Shaj v. Collector — 1998 DIGILAW 26 (KER)

Judgment :- K.A. Abdul Gafoor, J. Petitioners in both these cases are the same persons. First, I am dealing with OP. No. 10420 of 1997. In this case, petitioners seek a direction commanding respondents 1 and 2 to refrain from acting on Ext. P1 representation and also from demolishing any portion of the building bearing T.C. No. 28/2222 in the Pazhavangadi - Over bridge Road in excess of the alignment proposed for the purpose of acquisition proceedings following notification No. L. A2/151/97 dated 17.4.1997 issued by the first respondent. They also seek a declaration that S.49 of the Land Acquisition Act, 1894 cannot be invoked in respect of a portion of the building which is notified to be acquired for public purpose of development of road and allied purposes. The first respondent is the Collector under the Land Acquisition Act. The Second respondent is the Asst. Engineer, PWD., City Road Section, Ext. P1 is a representation stated to be made by respondents 3 and 4 before the second respondent with a prayer to make arrangements to demolish the remaining portion of the building also. It is not in dispute before me that a portion of the land, where the said building is situated was outside the land notified to be acquired by the first respondent. The building is owned by respondents 3 and 4 and petitioners are the tenants under them, in respect of the said building. It is also not in dispute before me that a portion of the said building falls within the land notified to be acquired as per notification dated 17.4.1997. Thus a portion of the building alone falls within the notified are : 2. Petitioners have approached this Court seeking a direction as mentioned above, not to demolish the remaining portion of the building situated in the 1 and which does not form part of the land notified for acquisition. It is contended in the Original Petition that the second respondent has no authority to receive and act upon a request under section 49 of the Land Acquisition Act, because it is the domain of the Collector, concerned. Therefore, Ext. P1 cannot be acted upon. The petitioners are well justified in that regard. The second respondent cannot act upon Ext. P1, unless there is an order from the first respondent Collector. 3. Therefore, Ext. P1 cannot be acted upon. The petitioners are well justified in that regard. The second respondent cannot act upon Ext. P1, unless there is an order from the first respondent Collector. 3. So long as the petitioners also seek a direction against respondent No. 1, not to demolish the remaining portion of the building situated in that portion of the land which does not form part of the land notified, the issue has to be examined in depth. Whether the Collector can demolish that part of the building is a matter to be decided. 4. A plain reading of S.49(1) makes it clear that "the provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desires, that the whole of such house, manufactory or building shall be so acquired". In other words, without the permission of the owner concerned, the Collector under the Land Acquisition Act cannot acquire a portion of the building. Therefore, the Collector shall have, in such circumstances, if he feels that the land is absolutely essential for the purpose, to acquire the remaining portion of the building, if there is any request for acquiring that portion as well. 5. It is contended by the counsel for the petitioners relying on the decisions reported in Kaushlendra Prasad Narain Singh.& Ann, Petitioners v. The State of Bihar & Ors., respondents (AIR 1978 Patna 64), Bai Malimabu & Ors. v. State of Gujarat & Ors. (AIR 1978 SC 515), State of Bihar & Ann v. Kundan Singh & Ann (AIR 1964 SC 350), P.V. Lakshmi Ammal v. State of Madras & Ann (AIR 1955 Madras 119) and Province of Bengal, Petitioner v. Mahes Missir & Ors., Opposite Party (AIR 1941 Calcutta 625) that whenever the land owner makes a request for acquiring the remaining portion of the building situated in that portion of the land which does not form part of the land notified, that request shall not contain a request to acquire the land where the remaining portion of the building is situated. In other words, the remaining part of the land also shall be required to be acquired by the owner. He cannot confine his request to the remaining part of the building alone. 6. In other words, the remaining part of the land also shall be required to be acquired by the owner. He cannot confine his request to the remaining part of the building alone. 6. According to me, the dictum laid down in Kaushlendra Prasad Narain Singh & anr., Petitioners v. The State of Bihar & Ors., respondents (AIR 1978 Patna 64) does not attract to the facts of this case. There, a portion of the land measuring 7.69 acres containing a double storeyed residential building was notified to be acquired. The area of the land notified to be acquired out of this was 0.92 acre in the compound of that building, named Lalkothy. It was contended there that the land sought to be acquired is just by the side of the portico of the residential building. Accordingly, the owners filed an objection under S.5(A), which was ultimately rejected. It was also contended that the State Government cannot acquire only a portion of the land of the compound; or else they should have acquired the entire land of the petitioners in accordance with the provisions of S.49 of the Act. Dealing with this contention, it was held in para 17 of the said judgment as follows: "17. S.49 of the Act has got no application to the case. That would have applied only if the petitioners should have expressed their desire to the Collector that whole of the compound including the building should be acquired. There is nothing on the record to indicate that the petitioners expressed such a desire to the Collector. It is not, therefore, open to them to contend that the portion of the land cannot be acquired in view of the contravention of provisions of S.49 of the Act". I mentioned that the dictum in the Full Bench Decision of the Patna High Court is not applicable as per the pleadings. Here, there is a petition, Ext. R4(e), submitted by the respondent Nos. 3 and 4, the owners of the land, before the first respondent, Collector. Thus, there was a request under S.49(1) (whether this is a request in conformity with S.49 would be discussed later). So long as there was such a request, the aforesaid dictum of the Full Bench of Patna High Court cannot be applied in this case. 7. 3 and 4, the owners of the land, before the first respondent, Collector. Thus, there was a request under S.49(1) (whether this is a request in conformity with S.49 would be discussed later). So long as there was such a request, the aforesaid dictum of the Full Bench of Patna High Court cannot be applied in this case. 7. The case which was dealt with in P.V. Lakshmi Ammal v. State of Madras & Ann (AIR 1955 Madras, 119) is in respect of a notification of 28 cents of land which formed the courtyard of a residential building and in which situated a cow shed, out house etc. of the residential building. Discussing the two opinions of the land owner in terms of Section 49(1) and the clause fourthly of S.23, the Court held as follows: "Section 49(1) and Sub-s.(4) of S.23(1) of the Act refer to two alternatives which are open to the owner of a property which is being acquired to adopt. It is admitted in-the present case that the petitioner did not express her desire that the entire building should be acquired on the footing, that it was only a part of the building that was the subject-matter of acquisition by the Government." Thus, this was also a case where the land owner did not express her desire in terms of S.49(1).' 8. I need not discuss anything decided in Bai Malimabu & Ors. v. State of Gujarat & Ors. (AIR 1978 SC 515) because what is relied on therein by the counsel for the petitioner is with respect to the meaning of the land which also includes building. That is clear from S.3(a) itself which reads that'the expression "land" includes benefits to arise out of land, and-things attached to the earth or permanently fastened to anything attached to the earth. Thus, the definition is an inclusive definition. So, whenever the word 'land' is used either in the notification or in the Act, necessarily, in accordance' with the context, it has to be taken that that word indicated everything permanently fastened on such land including the building. But when building is made mention of in the Act, whether that will also include the land as contended by the petitioner is not discernible from that decision. Certainly, an inclusive definition is to include certain other things also to the term defined. But when building is made mention of in the Act, whether that will also include the land as contended by the petitioner is not discernible from that decision. Certainly, an inclusive definition is to include certain other things also to the term defined. That will not make to include in the included thing the main item which is defined in the section. 9. The decision reported in State of Bihar & Ann v. Kundan Singh & Ann (AIR 1964 SC 350) also does not need any consideration because law laid down in that decision is that application under S.49(1) shall be to the Collector. There cannot be any dispute because S.49(1) contains injunction against the State, not to acquire any part of building unless the owner desires the whole of such building to be acquired. Naturally, an application expressing that desire shall be to the Collector himself. 10. The decision reported in Province of Bengal, petitioner v. Makes Missir & Ors., Opposite Party (AIR 1941 Calcutta 625) is with regard to the reference to be made under proviso to S.49. So, that is not a matter relevant to the fact in issue here. 11. When the third and 4th respondents filed a counter affidavit on 12.11.1997 it is contended by the petitioner that there was no reference to any application made before the first respondent Collector. But it is averred in paragraph 16 of the counter affidavit that they had exercised their opinion under S.49 of the Land Acquisition Act for acquiring the entire building. At the same time, in the counter affidavit filed by the 4th respondent, she has produced Ext. R4(e), which is addressed to the Special Tahsildar (LA) requesting him to make arrangements to demolish the acquired portion and the remaining portion of the building, through the Department. It is also contended that the land owner has a exclusive right under S.49(1) of the Act to request the acquisition authorities to acquire the entire building. When such a request is made, the Land Acquisition Officer has the only option either to acquire the entire building or to drop the acquisition proceedings itself. 12. It is also contended that the land owner has a exclusive right under S.49(1) of the Act to request the acquisition authorities to acquire the entire building. When such a request is made, the Land Acquisition Officer has the only option either to acquire the entire building or to drop the acquisition proceedings itself. 12. The learned counsel also cited a decision of Division Bench of this Court reported in Mohammed v. Project Director (1993 (1) KLT 730) to contend that S.49 can be pressed into service for the purpose of acquiring the entire building, if the owner desires so. 13. The counter affidavit on behalf of respondent No.1 show that an award enquiry was conducted on 19.6.97 and that respondents 3 and 4 submitted a petition requesting to demolish the entire building through the Department. This petition was submitted, as contended by respondent No. 1, along with another petition dated 19.6.97, detailing the nature of the rights they had in the property. Thus, on 19.6.97, two petitions had been submitted before the Collector according to the first respondent. Files produced before the discloses that one among them is pursuant to the notice dated 4.6.97, requiring them to appear and put up in a statement, the nature of their interest in the land and another petition is with the following request: "In view of the age of the buildings, and the nature of the construction, the demolition of a portion of the building will affect the structural stability of the remaining portion and it would pose a danger to the occupants and to passers by. Hence, it is requested that arrangements may be made to have demolish the acquired portion and the remaining portion of the building also to be demolished, through the Department". This is the same as Ext. R4(e). Thus, it is evident that there was a request made by the respondents 3 and 4 before the Collector concerned, the first respondent to demolish the entire building: in other words, to demolish, along with the acquired part, the part of the building which is situated in the property, which is not included in the notification. It is contended as mentioned above, by the counsel for the petitioner that such a request cannot be taken as a request to acquire the remaining part of the building in terms of S.49(1) of the Act. It is contended as mentioned above, by the counsel for the petitioner that such a request cannot be taken as a request to acquire the remaining part of the building in terms of S.49(1) of the Act. Actually no petition is necessary in terms of the said sub section, because, what is mentioned in the said sub section is that the land owner shall express his desire to acquire the entire building. The case put up in Ext. R4(e) is that a building, when demolished party will lose its stability to stand by itself and' therefore, it will cause danger to the passers by and also to the occupants. Thus, the effect of Ext. R4(e) the original of which is found in the file, is that the entire building shall be taken. Therefore, even though the words that the entire building shall be acquired are absent in the said representation, it has to be taken as an expression of desire in terms of S.49(1). Therefore, the contention of the counsel for the petitioners that there was no petition under S.49(1) cannot be accepted. 14. Another contention of the counsel for the petitioners is that the land owner cannot opt for acquiring the remaining part of the building alone, but can opt for acquiring the remaining part of the building and the land in which that remaining part of the building situates. In other words, the desire expressed in terms of S.49(1) shall be to acquire the land which includes the building. In order to substantiate this contention, counsel for the petitioners also points out the effect of S.49(2) which mentions about'the land to be acquired' and 'the whole of the land'. The counsel also pointed out the definition of the word land in S.3(a) and contended that the land mentioned in sub-s.2 of S.49 shall include land and building. Therefore, "any house, manufactory or other building" mentioned in sub-s.1 of S.49 shall also include the land. With great consideration to the senior counsel, I cannot agree to that contention, because, what is defined in S.3(a) is a land to include the building also. When a piece of land is notified in terms of S.4(1), there may be or may not be structures on such piece of land. Therefore, the notification to acquire the piece of land includes, whatever fixed to the earth permanently. When a piece of land is notified in terms of S.4(1), there may be or may not be structures on such piece of land. Therefore, the notification to acquire the piece of land includes, whatever fixed to the earth permanently. The definition of land under S.3(a) is inclusive definition to include in it, the building as well, when land alone is mentioned. But not vise versa. It will not include in the included thing, what is broadly defined. In other words, when land is mentioned, it will include building as well. But when building alone is mentioned in the statute, on the strength of definition Section in 3(a), the building will not include the land as well. 15. Further contention of the counsel is that S.49(1) shall be interpreted, also taking into account S.49(2) because both are two sides of the same right that a land owner will be having in the event of acquisition of his properties. A reading of S.49 as a whole will make it clear that the right available to the land owner under S. 49(1) and the right available under S.49(2) are two distinct and separate rights. The first one is when the acquisition is in respect of a land wherein a part of the building is situated. In such circumstances, the land owner can say that the land cannot be acquired unless the entire building is acquired, because as already mentioned above, S.49(1) is a prohibition on the State that, the provisions of the Land Acquisition Act shall not be put in force for the purpose of acquiring a part of the building alone without the consent of the owner. On the other hand, if the State wants to proceed with the acquisition of a piece of land in which a part of the building situates, when the land owner expresses his desire to acquire the whole of the building, the State cannot have any option, but to acquire the entire building. When such a building is acquired totally, the State will not get any right over the land in which that remaining portion of the building situated. So, the right available under S.49(1) is confined to the building and it does not have any application to the land which does not form part of the notification under S.4(1). When such a building is acquired totally, the State will not get any right over the land in which that remaining portion of the building situated. So, the right available under S.49(1) is confined to the building and it does not have any application to the land which does not form part of the notification under S.4(1). That is why the second proviso provides for a dispute as to whether the land notified for acquisition (which included a building also in terms of definition under S.3 (a)) does or does not form part of the house being adjudicated by the Court. 16. On the other hand, sub-s.2 of S.49 is in the matter considering the determination of compensation. S.2 appeals if there is a claim under the head, thirdly of S.23(1) as to the damages (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of "severing such land from his other land". The principles under S.23 is made applicable for the proceedings before the Collector in terms of S.15 of the Act. So, sub-s.2 of S.49 is available not only in respect of the building, but also in respect of the land. Even if there is no building, the land owner can, when a portion of his land is acquired and the remaining portion rendered useless, exercise the right available under S.49(2), in the matter of determining the compensation payable to him. That is not confined to the building, as in the case of S.49(1). 17. It was also contended before the by the counsel for the petitioner placing reliance on Para 10 of the judgment reported in Mohammed v. Project Director (1993 (1) KLT 730) that it is not discernible whether the land owner in that case desired to acquire the remaining part of the building as well as that portion of the land on which the remaining part situated. Therefore, the dictum in the said decision cannot be applied to the case on hand. Therefore, the dictum in the said decision cannot be applied to the case on hand. But it is clear from para 2 of the said judgment that "since a portion of the building alone fell within the notified area, respondent No. 15 onwards, who are the owners, expressed their intention to have the entire building acquired.-" Thus, that case was also in respect of the acquisition of the entire building and not the building with the land where the remaining part of the building situated. In para 1.0, the Division Bench had stated about the effect of S.49(1) that '.'provisions of the Act cannot be pressed into service for the purpose of acquiring only a part of a building if the owner desires to have the whole of it acquired. In such a situation, the Collector may decide to acquire the whole of the building as desired by the owner. Consequently, further proceedings can be continued as if the whole of the house is being acquired. Therefore, when a desire is expressed in terms of S.49(1) by the land owner concerned, the Collector has no option, but to acquire the entire building. 18. It is further contended by the counsel for the petitioner that such acquisition will result in the eviction of the petitioners, tenants under respondents 3 and 4. That will be contrary to the provisions under the Kerala Buildings (Lease & Rent Control) Act, 19 65 which provides for eviction of the tenants in the notified area. Petitioners contend that this provision will be taken as a tool in the hands of a landlord to evict the tenant concerned. Merely because eviction of the tenants are provided for in the said Act, the owner cannot be denied of the rights available under S.49(1) of the Act when his property is acquired. That is the special law with regard to the acquisition of the properties and when a specific right is conferred on the land owner as per S.49(1), he cannot be deprived of that right relying on the provisions of the Kerala Buildings (Lease & Rent Control) Act. 19. That is the special law with regard to the acquisition of the properties and when a specific right is conferred on the land owner as per S.49(1), he cannot be deprived of that right relying on the provisions of the Kerala Buildings (Lease & Rent Control) Act. 19. In the above circumstances, I am of the view that the petitioners cannot get a direction to the Collector, the first respondent to refrain from demolishing any portion of the building bearing T.C. No. 28/2222 in the Pazhavangadi - Over bridge Road in excess of the alignment proposed for the purpose of the acquisition proceedings following notification No. L.A 2/151/97 dated 17,4.1997, as prayed for in the Original Petition. They cannot also get a declaration that S.49 of the Land Acquisition Act cannot be invoked in relation to the acquisition of a portion of the building which is situated in the notified area and other portion situated in the area not included in the notification. The Original Petition No. 10420 of 1997 therefore, fails. Dismissed. 20. Next, I deal with O.P. No. 10780 of 1997 filed by the same petitioners. In this Original Petition, petitioners seek a declaration that "in view of the provisions of the Land Acquisition Act, 1894 s the Transfer of Property Act and the Kerala Buildings (Lease & Rent Control) Act, 1965, the rolling shutter affixed to the building bearing T.C. No. 28/2222 (City Wear) within the limits of the Corporation of Thiruvananthapuram is not liable to be ordered to be removed by the second respondent in exercise of the power under the S.406 of the Kerala Municipality Act, 1994". The second respondent is the Corporation of Thiruvananthapuram. The petitioners also challenge Ext. P3, which is an order directing the petitioners to dismantle the portion unlawfully constructed, within three days from the date of receipt of such notice and informing them that, if they fail to do so, they will be liable to be prosecuted under S.406(4) of the said Act and that the un authorised construction will be demolished at their cost under S.533 of the Act. 21. It is contended by the respondents in this case that petitioners are given only a notice and that they have an opportunity to show cause which the petitioners had availed of and therefore, no relief can be granted in this Original Petition. 22. 21. It is contended by the respondents in this case that petitioners are given only a notice and that they have an opportunity to show cause which the petitioners had availed of and therefore, no relief can be granted in this Original Petition. 22. The petitioners are the tenants in respect of a building, a part of which is acquired. Consequently, that part is being demolished. Lakhs worth properties of the petitioners are kept inside the building. When the acquired part is demolished, naturally, the petitioners cannot keep safely, the articles of business in the building. That was an emergent situation, which required immediate action on the part of the petitioner's to protect their properties in the building which they are using as a business place. Therefore, they erected a rolling shutter in order to protect their valuables inside the shop, as there is a threat of demolition, rendering the building unsafe. Erection of rolling shutter also will come within the word 'construction'. The local civic body should have viewed the matter in the specific situation which compelled the petitioners to put up very urgently, a rolling shutter. They had not extended the plinth area of the building. Therefore, the Corporation in Ext. P3 had acted without adverting to the situation which necessitated such fixing of rolling shutters. It is well settled that man is not made for the law, but law is made for man and law is to meet certain situations which man faces. Without erecting the rolling shutter, when there is threat of demolition of the part of building, petitioners would not have protected their properties in the said building. Therefore, I am of the view that the Corporation, before issuing Ext. P3 order, threatening removal of the rolling shutter should have appreciated the situation as the civic body should have done. It is not the case that the Corporation is unaware of the law relating to Land Acquisition Act. Therefore, I quash Ext. P3 and restrain the Corporation from demolishing the rolling shutter fixed by the petitioners in order to protect their properties in the building when there is threat of demolition of a part of it on the strength of Land Acquisition Notification. I direct so, because, in terms of my judgment in O.P. No. 10420 of 1997, the entire building has to be demolished. Therefore, there is no point in Corporation pursuing Ext. I direct so, because, in terms of my judgment in O.P. No. 10420 of 1997, the entire building has to be demolished. Therefore, there is no point in Corporation pursuing Ext. P3 as well.