Emmanuel Vs. Union of India - Court Judgment

Excerpt:
counsels: n.j. mathews, for the assessee p.k. ravindranatha menon and n.r.k. nair, for the revenue in the kerala high court p. shanmugam, j. - 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). petitioner seeks to quash exts. p4 and p6 orders and for a direction to refund to the petitioner the excess amount of tax collected from him on the basis of ext. p4. the commissioner refused to interfere with the assessment order on the following grounds :' 1. the applicant did not file an appeal against the assessment order dated 20-3-1996.2. the applicant came across the order of the commissioner (appeals) referred to above only on or about 27/28-2-1998 when he found that the payment towards building fund of the cochin stock exchange ltd. has been allowed as a revenue expenditure.'the commissioner also found that the decision of the commissioner (appeals) in similar cases has not been accepted by the department. that apart, in my view, the matter is squarely covered by the constitution bench judgment of the supreme court in mafatlal industries ltd. v. union of india (1997) 5 scc 536, wherein the supreme court held that the claim for refund based on the decision rendered in another case cannot be sustained. the only reason stated before the commissioner for the delay in filing the appeal was that he learned that the commissioner (appeals), ernakulam, has in the case of smt. beena moni, a member of the cochin stock exchange allowed her claim for payment towards building fund. therefore, he preferred this application to exercise the power under section 264 of the act. such a course of action is not permissible in the light of the supreme court judgment. the order of assessment insofar as the petitioner is concerned has become final and the same cannot be reopened on the ground that in another case a favourable order has been passed.2. in the above circumstances, i do not find any grounds to interfere with the order. original petition fails and it is, accordingly, dismissed.