T. Shamsudheen and E. T. Jacob v. District Collector, Thrissur; Special Tahsildar, Land Acquisition General, Thrissur-20; Pavaratty Grama Panchayat; Shaju

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 WP(C).No. 20843 of 2004(F) -------------------------- PETITIONERS: - ------------ 1. T.SHAMSUDHEEN, S/O. MOIDUNNY, KUTTANGATH HOUSE, POST EDAKKAZHIYOOR, VIA. CHAVAKKAD, THRISSUR. 2. E.T.JACOB, S/O. E.C.THOMAS, EDAKKALATHOOR HOUSE, PAVARATTY, THRISSUR. BY ADV. SMT.SUMATHY DANDAPANI(Sr.) RESPONDENTS: - ------------- 1. THE DISTRICT COLLECTOR, THRISSUR. 2. THE SPECIAL TAHSILDAR, LAND ACQUISITION GENERAL, THRISSUR-20. 3. THE PRESIDENT, PAVARATTY GRAMA PANCHAYAT, THRISSUR. 4. SHAJU, ARACKAL HOUSE, PAVARATTY, THRISSUR. R3 BY ADV. SRI.C.A.MAJEED R1 & R2 BY GOVERNMENT PLEADER SHRI BASANT BALAJI R4 BY ADV. SRI.T.M.CHANDRAN SRI.S.SUJITH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** EXT.P1 PHOTOCOPY OF THE ROUGH SKETCH OF THE PROPERTY EXT.P2 PHOTOCOPY OF THE LEASE DEED DATED 10.10.2000 BETWEEN THE PETITIONER AND THE FOURTH RESPONDENT EXT.P3 TRUE COPY OF LICENCE NO.16/04-05 DATED 1.3.2004 ISSUED TO THE FIRST PETITIONER BY THE 3RD RESPONDENT PANCHAYAT EXT.P4 TRUE COPY OF LICENCE NO.0416/21/C2/96 DATED 20.2.2001 ISSUED BY THE ASSISTANT DRUGS CONTROLLER, THRISSUR TO THE 2ND PETITIONERS EXT.P5 TRUE COPY OF NOTICE IN FORM 10(b) NO.B-760/02 DATED 1.7.2004 ISSUED BY THE 2ND RESPONDENT EXT.P6 TRUE COPY OF THE NOTICE IN FORM NO.12, NO.B 760/02 DATED 1.7.2004 ISSUED BY THE 2ND RESPONDENT EXT.P7 PHOTOCOPY OF JUDGMENT OF THIS HON'BLE COURT DATED 29.10.2004 IN WP(C) NO.30353/2004 L EXT.P8 NOTIFICATION PUBLISHED BY PAVARATTY PANCHAYAT VIDE NO.B2-540/04 DATED 19.11.2004 IN MATHRUBHUMI (MALAYALAM) DAILY ON 24.11.2004 EXT.P9 PHOTOGRAPH REFERRED TO IN THE REPLY AFFIDAVIT EXT.P9(a) PHOTOGRAPH REFERRED TO IN THE REPLY AFFIDAVIT. EXT.P10 ROUGH SKETCH REFERRED TO IN THE REPLY AFFIDAVIT EXT.P11 PHOTOGRAPHS REFERRED TO IN THE AFFIDAVIT EXT.12 PHOTOCOPY OF RECEIPT NO.31987DATED 29.11.2007 ISSUED TO THE PETITIONERS FROM THE OFFICE OF 3RD RESPONDENT EXT.P13 PHOTOCOPY OF THE RENEWED LICENCE NOS.B3-85/07-08 AND B3-47/07-08 DATED 2.4.2007 ISSUED FROM THE OFFICE OF THIRD RESPONDENT TO THE PETITIONERS ## **RESPONDENTS' EXHIBITS:** EXT.R2(a) TRUE COPY OF NOTIFICATION NO.1245 DATED 27.8.2002, ORIGINAL AWARD AND SKETCH EXT.R4(a) TRUE COPY OF THE PETITION DATED 5.12.2003 FILED BEFORE THE SPECIAL TAHSILDAR, LAND ACQUISITION (GENERAL) TRICHUR EXT.R4(b) TRUE COPY OF THE PETITION FILED IN MARCH 2004 BEFORE THE -DO- DATED NIL ## **K. PADMANABHAN NAIR ,J.** ## **------------------------------------------------W.P.(C) No.20843 of 2004 F** ## **------------------------------------------------Dated, this the 10[th] day of January, 2008 JUDGMENT** Petitioners are the tenants of shop rooms situated in Pavaratty Grama Panchayat. Fourth respondent is the owner of the property situated in Sy.No.103/17 A and B of Pavaratty Village. The Pavaratty Grama Panchayat made a requisition to the District Collector, Thrissur to issue a notification under Section 4(1) of the Land Acquisition Act for acquisition of land including a portion of the land owned by the fourth respondent for the purpose of construction of an approach road to the bus stand. The land was acquired and award was also passed. Subsequently a notice under Rule 15(3) of the Land Acquisition Rules was served on the petitioners to vacate and handover the possession of the shop rooms to the Land Acquisition Officer on or before 16.7.2004. At that stage the petitioners have filed this Writ Petition for quashing the notification issued by the Land Acquisition Officer for acquiring the land situated in Sy.No.103/17A and B and also for a direction not to take possession of the shop rooms bearing door Nos. III/232 and III/233 since those shop rooms are not included in the acquisition proceedings. It was averred that the acquisition proceedings were restricted with respect to five shop rooms alone and there is no necessity to acquire the shop rooms in the possession of the petitioners. 2. The Land Acquisition Officer filed a counter affidavit stating that WP(C)No.20843/2004 2 the requisition was received from the Secretary, Pavaratty Panchayat on 30.2.2002 and land acquisition proceedings were initiated for acquiring an extent of 0.0533 hectares of land comprised in Sy.No.103/17 of Pavaratty Village for the construction of the approach road to the proposed bus stand. It was contended that the land under acquisition was dry land measuring an extent of 0.0533 heactares in Sy.No.103/17 of Pavaratty Village as well as the land and building having seven rooms situated in the Pavaratty Junction. It was also contended that a part of the building having five rooms was included in the land under acquisition. The owners of the land had expressed their desire that the whole building should be acquired and demanded compensation for the whole building since the retention of the remaining building would adversely affect the sustainability of the building. The request was considered and the entire building was acquired. Award was passed on 1.7.2004. An amount of Rs.13,76,983/- was deposited in the Sub Court, Thrissur under Section 31(2) of the Land Acquisition Act and notices under Section 12(2) of the Act were issued to the awardees as well as notices under Section 15(3) of the Act were issued to all tenants to vacate and deliver possession of land and building. 3. The fourth respondent filed a counter affidavit contending that on receipt of notice of acquisition land owners had expressed their desire to acquire the entire building. It was contended that total extent of property in question was 74 cents and out of which 54 cents were acquired earlier by the Pavaratty WP(C)No.20843/2004 3 Panchayat and now respondents 1 to 3 proposed to acquire 13 cents of land and five shop rooms leaving only seven cents of land and two shop rooms. It was also contended that the two shop rooms existing is covering the whole front portion of the seven cents of property so the fourth respondent is not in a position to enjoy the property without demolishing the same. It was contended that fourth respondent filed a petition exercising his option before passing the award and award was passed after considering the option exercised by him. 4. The petitioners filed a reply affidavit stating that the Pavaratty Panchayat wanted only the area mentioned in the notification. Subsequently the Panchayat filed W.P.(C) No.30554/2004 before this Court stating that they wanted only the demolition of five rooms and this Court as per judgment dated 20.10.2004 gave permission to the Panchayat to take possession of the five vacant rooms without causing any damages to the remaining two rooms. It was contended that the proposed acquisition was to construct an approach road and the entire properties notified were already acquired and no request was made for acquiring the seven cents of property by the Panchayat. 5. Section 4(1) notification was published in the Gazette on 27.8.2002 and in the locality on 31.8.2002. Section 6 declaration was issued on 15.5.2003. The award was passed on 1.7.2004. A reading of Ext.R2(a) shows that in addition to the land actually required for the construction of the road and also the portion of building remaining portion of the building was also valued. The tenants were WP(C)No.20843/2004 4 awarded shifting charges. 6. The main prayer in the petition is to quash the acquisition proceedings. It is settled law that once an award is passed the court shall not interfere with the acquisition proceedings. Further the petitioners are tenants doing business in the two rooms situated in the building in question. The locus standi of a tenant to challenge the land acquisition proceedings was considered in **Saramma Itticheriya v. State of Kerala (2008 (1) KLT 6 (FB)).** This Court partly overruled the decision reported in **Shaji C.Varkey and another v. Collector (2007 (1) KLT 790).** It was held that Section 49(1) of the Land Acquisition Act gives power to the owner whose house or building is partly acquired to express his desire to acquire the entire building. It was further held that the right of option given under Section 49(1) is only available to the owner and not anybody including any person interested or occupier, tenant, etc. It was also held that the right of option is to be exercised before passing of the award and so the option exercised cannot be withdrawn after passing of the award. It was further held that if the option of the owner to acquire the entire building as provided under Section 49(1) of the Act is accepted by the Land Acquisition Officer, tenant cannot challenge that decision. In this case the land owners had exercised their option before passing the award and that option was accepted by the Land Acquisition Officer. He had awarded value of the entire building and award was passed. In view of the principles laid down in Saramma Itticheriya's WP(C)No.20843/2004 5 case (supra) petitioners have no right to challenge the decision of the Land Acquisition Officer. The learned counsel for the petitioners tried to draw a distinction stating that unlike other cases in this case the purpose of the acquisition was already accomplished and the Panchayat do not require any further land or building portion for the construction of approach road. It is submitted that in the Writ Petition filed by the Panchayat before this Court Panchayath took a stand that it want only the acquired portion of land and five vacant rooms situated in that portion. This court took a view that the Writ Petition filed by the Panchayat can be disposed of granting relief No.1. In that Writ Petition this Court did not exclude the remaining shop rooms from acquisition. It is submitted by the learned counsel for the fourth respondent that W.P.(C). No.30554/2004 was disposed of at the time of admission itself without issuing notice to the fourth respondent and even if there was a direction to exclude the two rooms the fourth respondent is not bound by that decision. I have gone through the entire judgment. There is nothing in the judgment to show that the local authority requested this Court to exclude the two rooms. Even if the Panchayat had expressed such a desire that request was not considered and allowed. On the other hand the Writ Petition was disposed of without prejudice to the desire of the owner of the building to have acquisition of the two rooms occupied by the petitioners. Judgment was rendered on 20.10.2004. The award was passed long prior to that date. The entire building was acquired accepting the option exercised by the fourth respondent. Even if the WP(C)No.20843/2004 6 Panchayat had made a statement to the effect that the rooms occupied by the petitioners need not be acquired, the fourth respondent was not bound by such a concession. Further this Court did not consider that aspect in that case. Learned counsel for the petitioners submitted that the the petitioners were informed that the land owners had not exercised any option by filing a petition under Section 49 of the Act. This Court had directed the Land Acquisition Officer to produce the entire files and accordingly the same was produced. On verification, it is seen that before passing the award the land owners had filed petitions exercising their option under Section 49(1) of the Act. Such a petition was filed on 5.12.2003. Copies of the same are produced as Exts.R4(a) and R4(b). So there is no merit in the contention raised by the petitioners that the Land Acquisition Officer awarded value of the entire building though no option was exercised by the land owners. From what is stated above, there is no merit in the Writ Petition. It is only to be dismissed. Since the petitioners are doing business in the shop rooms in question they will be given two months time from today to surrender that building portion to the Land Acquisition Officer. In the result, Writ Petition is dismissed. ## **K. PADMANABHAN NAIR, JUDGE.** cks