MARKOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) 2 cents 60 sq. links of the appellants land was proposed to be acquired. He then moved a petition, a copy of which has been produced along with O. P. 435 of 1963 and marked Ext. P 7, purporting to be under S.48(1) of the Land Acquisition Act (II of 1070) which was applicable to the Cochin area of the State and prayed that the Collector, the 2nd respondent to this writ application, be pleased to direct the acquisition of the entire land and the building of the petitioner or in the alternative be pleased to refer the question as to whether the land proposed to be acquired does or does not form part of the house of the appellant, to the District Court for decision. This application was rejected by Ext. P 8 order, and the attempt to get this order quashed before a Single Judge of this Court failed. Hence this appeal.

(2.) The only point raised before us in this appeal is that the Collector should have referred the dispute as to whether the land proposed to be acquired does or does not form part of the house of the appellant, for decision to the District Court. To answer this point a construction of S.48(1) of the Land Acquisition Act (II of 1070) which corresponds to S.53 of the Kerala Land Acquisition Act, 1961 is necessary. That section is in these terms:

(3.) The question is whether the section is at all attracted when the proposal is only to acquire a piece of land and no part of the structure which forms part of the building or house is proposed to be acquired. The first paragraph of S.48(1) refers only to a house, manufactory or other building. The second proviso to the sub-section however specifically states 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 and the last paragraph of the Sub-section that in deciding on such a reference the Court 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.