P.E. Thomas Vs. State of Kerala - 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). orderg. sasidharan, j.1. the petitioner wants this court to give a direction to the judicial magistrate of the first class iii, punalur, to take annexure-ii complaint on file and proceed with the same in accordance with law. the petitioner filed a complaint as cmp no. 2009 of 1999 before the judicial magistrate of the first class iii, punalur, against one b.v. jyothi babu and certain others employed in the pathanapuram taluk office alleging offences under section 420, 323, 327, 506, 392, 307 and 120b read with section 34, ipc and also under section 7 and 11 of the prevention of corruption act. in the petition it is stated that on 29-4-1999 the learned magistrate gave back the complaint to the petitioner on the ground that since there were allegations in the complaint regarding commission of the offences punishable under the prevention of corruption act also, the magistrate had no jurisdiction to take cognizance of the offences. thereafter the petitioner filed a complaint in the court of the judicial magistrate of the first class, punalur, alleging commission of the offences punishable only under the indian penal code. the petitioner has also filed a complaint as c.m.p. no. 263 of 1999 in the court of the enquiry commissioner and special judge thiruvananthapuram against b.v. jyothi babu and others alleging commission of the offences under the prevention of corruption act. according to the petitioner, the complaint was forwarded to the police for investigation. now the petitioner says that the complaint filed by him in the court of the judicial magistrate of the first class iii, punalur, was not received by the magistrate and it was returned by saying that such a complaint would not be entertained in his court. what the petitioner now wants is to give a direction to the above magistrate to receive to the file of his court the above complaint.2. the statement in the petition would go to show that, according to the petitioner, the offences punishable under the prevention of corruption act and the offences under the indian penal code were committed during the course of the same transaction. the complaint filed in the court of the enquiry commissioner and special judge deals with only offences punishable under the prevention of corruption act. since the offences under the indian penal code are also alleged to have been committed along with the offences under the prevention of corruption act in the course of the same transaction, all the offences had to be tried by the same court and there is provision for that in the prevention of corruption act. section 4(3) of the prevention of corruption act, 1988, says that when trying any case, a special judge may also try any offence, other than an offence specified in section 3 with which the accused may, under the code of criminal procedure, be charged at the same trial. in the light of the above provision what the petitioner would have done was to file the complaint in the court of the enquiry commissioner and special judge alleging the commission of the offences under the indian penal code also along with the commission of the offences punishable under the prevention of corruption act. in so far as the petitioner had already filed a complaint in the court of the enquiry commissioner and special judge alleging commission of the offences under the prevention of corruption act a direction to the magistrate to take to the file of his court the complaint alleging commission of offences under the indian penal code in the course of the same transaction cannot be given. hence, the petitioner is not entitled to get the relief prayed for in the petition.in the result, this petition is dismissed.

Judgment:
ORDER

G. Sasidharan, J.

1. The petitioner wants this Court to give a direction to the Judicial Magistrate of the First Class III, Punalur, to take Annexure-II complaint on file and proceed with the same in accordance with law. The petitioner filed a complaint as CMP No. 2009 of 1999 before the Judicial Magistrate of the First Class III, Punalur, against one B.V. Jyothi Babu and certain others employed in the Pathanapuram Taluk Office alleging offences under Section 420, 323, 327, 506, 392, 307 and 120B read with Section 34, IPC and also under Section 7 and 11 of the Prevention of Corruption Act. In the petition it is stated that on 29-4-1999 the learned Magistrate gave back the complaint to the petitioner on the ground that since there were allegations in the complaint regarding commission of the offences punishable under the Prevention of Corruption Act also, the Magistrate had no jurisdiction to take cognizance of the offences. Thereafter the petitioner filed a complaint in the Court of the Judicial Magistrate of the First Class, Punalur, alleging commission of the offences punishable only under the Indian Penal Code. The petitioner has also filed a complaint as C.M.P. No. 263 of 1999 in the Court of the Enquiry Commissioner and Special Judge Thiruvananthapuram against B.V. Jyothi Babu and others alleging commission of the offences under the Prevention of Corruption Act. According to the petitioner, the complaint was forwarded to the police for investigation. Now the petitioner says that the complaint filed by him in the Court of the Judicial Magistrate of the First Class III, Punalur, was not received by the Magistrate and it was returned by saying that such a complaint would not be entertained in his Court. What the petitioner now wants is to give a direction to the above Magistrate to receive to the file of his Court the above complaint.

2. The statement in the petition would go to show that, according to the petitioner, the offences punishable under the Prevention of Corruption Act and the offences under the Indian Penal Code were committed during the course of the same transaction. The complaint filed in the Court of the Enquiry Commissioner and Special Judge deals with only offences punishable under the Prevention of Corruption Act. Since the offences under the Indian Penal Code are also alleged to have been committed along with the offences under the Prevention of Corruption Act in the course of the same transaction, all the offences had to be tried by the same Court and there is provision for that in the Prevention of Corruption Act. Section 4(3) of the Prevention of Corruption Act, 1988, says that when trying any case, a special judge may also try any offence, other than an offence specified in Section 3 with which the accused may, under the Code of Criminal Procedure, be charged at the same trial. In the light of the above provision what the petitioner would have done was to file the complaint in the Court of the Enquiry Commissioner and special judge alleging the commission of the offences under the Indian Penal Code also along with the commission of the offences punishable under the Prevention of Corruption Act. In so far as the petitioner had already filed a complaint in the Court of the Enquiry Commissioner and special judge alleging commission of the offences under the Prevention of Corruption Act a direction to the Magistrate to take to the file of his Court the complaint alleging commission of offences under the Indian Penal Code in the course of the same transaction cannot be given. Hence, the petitioner is not entitled to get the relief prayed for in the petition.

In the result, this petition is dismissed.