RAJALAKSHMY Vs. ASST ENGINEER

JUDGEMENT

(1.) A question of considerable importance which had come up for decision on earlier occasions in this court is raised again in this petition. Divergent views had been expressed by this court on this question. This situation led to reference of O. P 1758/73 to a Full Bench of this Court. But that was disposed of without going into the controversy since at the time the case came up before the Full Bench enforcement of Art.19 of the Constitution stood suspended. The matter has now come upon a reference by the Division Bench. One of us referred the question to the Division Bench when it came up before the Single Bench and the Division Bench felt that the case must appropriately be heard by a Full Bench.

(2.) It does sometimes happen that in land compulsorily acquired under the provisions of the Kerala Land Acquisition Act 1961 a portion only of a building stands. S.53(1) of the Act enables the owner, if he so desires, to require that the whole of the building shall be acquired. If the owner indicates his desire that the acquisition shall not be of part only of the building but the whole the State is necessarily called upon to pay compensation to the owner for the whole building. Naturally it is expected of the State that the building standing on that part of the land which is not acquired is removed within a reasonable time though no specific provision is made in this behalf in the Act. Normally resort is made to the method of disposal by auction of the materials of the building with an obligation on the auction purchaser to remove the building within a specified time. The owner of the land or his nominee or benamidar may purchase in auction the materials of the building with an obligation to remove them from the site within a specified time. It may also happen that though the auction purchaser is a stranger the owner of the land purchases all his rights. In such cases if the building so far as it stands in the acquired portion is removed but the rest is retained, a course to which the owner of the land has evidently no objection, is the State entitled to insist upon removal of the materials of the building from the land of the owner. That is the vexed question which had come up for decision on earlier occasions and on which divergent views have been expressed by this court.

(3.) In the case before us the petitioner was the owner of 20 cents of land in Sy. No. 90/3 of Chingoli Village. This land is by the side of the National Highway. In the year 1973 five cents of land out of the above said 20 cents was acquired by the State under the Kerala Land Acquisition Act for widening the National Highway. There was a building in the 20 cents belonging to the petitioner part of which stood in the acquired portion. Evidently the petitioner desired that the whole of the building should be acquired and therefore it was so acquired. The materials of the building were put up for sale in auction by the first respondent, the Assistant Engineer, National Highway Sub Division, Haripad, on 2-7-1974. One Shri. Vijayan was the successful bidder in the auction. According to the petitioner the said Vijayan dismantled the whole building within 10 days of the date of auction as he was obliged to do and sold some of the materials of the dismantled building to the petitioner. The petitioner is none other than the sister of Vijayan, the auction purchaser. The petitioner is said to have constructed a new house in the portion of the land in Sy. No. 90/3 which continued to be in her possession after the acquisition. Thereafter the officers of the Public Works Department are seen to have taken up the stand that the auction purchaser had failed to dismantle the building, that the building on that portion of the land which was not acquired was still standing as it was, that the auction purchaser had an obligation to remove the building within 10 days and since he had not discharged that obligation the Public Works Department was entitled to reauction the materials of the building, Ext. P2 dated 9-9-1974 is the notice issued by the first respondent to the auction purchaser, Sri. Vijayan, intimating him that if within one week the materials were not completely removed reauction of the materials will be conducted. Thereupon Sri. Vijayan informed the first respondent that the materials of the building had been removed and disposed of on sale and therefore there was no question of any reauction. Rejecting this stand a fresh notice Ext. P4 was issued by the Executive Engineer, the second respondent on 9 10 1974 proposing legal action to remove the materials. It is thereupon that resort has been made by the petitioner to these proceedings under Art.226 of the Constitution of India, Evidently Exts. P2 and P4 notices are not issued to the petitioner, but his brother Vijayan, as the auction purchaser. Sri Vijayan is not a party to this petition.