Rev.Fr.Augustine Thottakkara vs The District Collector Ernakulam
2023 Latest Caselaw 7059 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        FRIDAY, THE 23RD DAY OF JUNE 2023 / 2ND ASHADHA, 1945
                       WP(C) NO. 36479 OF 2022
PETITIONER:

           REV.FR.AUGUSTINE THOTTAKKARA, PRIOR, CMI,
           CHRIST THE KING NOVITIATE MONASTERY,KARUKUTTY,
           ANGAMALY, ERNAKULAM DISTRICT, PIN-683576.

           BY ADV UNNIKRISHNAN.V.ALAPATT



RESPONDENTS:

    1      THE DISTRICT COLLECTOR ERNAKULAM,
           CIVIL STATION,KAKKANAD, PIN682030.

    2      THE DIVISIONAL RAILWAY MANAGER,
           SOUTHERN RAILWAY, THYCAUD, THIRUVANANTHAPURAM-695014.

    3      THE TAHASILDAR, ALUVA TALUK OFFICE, MINI CIVIL STATION,
           ALUVA, PIN-683101.

    4      THE VILLAGE OFFICER-KARUKUTTY,
           VILLAGE OFFICE ,KARUKUTTY - 683576.

           SRI.MANU S., DSG OF INDIA
           SMT.G.MAHESWARY

           SRI.RIYAL DEVASSY[ GP]


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 36479 OF 2022
                                 2


                             JUDGMENT

The petitioner, who represents a Monastery, says that,

as is evident from Exts.P2 to P7, an extent of 4.574 Acres of

land, left after the acquisition of the balance by the Indian

Railways, has been ordered to be returned to them; but that

no action has been taken by any of the official respondents

until now. He further asserts that there is another 50 cents

of land, which is the unauthorised occupation of railways; and

prays that the same be also directed to be returned to the

Monastery without any avoidable delay.

2. The afore submissions of Sri.Unnikrishan V.Alapatt -

learned counsel for the petitioner, were answered by

Smt.G.Maheswary - learned Central Government Counsel,

saying that a statement has been filed on behalf of the second

respondent, wherein, the following averments have been

made:

"On receiving the Exhibit P9 representation dated 6.09.2022, the 2nd respondent, through the Office of Senior Section Engineer, Aluva had given an application for joint survey of railway land comprised in old survey numbers 923/5A,929/5B 1, 929/4A1, 929/2A3, 922/13A25 922/ 1-1a before the taluk surveyor, 3rd and 4th respondents on 5.11.2022 itself and also sent reminders WP(C) NO. 36479 OF 2022

on 15.12.2022, 21.01.2023, 23.01.2023.

The 4th respondent, village officer had given a reply on 27.01.23, stating that the re-survey works in Karukutty Village was over. As the records needed are more than 55 years old, and only the old survey numbers of the land are available with the parties, it will take some time to find out the relevant land records. Hectic works due to financial year ending and the shortage of staff are also the reasons for the delay.

The 3rd respondent, Thahasildar by a letter dated 25.02.2023 asked this respondent office for a convenient date for the survey of the land. Hence this respondent's office had sent letters dated 04.03.2023 and 03.04.2023 to the Taluk Surveyor, Aluva for fixing a convenient date for the joint survey of land. The date for the survey is not yet fixed.

The petitioner also contended that, apart from the properties mentioned in Exhibit P1, an extent of 50 cents of land obtained by the petitioner Monastery as per document no. 2508 /1093^ * (M.E) is in the possession of Railway. The petitioner sought for a direction to the 2nd respondent to handover the possession of that 50 cents also. It is submitted that this respondent is not aware about that 50 cents of land. If the petitioner has any such claims, he may proceed before competent forum."

Smt.G.Maheswary submitted that, therefore, only if a proper

survey of the property is done, can the first mentioned 4.574

Acres be identified; while she has no information whether the

second extent of 50 cents is available with the Railways, as

claimed by the petitioner. She added that this can also be

clarified only after a proper survey.

3. Sri.Riyal Devassy - learned Government Pleader,

submitted that respondents 3 and 4 suffer no legal WP(C) NO. 36479 OF 2022

impediment in conducting a survey of the property in

question, provided they are given sufficient requisition by the

second respondent or such other competent Authority of the

Southern Railways. He pointed out that, unless relevant

documents are made available to respondents 3 and 4, no

action can be taken for the survey; thus praying that this

Court direct the second respondent or other competent

Authority of the Southern Railway to make a proper

requisition for survey, so that the aforementioned Authorities

can then take action for conducting it, leading to appropriate

sketches and reports being finalised.

4. At this time, Smt.G.Maheswary - learned Central

Government Counsel, submitted that an application for survey

of the property has already been made before the third

respondent - Tahsildar, but that no action has been taken on

it yet.

5. I am afraid that the afore submissions of

Smt.G.Maheswary cannot be immediately accepted, because

no application has been produced before this Court, though it

is mentioned in the afore extracted paragraph 8 of the WP(C) NO. 36479 OF 2022

statement.

6. I am, therefore, of the firm view that the Sourthern

Railway must make a fresh application/requisition, with all

relevant documents, before the third respondent for survey of

the properties in question, so that it can be done by the said

Authority, or by such other competent Authorities, without

any avoidable delay. This is more so because, the petitioner

cannot be made to wait ad infinitum, merely because the

properties which they claim are not identified.

In the afore circumstances, this writ petition is ordered

in the following manner:

(a) The second respondent, or such other competent

Authority of the Southern Railway, will immediately make a

requisition, along with all applicable records, to the third

respondent - Tahsildar, seeking survey of the properties in

question and mentioned therein; which shall be done within a

period of one month from the date of receipt of a copy of this

judgment.

(b) On the afore application being received by the third WP(C) NO. 36479 OF 2022

respondent - Tahsildar, he will proceed to initiate the survey,

with the assistance of the fourth respondent and/or such

other officers as are necessary and complete the same; thus

leading to a survey report and sketch, which shall be done

after hearing the petitioner, as also the competent Authority

of the Southern Railway. This exercise shall be completed

not later than six months from the date on which the

application as mentioned in direction (a) above is received by

the third respondent - Tahsildar.

(c) On the survey being so completed and the report

and sketch being obtained by the second respondent -

Divisional Railway Manager, necessary action for the return

of the properties claimed by the petitioner, including 50 cents

allegedly in the unauthorised occupation of the Railway, shall

be considered and ordered within a period of two months

thereafter. The physical return of the land shall also be

completed within the said period.

(d) On the physical restoration of the properties as

afore, the petitioner will be free to approach the competent

Revenue Authority for the issuance of "patta" thereon, as has WP(C) NO. 36479 OF 2022

been ordered and reflected in Exts.P2 to P7 orders, which

shall be then acceded to subject to all imperative

requirements being satisfied, without any avoidable delay

thereafter.

Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 36479 OF 2022

APPENDIX OF WP(C) 36479/2022

PETITIONER EXHIBITS

Exhibit P1 TABLE SHOWING THE DETAILS OF THE PROPERTIES OF THE PETITIONER MONASTERY.

Exhibit P2 TRUE COPY OF THE ORDER DATED 29.6.1966 BY THE SPECIAL DEPUTY COLLECTOR FOR RELINQUISHMENT OF RAILWAY LAND, MAVELIKKARA IN SY NO. 929/5B1.

Exhibit P3 TRUE COPY OF THE ORDER DATED 29.6.1966 BY THE SPECIAL DEPUTY COLLECTOR FOR RELINQUISHMENT OF RAILWAY LAND, MAVELIKKARA IN SY NO. 929/2A3.

Exhibit P4 TRUE COPY OF THE ORDER DATED 29.6.1966 BY THE SPECIAL DEPUTY COLLECTOR FOR RELINQUISHMENT OF RAILWAY LAND, MAVELIKKARA IN SY NO. 929/4A1.

Exhibit P5 TRUE COPY OF THE ORDER DATED 29.6.1966 BY THE SPECIAL DEPUTY COLLECTOR FOR RELINQUISHMENT OF RAILWAY LAND MAVELIKKARA IN SY NO. 929/5A

Exhibit P6 TRUE COPY OF THE ORDER DATED 29.6.1966 BY THE SPECIAL DEPUTY COLLECTOR FOR RELINQUISHMENT OF RAILWAY LAND MAVELIKKARA IN SY NO. 922/1/1.

Exhibit P7 TRUE COPY OF THE ORDER DATED 22.7.1966 BY THE SPECIAL DEPUTY COLLECTOR FOR RELINQUISHMENT OF RAILWAY LAND MAVELIKKARA IN SY NO. 922/13A.

Exhibit P8 TRUE COPY OF THE RELEVANT EXTRACT OF THE BASIC TAX REGISTER.

WP(C) NO. 36479 OF 2022

Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED 6.9.2022 SENT BY THE PETITIONER TO THE 1ST RESPONDENT.