M.V.Abdul Nazar vs State Of Kerala – Represented By on 21 May, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 33898 of 2008(I)


1. M.V.ABDUL NAZAR, MUTTUKARAN VAYALIE,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA - REPRESENTED BY
                       ...       Respondent

2. THE DISTRICT COLLECTOR,

3. THE SPECIAL TAHSILDAR (L.A)

                For Petitioner  :SRI.M.SASINDRAN

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN

 Dated :21/05/2009

 O R D E R
               THOTTATHIL B RADHAKRISHNAN, J
                  ...........................................
                 WP(C).NO. 33898                 OF 2008
                  ............................................
            DATED THIS THE 21st DAY OF MAY, 2009

                                JUDGMENT

The petitioner is the owner of an item of land on which a

building stands. A portion of that was sought to be acquired for

the widening of a road. It appears that the petitioner invoked the

provisions of Section 49(1) of the Land Acquisition Act, 1894 and

applied to the Collector that the whole of the house/building be

acquired. Going by the counter affidavit, the stand taken by the

respondents is that only a very limited portion of a zinc sheet

projection falls in the alignment and there is no requirement to

acquire the building as a whole. That is an issue on which a

dispute may arise between the owner and the Collector. The

second proviso to Section 49(1) requires such question to be

determined by the court and the Collector is duty bound in terms

of that provision to make a reference of that issue. The court, in

deciding such a reference, shall be guided by the immediately

succeeding paragraph in Section 49(1), occuring after the second

proviso.

WP(C) 33898/2008 2

2. For the foregoing reasons, this writ petition is ordered

directing that the question as to whether the land proposed to be

taken in acquisition does or does not form part of the

house/building within the meaning of Section 49(1) shall be

referred by the Collector to the appropriate court. It is clarified

that this judgment does not stand in the way of the possession

regarding the land including any structure which has to be

acquired in terms of the notification. Let the needful be done

following the judgment at the earliest. Writ petition ordered

accordingly.

THOTTATHIL B RADHAKRISHNAN,
JUDGE

lgk/22/5