IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 WP(C).No. 26242 of 2007(Y) -------------------------- PETITIONERS: ------------ 1. T. THANKACHI, DAKSHINAYIL, EZHUKONE, KOLLAM. 2. V.N. HAREENDRAN, SREESAILAM, EZHUKONE, KOLLAM. BY ADV. SRI.ELVIN PETER P.J. RESPONDENTS: ------------- 1. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF RAILWAYS NEW DELHI. 2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER (CONSTRUCTION), SOUTHERN RAILWAY, THIRUVANANTHAPURAM. 4. THE SPECIAL TAHSILDAR (L.A), RAILWAYS, KOLLAM. BY ADV. SRI.SUBAL J.PAUL, SC, RAILWAYS FOR R1,3,4 BY GOVT. PLEADER MR.BASANT BALAJI FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 26242/07) PETITIONERS EXTS.: EXT.P1: TRUE COPY OF THE SALE DEED NO.874/98 OF SRO, EZHUKONE DATED 27.3.1998. EXT.P2: TRUE COPY OF THE NOTIFICATION DATED 23.11.2004 OF THE GOVERNMENT. EXT.P3: TRUE COPY OF THE ORDER DATED 21.6.2005 IN W.P.C.NO.18529 OF 2005 OF THIS HONOURABLE COURT. EXT.P4: TRUE COPY OF THE SALE DEED DATED 16.12.2005 EXECUTED BETWEEN THE FIRST PETITIONER AND THE 2ND PETITIONER. EXT.P5: TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 25.8.2007 ISSUED TO THE FIRST PETITIONER BY THE SECRETARY, EZHUKONE GRAMA PANCHAYAT. EXT.P6: TRUE COPY OF THE RECEIPT DATED 25.8.2007 EVIDENCING THE PAYMENT OF TAX BY THE FIRST PETITIONER. EXT.P7: TRUE COPY OF THE ROUGH SKETCH SHOWING THE LIE OF THE PROPERTY OF THE PETITIONERS. EXT.P8: TRUE COPY OF THE REPRESENTATION DATED 22.8.2007 SUBMITTED BY THE 2ND PETITIONER BEFORE THE THIRD RESPONDENT. EXT.P9: TRUE COPY OF THE REPLY DATED 23.8.2007 SENT BY THE 3RD RESPONDENT TO THE 2ND PETITIONER. EXT.P10(PRODUCED ALONG WITH I.A.NO.12720/07): TRUE COPY OF THE PHOTOGRAPHS SHOWING THE EXCAVATION WORK CONDUCTED BY THE RESPONDENTS CLOSE TO THE RESIDENCE OF THE PETITIONERS. EXT.P10: TRUE COPY OF THE SKETCH SHOWING THE DISTANCE BETWEEN THE FIRST PETITIONER'S PROPERTY AND THE RAILWAY LINE. EXT.P11: TRUE COPY OF THE COUNTER AFFIDAVIT ALONG WITH EXHIBITS IN W.P.C.NO.23216/06. RESPONDENTS' EXTS.(THIRD RESPONDENT): EXT.R3(a): TRUE COPY OF THE SKETCH PHOTO SHOWING THE BOUNDARY OF THE LAND ACQUIRED BY RAILWAYS AND THE PROPOSED RETAINING WALL. EXT.R3(b): TRUE COPY OF THE PHOTO SHOWING THE BOUNDARY OF THE LAND ACQUIRED BY RAILWAYS AND THE PROPOSED RETAINING WALL. PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.26242 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 26th May, 2008 JUDGMENT This Writ Petition has been filed by the petitioners, a small portion of whose building was acquired for the purpose of railway, seeking a direction to the respondents, the Union of India, the State of Kerala, The Chief Engineer(Construction), Southern Railway and the Land Acquisition Officer to pay full compensation to the 1st petitioner for the “destruction of her house as was done in the case of other similarly situated persons.” When the petitioners approached the third respondent with such a request, the third respondent took the stand that the extent of the building portion which was acquired from the petitioners is only half square feet/0.045 metre square. Considering the grievance of the petitioners that a small corner of their building touches the railway property, the petitioners were also informed that the railway has no objection in giving back that small portion extending to 17.84 square metre of the land which was acquired from the petitioners taking in the building portion which touches the railway property. Ext.P9 is the communication sent to the 2nd petitioner. The petitioners challenge Ext.P9. Through Ext.P9 the 2nd petitioner is informed that they will have to apply to the revenue W.P.C.No.26242/07 - 2 - authorities for getting reconveyance of the aforementioned 17.84 square metres and also will have to pay back compensation that was paid to the petitioners on account of the acquired property. The above offer is reiterated by the Railway in the counter affidavit which they have filed in this case. 2. I have heard the submissions of of Mr.Elvin Peter, counsel for the petitioners and the Standing Counsel for the Railways. I have heard the learned Government Pleader also. 3. Learned Standing Counsel for the Railways has placed before me the written instructions dated 9.11.2007 which was imparted him by the Deputy Chief Engineer(Construction) after the filing of the counter affidavit. It is stated therein and it is not disputed before me that a retaining wall has been constructed by the Railway separating the acquired properties from the unacquired portions of the petitioners property. This retaining wall is situated at a distance of 87 c.m. from the corner of the building. It is also stated that the distance between the petitioners building and the railway line is 21.50 metres and therefore there is no chance of any vibration being passed on to the petitioners property. In other words, the contention is that the petitioners apprehension regarding possible destruction of their W.P.C.No.26242/07 - 3 - building is not real. Learned counsel for the petitioners also did not dispute the submission that a retaining wall is constructed. He also conceded that so far no destruction or damage has been caused to the building. But he submitted that there is reasonable apprehension in the mind of the petitioners that once trains start running through the new line, the building stands the risk of being damaged. In similar circumstances, the railway has paid full value of the building to the concerned parties and the same treatment should be given to the petitioners. 2. The railway along with their counter affidavit have produced photographs showing pictures of the petitioners residential building and the retaining wall. The photographs were taken at the time of construction of the railway line. The photographs abundantly show that it is a substantial and strong building which has been constructed by the petitioners. The retaining wall construction of which is by now over, is a strong one. I do not find any reason to disbelieve the submission of the Standing Counsel for the Railways on the basis of the written instructions imparted to him that the railway line is located about 21.50 metre away from the petitioners house and there is no chance of any vibration being passed on to the petitioners W.P.C.No.26242/07 - 4 - property. At any rate, I do not think that this court will be justified in this jurisdiction in granting the relief of directing payment of full compensation to the petitioners in this case since the building is admittedly yet to be destroyed or damaged. The Writ Petition will stand dismissed. However this dismissal will not stand in the way of the petitioners seeking appropriate reliefs in the event of arisal of any genuine cause of action against the Railway at any future time. srd PIUS C.KURIAKOSE, JUDGE