Kerala High Court
Achutha Baktha.N vs State Of Kerala on 17 February, 2025
Author: T.R.Ravi
Bench: T.R.Ravi
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WP(C) NO. 5250 OF 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
WP(C) NO. 5250 OF 2024
PETITIONER:
ACHUTHA BAKTHA.N
AGED 62 YEARS
S/O (LATE) KRISHNA PRABHA, R/AT KRISHNAKRIPA,
PEROLE, PEROLE VILLAGE, NILESHWARAM P.O, HOSDURG
TALUK, KASARAGOD DISTRICT, PIN - 671314.
BY ADVS.
A.ARUNKUMAR
S.SHYAM KUMAR
SACHIN GEORGE ARAMBAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, PUBLIC WORKS
DEPARTMENT, SECRETARIAT, THIRUVANATHAPURAM,
PIN - 695001.
2 DISTRICT COLLECTOR
KASARGOD, COLLECTORATE, VIDHYANAGAR, MUTTATHODI
VILLAGE, KASARAGOD, KASARAGOD TALUK, PIN - 671121.
3 SPECIAL TAHASILDAR
LAND ACQUISITION, MUTTATHODI VILLAGE, KASARAGOD,
PIN - 671121.
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4 EXECUTIVE ENGINEER
PWD ROADS DIVISION, KASARAGOD, PIN - 671121.
5 THE CHAIRMAN
ROAD FUND BOARD, PALAYAM P.O. THIRUVANANTHAPURAM,
PIN - 695003.
BY ADV E.C.BINEESH
SMT. DEEPA NARAYANAN. SR. GP.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 17.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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T.R. RAVI, J.
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W.P.(C) No.5250 of 2024
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Dated this the 17th day of February, 2025
JUDGMENT
The prayer in the writ petition is for setting aside
Ext.P9 communication and the award, if any, passed since the
same is passed without considering the grievance raised by
the petitioner in Ext.P5 and other similar complaints. It is also
prayed that the 2nd and 3rd respondents may be directed to
refer the dispute raised by the petitioner for acquiring the
entire building to the Authority specified in Section 94 of the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (for
short, 'the 2013 Act') based on Ext.P5 representation.
2. A counter affidavit has been filed by the 4th
respondent wherein it is stated that the entire building cannot
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be avoided from the acquisition and a portion of the building
has to be demolished for the improvement of Nileswar-
Edathod Road. It is further stated that the petitioner can
utilize the remaining portion of the commercial building left
after acquisition for commercial purposes after making some
renovation work. The question relating to the applicability of
Section 94 has not been answered in the counter affidavit.
3. Admittedly, only a portion of the building is
being acquired. In Ext.P2 dated 25.02.2021, the petitioner
had already addressed the 3rd respondent about the difficulties
that will be caused by acquisition of a portion alone of the
building. It has been specifically stated that the building will
become unusable if a portion alone is acquired. It was
thereafter that Ext.P5 was preferred on 20.02.2023. Ext.P10
says that such an application cannot be entertained after the
passing of the award. It is however seen that the award has
been passed only subsequent to Ext.P2. Section 94 (1) of the
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2013 Act reads thus:-
"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:
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."
4. Going by Section 94 (1) there is a prohibition
to put in force the provisions of the Act for the purpose of
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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. There is no
specific rule or provision in the Act which says about the stage
at which the owner should express his desire.
5. However, in the case on hand as early as in
2021, the Authorities were aware of the fact that a part only of
a builidng was being acquired and the owner has in Ext.P2
expressed in as many words that acquisition of a part only of
the building will create a situation where he will not be able to
utilize the entire building. Going by the proviso, the Authority
is not even entitled to take possession of the land until the
question regarding whether the land forms part of the house
where the land that is proposed to be taken forms part of the
house manufactory or building is determined. The Collector
is expected to refer the determination of the question to the
Authority concerned. It is submitted that even as on date the
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work has not started.
In the above circumstances, this writ petition is
allowed. There will be a direction to the 2 nd respondent to
make necessary reference under Section 94 (1) to the
concerned Authority regarding the issue of acquisition of the
entire building. Such a reference shall be made within three
weeks from the date of receipt of a copy of this judgment. The
2nd respondent shall comply with the requirements of the
proviso of sub-section (1) of Section 94 before proceeding
further with the acquisition. The award, if any passed in the
meanwhile shall stand set aside to work out the remedies of
the petitioner under Section 94 of the Act.
Sd/-
T.R.RAVI
JUDGE
mpm
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APPENDIX OF WP(C) 5250/2024
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE COPY OF THE OCCUPANCY CERTIFICATE
DATED 27.05.2012 ISSUED BY THE NILESHWAR
MUNICIPALITY.
Exhibit P2 A TRUE COPY OF THE REPRESENTATION DATED
25-02-2021 SUBMITTED TO THE 3RD
RESPONDENT.
Exhibit P3 A TRUE COPY OF THE SECTION 21(1) NOTICE
DATED 17.09.2022 ISSUED BY THE 3RD
RESPONDENT.
Exhibit P4 A TRUE COPY OF THE SECTION 21(1) NOTICE
DATED 09.02.2023 ISSUED BY THE 3RD
RESPONDENT.
Exhibit P5 A TRUE COPY OF THE REPRESENTATION DATED
20.02.2023 MADE BEFORE THE 2ND
RESPONDENT.
Exhibit P6 A TRUE COPY OF THE ACKNOWLEDGEMENT OF THE
EXT.P5 REPRESENTATION.
Exhibit P7 A TRUE COPY OF THE REPRESENTATION DATED
8.06.2023 MADE BEFORE THE 2ND RESPONDENT.
Exhibit P8 TRUE COPIES OF THE ACKNOWLEDGMENT CARDS.
Exhibit P9 A TRUE COPY OF THE COMMUNICATION DATED
07.07.2023 MADE BY THE 3RD RESPONDENT TO
THE 2ND RESPONDENT.
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Exhibit P10 A TRUE COPY OF THE COMMUNICATION/ORDER
DATED 16-02-2024 ISSUED BY THE 3RD
RESPONDENT HEREIN.
