Kerafibertex International Pvt. Ltd. Vs. Kerafibertex Employees Association and anr. - Court Judgment

Excerpt:
- land acquisition act, 1894.[c.a. no. 1/1894]. section 49: [j.b.koshy, a.k.basheer & k.p. balachndran, jj] acquisition of part of house or building claim put forward by owner to acquire entire building held, option under section 49(1) is to be made by the owner of the house or building when part of the building is sought to be acquired. once the option is exercised, the collector has no option but to acquire the entire building or withdraw from the acquisition. he has no option to decide whether the option exercised by the owner is genuine or not and the tenant has no role in the same and tenant cannot file a writ petition if the collector accepts the request of the owner under section 49(1). if any question arises whether any land proposed to be taken under the act does or does not form part of the house or building, collector can refer the matter to the court and until decision is taken by the court, collector shall not take possession (second proviso). the reference to the court also is only to limit questions mentioned in second proviso. therefore, collector has no decision making power in this matter once the owner expresses the desire to acquire the entire building when part of the building is acquired. section 49(1) gives power to the owner whose house or building is partly acquired to express his desire to acquire the entire building. the right of option given under section 49(1) is only available to the owner and not anybody including any person interested or occupier tenant. the expression of opinion to acquire the entire building need not be in any particular form, but the expression of his desire should be clear for acquisition of the entire building. the above expression of opinion should be made before passing of the award. the owner of the building has a right to withdraw the option exercised before passing of the award. if the option of the owner to acquire the entire building as provided under section 49(1) is accepted by the land acquisition officer, tenant cannot challenge that decision. if the desire exercised by the owner to acquire the entire building is not acceptable, the only option for the land acquisition officer is to withdraw from the acquisition. -- section 49 (1): acquisition of whole of such house or manufactory or building meaning held, the words whole of such house or manufactory or building includes land in which it is situated. in other words, when entire building is acquired, the land in which the building is situated also has to be acquired by the government; if the owner expresses his opinion only to acquire the building materials excluding the land in which it is situated, it is not an option exercised under section 49(1). - besides the petitioner's unit, there are five other units as well in the kinfra park.s. siri jagan, j.1. the petitioner is a company registered under the companies act, which is engaged in a business which is export oriented. company's business premises is situated at the kinfra park and the 1st respondent has leased the premises to the petitioner. the land where the petitioner's unit is situated has an extent of 8.5 acres, out of which, land has been leased to the petitioner for a period of 99 years by the 1st respondent, which is a government of kerala undertaking. besides the petitioner's unit, there are five other units as well in the kinfra park. the responsibility to ensure security for the lessees has been undertaken by the 1st respondent themselves. the entire area is surrounded by compound walls. the petitioner is aggrieved by the action of additional respondents 2 to 4 in putting up flag masts and hoisting flags in front of the petitioner's establishment. according to them, such activities would deter prospective customers of the petitioner away from approaching the petitioner. the petitioner, therefore, requested the 1st respondent to take appropriate action to see that flag masts and flags are removed from the premises of the petitioner's unit. the petitioner has, by exhibit p-5, addressed the 1st respondent in this regard. according to the petitioner, although on receipt of exhibit p-5, the 1st respondent had requested the trade unions to remove the flag masts and flags, no follow up action is being taken by the 1st respondent in the matter. it is under the above circumstances, the petitioner has approached this court seeking the following reliefs:(i) issue a writ of mandamus commanding the respondent to take action on exhibit p-1 forthwith by removing flag masts and flags;(ii) issue a writ of mandamus commanding respondent to issue a direction to various trade unions to remove the unauthorized flag masts and political flags from the premises and the gate of the petitioner's unit, which is situated within the premises of kinfra park.(iii) issue a writ of mandamus commanding the 1st respondent to remove all unauthorized flag masts and party flags hoisted in the premises and gate of area allotted to the petitioner's unit.2. a counter affidavit has been filed by the 2nd respondent, wherein it is submitted that their union had recently been given registration under the trade unions act and in the course of celebration of that event, they had hoisted a flag of the union, which according to them, is outside the business premises of the petitioner and, therefore, the petitioner cannot raise any objection regarding the same. they would further submit that trade union activities are accepted as part of the process of collective bargaining and it is the right of every union to have their flags hoisted in front of the business establishment, which alone has been done by the unions in this case. they would further submit that if the flags are compulsorily removed, that would create discontentment against the members of the unions, which would in turn result in industrial unrest, avoidance of which is in the interest of the petitioner also and therefore, the petitioner should have a conciliatory approach to the problems according to them, they have not violated any law and therefore, the petitioner is not entitled to the reliefs prayed for.3. although no counter affidavit has been filed by the 1st respondent, the counsel for the 1st respondent submits that the flags are hoisted in the property belonging to the 1st respondent and they are ready to remove the same and they want the unions to remove the same. they have also addressed the unions in this regard. but the unions have not complied with the directions in this regard.4. i have considered the rival contentions in detail.5. it is true that there should be industrial peace in every industry, but that cannot be at the expense of the rights of the management. the unions cannot unilaterally dictate terms in the name of industrial peace. admittedly, this is a hundred percent export oriented unit. naturally the customers of the petitioner company would be foreigners. when they come to the business premises of the petitioner and see such flags, naturally they would be afraid to have business with the petitioner getting suspicious about the capability of the petitioner to fulfil their export commitment in time, knowing about the industrial climate in the state on account of an overdose of trade union activities. in any event, no union has any right to hoist flags in the property belonging to the management, when the management objects to the same. the 1st respondent has categorically submitted before me that they want to remove the flag masts and flags, and they would certainly do so, if appropriate help is given in that regard from the authorities concerned. in the above circumstances, i direct the 1st respondent to take appropriate steps to remove all flag masts and flags of all unions from the properties belonging to the 1st respondent. if any union objects to the same, the 1st respondent shall approach the concerned circle inspector of police, who shall, on production of a certified copy of this judgment, give all necessary assistance to the 1st respondent for removal of the flag masts and flags. the unions shall not in future also erect any nag mast or hoist any flags in the property of the 1st respondent.if done, the above direction would be applicable to such acts also.