P.P.Musthafa vs Southern Railway
2021 Latest Caselaw 14815 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
                        WP(C) NO. 25517 OF 2016
PETITIONER/S:

          P.P.MUSTHAFA,
          AGED 57 YEARS,
          S/O.MUHAMMEDALI,PUTHANPEEDIKAYIL HOUSE,AREEFA MANZIL,K
          V ROAD,POST S R K NAGAR,OTTAPALAM.

          BY ADVS.
          SRI.R.SREEHARI
          SRI.SACHIN VYAS


RESPONDENT/S:

    1     SOUTHERN RAILWAY
          REPRESENTED BY THE GENERAL MANAGER,OFFICE OF THE
          GENERAL MANAGER,SOUTHERN RAILWAY,CHENNAI-600 005.

    2     DIVISIONAL RAILWAY MANAGER,
          SOUTHERN RAILWAY,PALAKKAD DIVISIONAL
          OFFICE,OLAVAKKOT,PALAKKAD-678002.

    3     DIVISIONAL RAILWAY MANAGER(WORKS),
          SOUTHERN RAILWAY,PALAKKAD DIVISIONAL
          OFFICE,OLAVAKKOT,PALAKKAD-678002.

    4     THE SECRETARY,
          OTTAPALAM MUNICIPALITY,MUNICIPAL OFFICE,OTTAPALAM-
          679101.

    5     THE TAHSILDAR,
          TALUK OFFICE,OTTAPALAM-679101.

    6     DISTRICT SUPERINTENDENT OF SURVEY AND LAND RECORDS,
          CIVIL STATION,PALAKKAD-678001.
    *7
          *DISTRICT COLLECTOR, COLLECTORATE, PALAKKAD

          *DEPUTY DIRECTOR OF SURVEYS, OFFICE OF THE DIRECTOR OF
    *8    SURVEYS, PALAKKAD.

          **ADDL. RESPONDENTS 7 AND 8 ARE SUO MOTU IMPLEADED AS
          PER ORDER DATED 15.07.2021.
 WP(C) NO. 25517 OF 2016
                                 2

          R1 TO R3 BY SRI.S.ANANTHAKRISHNAN, SC, RAILWAYS
          C.SEENA
          R4 BY SRI.P.P.THAJUDEEN
          P.B.WAHIDA

          R6 BY SRI.SURIN GEORGE IPE, SR.GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 25517 OF 2016
                                         3

                                    JUDGMENT

According to the petitioner, he is the absolute owner of 18.21 Ares of

property situated in Sy.No.187/10of Ottapalam II Village. The said property

is lying within 30 meters from the railway line boundary. Therefore, when

the petitioner applied for building permit and construction of compound wall

in the property in the year 2001, the Secretary of the Ottapalam Municipality

directed the petitioner to secure NOC from the railways. Accordingly, the

petitioner submitted an application before the railways, however, the railways

was of the opinion that the petitioner has encroached into the property of the

railways. Anyhow, survey was conducted and it was found by the Tahsildar as

per Ext.P8 that, there is no encroachment into the property of the railways, by

the petitioner.

2. Having been aggrieved by the said order, the railways has taken up

the matter before the District Survey Superintendent and the District Survey

Superintendent as per Ext.P12 order dated 30.04.2016, affirmed the order

passed by the Tahsildar. Having been aggrieved by the impugned orders

passed by the primary as well as the appellate authorities, the railways has

filed a revision before the District Collector, Palakkad. Learned Counsel for

the railways submitted that, the situation would suffice, if a direction is issued

to the District Collector to dispose of the revision. WP(C) NO. 25517 OF 2016

3. On the other hand, leaned Counsel for the petitioner submitted that

the matter was pending consideration for a long period, consequent to the

inaction of the part of the railways in granting NOC, by which the petitioner is

put to various and innumerable difficulties and prejudices and therefore,

sought direction to the railways to grant NOC to the petitioner.

4. I have heard learned Counsel for the petitioner Sri.R.Sreehari,

learned Senior Government Pleader Sri. Surin George Ipe, learned Counsel

for the railways Sri.A.Ananthakrishnan and learned Counsel for the

Municipality Sri. P.P.Tajudeen and perused the pleadings and the documents

on record.

5.Even though various contentions are raised by the petitioner in the

writ petition, including direction for issuance of NOC by the railways, since

the revision filed by the railways is pending consideration before the District

Collector, I think it is only appropriate that the revision can be directed to be

disposed of within a time frame. When the matter came up before this Court

for hearing on 14.07.2021, I have directed the learned Senior Government

Pleader to take instructions with respect to the pendency of the revision

submitted by the railways under Section 13(A) of the Kerala Survey and

Boundaries Act 1961 and the Rules thereto. Learned Senior Government

Pleader, after securing instructions, submitted that, a revision was received by WP(C) NO. 25517 OF 2016

the office of the District Collector during August, 2019. However, learned

Counsel for the railways submitted that he has received a postal AD card from

the office of the District Collector, from where it is clear that the revision was

received in the officer of the District Collector on 22.08.2016. Whatever that

be, it is clear that the revision is pending consideration. Learned Senior

Government Pleader has also submitted that the revision would be

transmitted to the Deputy Director of Surveys, since the District Collector is

vested with powers to delegate the functions of the District Collector to the

said officer.

6. Having regard to the facts and circumstances of the case, there will be

a direction to the District Collector to transmit the revision filed by the

railways to the Deputy Director of Surveys concerned, within three weeks, if

the District Collector is vested with powers to delegate the authority of the

District Collector to the Deputy Director of Surveys. The Deputy Director of

Surveys is directed to finalize the proceedings, after providing notice of

hearing to the petitioner, railways and any other interested persons, within

one month from the date of receipt of the records from the District Collector,

as directed above. However, I make it clear that, if there is no power vested

with the District Collector to delegate the revisional power under Section

13(A) of the Act, 1961, then the District Collector himself shall hear the

matter, at the earliest and at any rate, within one month from the date of WP(C) NO. 25517 OF 2016

receipt of a copy of this judgment, after providing notice of hearing to all the

persons specified above.

7. In order to have a fair and proper disposal of the writ petition, the

District Collector, Palakkad and the Deputy Director of Surveys, Office of the

Director of Surveys, Palakkad, are suo motu impleaded as the additional

respondents. Registry is directed to carry out necessary amendments in the

cause title.

The writ petition is disposed of accordingly.

Sd/-

SHAJI P.CHALY JUDGE

uu 15.07.2021 WP(C) NO. 25517 OF 2016

APPENDIX OF WP(C) 25517/2016

PETITIONER ANNEXURE

EXHIBIT P1 PHOTOCOPY OF DOCUMENT NO.3063/1984 OF SRO MANNARKKAD

EXHIBIT P2 PHOTOCOPY OF BASIC TAX RECEIPT FOR THE YEAR 2015-2016 DT.25.04.2015

EXHIBIT P3 PHOTOCOPY OF THE LETTER DATED 19-12-2002 OF THE 3RD RESPONDENT

EXHIBIT P4 PHOTOCOPY OF THE LETTER DATED 10.02.2009 OF THE 3RD RESPONDENT DEMANDING PAYMENT OF RS.1000/-

EXHIBIT P5 PHOTOCOPY OF THE RECEIPT EVIDENCING PAYMENT OF RS.1000/-

EXHIBIT P6 PHOTOCOPY OF THE LETTER DATED 08.07.2009 OF THE 3RD RESPONDENT TO THE 5TH RESPONDENT

EXHIBIT P7 PHOTOCOPY OF THE LETTER DATED 17.03.2012 SENT TO THE 3RD RESPONDENT

EXHIBIT P8 PHOTOCOPY OF THE LETTER DATED 30.09.2013 ENCLOSING THE SURVEY REPORT ADDRESSED TO THE 2ND RESPONDENT

EXHIBIT P9 PHOTOCOPY OF THE LETTER DATED 18.10.2013 OF M B RAJESH,MEMBER OF PARLAIMENT FOR-WARDING THE REPRESENTATION OF THE PETITIONER

EXHIBIT P10 PHOTOCOPY OF THE REPLY DATED 22.10.2013 OF THE 2ND RESPONDENT TO SHRI.M.B.RAJESH,MEMBER OF PARLIAMENT

EXHIBIT P11 PHOTOCOPY OF JUDGMENT IN WP(C)NO.28377/2013 DATED 25.07.2014 OF THIS HONOURABLE COURT

EXHIBIT P12 PHOTOCOPY OF THE ORDER DATED 30.04.2016 PASSED BY THE 6TH RESPONDENT AND SKETCH.