Kerala High Court
The State Of Kerala vs Amina.M.K on 18 February, 2019
Equivalent citations: AIRONLINE 2019 KER 299
Author: Hrishikesh Roy
Bench: Hrishikesh Roy, A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940
WA.No. 118 of 2019
AGAINST THE JUDGMENT IN WP(C) 6149/2018 of HIGH COURT OF KERALA
DATED 28.11.2018
APPELLANTS/RESPONDENTS 1 & 2 IN WPC:
1. THE STATE OF KERALA
REPRESENTED BY THE SECRETARY,
REVENUE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE SPECIAL TAHSILDAR (LAND ACQUISITION),
KASARGOD, PIN- 671 123.
BY SR.GOVERNMENT PLEADER SRI.ARAVINDAKUMAR BABU
SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL
RESPONDENTS/PETITIONERS AND RESPONDENT 3 IN WPC:
1 AMINA.M.K, AGED 52 YEARS
W/O LATE ASKA ABDUL RAHMAN HAJI,RESIDING AT ASKA
COTTAGE, KOLAVAYAL (P.O), KASARAGOD DISTRICT.
2 MUHAMMED SADIQUE.P, AGED 29 YEARS
S/O.LATE ASKA ABDUL RAHMAN HAJI,RESIDING AT ASKA
COTTAGE,KOLAVAYAL(P.O), KASARAGOD DISTRICT.
3 SHAHID RAHMAN.P, AGED 22 YEARS
S/O LATE ASKA ABDUL RAHMAN HAJI,RESIDING AT ASKA
COTTAGE,KOLAVAYAL(P.O), KASARAGOD DISTRICT.
4 THE KERALA ROADS AND BRIDGES DEVELOPMENT CORPORATION,
SECOND FLOOR, PREETHI BUILDINGS,
MAHAKAVI VAILOPPILLI ROAD, KOCHI-682 025,
REPRESNTED BY ITS MANAGING DIRECTOR.
BY ADV. SHRI.JAWAHAR JOSE
BY ADV.SRI.SHYSON P.MANGUZHA
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.02.2019, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
W.A.No.118 of 2019
2
JUDGMENT
Hrishikesh Roy, C.J.
Heard the learned Senior Government Pleader Sri.Aravindakumar Babu appearing for the appellants. Also heard the learned counsel Sri.Jawahar Jose appearing for the respondents 1 to 3/writ petitioners.
2. The matter pertains to the acquisition of a property for construction of a Railway Over Bridge in the Kasaragod town and the issue to be considered is whether the writ petitioners' claim, to retain the undemolished portion of the commercial building, notwithstanding the acquisition compensation plus solatium received for the entire building under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (the 2013 Act for short), can be allowed.
3. The learned Government Pleader Sri.Aravindakumar Babu would submit that since the property owner was compensated for the value of the entire building, he cannot be permitted to argue that the balance portion of the building could be permitted to be retained for use, by the property owner.
4. On the other hand, the learned counsel Sri.Jawahar Jose appearing for the writ petitioners would argue that the State is in need of only a portion of the commercial building and that portion has already been demolished. Hence, there can be no basis to deny the utilisation of the balance part of the still undemolished structure, as the same is not needed by the State for the Railway Over Bridge project.
5. In the impugned judgment dated 28.11.2018 in the W.P.(C)No.6149 of 2018, the learned Judge, after referring to the aforesaid contention of the parties, declared W.A.No.118 of 2019 3 that the mere fact that the compensation had been awarded for the entire building, the plea of the building owner to retain possession of the undemolished part of the building cannot be rejected outright. It was observed that if the building standing in the unacquired land is stable by itself and if it is possible to use the same even after providing all statutory set backs, insistence by the Kerala Roads and Bridges Development Corporation (respondent No.4) for demolition of the entire building, cannot be entertained. The learned Judge observed that the right of the respondents is only with regard to the acquired land as defined under the 2013 Act and the same right cannot be extended to insist that the portion of the building in the land vesting on the owner is also to be demolished merely because, compensation of the entire building was received by the building owner. On the basis of such notings, the learned Judge issued direction to the respondents to consider the request of the writ petitioners for keeping apart the undemolished part of the building, standing in the unacquired land.
6. On due consideration of the submission made before us, we are of the considered view that the above direction in the impugned judgment would require no interference by us because the land covering the undemolished part of the building was never acquired by the authorities. Therefore, it would not be appropriate to declare any right of the authorities to destroy the undemolished part of the building standing on the unacquired land. While it may be that the compensation was assessed for the entire building and the same was received by the property owner, this by itself would not justify the insistence on demolition of the entire building, if the same is not needed for the project, for which the acquisition process was undertaken, under the 2013 Act. We must also note that the State never had a case that excess compensation was paid for the building in question and therefore, they cannot press that aspect in support of this W.A.No.118 of 2019 4 Appeal.
7. The Writ Appeal is thus found devoid of merit and the same is accordingly dismissed.
Sd/-
Hrishikesh Roy, Chief Justice Sd/-
A.K.Jayasankaran Nambiar, Judge vpv W.A.No.118 of 2019 5 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE A(1): REPLY AFFIDAVIT FILED BY THE WRIT PETITIONER. ANNEXURE A2(a): TRUE COPY OF THE PWD VALUATION CERTIFICATE WITH RESPECT TO THE BUILDING.
ANNEXURE A2(b): COPIES OF THE PHOTOGRAPHS SHOWING THE FRONT VIEW OF THE BUILDING.
ANNEXURE A2(c): COPIES OF THE PHOTOGRAPHS SHOWING THE REAR VIEW OF THE BUILDING.
ANNEXURE A2(d): TRUE COPY OF THE APPLICATION FOR REFERENCE FILED UNDER SECTION 64 OF THE ACT.
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.A. TO JUDGE