Jemini N.V. and others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **WEDNESDAY, THE 7TH DAY OF MARCH 2012/17TH PHALGUNA 1933** **WP(C).No. 517 of 2011 (L) -------------------------** ## **PETITIONER(S): -------------** **1. JEMINI.N.V,S/O.N.D.VARKEY,AGED 32, NIRAPPEL HOUSE,ATHIRAMPUZHA PO, KOTTAYAM DISTRICT.** **2. BETTY CHARLEY,W/O.CHARLEY,AGED 45 YEARS, MATHIRAMPUZHA HOUSE, ATHIRAMPUZHA PO, KOTTAYAM DISTRICT.** **3. BOBBY MATHEW,S/O.MATHEW,ERIKKADU BINI BHAVAN, NETAJI NAGAR,PEROOR ROAD ETTUMANNOOR, KOTTAYAM.** **4. THOMAS,S/O.O.T.ABRAHAM, ATHIRAMPUZHA, KOTTAYAM DISTRICT.** **5. SIYAM M.ISMATH,S/O.MOHAMMED ISMATH, VADASHERIYIL HOUSE,KARAPPUZHA PO, KOTTAYAM DISTRICT.** **6. BAIJU BASTIN,S/O.BASTIN, MATHIRAMPUZHA HOUSE,ATHIRAMPUZHA PO, KOTTAYAM.** **BY ADV. SRI.L.RAJESH NARAYAN IYER** ## **RESPONDENT(S):** - **--------------** **1. THE STATE OF KERALA,REP.BY THE SECRETARY , REVENUE DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM,PIN 695 001.** **2. THE DISTRICT COLLECTOR, COLLECTORATE, KOTTAYAM,PIN 686 001.** **3. THE EXECUTIVE ENGINEER,KSTP, MUVATTUPUZHA, PIN 686 661** **4. THE SPECIAL TAHSILDAR(L.A)(N.H),** **CHANGANASSERY, KOTTAYAM DISTRICT,PIN 686 101.** **(CONT......)** **RK** **WP(C).No. 517 of 2011 (L) -------------------------** **5. THE ASSISTANT ENGINEER, KSEB, ETTUMANOOR SECTION, KOTTAYAM,PIN 686 631.** **6. BENNY RAJ SEBASTIAN, CHIRAYIL HOUSE, ETTUMANOOR KOTTAYAM DISTRICT PIN 686 631.** **7. AMBIRAJ SEBASTIAN, CHIRAYIL HOUSE ETTUMANOOR KOTTAYAM DISTRICT PIN 686 631.** **8. THANKARAJ SEBASTIAN,CHIRAYIL HOUSE, ETTUMANOOR KOTTAYAM DISTRICT PIN 686 631.** **BY SRI.P.P.THAJUDEEN, SC, K.S.E.B BY GOVERNMENT PLEADER SMT.LISHA BY SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.04.2011, THE COURT ON 07-03-2012 DELIVERED THE FOLLOWING:** **RK** ## **WP(C).No. 517 of 2011 (L) -------------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1: COPY OF THE JUDGEMENT DATED 18.11.2008 IN W.P.C.NO.32329/2008 EXT.P2: COPY OF THE JUDGEMENT DATED 18.11.2008 IN W.P.(C) NO.30182/2008 EXT.P3: COPY OF THE INTERIM ORDER DATED 17.03.2009 IN WRIT APPEAL NO.506/2009 EXT.P4: COPY OF THE REPORT SUBMITTED BY THE 3RD RESPONDENT IN W.A.NO.506/2008 EXT.P5: COPY OF THE JUDGEMENT DATED 26.06.2009 EXT.P6: COPY OF THE JUDGEMENT IN W.P.(C)NOS.16853 &16865 OF 2009 DATED 02.07.2009 EXT.P7: COPY OF THE REPRESENTATION DATED 06.07.2009 EXT.P8: COPY OF THE NOTICE DATED 24.03.2010 EXT.P9: COPY OF THE OBJECTION TO EXT.P8 DATED 01.04.2010 EXT.P10: COPY OF THE JUDGEMENT DATED 28.05.2010 IN W.P.(c) NO.14704/2010 EXT.P11: COPY OF THE JUDGEMENT DATED 28.05.2010 IN W.P.(c) NO.14716/2010 EXT.P12: COPY OF THE JUDGEMENT IN W.P.(c)NO.13932/2010, DATED 22.06.2010 EXT.P13: COPY OF THE ORDER DATED 18.08.2010 EXT.P14: COPY OF THE NOTICE DATED 01.01.2011 EXT.P15: COPY OF THE AWARD BEARING NO:3/08 B5-287/06 DATED 31.03.2008 RESPONDENTS EXHIBITS: NIL** **/TRUE COPY/** **PA TO JUDGE** **RK** ## **C.T. RAVIKUMAR, J** ## **--------------------------------** ## **W.P.(C)No. 517 OF 2011 --------------------------------** ## **Dated this the 7[th] day of March, 2012** ## **JUDGMENT** Land measuring an extent of 0.0034 Hectares comprised in Re-survey No.32/2-3-1 of Ettumanoor Village owned and possessed by the 6[th] respondent was acquired for the purpose of widening the M.C Road under Kerala State Transport Project (K.S.T.P). Petitioners 1 and 3 to 5 were tenants of the 6[th] respondent occupying, respectively, shop rooms bearing Door Nos. VII/493, VII/491, VII/490, VII/492 and another room wherein a shop by name 'Ayillyam Umbrella Mart' is functioning in the building situated in the above acquisition. The above shop rooms forming part of the building were acquired under full valuation. Land measuring 0.0002 Hectares in Re-survey No.32/2-5 and 0.0003 Hectares owned and possessed respectively by the 7[th] and 8[th] respondents, the brothers of the 6[th] respondent, were also acquired. The second petitioner who conducts a beauty parlour in Door No.VII/494 was the tenant of the 7[th] respondent. Originally, in notification under Section 4(1) of the Land Acquisition Act (for short 'the L.A Act') the veranda of the ground floor of the building in question WPC.No.517/2011 : 2 : belonging to respondents 6 to 8 alone formed part of the acquisition. Thereupon, the 6[th] respondent exercised option under Section 49(1) of the L. A. Act requesting for acquisition of the remaining portion of the building belonging to him. The said request of the 6[th] respondent was accepted and appropriate orders were passed under section 49 of the Act by the Acquisitioning Authority. The other co-owners, who are the brothers of the 6[th] respondent, thereupon, approached this Court by filing W.P(C) No.30182 of 2008 mainly with the following prayers:- - “1. Issue a writ of mandamus or other writ or order or direction compelling the 2[nd] respondent to refer the question whether any part of the building other than the veranda forms and part of the acquisition to the Civil Court under Section 49 of the Land Acquisition Act. 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 3[rd] respondent except veranda under the Land Acquisition Act. “ That writ petition was disposed of on 18.11.2008 as per Ext.P2 judgment as hereunder:- Respondents 1 and 2 are directed to accept the option submitted by the 3[rd] 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 the upstair portions at the earliest. The WPC.No.517/2011 : 3 : 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”. 2. The 3[rd] respondent therein is the 6[th] respondent herein and room Nos. 1 to 5 mentioned therein are the shop rooms owned by him. At this juncture, it is relevant to note that petitioners 1,3,5,6 and the father of the 4[th] petitioner herein, the tenants of the 6[th] respondent herein, had filed W.P(C) No.32329 of 2008 challenging the option exercised by the 6[th] respondent and the proposed action of the official respondents therein to accept the option. But, they fairly conceded that the issue involved therein is covered against them by the Full Bench judgment of this Court in _**Saramma Itticheriya v. State of Kerala (2008 (1) KLT 6).**_ Following the Full Bench judgment the said writ petition was dismissed as per Ext.P1 judgment on 18.11.2008 itself. 3. Feeling aggrieved by Ext.P2 judgment in W.P(C) No.30182 of 2008 the brothers of the 6[th] respondent viz., respondents 7 and 8 herein, filed Writ Appeal No.506 of 2009. A Division Bench of this Court directed the Executive Engineer, K.S.T.P Division, Muvattupuzha, to submit a report as to the technical aspects including WPC.No.517/2011 : 4 : the nature and durability of the building in question. Thereupon, a report was submitted on 3.6.2009 to the effect that the building in question was very old with wetting of walls and it was constructed with laterite in lime mortar. Dismantling of major portion of the building may lead to total collapse of the structure. In the circumstances, it was opined that it would not be technically feasible to retain part of the building. The said writ appeal was subsequently dismissed with costs as per Ext.P5 judgment. 4. Later, the first and second petitioners herein filed W.P(C) Nos. 16865 of 2009 and 16853 of 2009 respectively. Their contention was that notwithstanding the acquisition of the whole building belonging to Benny Raj, the 6[th] respondent herein, by virtue of the option exercised by him under section 49(1) of the L.A Act, the District Collector was not, ipso facto, obliged to pull down the entire building. It was also contended that notwithstanding the option by the 6[th] respondent and the consequential acquisition by virtue of the decision of the District Collector under Section 49 of the L.A Act the question of demolition of that portion of the building which did not fall within the alignment covered by Section 4(1) notification had to be independently WPC.No.517/2011 : 5 : considered by the District Collector as the tenants would be entitled to different rights relatable to easement and other protective covers. The aforesaid writ petitions were disposed of as per Ext.P6 common judgment leaving open the right of the petitioners, if any, to raise any claim before the District Collector, in accordance with law, for any relief relatable to their occupation of any portion of the buildings belonging to Benny Raj/Ambi Raj (the 6[th] and 7[th] respondents herein) and without prejudice to the District Collector deciding on such issues untrammeled by anything stated in the said judgment. Subsequently, Ext.P13 order dated 18.8.2010 was passed by the second respondent, the District Collector. In the said order, judgments of this Court in W.P(C) Nos.16853 & 16865 of 2009 (Ext.P6 judgment) and W.P(C)No.14704 &14716 of 2010 (Exts.P10 and P11) were referred to. The following decisions are taken as per Ext.P13:- 1. _The land acquisition officer will take necessary steps to take over the building covered under the award and hand over to PWD - KSTP free from all encumbrances. For this purpose, it is necessary that the service connections like electricity, water, telephone etc., to the building are to be disconnected_ . WPC.No.517/2011 : 6 : _2. The petitioners are to co-operate with the authorities and voluntarily vacate the building under acquisition._ _3. The petitioners are directed to apply and receive the rehabilitation and resettlement compensation from the authority ie., the Executive Engineer KSTP, Muvattupuzha._ _4. The Executive Engineer KSTP, Muvattupuzha will take into account of various rights entitled to the tenants relatable to easement, the relief related to the occupation of the building under acquisition and other rights if any available to the petitioners as per existing rules while fixing the amount of compensation._ _5. The part of the building under acquisition is to be demolished as per the provisions of the said Act._ 5. Pursuant to Ext.P13, the petitioners herein were called upon to vacate the premises. Ext.P14 notice dated 1.1.2011 is one such notice issued to the first petitioner. The contention of the petitioners is that the respondents are hastily proceeding to demolish the entire building unmindful of their rights. It is contended that the second respondent had not ventured to decide as to whether the entire building is to be demolished or not. Whether the purpose of acquisition would WPC.No.517/2011 : 7 : be served by acquiring what is required under Ext.P15 award and whether the remaining portion could be utilised after keeping it intact, were also not considered. It is in the said circumstances that this writ petition has been filed challenging Exts. P13 and P14 and mainly seeking the following reliefs:- - _ii. issue a writ of mandamus or any such other writ, direction or orders commanding the respondents not to disconnect the electricity connection to the building contained in Sy. No.203/1 of the Ettumanoor Village._ - _iii. Issue a writ of mandamus or any such other writ, direction or orders commanding the respondents 1 to 5 to acquire only that extent of the land and building as per Ext.P15 award._ - _iv. Issue a writ of mandamus or any such other writ, direction or orders commanding the respondents 1 to 5 to acquire only that extent of the land and building as per Ext.P15 award and retain the remaining portion of the building._ 6. Admittedly, an award was passed in respect of the acquired land and the building thereon. The matter has become final and the acquired land reached the hands of the Acquisitioning WPC.No.517/2011 : 8 : Authority/Government by virtue of the mandate under Section 16 of the L.A. Act. However, the petitioners, who are tenants, still continue to occupy their respective portion in the building. Their grievance is that while passing Ext.P13 the second respondent had not ventured to decide whether the entire building is to be demolished or not and whether the purpose of the acquisition could be served by acquiring what is required in terms of 4(1) notification and also whether the remaining portion could be retained and utilised. It is contended that in the light of Ext.P6 judgment the second respondent was bound to consider the aforesaid aspects. The petitioners have raised certain other contentions as well. When once a building is acquired based on the option exercised under Section 49(1) of the L.A. Act, that building would stand vested with the State and thenceforth, it would be the prerogative of the State to decide whether any building thereon is to be retained or not, it is contended. Based on the said contention it is further contended that since such acquisition invoking the provisions under Section 49 are over the respondents 5 to 8 who are the previous owners of the land and building cannot command the State as to how the land and the building thereon should be utilised. WPC.No.517/2011 : 9 : 7. A statement and an additional statement have been filed on behalf of the 4[th] respondent. In the statement, after narrating the steps taken in accordance with the proceedings under the L.A Act, it is stated that an award was passed in respect of the acquisition of land and building thereon from the land owners viz., the landlords of the petitioners. As per the award the land comprised in Re-Survey Nos. 32/2-1 and 32/2-5 were already been handed over by the parties and, in turn, they were handed over to the Executive Engineer, KSTP, Muvattupuzha on 29.8.2008. The land in Re-survey No.32/2-3-1 could not be handed over to KSTP as the rooms occupied by the petitioners are not vacated. It is submitted that the second petitioner has already handed over the possession of the shop room in question. In paragraph 4 of the statement it is stated that room Nos. 1 to 5 were owned and possessed by the 6[th] respondent and room Nos. 6, 7 and were owned and possessed by Sri. Ambi Raj Sebastian and Thankaraj Sebastian, the 7[th] and 8[th] respondents, who are the brothers of the 6[th] respondent. The 7[th] and 8[th] respondents had earlier approached this Court by filing W.P(C)No.30182 of 2008. In the said writ petition this Court upheld the option made by the 6[th] respondent in view of the provisions under Section 49(1) of the L.A Act. It was further directed WPC.No.517/2011 : 10 : thereunder to accept the option exercised by the 6[th] respondent herein and to demolish the rooms and upstair portions at the earliest. Respondents 7 and 8 herein, who were the petitioners therein, filed appeal against the same as Writ Appeal No. 506 of 2009. However, the same was dismissed with costs as per Ext.P5 judgment. It was thereafter, that the 1[st] and 2[nd] petitioners herein filed W.P(C)Nos.16853 of 2009 and 16865 of 2009. 8. In the additional statement filed on behalf of the 4[th] respondent it is stated that the land measuring an extent of 0.0034 Hectares comprised in Re-survey No.32/2-3-1 of Ettumanoor Village owned and possessed by the 6[th] respondent was acquired as per Award No.3/08(2) dated 5.4.2008. It is further stated thereunder that five rooms bearing Nos.XX/490, 491, 492, 493 and 494 occupied respectively by the petitioners viz., 1, 3, 5, 6 and 4[th] petitioner's father O.T Abraham were acquired in full valuation. However, they could not be handed over to KSTP as the said rooms were not vacated by the petitioners. Further, it is stated therein that the land measuring an extent of 0.0003 Hectares in Re-Survey No.32/2-2-2 of Ettumanoor Village with building portion such as veranda, steps, including roofing of WPC.No.517/2011 : 11 : asbestos/metal sheets, owned and possessed by the 8[th] respondent, was acquired as per Award No. 3/08(1) dated 5.4.2008 of the District Collector, Kottayam and they were handed over to KSTP on 29.8.2008. The handing over mahazar has been produced as Annexure III. It is further stated therein that the land measuring an extent of 0.0002 hectares in Re-survey NO.32/2-5 of Ettumanoor Village owned and possessed by the 7[th] respondent was also acquired as per Award No.3/08(1) dated 5.4.2008. The land and building portion were handed over to KSTP on 29.8.2008, as per the statement. The copy of the award and handing over mahazar are produced respectively as Annexures IV and V. 9. In the counter affidavit filed by the 6[th] respondent it has been stated that this writ petition is yet another attempt on the part of the writ petitioners to forestall the implementation of the directions of this Court in Ext.P2 judgment dated 18.11.2008. It is further stated that all the possibilities for a partial demolition of the building and retention of the remaining portion was probed into as is obvious from Ext.P5. In Ext.P4 report submitted before the Division Bench the Executive Engineer of the PWD-KSTP Division, Muvattupuzha opined WPC.No.517/2011 : 12 : that it would not be technically feasible to retain any part of the building. The 6[th] respondent contends that he is the owner of 5 out of 8 rooms in the building in question. He had exercised the option under Section 49(1) of the L.A Act opting acquisition of entire 5 rooms belonging to him. The challenge made against the said option exercised by the 6[th] respondent, by his brothers viz., respondents 7 and 8, who are the owners of the remaining 3 rooms were repelled by this Court in Ext.P2 judgment and that issue had attained finality. The challenge of the petitioners against the said option exercised by him and the proposed action thereon was repelled by this Court as per Ext.P1 judgment. As per Ext.P2, this Court directed respondents 1 and 2 to accept the option of the 6[th] respondent and to demolish the rooms and the upstair portions at the earliest. The Writ Appeal filed against the said judgment was subsequently dismissed as per Ext.P5. In the said circumstances, it is contended that this writ petition amounts to an abuse of process of this Court. 10. In view of the rival contentions, it is to be verified whether Ext.P6 judgment carried any positive direction to the 2[nd] respondent, the District Collector, as contended by the petitioners. In WPC.No.517/2011 : 13 : this context, it is relevant to refer to the operative portion of Ext.P6 judgment and the same reads thus:- _“.... For the aforesaid reasons, leaving open the right of the petitioners, if any, to raise any claim before the Collector in accordance with law, for any relief relatable to their occupation of any portion of the buildings belonging to Benny Raj/Ambi Raj and without prejudice to the Collector deciding on such issues untrammelled by anything stated in this judgment, these writ petitions are disposed of without entering on merits.”_ A scanning of Ext.P6 judgment would thus go to show that this Court only left open the right of the petitioners therein,viz.,petitioners 1 and 2 herein, if any, to raise any claim before the 2[nd] respondent, in accordance with law, for any relief relatable to their occupation of any portion of the building belonging to the 6[th] and 7[th] respondents. That apart, evidently, even in case of raising of any claim or right, if any, by availing the said liberty the 2[nd] respondent was directed to consider the same untrammelled by anything stated in Ext.P6 judgment. In view of the said position obtained from Ext.P6 judgment, the first aspect to be looked into is whether availing the liberty granted thereunder the petitioners had approached the 2[nd] respondent raising any such claim and right. If only the petitioners therein approached the 2[nd] respondent WPC.No.517/2011 : 14 : raising any such claim and right, if any, the 2[nd] respondent need to take a decision thereon in accordance with law. In the context of the contentions raised by the petitioners regarding non-consideration of their claim relatable to occupation of the portion of the building under tenancy, it is relevant to refer to Ext.P12 judgment of this Court in W.P.(C)No.13932 of 2010. It was filed by petitioners 1 and 2 herein who were the petitioners in W.P.(C)Nos.16853 and 16865 of 2009 on being aggrieved by Ext.P8 notice dated 24.3.2010. It is contended therein that though they had preferred representations pursuant to Ext.P6 common judgment in W.P.(C)Nos.16853 & 16865 of 2009, the said notice dated 24.3.2010 was issued without giving due regard to the said representations. Ext.P6 notice in that writ petition was issued requiring to dismantle the electric connection provided to that portion of the building in question under occupation of the said petitioners as tenants. In paragraph 4 of Ext.P12 judgment it is stated thus:- _“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.”_ 11. It is obvious from Ext.P12 that the definite case of the WPC.No.517/2011 : 15 : official respondents was that no such representations were received. It was further contended that Ext.P7 representation referred as such in W.P.(C) No.13932 of 2010 was preferred only after the receipt of Ext.P6 therein viz., Ext.P8 notice in this writ petition, from the Tahsildar. With respect to the said grievance, taking note of the fact that the other tenants in the very same building had earlier approached this Court by filing W.P.(C)Nos.14704 and 14716 of 2010 and also the fact that at the time of hearing conducted pursuant to the direction in the aforesaid judgments, the petitioners were also heard in W.P.(C). No.13932 of 2010, this Court directed the 2[nd] respondent District Collector as per Ext.P12, to communicate the final order to be passed as directed in W.P.(C)Nos.14704 and 14716 of 2010 and to maintain status quo, with respect to the dismantling of the electric connection, till such time. It is only thereafter that Ext.P13 was passed by the 2[nd] respondent. 12. Obviously, petitioners 1 and 2 alone were the parties to the writ petitions disposed of by this Court as per Ext.P6 judgment. W.P.(C)No.13932 of 2010 filed by petitioners 1 and 2 herein was disposed of as per Ext.P12 judgment. A perusal of Ext.P12 would WPC.No.517/2011 : 16 : reveal that the question whether the said petitioners had submitted any representation pursuant to Ext.P6 judgment was under dispute in W.P. (C)No.13932 of 2010. Despite such a dispute, no documents have been produced by petitioners 1 and 2 in this writ petition, to show that they had, in fact, approached the 2[nd] respondent pursuant to Ext.P6 judgment. In this context, it is to be noted that even in Ext.P9 representation submitted by the said petitioners to the 2[nd] respondent, no reference has been made with respect to any such representation. In the penultimate paragraph of Ext.P9 representation, petitioners 1 and 2 herein, attempted to canvass the position that in terms of Ext.P6 judgment in W.P.(C)Nos.16853 and 16865 of 2009, no decision had been taken by the 2[nd] respondent. It was nothing but an attempt on the part of the petitioners 1 and 2 to attribute a bounden duty on the part of the 2[nd] respondent to consider their claims and right relatable to their occupation of portion of the building in question, falling under tenancy. At the same time, in the impugned Ext.P13 order, reference has been made to Ext.P6 common judgment of this Court dated 2.7.2009. But, the contention of the petitioners, as is obvious from Ext.P9 and also the pleadings in this writ petition, that the directions of this Court in Ext.P6 to the second respondent to decide the issues WPC.No.517/2011 : 17 : untrammelled by the observations of this Court in Ext.P6 was not actually undertaken by the 2[nd] respondent while issuing Ext.P13 cannot be given any serious consideration for the purpose of calling for explanation or for attaching infirmity or illegality on that count on account of the disputatious circumstances. As already noticed hereinbefore, there was no positive direction to the 2[nd] respondent made as per Ext.P6 judgment to decide a particular claim or right, if any, of the petitioners. Virtually, petitioners 1 and 2 herein were given only a liberty to raise any claim or right, if any, relatable to their occupation of the rooms in the building in question without prejudice to the District Collector to decide on such issues untrammelled by anything stated in the said judgment. In the circumstances, the petitioners cannot be heard to contend that there was a direction in Ext.P6 to decide any claim or right relatable to their occupation. The words “if any” employed in Ext.P6 judgment in its operative portion would undoubtedly show that this Court has not made any finding or observation with respect to the right of petitioners 1 and 2 herein relatable to the occupation of the rooms by them in the building in question. WPC.No.517/2011 : 18 : 13. In view of this convoluted factual situation, I think, the question whether Exts.P13 and P14 invite interference by this Court would, necessarily, depend upon the answer to the question whether any justiciable right is available to the petitioners in the facts and circumstances of this case. Evidently, the very contention of the petitioners is that in the light of the judgment of the Full Bench of this Court in _**Saramma Itticheriya**_ v. _**State of Kerala**_ (2008 (1) KLT 6), when a landlord exercises his option under section 49(1) of the L.A Act the State can acquire the entire building and can also decide either to demolish that part of the building or to use it with or without necessary modification. In short, according to the petitioners, it is not necessary to demolish the entire building merely because it is acquired. The petitioners also rely on a Division Bench judgment of this Court in _**Shaji C. Varkey**_ v. _**Collector**_ (2007 (1) KLT 790) to buttress the said contention. Going by the said decisions relied on by the petitioners, when once a building is acquired in terms of the provisions under the L.A Act, based on the option exercised by the concerned landlord under section 49(1) of the L.A Act, the State becomes the owner of the building and then it is up to the Government to consider whether to WPC.No.517/2011 : 19 : demolish the entire building or to retain the building for any public purpose etc. In other words, the Government will have the right to maintain and repair the same and use it. It cannot be said that the Full Bench or the Division Bench in the decisions referred supra, laid down any law that in all circumstances where the concerned landlord exercised his option under section 49(1) of the L.A Act, the tenant/tenants, if any, occupying that portion of the building could, as a matter of right, claim that the said portion should not be demolished at all even after acquisition and further that on such a claim such portions of the building under acquisition should not be demolished. In fact, there cannot be any such inviolable position even going by the decisions of the Full Bench and Division Bench referred above. Then, the question is whether the feasibility to retain that portion of the building in question which was acquired pursuant to the option exercised under section 49(1) of the L.A Act was available for consideration of the concerned District Collector especially based on any finding that as per Ext.P6 no such specific direction was issued. Before going into that question any further, it is relevant to refer to Decision Nos.3 and 4 in Ext.P13. They would reveal that on such consideration the petitioners were directed to apply and receive the rehabilitation and WPC.No.517/2011 : 20 : resettlement compensation from the authority, that is, the Executive Engineer, KSTP, Muvattupuzha. Further, the Executive Engineer, KSTP, Muvattupuzha was, in turn, directed to take into account the various rights entitled to the tenants viz., the rights available to the petitioners relatable to easement, the relief related to the occupation of the building under acquisition as per the existing rules, while fixing the amount of compensation. It may appear that there is an apparent incongruity between decision Nos.3 and 4. Decision No.3, as extracted earlier, would reveal that the petitioners were directed to apply and receive the rehabilitation and resettlement compensation from the authority. Once such a decision is taken, there is no question of granting permission to continue to occupy the building under acquisition. A careful reading of Decision No.4 bearing in mind Decision No.3 would make it clear that those rights were directed to be taken into account solely for the purpose of fixing the amount of compensation. In other words, that cannot be regarded as a direction of the 2[nd] respondent to the 3[rd] respondent to take a decision on such rights. Thus, at any rate, the aforesaid question regarding the availability of the feasibility to retain the portions of the building not covered by the 4(1) notification assumes relevance. If the answer to WPC.No.517/2011 : 21 : the aforesaid question is in the negative, then there is no question of interfering with Ext.P13 and requiring the 2[nd] respondent to give a fresh look on the issue regarding the relatable right of occupation. It is true that normally, it is a matter to be considered by the District Collector. 14. As already noticed hereinbefore, respondents 7 and 8 had earlier approached this Court by filing W.P.(C)No.30182 of 2008 and the same was disposed of as per Ext.P2 judgment. The petitioners therein, who are the brothers of the 6[th] respondent, had raised grievances against the option exercised by the 6[th] respondent herein under section 49(1) of the LA Act. Evidently, after considering all the aspects of the issues, this Court directed the official respondents therein to accept the option submitted by the 3[rd] respondent therein/the 6[th] respondent herein under section 49(1) of the LA Act in respect of room Nos.1 to 5 as well as the corresponding upstair portions and demolish the rooms and the upstair portions at the earliest. Thus, a specific direction to demolish the said rooms and the upstair portions was given by this Court. The matter was taken in appeal by them as W.A.No.506 of 2009. Evidently, pursuant to a direction of the Division Bench dated 2.6.2009 the Executive Engineer, KSTP, Muvattupuzha conducted an WPC.No.517/2011 : 22 : inspection of the building in question and submitted Ext.P4 report on 3.6.2009. Later, as per Ext.P5 judgment dated 26.6.2009 the Division Bench dismissed the said writ appeal with cost to the tune of Rs.25,000/-. Obviously, the report of the Executive Engineer, KSTP, Muvattupuzha was adverted to by the Division Bench. Ext.P4 report would reveal that the Executive Engineer opined as follows:- _“As the building is very old, wetting of walls may lead to total collapse of the structure. There are no cross walls in the Ist floor of the building, along the line to be separated between the two parties, though there is a partition wall in the Ground Floor. For providing a partition wall in the Ist Floor, and for closing the Gable end above the Ist Floor, a framed column and beam structure will have to be newly introduced, which is a herculean task, especially in the case of such an old building. On dismantling major portion of the excising building, which is very old and constructed with laterite in lime mortar, there is every chance of the building becoming unstable, which may in turn lead to collapse of the building totally._ _Under the circumstances stated above and on personal inspection, I am of the opinion that it is not technically feasible to retain part of the building. Hence, the cost to be incurred for retaining the part of the building is not calculated.”_ ## 15. Ext.P4 would thus reveal that the feasibility or otherwise of retention of that part of the building occupied by the petitioners which was acquired based on the option exercised by the 6[th] WPC.No.517/2011 : 23 : respondent under section 49(1) of the L.A Act, was looked into by the Executive Engineer, K.S.T.P., Muvattupuzha, the 3[rd] respondent based on the order dated 2.6.2009 in W.A.No.506 of 2009. The issue regarding the technical feasibility to maintain the balance portion of the building under acquisition was appropriately looked into by the third respondent and submitted Ext.P4 report to the effect that it would not be technically feasible to retain that part of the building and no contra conclusion was arrived at by the Division Bench even after perusing the said report as is obvious from Ext.P5 judgment. In fact, that writ appeal was dismissed with costs. In the circumstances, the irresistible conclusion can only be that the said report was accepted. At any rate, the District Collector cannot be supposed to have more expertise than the Executive Engineer to look into the technical feasibility to maintain the balance portion of the building. In fact, it was on such consideration, the Division Bench directed the Executive Engineer, KSTP, Muvattupuzha to submit report on that aspect. Above all, as noticed earlier, a positive direction to demolish room Nos.1 to 5 and the corresponding upstair portions belonging to the 6[th] respondent herein was given by this Court as per Ext.P2 judgment. That judgment has become final. In the circumstances, taking into account the positive WPC.No.517/2011 : 24 : direction in Ext.P2 judgment and the dismissal of the writ appeal filed against the same as also Ext.P4 report, the 2[nd] respondent could not have arrived at a conclusion that it is technically feasible to retain the balance portion of the building ignoring the option exercised by the 6[th] respondent and also that portion of the building belonging to the 7[th] respondent. In the light of Ext.P2 judgment the first respondent could not have arrived at a finding opposed to the direction in Ext.P2 judgment. In this context, it is to be noted that in Ext.P6 judgment also this Court only gave liberty to the petitioners to approach the 2[nd] respondent raising claim or right, if any. The second respondent, as per Ext.P13, virtually found that the petitioners are entitled only to apply and receive the rehabilitation and re-settlement compensation from the authority that is, the Executive Engineer, KSTP, Muvattupuzha. The direction contained in Decision No.4 has to be read in consonance with the decision No.3 in Ext.P13. The contention of the petitioners that the 2[nd] respondent directed the 3[rd] respondent to consider the issues which were directed to be considered by the 2[nd] respondent also cannot be countenanced in that view of the matter. It has to be construed in the manner already mentioned in this judgment. WPC.No.517/2011 : 25 : For the foregoing reasons, I am of the considered view that Exts.P13 and P14 invites no interference. Resultantly, this writ petition is liable to fail and accordingly, it is dismissed. Sd/- **C.T.RAVIKUMAR, JUDGE** jma/spc/TKS