SHAJI C VARKEY Vs. COLLECTOR

JUDGEMENT

(1.) The appellants are tenants carrying on business in a building belonging to respondents 3 and 4, part of which was acquired along with land by respondents 1 and 2 for road widening. In the course of proceedings for acquisition of part of the building, respondents 3 and 4 requested the first respondent under Section 49(1) of the Land Acquisition Act, 1894 (hereinunder called "the Act") to demolish the remaining portion of the building in which the appellants were carrying on business. Apprehending demolition pursuant to request from building owners, the appellants filed writ petition for direction against demolition of the building occupied by them. During pendency of the O.P. filed by the appellants, this court granted stay against demolition of the balance portion of the building occupied by them. However, this court permitted respondents 1 and 2 to proceed with the acquisition and demolition of acquired portion of building to accomplish the purpose of acquisition i.e. widening of road. The acquisition led to demolition of part of the building which necessitated construction of wall with rolling shutter by appellants to protect their shoproom. Even though the Trivandrum Corporation opposed construction of wall and rolling shutter by the appellants that was required to protect the building after part demolition consequent to acquisition, this court vide judgment in O.P. No. 10780/1997 which was disposed of along with connected O.P. against which this appeal is filed, upheld the claim of the appellants to retain the wall and the rolling shutter constructed by them to protect the building. The esultant position as of now is that eversince acquisition of land and part of the building thereon and widening of the road which is carried out, the appellants have been continuing business in the very same building under lease from it's owners i.e. respondents 3 and 4 for the last around 8 years. Even though interim orders were in favour of appellants, the writ petition filed by the appellants against demolition of balance portion of the building occupied by them on request by respondents 3 and 4 under Section 49(1) of the Act was dismissed by the learned Single Judge holding that respondents 3 and 4 are entitled to demand acquisition of balance portion of the building in terms of Section 49(1) of the Act and it's demolition. This appeal is filed by the petitioners in the O.P. against the said judgment.

(2.) We have heard counsel appearing for the appellants, the contesting respondents and the Government Pleader. The appellants' contention is that the demolition of acquired portion of the building carried out for road widening is so insignificant that the balance building could be continue to be used by them without any difficulty and the attempt by respondents 3 and 4 to have the building fully demolished by respondents 1 and 2 is malafide and to defeat the protection available to appellants as tenants under the Buildings (Lease and Rent Control) Act. The case of respondents 3 and 4 is that part acquisition of the building is impermissible by virtue of Section 49(1) of the Act and they are entitled to exercise their right to seek acquisition of balance portion of the building. Even though we agree with the contention of counsel for respondents 3 and 4 that part acquisition of the building is impermissible if the building owner desires acquisition of the balance is impermissible if the building owner desires acquisition of the balance portion of thee building by virtue of operation of Section 49(1) of the Act, we are unable to agree with the finding of the learned Single Judge upholding the claim of respondents 3 and 4 in this case for more than one reason. In the first place, the request made by respondents 3 and 4, copy of which is produced as Ext.R4(e) in the O.P., neither refers to Section 49(1) of the Act nor does it reveal their desire to have the balance portion of the building acquired by respondents 1 and 2. On the other hand, what they have requested, in their own words, is the following:

(3.) Assume for argument sake, the section does not admit of acquisition of land on which balance portion of the building is located which the Government is bound to acquire under Section 49(1) on request from the building owner, still we are of the view that if the building is of such value which includes the returns therefrom and if the right of the land still vests with the building owner, then having invested public funds by paying compensation for a building worth protecting or preserving, it becomes the duty of the Government in public interest to protect such investment by acquiring the land for preserving the building. In other words, since the Government is paying compensation for the balance portion of the building and if it does not lead to perfection of title for want of right in land, it becomes the obligation of the Government in public interest to acquire the land on which balance portion of the building is located in separate proceeding to protect public money invested for acquisition of balance portion of building. In either view of the matter, we are not in a position to uphold the finding of the learned Single Judge that based on request by respondents 3 and 4, respondents 1 and 2 were bound to demolish the remaining portion of the building in which appellants are carrying on business. Even though tenant's rights under the Buildings (Lease and Rent Control) Act gets extinguished in acquisition proceedings and Government can evict tenants from notified property, we are of the view that as far as possible the Act should not be enforced malafide and in violation of statutory rights of tenants under the Buildings (Lease and Rent Control) Act. Counsel for respondents 3 and 4 made it very clear that the building owners are not interested in permitting acquisition of the land on which remaining portion of the building is located where appellants are carrying on business. According; to him, all that they desire is demolition of the remaining portion of the said building at the hands of respondents 1 and 2. It is therefore clear that the attempt of respondents 3 and 4 is to get the appellants evicted from the building where they are carrying on business owner has no right to seek only demolition of balance portion of the building under Section 49(1) of the Act, even though respondents 1 and 2 have an option to do so in situations visualised by us as above. However, in this case it is admitted that he area where the remaining portion of the building is situated is on the side of a busy thoroughfare where appellant are successfully carrying on business and the building returns rental income to respondents 3 and 4. Since respondents 3 and 4 oppose acquisition of land on which the remaining portion of building is situated, there is no justification for first respondent to acquire remaining portion of building in terms of request by respondents 3 and 4 by spending public money.