IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WP(C).No. 19130 of 2008(B) -------------------------- PETITIONER: ------------ 1. JOSEPH SEBASTIAN, AGED 48, S/O.LATE M.S.DAVIS, MUZHANKUMTHARA HOUSE, KOTHAD, SOUTH CHITTOOR, COCHIN. 2. M.D.ALICE, AGED 54, W/O.P.C.JOSEPH, PANACKAL HOUSE, SOUTH CHITTOOR, COCHIN - 27. 3. AGNES MARY, AGED 50, W/O.DAMIEN, ELAVANTHARA HOUSE, AROOR P.O., CHERTHALA. BY ADV. SRI.K.R.SUNIL RESPONDENTS: ------------- 1. THE DEPUTY GENERAL MANAGER, RAILWAY VIKAS NIGAM LIMITED, 38/1958, DEVI KRIPA, GANDHI NAGAR, HIG AVENUE ROAD, KADAVANTHRA, COCHIN. 2. MR.THOMAS, OFFICE MANAGER, RAILWAY VIKAS NIGAM LIMITED, 38/1958, DEVI KRIPA, GANDHI NAGAR, HIG AVENUE ROAD, KADAVANTHARA, COCHIN. 3. THE DISTRICT COLLECTOR, ERNAKULAM, REP. BY THE GOVERNMENT PLEADER, HIGH COURT OF KERALA. BY ADV. SRI.N.B.SUNIL NATH,SC, RAILWAYS FOR R1 & 2 GOVT. PLEADER SRI.BASANT BALAJI FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No.19130 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of July, 2008 JUDGMENT Under challenge in this writ petition is Ext.P4 notice issued by the first respondent to the second petitioner - Smt.M.D.Alice. Under Ext.P4 second petitioner was informed that if her request for retention of the staircase portion of the building which was acquired for the purposes of railway connectivity to the ICTT at Vallarpadam is to be favourably considered, she will have to refund a sum of rupees one lakh since the value of staircase portion was also included in the total compensation paid to her for her acquired property. 2. Sri.K.R.Sunil, learned counsel for the petitioners would submit that the staircase portion did not belong to the second petitioner but it belonged to the first petitioner. He made an endeavour to convince me that it is so, on the basis of certain recitals in the title documents under which the petitioners were owning their respective portions of the acquired property. He would also urge that the Railway Vikas Nigam Ltd. who have issued Ext.P4 have no authority to issue a WPC.No.19130/08 2 demand in the nature of Ext.P4 since the requisitioning authority in the acquisition was the Deputy Chief Engineer ( construction), Southern Railway. Sri.Sunil however did not dispute the claim of the first respondent that they are an agency under the Government of India who are executing the project of providing Railway Connectivity to the ICTT at Vallarpadam. 3. Paragraphs 3 and 6 of the detailed statement filed by the railway standing counsel on behalf of the first respondent and second respondent ( Deputy General Manager , RVNL, and Office Manager, RVNL) are relevant and the same are quoted as follows: “ The petitioner's contention that land has been acquired by the 1st respondent is not true. The land has been acquired for the proposed rail connectivity project to International Container Transshipment Terminal( ICTT for short) all Vallarpadam by Southern Railways represented by The Deputy Chief Engineer, Construction, Southern Railway, Ernakulam. The Land Acquisition Officer is the Special Tahsildar (LA), Railways , Ernakulam. The first respondent is only the agency for executing the project and assisting the requisitioning authority for WPC.No.19130/08 3 speedy completion of the land acquisition works. The land acquired for this project from the 2nd and 3rd petitioner is 2 ares ( 4.94 cents) out of the 2.22 ares ( 5.48 cents) of land owned by them. The contention that the balance portion belongs to the 1st petitioner is false as 0.22 ares( 0.543 cents) still belongs to the 2nd petitioner. An amount of Rs. 2847047/- has been paid to the 2nd petitioner and Rs. 23,58,178/- to the 3rd petitioner duly deducting TDS. This amount has been made for the value of the structure without depreciation and for the value of the land. The relevant page of the District Level Purchase Committee Calculation Statement is produced herewith and marked as Ext.R1(a). The staircase available was in the property of the 2nd petitioner which was fully taken over by the Railways after paying the full compensation for the structure and the structural valuation done was inclusive of this staircase as it formed a part of the 2nd petitioner. The sketch showing the plan of the 2nd petitioner is produced here with and marked as Ext.R1 (b).” 4. Thus the stand of the respondents on the basis of the WPC.No.19130/08 4 calculation statement prepared by the District Level Purchase Committee whose package was accepted by the petitioners in the matter of acquisition of their properties will show prima facie that the total amount paid to the second petitioner takes in the value of the staircase portion which is sought to be retained by the first petitioner who is the brother of the second and third petitioners. The request of the second petitioner before respondents 1 and 2 is that the first petitioner, her brother should be allowed to retain the staircase since the same is absolutely necessary for the continued enjoyment of the building belonging to the brother. In so far as compensation was paid to the second petitioner towards value of the staircase also, prima facie respondents 1 and 2 cannot be faulted for insisting that if the staircase portion is allowed to be retained, the amount which was paid to the second petitioner as value of that portion will have to be refunded. 5. The last submission of Sri.Sunil was that respondents 1 and 2 are insisting that the staircase portion should be demolished. Learned standing counsel for the Railways would submit that such a situation can always be averted by the petitioner if either of them pay a sum of WPC.No.19130/08 5 Rs. 1,00,000/- demanded under Ext.P1. Having due regard to the contours of this court's jurisdiction under Article 226, it is not possible for this court to settle the question as to title over the disputed staircase. The challenge against Ext.P4 will stand turned down and the writ petition will stand dismissed. It is however made clear that this judgment will not stand in the way of the petitioner approaching competent civil court for appropriate reliefs, if so advised. Considering the final request of the learned counsel for the petitioner that a reasonable time be given for payment of the amount demanded, there will be a direction that the respondents will not enforce demolition of the staircase in question for a period of one more month from today. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.19130/08 6