Subramonian Poti, J.
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. No. 1768 of 1973 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 Article 19 of the Constitution stood suspended. The matter has now come up on 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 Acquisi-tion Act 1961 a portion only of a building stands. Section 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 build-Ing 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 Sri Vijayan was the successful bidder in the auction. According to the petitioner the said Vijayan dismantled 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 S. 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 the Public Works Department was entitled to re-auction the materials of the building. Ext. P-2 dated 9-9-1974 is the notice issued by the first respondent to the auction purchaser, Sri Vijayan, intimating Mm that if within one week the materials were not completely removed re-auction 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 reduction. Rejecting this stand a fresh notice Ext. P-4 was issued by the Executive Engineer, the second respondent on 9-10-1974 proposing legal action to remove Hie materials. It is thereupon that resort has been made by the petitioner to those proceedings under Article 228 of the Constitution of India. Evidently Exts. P-2 and P-4 notices are not issued to the petitioner, but her brother Vijayan, as the auction purchaser. Sri Vijayan is not a party to this petition.
4. The petitioner contends that the building which was sought to be demolished was that newly constructed by her and therefore there was no justification for the action proposed by the respondent. She therefore seeks a writ of certiorari to quash the notices Issued by the first respondent, Exts. P-2 and P-4 and the issue of a writ of mandamus to restrain the respondents from auctioning the building in S. No. 90/3 and evicting the petitioner therefrom.
5. On behalf of the respondents the first respondent has filed a counter-affidavit denying the averment of the petitioner that the building has been completely demolished and a new building has been put up. According to the first respondent only the portion of the building that stood on the acquired portion was dismantled and the other was allowed to remain as it was thus violating the condition that the auction purchaser should remove such materials within 10 days. It is further said that-
'The auction was intended to dismantle and remove the acquired building in toto and this condition was specifically included in the auction notice. But the bidder has failed to do BO even in spite of reminding him to do so and has helped his sister to retain the portion of the building for which she has received full compensation............Since the front portion onlyhas been dismantled by the highest bidder, the petitioner, his sister is enjoying unlawful benefit by keeping the portion of the building that comes to her land.'
6. On the question whether a new building has been put by the petitioner with the materials of the old building purchased from her brother there is only her averment. That is disputed by the respondents in the counter-affidavit. These being the only materials, it would not be proper to accept this plea in a proceeding under Article 226 of the Constitution of India.
7. Counsel for the petitioner pleads that even assuming that the building, to the extent it stands in the portion of the land belonging to the petitioner had not been demolished by the auction purchaser if he has sold the materials of the building to the petitioner and the petitioner has no objection to retain the building as it stood earlier it would not be proper for the respondents to insist upon demolition of the building standing in the petitioner's land. It is the validity of this plea that is the controversial issue in this case. According to the respondents Section 53 of the Land Acquisition Act gives a right to an owner to insist upon acquisition of the whole building though part only need be acquired for the purpose of the State and after obtaining the advantage of compensation for the whole of the building the owner cannot directly or indirectly seek to keep the building in the land belonging to him on the basis of the purchaseof materials of the building in auction. That is said to be an attempt to seek an undue advantage, for, in the event the owner succeeds in this attempt he would get the benefit of compensation for the whole building including the portion that he proposes to retain as such as also the benefit of retention of that portion of the building by merely paying the auction price which must necessarily be for the materials of the building and not for the building as it stands. Evidently this plea appealed to a learned Judge of this court in O. P. No. 3378 of 1968. Dealing with this the learned Judge K. K. Mathew J. said thus :
'One of the conditions of the auction was that the auction purchaser should demolish the entire building within 15 days. The respondents are entitled to insist on that condition. The petitioner, who insisted upon the State acquiring the whole building after paying him the compensation for the same, cannot now be allowed to urge that the portion of the building standing in his property should not be demolished He received compensation for the whole building. He cannot now turn round and say that the portion of the building in his property need not be demolished. The petitioner has no legal right to do so.'
This matter came up before a Division Bench in appeal in W. A. No. 8 of 1969 (Ker). In a short judgment this court disposed of the matter thus:
'No ground for interference. The entire building in question belongs to the State, having been acquired by it under the provisions of Act 21 of 1962 although part of it stands on the appellant's land. The disposal of the building is entirely in the hands of the State, and the fact that the appellant has obtained an assignment of the brick and mortar of the building from a person to whom the State had auctioned those materials on condition that he would demolish the building and remove the materials does not make him the owner of the building as it stands even if the site and the materials after demolition, might belong to him. The learned single Judge was therefore right in declining to interfere with the State's insistence on the demolition.'
Again the question came up before another learned Judge of this court, Justice M.U. Isaac. Isaac J. was not evidently in agreement with the view express-ed in W. A. No. 8 of 1969 (Ker) but naturally felt bound by the decision of the Division Bench. He followed it The learned Judge observed in the judgment in O. P. No. 1722 of 1973 thus:
'It is contended by the petitioner that the Government has sold by public auction the whole building acquired by it, and that even assuming that a part of it has not been demolished and removed from its site, the Government has no right to insist on the demolition of that part of the building which is situate entirely in the petitioner's land since the Government has neither any interest in the land in which that part of the building is situate nor in the structure thereof. It is submitted that it is only the petitioner who Is the owner of the land who can demand that the structure should be removed, and that in so far as the petitioner has purchased that structure, neither the Government nor anybody else has any interest in the matter. It is also submitted that all that the Government will have by insisting on the demolition of a substantial building which admittedly is situate entirely on a land belonging to the petitioner is the cruel pleasure of witnessing the destruction of that building. I find considerable force in the above argument, but I am confronted with the decision of a learned single Judge of this court In O. P. No. 3378 of 1968, which took an entirely opposite view on similar facts; and that decision has been confirmed by a Division Bench in W. A. No. 8 of 1969 (Ker). I am bound by the above decision; and I respectfully follow the same.'
When in another case the same question arose before George Vadakkel J., the learned Judge seems to have doubted the correctness of the decision in W. A. No. 8 of 1969 (Ker). He referred the case to a Division Bench. The learned Judge, while referring, observed thus in the referring order in O. P. No. 1758 of 1973 (Ker);
'Whatever that be I see no reason to hold that the Government can insist upon demolition of a building standing on the un-acquired portion even in cases where the owner of the land himself has purchased that portion. That land is his. The superstructure has been acquired, but has been purchased back, and is it necessary that he should demolish it and then reconstruct the same in order to have that much portion of the building on theun-acquired land. But in view of the decision earlier referred to this question has to be answered by a larger Bench.'
When the matter came up on reference before a Division Bench in which one of us was a party, the Bench felt that the case, in view of the conflict of views, must be heard by a Full Bench. Evidently the Division Bench also doubted the correctness of the decision in W. A. No. 8 of 1969 (Ker). In the reference order in O. P. No. 1758 of 1973 (Ker) the Division Bench observed thus:
'The building was purchased by the petitioner and the petitioner removed that portion of the building which stood in the acquired portion. Whether he should retain the building that stood in his own property was a matter for his decision. When once he has purchased the right to the materials of the building in the property belonging to him why the State should take any proceedings for a fresh auction is not quite evident. Possibly the feeling that the petitioner has gained an undue benefit by bidding in auction the materials of the building and retaining the building in the property might be the reason for such auction. But that is irrelevant.'
The Full Bench before which the matter came up on reference did not deal with the question on the merits since the Court felt that the question of law raised was substantially, if not exclusively, admitted to be rested on the provision of Art. 19 of the Constitution which Article was not available to the petitioner at that time in view of the declaration of emergency in force then. Naturally therefore that question was left open by the Full Bench. The matter came up again before a learned Judge of this Court in O. P. No. 1810 of 1973 and the learned Judge allowed the petition quashing the notification for re-auctioning the materials of the building. The matter came up in appeal before a Division Bench in W. A. No. 89 of 1975 to which one of us, Gopalan Nambiyar, C. J., was a party. There again the question was not considered on the merits since the case of the petitioner was that the building sought to be demolished was a new building put up by him and that was not a question on which there was agreement between the parties. This Court held that it would be inappropriate to deal with disputed questions of fact in the proceedings before it.
8. For the petitioner it is contended by her counsel Sri Krishnankutty Achan that even if the building is not shown to be a new one put up by the petitioner with materials of the old building purchased by her from her brother it must necessarily be found that what stands now in the petitioner's land is the old building and as the owner of the materials purchased in auction the petitioner is free to express her satisfaction in regard to the obligation of the State to remove the materials of the building from her land within a reasonable time. Section 63 of the Contract Act provides that every promise may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit. Though in this case the obligation of the State is not one arising under a contract because the purchase by the State is under the provisions of the Kerala Land Acquisition Act, the same principle would apply and if there be an implied obligation to remove the materials of the building within a reasonable time, it is open to the person to whose satisfaction the obligation has to be discharged to accept such discharge of obligation in any manner. If the State was bound to remove the materials of the building within a reasonable time in order to leave the land free of the burden of the building thereon that obligation would stand discharged when the owner accepts performance of the obligation in any manner other than actual removal. It is for the benefit of the owner of the land that the building materials are to be removed there from and when the owner expresses categorically that the obligation stands discharged by reason of his entering into any arrangement with the person who has purchased the materials of the building the State is not any further obliged to remove the materials. Therefore if the fact of the transfer of the materials of the building to the petitioner had been admitted we would have had to consider whether that will not amount to a satisfaction of the obligation of the State to remove the materials. In fact at the hearing we put it to the learned Advocate-General Sri C. K. Sivasankara Panicker whether in a case where the owner himself purchases the materials of the building and retains the building in the portion of the land belonging to him there would be justification for the State to claim that the building should be demolished. The learned Advocate-General submitted that in such a case the owner may be entitled to retain the building in the portion of the land belonging to him and that would be so even in a case where a stranger obtains in auction the right to the materials and transfers it to the owner who indicates to the State that he does not seek the removal of the materials. In view of this submission we are not called upon to go into this question further.
9. But the learned Advocate-General submits that on the facts of this case the petitioner may not be entitled to any relief in these proceedings. It is submitted that there is no case that the building as it stood earlier stands in the property now. The case is that a new building has been put up and on that, in the circumstances here, this Court may not be able to find for the petitioner. Further it is pointed out that there is not even a categorical averment that all the materials of the old building were sold to the petitioner. What is said is that some materials have been sold. Whether the petitioner has become the owner of the materials sold to Vijayan in auction is not a matter on which the parties are agreed. Vijayan himself is not a party to this petition, so much so he would not be bound by the result of this petition, to these circumstances whether the rights of Vijayan in regard to the materials of the old building had devolved on the petitioner is itself a matter in controversy here and it is not for this Court to resolve such questions of fact in these proceedings. Hence we dismiss the Original Petition but there will be no order as to costs.
Janaki Amma. J.
10. I agree that the petition should be dismissed.
11. I am not, however, in a position to concur with the conclusions of my learned brother, Subramonian Poti, J. on the question of law mooted. On that aspect, I respectfully agree with the views expressed by Mathew, J. in O.P. No. 3378 of 1968 (Ker), which has been confirmed in W. A. No. 8 of 1969 (Ker) and approved in W. A. No. 89 of 1975 (Ker).
12. The Kerala Land Acquisition Act arms the State with the power to acquire land and buildings belonging to private individuals situated within its jurisdiction for public purposes on condition that the owners of such property are compensated for the loss incurred. Cases may arise where a portion alone of a land belonging to an individual is acquired. There may also be cases where in the land acquired, there are buildings and acquisition of a portion of land may affect the buildings standing on the land. It is not uncommon that portion of a building would stand in the acquired property and the remainder in the un-acquired land. The statute provides for such contingencies in Sections 25 and 53 which correspond to Sections 23 and 49 of Central Land Acquisition Act. Clause 'thirdly' of Section 25 states that compensation for land acquired may be determined taking into consideration the damage, if any, sustained by the person concerned by severing such land from his other land. Clause 'fourthly' of Section 25 directs that the authority determining compensation should take into account the damage, if any, sustained by the person concerned by reason of the acquisition injuriously affecting his other property, movable or immovable. In cases where there is a building in the land and a portion of it alone falls in the acquired land, the acquisition may injuriously affect the portion of the building in the unacquired land and in such cases compensation is to be determined taking into account the damage so sustained. Cases may arise where the demolition of the portion of the building may affect the utility of the other portion and the building may become even useless. In such cases, the mere award of compensation for injurious affection alone may be insufficient. The statute therefore provides alternate remedies. Section 53 (1) confers on the person concerned the option to insist that the whole building should be acquired. The purpose of the provision is to enable the owner to construct a new building in the place of the mutilated one. So also, it may so happen that the damage claimed by the owner of the land referred to under Clause 'thirdly' of Section 25 is unreasonable and excessive. In such cases Section 53 (2) confers on the State the power to acquire the whole of the land of which the land acquired forms a part. Both Section 53 (1) and Section 53 (2) are based on equitable considerations. It could not be the intention of the law-makers that Section 53 (1) should be resorted to by individuals for self-aggrandisement. Nor is the provision in Section 53 (2) intended to be a weapon for harassing the owner of the land.
13. In cases under Section 53 (1) where the owner desires the whole building to be acquired, the practice is to auction the building. One of the terms of the auction would be that the successful bidder should demolish the building and remove the materials within a specified period. At times, the successful bidder would enter into an agreement with the owner of the land and sell the right he acquired in the auction to that person. There may also be cases where the owner himself would bid at the auction. The questions that arise are whether in such cases the State can enforce the term of the auction and insist that the building should be demolished and materials should be removed and whether the individual concerned can approach the Court under Article 226 of the Constitution and claim that the State should be restrained from calling upon him to demolish the building. It may apparently look odd that the State should insist on demolition of the building when the owner of the land at whose instance the building was acquired, does not want such demolition. One may be tempted to ask why should the State be particular in having, in the words of Isaac, J. 'the cruel pleasure of witnessing the destruction of that building.' The answer is obvious. To allow the building to stand in the property will be giving an incentive to breaches of contract and also misuse of the provisions contained in Section 53 (IV Such a course is against a scheme of Sections 25 and 53 of the Act. The right to insist on the acquisition of the whole building is conferred on the owner of the land to enable him to put up a new building in the place of a mutilated one with the amount made available by the acquisition. If the owner of the building really wanted the continuance of the portion of the building in the un-acquired land, he need not have availed of the option given to him under Section 53 (1) and got the whole building acquired. Instead, he could have claimed that compensation for the land and building in the acquired portion should be determined as provided in Clause 'fourthly' of Section 25 taking into accountthe damage due to the building getting mutilated by reason of the demolition of a portion thereof.
14. It is true that it is the right of the owner either to bid at the auction or to contract with the auction-purchaser and purchase his right. It is equally the right of the State to insist compliance of the terms of auction and to see that the materials auctioned are removed within the time specified.
15. I do not think that there is scope for the application of Section 63 of the Contract Act. There is no contract between the State and the owner of the land that the former should give vacant possession of the land. The statutory right of the owner is only to have the whole building acquired and compensation paid to him. The demolition of the building and the removal of the materials are incidental to the acquisition and do not amount to performance of any promise falling under Section 63 of the Contract Act The contract is between the State and the auction purchaser and under the terms of the contract, the State has the right to see that the materials of the building are removed within the period stipulated in the auction. It is no doubt open to the State to dispense with the removal of the building in which case the owner may retain it; but this is matter entirely left to the discretion of the State. If the State agrees to the retention of the building that would amount to discharge of the obligation under the terms of the auction. If, on the other hand, the State insists that the terms of the auction should be complied with, it is not for the Court to say that it should not do so.
16. In the matter of acquisition of buildings, portion of which abuts an un-acquired portion of the land belonging to the erstwhile owner, the statute has placed the State in an unenviable position. If the owner of the land so desires, the State has to pay the owner the market value of the whole building inclusive of construction charges. After the acquisition, the building in the unacquired land has to be demolished and the site cleared of the materials to enable the owner to put up a new building, or to make other use of the land. It is common knowledge that the return by way of sale of the building materials will only be meagre when compared to the compensation which should be paid to the owner of the building. It is within the rights of theowner to bid at the auction like any other member of the public and purchase the materials of the building and to make use of them. The law also permits him to purchase the materials of the building from the auction-purchaser. But the above privileges do not enable him to retain the building in its original form in the un-acquired portion as of right on the plea that after the purchase the land and the materials of the building belong to him. The purchase at the auction or subsequent to it is subject to the condition in the auction agreement that the building should be removed within a specified time. The condition is as much binding on the owner of the land as on any stranger. The State can as of right avail of the terms of the auction and enforce their compliance and if it does so, it is not for the Court to intervene and prevent such enforcement. To a superficial onlooker the insistence of the State on the performance of the term relating to demolition in the auction agreement may appear to be unjust and he may characterise it, as observed by Isaac, J. 'as a cruel pleasure on the part of the State to witness the destruction of the building.' One should not, however, forget that the so-called cruel pleasure is a creation of the owner of the building himself and was thrust upon the State by the owner. I would rather say that the term in the auction notice enabling re-auction on breach of conditions of purchase is a shield for self-protection so far as the State is concerned which it may also wield as a weapon to deter greedy owners of the property from adopting techniques as in the instant case for self-enrichment at the cost of public funds. If the owner really wanted the use of the building in the un-acquired portion, he could have retained it and also claimed compensation for injurious affection under Clause 'fourthly' of Section 25. He, however, chose to avail of the right conferred under Section 53 (1) and wanted the whole building to be acquired and the full value thereof to be paid to him. After having received the full compensation, there is neither justice nor fairness in his insistence that the building should be allowed to be retained. In such cases, it will be against public interest and will encourage misuse of the provisions contained in Section 53, if the Court is to render the owner of the land assistance in the matter of retention of the building by invoking the provisions of Article 226 of the Constitution or otherwise and restrain the State from enforcing the terms of the agreement of auction. It is pertinent to quote the observation of Mathew, J. in O. P. No. 3378 of 1968 (Ker):
'The foundation for a writ of mandamus or other direction in the nature of a mandamus, is the existence of a legal duty. As the petitioner has no right, the respondents cannot be under a legal duty not to demolish the portion of the building. So, I do not think that this is a case where a writ of mandamus or other direction can issue compelling the respondents to desist from demolishing the building. But nothing said in this judgment will prevent the respondents from taking a sympathetic view of the matter if the petitioner so prays for it.'
17. I hold that the petitioner should fail both on facts and on law. The petition is accordingly dismissed.