IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16853 of 2009(B)
1. BETTY CHARLEY, AGED 44 YEARS,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. THE DISTRICT COLLECTOR,
3. THE EXECUTIVE ENGINEER,
4. THE SPECIAL TAHSILDAR (L.A.) (N.H.),
5. BENNY RAJ SEBASTIAN,
6. AMBIRAJ SEBASTIAN,
For Petitioner :SRI.RENJITH B.MARAR
For Respondent :SRI.MATHEW JOHN (K)
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :02/07/2009
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J
...........................................
WP(C).NOs. 16853 & 16865 OF 2009
............................................
DATED THIS THE 2nd DAY OF JULY, 2009
JUDGMENT
Bennyraj, Ambiraj and Thankaraj, by blood, are brothers;
but not by heart. They could not even find peace to see their
mother together in spite of the learned Judges of the Division
Bench trying to persuade these three brothers to an amicable
settlement of the disputes between them. But the case in hand
does not really concern those disputes.
2. The petitioner in WP(C)16853 of 2009 is a tenant of Ambi
raj and the petitioner in WP(C)16865 of 2009 is one of the
tenants of Benny Raj. He had, along with others, filed an earlier
writ petition viz, WP(C)32329 of 2008, which was dismissed by
the judgment dated 18.11.2008, on the ground that the tenants
are not entitled to challenge the option exercised by the land
owner, under Section 49(1) of the Land Acquisition Act 1894,
following the Full Bench decision in Saramma Itticheriya V.
State of Kerala (2008(1) KLT 6).
3. On the basis of a notification under Section 4(1) of the
Land acquisition Act, a portion of the building which is a shop
room, fell for acquisition. That parcel belonged to Benny Raj, who
Wpc 16853/09 2
had a remaining portion of the building also with him. He
therefore exercised the option under Section 49(1). No part of
the building belonging to Ambiraj is dependent on any option
exercised by the said person under Section 49(1).
4. The plea of the petitioners in these writ petitions is that
notwithstanding the acquisition of the whole of the building
belonging to Bennyraj by virtue of the option exercised by him
under Section 49(1) of the Act, the Collector is not ipso facto
obliged to pull down the entire building. The tenants accordingly
contend that notwithstanding the option and the consequential
acquisition by virtue of the decision of the Collector under Section
49, the question of demolition of that portion of the building
which does not fall within the alignment covered by Section 4(1)
notification has to be independently considered by the Collector,
since the tenants would be entitled to different rights relatable to
easement and other protective covers. These are matters which
may arise for decision, if at all, only when the Collector decides to
pull down the whole of the structure. It is a matter of record of
this court that in Writ Appeals arising from the litigations
between the brothers and also some other tenants including the
Wpc 16853/09 3
petitioner in WP(C) 16865 of 2009, the Engineers had reported to
the Division Bench of this court that it is not feasible to pull down
only a portion of the entire holding of Ambiraj and Thankaraj
having regard to the nature of the building and also its age. But it
is not necessary for this court to go into those issues as of now,
particularly when the petitioner in WP(C)16865 of 2009, in so far
as his right to challenge the option exercised by his landlord
under Section 49(1) stands concluded by the judgment afore
referred to and because issues inter se the brothers, the
landlords, no more survive the decision of the Division Bench. 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.
THOTTATHIL B RADHAKRISHNAN,
JUDGE
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