A.Shereefa Beevi vs The Divisional Railway Manager
2021 Latest Caselaw 866 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                  WP(C).No.29134 OF 2020(N)


PETITIONER:

              A.SHEREEFA BEEVI,AGED 70 YEARS
              W/O. ABOOBACKER KUNJU (LATE), CHEMATHARA
              KIZHAKKATHIL (PARAMBIL), WARD NO.19, THAZHAVA
              PANCHAYAT, KADATHOOR P. O., KARUNAGAPPALLY,
              KOLLAM DISTRICT - 690 523.

              BY ADVS.
              SRI.T.G.SUNIL (PRANAVAM)
              SRI.J.OM PRAKASH
              SRI.C.X.ANTONY BENEDICT
              SHRI.T.S.BHARATH KRISHNA
              SHRI.ADHEEP VIJAY

RESPONDENTS:

     1        THE DIVISIONAL RAILWAY MANAGER
              SOUTHERN RAILWAY, DIVISIONAL OFFICE,
              THIRUVANANTHAPURAM - 695 584.

     2        THE ASSISTANT ENGINEER
              THIRUVANANTHAPURAM DIVISION, SOUTHERN RAILWAY,
              THIRUVANANTHAPURAM - 695 584.

     3        SENIOR SECTION ENGINEER
              THIRUVANANTHAPURAM RAILWAY DIVISION, SOUTHERN
              RAILWAY, MAVELIKKARA - 690 101.

     4        THE DISTRICT COLLECTOR, KOLLAM, CIVIL STATION
              ROAD, KAANKATHU MUKKU, KOLLAM - 691 013.

     5        THE DISTRICT SURVEY SUPERINTENDENT
              KOLLAM - 691 013.
                               -2-
WP(C).No.29134 OF 2020(N)

       6      THE TAHSILDAR, LAND RECORDS, KARUNAGAPPALLY
              P. O., KOLLAM - 691 025.

       7      THE VILLAGE OFFICER, THODIYOOR VILLAGE
              OFFICE,
              THODIYOOR, KOLLAM - 690 523.

              SRI DINESH RAO- STANDING COUNSEL ;
              SMT A.C VIDHYA- GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP          FOR
ADMISSION ON 11.01.2021, THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
                                -3-
WP(C).No.29134 OF 2020(N)


                            JUDGMENT

Going by the averments in the writ petition, the

petitioner and her husband Aboobacker Kunju purchased 38

cents and 750 links of property along with a building, as per

Ext.P1 Sale Deed No.172 dated 18.01.1971. The petitioner's

husband was having another 1 cent of property, which is lying

adjacent to the property covered by Ext.P1. The entire extent

of 39.750 cents, lying in Survey Nos.241 and 242 of

Thodiyoor Village, has also been mutated in the name of the

petitioner and her husband. The petitioner has filed this writ

petition under Article 226 of the Constitution of India, seeking

a writ of certiorari to quash Ext.P7 order dated 16.11.2020 of

the 4th respondent District Collector. She has also sought for a

writ of mandamus commanding the 4 th respondent to dispose

of Ext.P5 application, after conducting local inspection by

respondents 5 and 6, with notice to the petitioner and

respondents 1 to 3. The further relief sought for is a writ of

mandamus commanding respondents 5 and 6 to supply the

copy of the reports and plans to the petitioner and to

respondents 1 to 3 before submitting the same to the 4 th

respondent.

WP(C).No.29134 OF 2020(N)

2. On 29.12.2020, when this writ petition came up for

admission, the learned Government Pleader was directed to

get instructions.

3. Heard the learned counsel for the petitioner, the

learned Standing Counsel for Southern Railway, representing

respondents 1 to 3, and also the learned Government Pleader

appearing for respondents 4 to 7.

4. The learned Standing Counsel for Southern Railway

would submit that the construction now undertaken by

respondents 1 to 3 is within the railway property.

5. The issue that arises for consideration in this writ

petition is as to whether Ext.P7 order dated 16.11.2020 of the

4th respondent District Collector can be sustained in law.

6. The above submission made on behalf of

respondents 1 to 3 is recorded.

7. The 4th respondent has issued Ext.P7 order

pursuant to the direction contained in Ext.P6 judgment of this

Court dated 21.07.2020 in W.P.(C)No.14614 of 2020.

Paragraph 3 of the said judgment reads thus;

"Having regard to the facts and circumstance and the submissions made across the Bar, this writ

WP(C).No.29134 OF 2020(N)

petition is disposed of directing the 4th respondent to take up Exhibit-P7 and pass appropriate orders, strictly on its merits and in accordance with law, after affording an opportunity of being heard the petitioner as well as the affected parties, including the representatives of the respondents 1 to 3. Orders shall be passed expeditiously, at any rate, within a period of 2 months from the date of receipt of a certified copy of this judgment. It is made clear that this direction shall apply only if Ext.P7 has not been disposed of till date."

8. The grievance of the petitioner is that, instead of

the 4th respondent District Collector, the Deputy Collector (LR),

Kollam conducted personal hearing through Google Meet and

thereafter the 4th respondent passed Ext.P7 order.

9. When the direction contained in Ext.P6 judgment is

to the 4th respondent District Collector to take up Ext.P5

representation dated 10.07.2020 made by the petitioner

invoking Section 13A of the Kerala Survey and Boundaries

Act, 1961 and pass appropriate orders on merits, the 4 th

respondent ought to have conducted personal hearing by

himself, before passing orders on that representation.

In such circumstances, Ext.P7 order dated 16.11.2020 is

WP(C).No.29134 OF 2020(N)

set aside and the 4th respondent is directed to reconsider the

matter and pass appropriate orders on Ext.P5 representation,

after conducting a personal hearing by himself, with notice to

the petitioner and respondents 1 to 3 and after affording the

petitioner as well as affected parties an opportunity of being

heard, as expeditiously as possible, at any rate, within a

period of one month from the date of receipt of a certified

copy of this judgment, after adverting to the legal and factual

contentions raised by the petitioner and respondents 1 to 3.

Sd/-

ANIL K.NARENDRAN, JUDGE

AV/11/1

WP(C).No.29134 OF 2020(N)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF SALE DEED NO.172 DATED 18.01.1971.

EXHIBIT P2 TRUE COPY OF TAX RECEIPT 19.02.1979.

EXHIBIT P3 TRUE COPY OF THE DECREE DATED 19.06.2000 OF THE PRL. SUB JUDGE, KOLLAM IN LAR NO.353/1993.

EXHIBIT P4 TRUE COPY OF THE LAND TAX RECEIPT DATED 27.10.2020.

* EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 10.07.2020 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT

(SUBSTITUTED AS PER ORDER DATED 11.01.2021 IN I.A.NO.1 OF 2021.)

EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 21.07.2020 OF THIS HON'BLE COURT IN W.P.(C) NO.14614/2020.

EXHIBIT P7 TRUE COPY OF ORDER DATED 16.11.2020 OF THE 4TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 04.12.2018 OF THIS HON'BLE COURT IN W.P.(C) NO.39206/2018.