Kerala High Court
Annamma Jacob vs State Of Kerala on 20 December, 2013
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
FRIDAY, THE 20TH DAY OF DECEMBER 2013/29TH AGRAHAYANA, 1935
WP(C).No. 8095 of 2013 (J)
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PETITIONER :
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ANNAMMA JACOB, AGED 63 YEARS
W/O.C O JACOB, CHAKRASSERIL ,
THEEPPENI, THIRUVALLA
BY ADVS.SRI.K.C.CHARLES
SRI.M.POLY MATHAI
SRI.VIMAL K.CHARLES
SMT.A.T.RENJU
RESPONDENTS :
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1. STATE OF KERALA
REP BY THE DISTRICT COLLECTOR,
PATHANAMTHITTA- 694337
2. ADDITINAL TAHSILDAR,
TALUK OFFICE, THIRUVALLA - 694649
3. THE DIVISIONAL MANAGER, SOUTHERN RAILWAY
TRIVANDRUM - 695001
R1 & R2 BY ADV. SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL
BY SENIOR GOVERNMENT PLEADER SRI.T.P.SAJID
R3 BY ADV. SRI.V.E.ABDUL GAFOOR,SC, RAILWAYS
SRI.C.S.DIAS,SC, RAILWAYS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 29-11-2013, THE COURT ON 20-12-2013 DELIVERED THE
FOLLOWING:
BP
WP(C).No. 8095 of 2013 (J)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1:- A TRUE COPY OF DOC.3690/70 OF SRO, THIRUVALLA.
EXT.P2:- A TRUE PHOTOCOPY OF THE PROCEEDINGS OF THE SAID
AUTHORITY GIVEN TO SRI.RAGHAVAN
EXT.P3:- A TRUE PHOTOCOPY OF THE RECEIPT DTD 17/9/65.
EXT.P4:- A TRUE COPY OF THE NOTICE ISSUED TO SRI C R RAGHAVAN
EXT.P5:- A TRUE COPY OF THE LETTER FROM THE IST RESPONDENT
DTD 21/4/2010.
EXT.P6:- A TRUE COPY OF THE JUDGMENT IN WPC NO 37981/2010
DTD 9/6/2011.
EXT.P7:- A TRUE COPY OF THE REPRESENTATION DTD 27/6/2011 TO
THE SURVEY SUPERINTENDENT, PATHANAMTHITTA AND
TAHSILDAR,THIRUVALLA.
EXT.P8:- A TRUE COPY OF THE LETTER DTD 22/11/2012 FROM THE
3RD RESPONDENT TO THE PETITIONER.
EXT.P9:- A TRUE COPY OF THE SAID REPRESENTATIN DTD 7/12/2012.
EXT.P10:- TRUE COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY
OF THE THIRUVALLA, MUNICIPALITY DTD 25/09/2010
RESPONDENT(S)' EXHIBITS : NIL.
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//TRUE COPY//
P.A. TO JUDGE
BP
P.R. RAMACHANDRA MENON, J.
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W.P.(C)No.8095 OF 2013
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Dated this the 20th December, 2013
J U D G M E N T
The petitioner seeks for a direction to be given to the second respondent/Addl.Tahsildar to correct the entry in the re- survey records and effect mutation in respect of the land in Sy.No. 376/7 (new re-survey No. 215/5) of Thiruvalla Village covered by Ext.P1 Sale Deed No.3690/70, SRO, Thiruvalla, since the request made by the petitioner has been declined by the second respondent stating that the property is seen described in the revenue records as 'Railway Puramboke' and hence 'NOC' was to be obtained from the third respondent. The petitioner seeks for a direction to the third respondent/the Divisional Manager, Southern Railway as well, to issue necessary NOC in this regard.
2. The pleadings and proceedings in the writ petition reveal that the petitioner's husband purchased an extent of 3.625 cents of land in the above survey number from one Raghavan as per Ext.P1 Sale Deed dated 06.10.1970, paying the agreed sale consideration. As a matter of fact, the said property along with W.P.(C)No.8095 OF 2013 2 other larger extents were belonging to the Railways. On finding that, the concerned extents of lands were lying as surplus lands after meeting the requirements, the Railways relinquished the surplus lands by subjecting the same to auction sale. It was accordingly, that the property was purchased by the predecessor- in-interest Mr. Raghavan, by way of auction sale conducted by Railways Spl. Deputy Collector, Kollam. A copy of the relevant proceedings in this regard is produced as Ext.P2. As borne by the said proceedings, the property was purchased by the aforesaid Raghavan satisfying the cost of Rs.405/ in the year 1965. After giving credit to the amount of Rs.100/- originally satisfied, the balance sale consideration was satisfied on 17.09.1965, as borne by Ext.P3 receipt. Thereafter, as per Ext.P4 notice, issued by the Revenue Supervisor from the office of the Special Deputy Collector for effecting measurement and demarcation of land, the property was measured out; boundaries were demarcated and Raghavan was put in possession . It was thereafter, that the property was purchased by the deceased husband of the petitioner, as per Ext.P1 document of the year W.P.(C)No.8095 OF 2013 3 1970. Ever since the execution of the said deed, the petitioner and her family were residing there and upon the demise of her husband, the petitioner is eking out her livelihood by doing some menial jobs and looking after the children accordingly. By virtue of the turn of events, the petitioner was not in a position to pay the land tax and to take timely steps to effect mutation in the village records.
3. Since the request of the petitioner to effect mutation was not considered, the petitioner approached this Court earlier by filing W.P(C)No.37981 of 2010, which was disposed of as per Ext. P6 judgment dated 09.06.2011, setting the petitioner at liberty to approach the Tahsildar and Survey Superintendent by filing necessary application as prescribed, so as to have appropriate reliefs, simultaneously giving necessary directions to cause the matter to be considered and finalised by the authorities within the time as specified therein. It was accordingly, that the petitioner filed Ext.P7 application before the Survey Superintendent, Pathanamthitta, with copy to the Tahsildar. This came to be considered and finalised by the second W.P.(C)No.8095 OF 2013 4 respondent/Addl.Tahsildar, Thiruvalla, who passed Ext.P8 order dated 22.11.2012 directing the petitioner to produce the documents issued by the Railways in connection with the alleged auction sale and to produce the tax receipt before conducting the re-survey, along with 'NOC' to be issued by the Railways. Since Ext.P9 application filed by the petitioner before the third respondent for extending the necessary reliefs did not turn to be fruitful, the petitioner has approached this Court.
4. In the course of further proceedings, the Railways sought to acquire the said property for doubling of the Railway Line. For payment of compensation, the petitioner was required to produce the property tax receipt and when the petitioner approached the Revenue authorities for effecting mutation to enable the petitioner to satisfy the land tax, it was refused to be acceded to, stating that the property was shown lying as 'Railway Puramboke' in the revenue records and as such, 'NOC' was to be obtained from the Railways. The attempt made by the petitioner to have the grievance redressed did not turn to be fruitful and hence this Writ petition.
W.P.(C)No.8095 OF 2013 5
5. A counter affidavit has been filed by the second respondent, pointing out that the land in question has been recorded as 'Railway Puramboke' as per the Re-survey records; however conceding that the possession is of course with the petitioner. It is stated that the old 'Thandapper Register' in relation to the land in Old Survey No.376/7 is not available with the village office concerned and that the joint inspection of the property and verification of the records conducted by the Sr. Section Engineer/P.Way, Southern Railway, Kottayam and Taluk Surveyor of Thiruvalla on 27.04.2012 revealed that the above said land was belonging to the Railways as per the available records. It was in the said circumstance, that the petitioner was required to produce 'NOC' from the Railways for effecting mutation and for payment of land tax. It is stated that, though the petitioner produced a copy of Ext.P2 (a copy of the proceedings stated as issued by Spl. Deputy Collector. Railways), authenticity of the said document could not be ascertained from the Railway authorities and the Railway has conveyed their inability to issue No Objection Certificate in favour of the W.P.(C)No.8095 OF 2013 6 petitioner, by virtue of which, no changes could be made in the re-survey records .
6. The third respondent /Divisional Manager of the Southern Railways has filed a separate counter affidavit pointing out that the petitioner had earlier approached this Court by filing W.P.(C)No.37981 of 2010 wherein Ext.P6 judgment was passed. Pursuant to the said verdict, a joint survey/verification was conducted by the Addl.Tahsildar, Thiruvalla along with Sr.Section Engineer, Southern Railway, Kottayam and Taluk Surveyor, Thiruvalla, when it was found that the property was belonging to the Railways as per the records. It is also stated in the paragraph '5', that the said land was proposed for relinquishment, but as on date relinquishment has not taken place. It is further stated that the property is absolutely necessary for doubling of the Railway line between Chengannur and Chingavanam, which is a 'public purpose'. But, there is absolutely no mention with regard to Ext.P2, in the counter affidavit filed by the Railways or as to the rights and interests devolved upon Raghavan, the predecessor-in-interest of the W.P.(C)No.8095 OF 2013 7 petitioner's husband, who purchased the property by way of auction sale from the Railways in the year 1965. Nothing is mentioned as to Ext.P3 payment effected by Raghavan towards the balance sale consideration and it was from Raghaven, that the property was purchased by the deceased husband of the petitioner, vide Ext.P1. Similarly, it is conceded from the part of the third respondent, that the property was proposed to be relinquished; but the facts and circumstances under which it was proposed to be relinquished are not revealed in the counter affidavit filed by the third respondent.
7. It is true, that mutation was not effected in respect of the property either in the name of the deceased husband of the petitioner or his legal heirs and no land tax was satisfied under the Kerala Land Tax Act. But Ext.P1 Title Deed or the authority of the vendor Raghavan to have executed Ext.P1 is not under challenge and undisputedly, no steps have been taken by the Railways to have Ext.P1 cancelled so far, by approaching the competent court of law. It is also pointed out that, but for this property having a small extent of 3.625 cents, all the nearby W.P.(C)No.8095 OF 2013 8 properties have been subsequently taken over by the Railways paying compensation to the parties concerned. If this be the position, how this tiny bit of 3.625 cents of land alone remains to be the property of the Railways is not explained by the concerned respondent.
8. It is settled law, that mutation to be effected is only to cause entries in the revenue records in terms of the Transfer of Registry Rules and that mutation does not declare or divest title . In so far as the title obtained to the deceased husband of the petitioner vide Ext.P1 Sale Deed of 1970 is not under challenge and since the possession of the petitioner over the property stands conceded, this Court finds that the petitioner is entitled to succeed.
9. In the said circumstance, there will be a direction to the second respondent to effect mutation of the property covered by Ext.P1 without insisting for production of 'NOC' from the third respondent/Railways and to accept land tax including the arrears, as and when tendered by the petitioner. Since there is no dispute for the petitioner with regard to the proposed acquisition by the W.P.(C)No.8095 OF 2013 9 Railways for doubling of the Railway line, subject to satisfaction of adequate compensation, it is made clear that the third respondent is at liberty to proceed with the steps for acquiring the land covered by Ext.P1 from the petitioner paying compensation, in accordance with law. The steps to effect mutation and for acceptance of land tax shall be finalised by the second respondent/Addl. Tahsildar, Thiruvalla, at the earliest, at any rate, within one month from the date of receipt of a copy of the judgment. So as to facilitate such exercise, Ext.P8 order dated 22.11.2012 passed by the second respondent will stand set aside. The writ petition is allowed to the said extent. No cost.
P.R.RAMACHANDRA MENON JUDGE lk