W.A. Nos. 1762 & 1827 of 1997 & W.P.(C) Nos.786 & 5863 of 2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR** **&** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933** **WA.No. 1762 of 1997(B)** **---------------------AGAINST THE JUDGEMENT/ORDER IN OP.10776/1997 Dated 28/08/1997** **....................** ## **APPELLANT(S)/PETITIONER IN OP:** **---------------------------------------------------** **J.RADHAKRISHNAN, PROPRIETOR, HOTEL ANANTHAPURI, T.C.28/2297, OVR BRIDGE, THIRUVANANTHAPURAM, RESIDING AT SEETHALAKSHMI BHAVAN, T.C.28/1840, FORT, THIRUVANANTHAPURAM 695 023.** **BY ADV. SRI.S.JAMES VINCENT SRI.GODWIN J.JOHN SRI.T.P.RAMESH SRI.BIJU BALAKRISHNAN** ## **RESPONDENT(S)/RESPONDENTS IN O.P.:** **----------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.** **3. THE SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT (SOUTHERN CIRCLE), NATIONAL HIGHWAY, THIRUVANANTHAPURAM.** **4. THE SPECIAL TAHSILDAR (L.A.), PUBLIC WORKS DEPARTMENT, SOUTHERN CIRCLE, THIRUVANANTHAPURAM.** **5. PRAKASH T.NATH, MINOR, REPRESENTED BY HIS MOTHER S.KUMARI, ARUNA BUILDINGS, T.C. 8/937(1), THYCUAD, THIRUVANANTHAPURAM.** **6. S.KUMARI, OF DO.DO.** - **ADV. SRI.M.S.RADHAKRISHNAN NAIR SR.GOVERNMENT PLEADER SMT.K.MEERA** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2011, ALONG WITH WA NO. 1827 OF 1997, WPC NO. 786 OF 2006 AND WPC NO. 5863 OF 2006, THE COURT ON 11/4/2011 DELIVERED THE FOLLOWING:** ## **J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.A. Nos. 1762 & 1827 OF 1997 & W.P.(C) Nos.786 & 5863 OF 2006 ===========================** ## **Dated this the 11[th] day of April, 2011** ## **J U D G M E N T** ## **Antony Dominic, J.** The appellants in the writ appeals and the petitioners in the writ petitions are tenants of the respective buildings in their occupation. The issues raised in these proceedings are in relation to the acquisition of property for widening of the MG Road, Thiruvananthapuram from the Over Bridge Junction to East Fort. Several buildings are situated in the place where the land is sought to be acquired and part of the buildings were also sought to be acquired by the notification issued under Section 4(1) of the Land Acquisition Act, 1894. Once the notification was issued, the owners of the respective buildings exercised their option under Section 49 of the Act for acquisition of the entire buildings. 2. It was at that stage the writ petitions leading to WA No.1762/97 and the other two writ petitions were filed by the tenants. In so far as OP No.10776/97 which led to the filing of WA No.1762/97 is concerned, the Original Petition was dismissed by ## **W.A. Nos. 1762 & 1827 OF 1997 & W.P.(C) Nos.786 & 5863 OF 2006** : 2 : judgment dated 28[th] of August, 1997 where a learned Single Judge of this Court held that if the owner of a property exercise his statutory right under Section 49(1) of the Act, the tenant has no right to object to the option exercised. 3. In so far as OP No.15091/97 which led to the filing of WA No.1827/97 is concerned, the petitioner therein is the owner of a building who exercised his option under Section 49 of the Act. Orders were not passed on the application and therefore he filed the OP. The case was disposed of by judgment dated 11[th] of September,1997 directing the land acquisition officer to pass orders on Ext.P3 application of the owner of the building. It is that judgment, which is challenged by the tenant in WA No.1827/97. 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 ## **W.A. Nos. 1762 & 1827 OF 1997 & W.P.(C) Nos.786 & 5863 OF 2006** : 3 : 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. 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 ## **W.A. Nos. 1762 & 1827 OF 1997 & W.P.(C) Nos.786 & 5863 OF 2006** : 4 : 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 ## **W.A. Nos. 1762 & 1827 OF 1997 & W.P.(C) Nos.786 & 5863 OF 2006** : 5 : Acquisition Act 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_ **W.A. Nos. 1762 & 1827 OF 1997 & W.P.(C) Nos.786 & 5863 OF 2006** : 6 : ## _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;_ _(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)._ 8. This judgment is a complete answer to the objections raised by the tenants against the options exercised by the landlords. 9. In the light of the above, the contentions raised by the appellant in WA No.1762/97 and the petitioners in WP(C) No.786/06 and 5863/06, who are all tenants of the respective ## **W.A. Nos. 1762 & 1827 OF 1997 & W.P.(C) Nos.786 & 5863 OF 2006** : 7 : buildings are only to be rejected and the appeal and the writ petitions are dismissed accordingly. 10. In so far as WA No.1827/97 is concerned, as we have already indicated, the only direction issued by the learned Single Judge was to direct the Land Acquisition Officer to pass orders on the application made by the owner of the building in exercise of his right under Section 49(1) of the Land Acquisition Act. In view of the law laid down by the Full Bench in _**Saramma Itticheriya's case**_ (supra), the direction is unassailable and for that reason itself, the appeal is only to be dismissed and we do so. In the result, the appeals and the writ petitions will stand dismissed. **J.CHELAMESWAR CHIEF JUSTICE.** **ANTONY DOMINIC JUDGE.** Rp