Sadik K.M vs Special Deputy Collector
2021 Latest Caselaw 8201 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

   WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942

                      W.P.(C) No.6188 OF 2021(W)


PETITIONER:

               SADIK K.M.,
               AGED 42 YEARS, S/O ABDUL KAREEM K.M,
               KAREEM MANZIL,
               PALLIKKAL, KANDATHIL PALLI ROAD,
               P.O. THALANGARA, KASARGOD.

               BY ADVS.
               SRI.M.V.AMARESAN
               SRI.S.S.ARAVIND

RESPONDENT:

               SPECIAL DEPUTY COLLECTOR,
               LAND ACQUISITION(NATIONAL HIGHWAY),
               ANANGOOR P.O., KASARGOD DISTRICT.
               PIN-671 121.

               SMT.A.C.VIDHYA, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.6188 OF 2021(W)
                                  -2-


                             JUDGMENT

The petitioner, who is one of the legal heirs of landed

property having an extent of 24.3 cents of land in Kasaragod

District, comprised in Re.Sy.Nos.207/2B and 207/4C2 with a

multi-storeyed building originally belongs to Sri.T.K.Aboobacker

and Sri.K.M.Abdul Kareem, by virtue of Ext.P1 sale deed

No.2621/1991 of the Sub Registrar Office, Kasaragod, has filed

this writ petition under Article 226 of the Constitution of India

seeking a writ of mandamus commanding the respondent to

consider and take final decision on Ext.P6 representation, within a

short span of time. The petitioner has also sought for a declaration

that the respondent is liable to acquire remaining land and building

covered by Ext.P1, which is left out, after acquisition as per Ext.P4

mahazar and to pay compensation; a declaration that the

petitioner is injuriously affected by Ext.P4 acquisition from Ext.P1

property; and a direction to the respondent to acquire property

and the building left out in Ext.P1, after acquisition from it as per

Ext.P4.

2. Heard the learned counsel for the petitioner and also

the learned Government Pleader appearing for the respondent.

3. The learned counsel for the petitioner seeks W.P.(C) No.6188 OF 2021(W)

consideration of Ext.P6 representation by the Land Acquisition

Officer, the respondent herein.

4. In State of U.P. v. Harish Chandra [(1996) 9 SCC

309] the Apex Court held that no mandamus can be issued to

direct the Government to refrain from enforcing the provisions of

law or to do something which is contrary to law. In Bhaskara Rao

A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated

that, generally, no Court has competence to issue a direction

contrary to law nor can the Court direct an authority to act in

contravention of the statutory provisions. The courts are meant to

enforce the rule of law and not to pass the orders or directions

which are contrary to what has been injected by law.

5. Section 94 of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement

Act, 2013 deals with acquisition of part of house or building.

Section 94 of the Act, which is pari materia to Section 49 of the

Land Acquisition Act, 1894, reads thus;

"S.94:Acquisition of part of house or building : (1) 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:

W.P.(C) No.6188 OF 2021(W)

Provided that, if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building within the meaning of this section, the Collector shall refer the determination of such question to the Authority concerned and shall not be taken possession of such land until after the question has been determined.

(2) In deciding on such a reference made under the proviso to sub-section (1), the Authority concerned shall have regard to the question whether the land proposed to be taken, is reasonably required for the full and unimpaired use of the house, manufactory or building. (3) If, in the case of any claim under this Act, by a person interested, on account of the severing of the land to be acquired from his other land, the appropriate Government is of opinion that the claim is unreasonable or excessive, it may, at any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part. (4) In the case of any acquisition of land so required no fresh declaration or other proceedings under sections 11 to 19, (both inclusive) shall be necessary; but the Collector shall without delay furnish a copy of the order of the appropriate Government to the person interested, and shall thereafter proceed to make his award under section 23."

6. After arguing for some time, the learned counsel for the

petitioner seeks permission to withdraw this writ petition, without

prejudice to the right of the petitioner to file a fresh writ petition W.P.(C) No.6188 OF 2021(W)

with proper pleadings and appropriate reliefs, with the National

Highway Authority of India and its concerned Project Director as

respondents.

Based on the above submission made by the learned counsel

for the petitioner, this writ petition is dismissed as withdrawn,

without prejudice to the aforesaid right of the petitioner, subject to

the provisions under the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement

Act, 2013.

Sd/-

ANIL K. NARENDRAN JUDGE bpr