referring to more precedents except the recent judgment of the constitution bench of the Apex Court in _**Girnar Traders (3) v. State of Maharashtra**_ {(2011) 3 SCC 1}, where it has been held as follows:- _176. An apparent repugnancy upon proper examination of substance of the Act may not amount to a repugnancy in law. Determination of true nature and substance of the laws in question and even taking into consideration the extent to which such provisions can be harmonised, could resolve such a controversy and permit the laws to operate in their respective fields. The question of repugnancy arises only when both the legislatures are competent to legislate in the same field i.e. when both, the Union and the State laws, relate to a subject in List III (Hoechst Pharmaceuticals Ltd. v. State of Bihar)_ _(emphasis supplied)_ 7. As far as the right of the tenant of a building in respect of which the landlord has exercised his option to acquire the entire building available under Section 49(1) of the Land Acquisition Act W.P.(C).No.1518 of 2006 5 is concerned, the whole issue in this behalf has been considered by a Full Bench of this Court in _**Saramma Itticheriya v. State of Kerala**_ (2008(1) KLT 6), where it has been concluded thus. _Therefore, the landlord has to express his desire to acquire the whole of the building. Once such a desire is expressed before award is passed, the Land Acquisition Officer has no option, but, to acquire the entire building including the land in which the building is situated or withdraw from the acquisition and the building includes the property in which the building is situated and if there is any dispute as to whether any land proposed to be taken does or does not form part of a house or building within the meaning of the section, the Collector has to refer the matter to the civil court and await the decision of the civil court for taking possession of the land._ _From the foregoing discussion, we hold as follows:_ _(1) S.49(1) gives power to the owner whose house or building is partly acquired to express his desire to acquire the entire building;_ _(2) The right of option given under S.49(1) is only available to the 'owner' and not anybody including any 'person interested' or 'occupier', tenant, etc.;_ _(3) The expression of opinion to acquire the entire building need not be in any particular form, but, the expression of his desire should be clear for acquisition of the entire building;_ _(4) The above expression of opinion should be made before passing of the award;_ _(5) The owner of the building has a right to withdraw the option exercised before passing of the award;_ _(6) If the option of the owner to acquire the entire building as provided under S.49(1) is accepted by the Land Acquisition Officer, tenant cannot challenge that decision:_ _(7) If the desire exercised by the owner to acquire the entire building is not acceptable, the only option for the Land Acquisition Officer is to withdraw from the acquisition._ _(8) The words 'whole of such house or manufactory or building' includes land in which it is situated. In other words, when entire building is acquired, the land in which the building is situated also has to be acquired by the Government;_ W.P.(C).No.1518 of 2006 6 _(9) If the owner expresses his opinion only to acquire the building materials excluding the land in which it is situated, it is not an option exercised under S.49(1);_ _(10) If there is any dispute regarding issue specifically mentioned in second proviso, the matter should be referred to the court and Collector has no power to adjudicate the question under S.49(1)._ 5. In view of the judgment of the Division Bench in W.A.No.1762/1997 and connected matters the petitioner is not entitled for any of the reliefs sought for in this Writ Petition. Accordingly the Writ Petition fails and the same is dismissed. Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge