## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**THURSDAY, THE 5TH DAY OF OCTOBER 2017/13TH ASWINA, 1939**
**WP(C).No. 22780 of 2015 (V)**
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**PETITIONER :**
**K.G. MURALEEDHARA MENON S/O.LATE ACHUTHAN PILLAI, LAKSHMISREE CHITHRAPUZHA, IRIMPANAM P.O, ERNAKULAM DISTRICT.**
**BY ADVS.SRI.ABRAHAM P.GEORGE SMT.M.SANTHY SMT.M.D.BEENA**
**RESPONDENTS :**
**1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.**
**2. THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT, CIVIL STATION,KAKKANAD-682030.**
**3. THE TAHASILDAR KANAYANNUR TALUK, ERNAKULAM-682016**
**4. THE VILLAGE OFFICER, EDAPALLY SOUTH VILLAGE, EDAPALLY PO-682025.**
**5. THE RAILWAY DIVISIONAL MANAGER (WORKS) SOUTHERN RAILWAY, THYKKADU, THIRUVANANTHAPURAM-695 001.**
**WP(C).No. 22780 of 2015 (V)**
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**6. THE TAHASILDAR (LR) LAND ACQUISITION, KANAYANNUR TALUK-682025.**
**R1 TO R & R6 BY GOVERNMENT PLEADER**
**SMT. A.C.VIDYA R5 BY SRI.A.DINESH RAO, SC,**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**bp**
**WP(C).No. 22780 of 2015 (V)**
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## **APPENDIX**
## **PETITIONER(S)' EXHIBITS -----------------------**
**P1 : THE TRUE PHOTO COPY OF THE RELEVANT PAGES (PAGES 1 TO 4 & 21) OF THE PARTITION DEED NO.1051/1093 ME. P2 : THE TRUE PHOTOCOPY OF THE REPLY DATED 16-7-2012 ISSUED BY THE PUBLIC INFORMATION OFFICER/VALUATION ASSISTANT (LA) RAILWAYS. P3 : TRUE PHOTOCOPY OF JUDGMENT PASSED BY HON'BLE HIGH COURT DATED 13-1-2014 INN WPC.NO.28519/2013. P4 : TRUE PHOTOCOPY OF SURVEY SKETCH AND REPORT OF TALUK SURVEYOR ON MEASUREMENT OF PROPERTY. P5 : TRUE COPY OF RELEVANT PORTION OF 4(1) NOTIFICATION PUBLISHED WITH RESPECT TO EDAPPALLY SOUTH VILLAGE. P6 : TRUE PHOTOCOPY OF SALE DEED NO.2592/95 DATED 12-4-1995 OF SRO EDAPPALLY IN THE NAME OF R.SHABEER KHAN. P7 : TRUE PHOTOCOPY OF APPLICATION SUBMITTED R.SHABEER KHAN BEFORE HON'BLE JUSTICE K.SUKUMARAN COMMISSION FOR ENHANCED COMPENSATION AND OTHER RELIEFS. P8: COPY OF THE APPLICATION DT 2/3/2013 BEFORE R2. (IA NO.4552/2017) RESPONDENT(S)' EXHIBITS : NIL. //TRUE COPY//**
**P.A. TO JUDGE**
**b**
## **K. VINOD CHANDRAN, J.**
**---------------------------------W.P(C). No.22780 of 2015 [V] ---------------------------------Dated this the 5[th] day of October, 2017**
## **JUDGMENT**
Petitioner has filed this writ petition seeking completion of acquisition proceedings as per Ext.P5 notification, of 8.12 Ares of land in Survey No.230/18B of Edappally South Village, alleged to be owned by the petitioner's father by virtue of Partition Deed No.1051/1093[ME] of SRO, Alangad.
2. The petitioner's claim is built upon the recitals in a document, which has not been produced in the above writ petition, but some extracts alone are appended as Ext.P1. The claim is raised on the contention that the petitioner's father was a party to the Partition Deed, portions of which are produced as Ext.P1. 52 cents of land is said to
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have existed in Survey No.230/18B, 230/20A and 230/2B. Out of the said 52 cents, 27 cents in Survey No.230/18B was allotted to the petitioner's father's share as seen from Ext.P1. The specific recital in the schedule is that the owner had acquired title over the B-Class property of the Railways in an auction conducted by the Railways. Leaving a balance of 8.12 Ares, the properties in Survey No.230/18B was acquired for the purpose of construction of Vallarpadam Terminal. The balance remaining cannot be used for any other purpose and hence needs to be acquired is the plea.
3. It is pertinent that the petitioner never raised such a claim or even a claim of compensation for the acquired land, at the time of the notification and the acquisition proper, by taking possession. The petitioner applied for information under the Right to Information Act, 2005, which was
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responded to by Ext.P2 dated 16.07.2012, which indicated that 8.12 Ares as sought for by him in Survey No.230/18B was not acquired for the aforesaid project.
4. The petitioner then approached this Court with a request to direct the respondents to effect mutation of 52 cents of land in Survey Nos.230/18B, 230/20A & 230/2B of Edappally South Village in favour of the petitioner and other co-owners. This Court by Ext.P3, noticing the submission of the learned Government Pleader that there is involvement of property of the Railways, directed finalisation of measurement within six weeks. Mutation was also directed to be considered within one month thereafter. The sketch prepared on such measurement is seen at Ext.P4. The 8.12 Ares remaining after acquisition in Survey No.230/18B is shown in the sketch as a narrow strip of land. The
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petitioner also relies on the Talk Surveyor's report at Ext.P4, which indicates that the 27 cents is shown as Railway B-Class auction in a document, which is more than 100 years old. The notification issued at Ext.P5 is also produced, which indicates the notification for acquisition having been taken in the year 2007. Even the date of the notification is not clear from Ext.P5 and from the number 450/A2/07 it should be assumed that the same was issued in the year 2007. The petitioner also claims that a similar description in Ext.P6 was conceded to and mutation effected by the petitioner also relies on the judgment of the Hon'ble Supreme Court in **Sawarni v. Inder Kaur & others [AIR 1996 SC 2823]** _._
5. The Counter Affidavit of the Government indicates that the property itself was described as Railway puramboke as per the Basic Tax Register
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[BTR]. The petitioner's argument based on this statement, is that the Railways do not have any claim over such property. Admittedly, the properties acquired from Survey No.230/18B were surrendered to the Railways themselves for the purpose of constructing the Vallarpadam Container Terminal. Merely because the Railways now do not have any claim on the balance property; based solely on the recital in a partition deed the petitioner cannot assert title. The property remains as puramboke and if the Railway does not claim it, it belongs to the State.
6 _._ It is to be noticed that though the petitioner contends that the property was allotted to his father's share, neither his father or his legal heirs ever sought for mutation of the properties. Even at the time of acquisition in the year 2007, there was no claim raised before the
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Land Acquisition Officer. Clearly the petitioner or his family did not have possession of the said lands. The notification issued at Ext.P5 also specifically shows the property remaining in Survey No.230/18B as puramboke plus nilam. The acquisition was carried out of the properties in Survey No.230/18B as puramboke property and the same has also been surrendered to the requisitioning authority. The entire proceedings with respect to the acquisition was over and the requisitioning authority has also obtained possession of the said lands. In such circumstances, there is no question of a further acquisition being directed as against the 2.81 Acres of land remaining in Survey No.230/18B. There can also be no mutation effected of the lands comprised in Survey No.230/18B.
7. Further it is to be specified that the petitioner has failed to prove that he is the owner
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of the property. The petitioner merely relies on the recitals in certain extracts produced of a document to contend that the ownership of the properties were conferred on the Tharwad of his father by way of an auction of the properties conducted by the Railways. There is nothing produced to show a conveyance having been effected by the Railways on the basis of such auction. Merely because in a partition deed there is a recital as to the property having been acquired from an auction, that cannot confer a title on the persons who are partitioning the said property.
8. There is no identity of facts or cause discernible from Ext.P6, the similarity being confined to the schedule showing the property to be originally obtained on an auction of the Railways. Ext.P6 is of the year 1995 and the vendor was residing in a home in that property and the claim
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for compensation made was at the proper time.
9. Petitioner's reliance on **Sawarni** [supra] cannot be countenanced since it does not speak of any title being conferred merely on the basis of a description in a title deed; especially when the revenue records indicate it to be puramboke. The declaration relied on by the petitioner is also with respect to the mutation of a property in the Revenue Records not creating or extinguishing a title nor having any presumptive value in deciding title. What the petitioner would essentially contend is that merely because the mutation is not effected, his title cannot be effaced. This Court is in perfect agreement with that proposal, but however the petitioner has failed miserably to prove his title otherwise and there can be no negative declaration sought, for reason only of mutation having been not carried out. It cannot as
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a corollary be laid down that if mutation is not effected any person could claim title over a puramboke land based on a recital in a document entered into between private parties especially when there is not even established possession. The petitioner is on an experimental litigation without any legal basis and the writ petition is liable to be dismissed. No costs.
Sd/-
## **K. VINOD CHANDRAN, JUDGE.**
//True Copy//
P.A. to Judge
sp/06/10/17
