Abraham Joseph v. District Collector, Idukki; Thodupuzha Municipality; Thodupuzha Municipal Council; Tribunal for Local Self Government Institutions, Thiruvananthapuram; and Addl. Respondents including Prakriti Samrakshana Samithi, Tahsildar, and Taluk Surveyor

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 29TH DAY OF MAY 2017/8TH JYAISHTA, 1939** **W.P(C).No.3570 of 2008 (Y)** **----------------------------------** **PETITIONER(S):-** ## **---------------** **ABRAHAM JOSEPH, S/O. JOSEPH, AGED 67 YEARS, PULIMOOTTIL, CHUNGAM, THODUPUZHA.** **BY ADVS. SRI.M.RAMESH CHANDER (SR.) SMT.K..SANJEETHA.** ## **RESPONDENT(S):-** ## **---------------** **1. DISTRICT COLLECTOR, IDUKKI.** **2. THODUPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY.** **3. THODUPUZHA MUNICIPAL COUNCIL, REPRESENTED BY ITS CHAIRMAN.** **4. TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM.** ## *** ADDITIONAL 5TH RESPONDENT IMPLEADED:** - **--------------------------------------** - **ADDL.R5. PRAKRITHI SAMRAKSHANA SAMITHI,** **MUTHALAKODAM, THODUPZHA [REG.NO.1/228/04], REPRESENTED BY IS PRESIDENT N.U.JOHN.** - **[ADDITIONAL 5TH RESPONDENT IS SUO MOTU IMPLEADED AS PER ORDER DATED 30.01.2008]** ## **** ADDITIONAL RESPONDENTS 6 AND 7 IMPLEADED:** **--------------------------------------------** **** ADDL.R6. THE THAHSILDAR, THODUPUZHA.** - **** ADDL.R7. THE TALUK SURVEYOR, THODUPUZHA.** - **[ADDITIONAL RESPONDENTS 6 AND 7 ARE SUO MOTU IMPLEADED AS PER ORDER DATED 03.03.2008].** **R1, R4, R6 & R7 BY GOVERNMENT PLEADER SMT.A.C.VIDYA. R2 & R3 BY STANDING COUNSEL SRI.UNNIKRISHNAN.V.ALAPATT ADDL.R5 BY ADV. SMT.DAISY A.PHILIPOSE R2, R3 BY ADV.SRI.P.K.SOYUZ, SC, THODUPUZHA MUNICIPALITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-** **W.P.(C) NO.3570 OF 2008-Y** ## **APPENDIX** |**PETITIONER'S EXHIBITS:-**|**PETITIONER'S EXHIBITS:-**| |---|---| |**-----------------------**|| |**EXT.P1**|**PHOTOSTAT COPY OF NOTICE NO.PW 4552/07 DT.30.6.07.**| |**EXT.P2**|**PHOTOSTAT COPY OF REPRESENTATION BEFORE THE 2ND RESPONDENT**| ||**DT.3.7.07.**| |**EXT.P3**|**PHOTOSTAT COPY OF NOTICE NO.PW 4552/07 DT.5.7.07.**| |**EXT.P4**|**PHOTOSTAT COPY OF JUDGMENT OF THIS HON'BLE COURT IN**| ||**WP.20931 OF 2007 DT.6.7.07.**| |**EXT.P5**|**PHOTOSTAT COPY OF ORDER DATED 24.08.2007 ISSUED BY**| ||**1ST RESPONDENT.**| |**EXT.P6**|**PHOTOSTAT COPY OF NOTICE ISSUED BY 2ND RESPONDENT.**| |**EXT.P7**|**PHOTOSTAT COPY OF REVISION BEFORE THE 4TH RESPONDENT**| ||**DATED 4.9.07.**| |**EXT.P8**|**PHOTOSTAT COPY OF ORDER OF THE 4TH RESPONDENT.**| |**EXT.P9**|**PHOTOSTAT COPY OF SALE DEED DT.12.3.75.**| |**EXT.P10**|**PHOTOSTAT COPY OF SALE DEED NO.1211/75 DT.29.5.1975.**| |**EXT.P11**|**PHOTOSTAT COPY OF DOCUMENT NO.657/82 DT.1.4.1982.**| |**EXT.P12**|**PHOTOSTAT COPY OF DOCUMENT NO.985/95 DT.4.3.95.**| ## **EXHIBITS PRODUCED ALONG WITH REPLY AFFIDAVIT:** **EXT.P13 PHOTOSTAT COPY OF THE DOCUMENT NO.487/1975 DATED 22.7.1995. EXT.P14 PHOTOSTAT COPY OF THE BUILDING PERMIT DATED 6.3.2006. EXT.P15 PHOTOSTAT COPY OF THE PHOTOGRAPH.** **EXHIBITS PRODUCED ALONG WITH THE OBJECTION TO THE REPORT OF TALUK SURVEYOR.** **EXT.P13 PHOTOSTAT COPY OF NOTICE ISSUED BY 7TH RESPONDENT DT.12.5.08. EXT.P14 PHOTOSTAT COPY OF BUILDING PERMIT ISSUED BY THODUPUZHA MUNICIPALITY DTD.6.3.06.** **RESPONDENTS' EXHIBITS:-** **----------------------NIL.** **vku/-** **[ true copy ]** K. Vinod Chandran, J --------------------------------------W.P.(C) No.3570 of 2008-Y --------------------------------------Dated, this the 29[th] day of May, 2017 ## **JUDGMENT** The petitioner is aggrieved with the eviction ordered from 39.873 cents, comprised in Survey Nos.265/1 and 266/4 of Thodupuzha Village, which is alleged to be puzha and thodu puramboke. The proceeding for eviction initiated by the Municipality is challenged in the above writ petition. 2. The petitioner was issued with a notice at Exhibit P1 as early as in 2007. The petitioner had also constructed a building in the said property, which was used as a hotel. The petitioner was asked to demolish the building and vacate the aforesaid extent of property, alleged to be puramboke. The petitioner filed an objection, as is seen at Exhibit P2. But, however, the authority confirmed the eviction by Exhibit P3, which though styled as a notice, is in fact an order for vacation of the property. A writ petition was filed against the said order, which was disposed of by Exhibit P4 judgment, directing the petitioner to seek appellate remedy. Exhibit P5 is the order in appeal passed by the Council. A further notice at Exhibit P6 - 2 - WP(C) No.3570 of 2008 was issued on rejection of the appeal; upon which the petitioner took up the matter before the Tribunal for Local Self Government Institutions as per Exhibit P7. The Tribunal too rejected the revision as per Exhibit P8, which orders are challenged here. 3. The learned Counsel for the petitioner submits that the petitioner had purchased 61.5 cents by two sets of deeds, produced as Exhibits P11 and P12. By Exhibit P11 deed dated 01.04.1982, the petitioner purchased 25 cents in Survey No.266/7. By Exhibit P12 deed dated 04.03.1995, a total of 36.5 cents; being 12.5 cents comprised in Survey No.266/7, 18.5 cents in Survey No.266/15A and 5.5 cents in Survey No.266/12, was obtained. The eviction has been ordered from Survey Nos.265/1 and 266/4. 4. The contention raised is that the petitioner's holding of 61.5 cents has never been identified by the survey authorities. It is contended that even this Court by interim order dated 08.04.2008 directed the identification of the properties covered by the title documents and the river puramboke in Survey Nos.265/1 and 266/4 separately. That has not been done and, hence, a proper measurement has to be directed, is the submission. WP(C) No.3570 of 2008 - 3 - 5. The learned Government Pleader, learned Standing Counsel for the Municipality and also additional 5[th] respondent supports the proceedings initiated by the Municipality for eviction. The respondents would argue that the petitioner in fact purchased the property by various deeds; the survey numbers shown in which does not tally with the actual possession. Though the various survey numbers, as indicated above, are shown in the title deeds, 39.853 cents now sought to be restored; is comprised in Survey No.265/1 and 266/4 and is a river and thodu puramboke. The petitioner is admittedly in occupation of the said land. There is no question of identification of the land as per the title deeds, since even the petitioner does not have a case that he is not in possession of the 39.853 cents from which eviction is sought. 6. The learned Counsel appearing for the additional 5[th] respondent placed before me two decisions in _**K.R.Joseph v. Dist. Collector**_ **[1986 KHC 431]** and _**Mandal Revenue Officer v. Goundla Venkaiah and Another**_ **[2012 (2) SCC 461]** to further buttress their contention. WP(C) No.3570 of 2008 - 4 - 7. At the outset, it has to be noticed that the original authority, appellate authority and the revisional authority as per the statute, have confirmed the proceedings for eviction. The jurisdiction of this Court under Article 226 of the Constitution is confined insofar as looking at any procedural irregularity and there cannot be any examination of facts unless there is a perverse finding. There is no procedural irregularity alleged, against the orders passed, by the petitioner. The petitioner's assertion is that the petitioner has purchased a property by Exhibit P11 and P12 deeds, on which the construction is carried out, which indicate different survey numbers and not the survey numbers from which eviction is sought. The petitioner seeks identification of the properties as covered by the title deeds. There cannot be any dispute that the eviction sought by the Municipality is from Survey Nos.265/1 and 266/4. The petitioner does not have any property in the said survey numbers even as per the title deeds produced. The mere fact that the title deeds show a different survey number would not, hence, be a reason to interfere with the eviction. If at all the petitioner has a case that there is a property existing in the survey WP(C) No.3570 of 2008 - 5 - numbers as shown in the title deeds, it is for the petitioner to initiate appropriate proceedings to take possession of the same. On the basis of a title deed executed by one other private individual to the petitioner, no claim can be set up on puramboke land, which lies in a totally different survey number than from which conveyance was obtained. 8. The petitioner has also a contention that the respondent-Municipality had sanctioned a building plan in the property now held by the petitioner; which building has been constructed and now there cannot be a different stance taken. The Municipality is hence estopped from taking a contention that the land on which the petitioner was permitted to make a construction, is puramboke. It is also argued that the petitioner has a claim of adverse possession. 9. A claim of adverse possession has to be adjudicated before the appropriate forum, if at all. In the writ petition, the claim only is based on Exhibits P11 and P12 title deeds and the building constructed. The mere fact that a sale deed was executed, showing the wrong survey numbers and on that basis another property was WP(C) No.3570 of 2008 - 6 - taken possession cannot create a claim of adverse possession against a third party, especially so when the property is puramboke vested in the government or a local authority. The petitioner ought to prove that he held the property with a hostile animus as against the Municipality to sustain such a claim. 10. In this context, the decision of the Hon'ble Supreme Court in _**Goundla Venkaiah**_ is apposite. The Hon'ble Supreme Court held so in paragraph 29: “In this context, it is necessary to remember that it is well neigh impossible for the State and its instrumentalities including the local authorities to keep every day vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularized. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by - 7 - WP(C) No.3570 of 2008 adverse possession, the Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give upper hand to the encroachers, unauthorised occupants or land grabbers”. 11. The claim of adverse possession is unsubstantiated, specious and frivolous. The facts in _**Goundla Venkaiah**_ also indicate that earlier to the impugned proceedings of 1990, twice; two decades separate, in 1965 and 1986, notices for eviction were issued but not proceeded with and even then the claim of adverse possession was negatived. Further the case of the petitioner that they had title to the property by Ext.P11 & P12 and that they were paying land tax, cuts at the root of the claim of adverse possession set up, since then the possession was not open and hostile. 12. The mere fact that building permit was granted would not absolve the petitioner; nor would it validate the encroachment made on a puramboke land. The Municipality, before the revisional authority, rightly took up the contention that in WP(C) No.3570 of 2008 - 8 - granting building permit the title of the land owner is gone into only for a _prima facie_ satisfaction. If the title deeds are produced, the plan is examined with reference to the site plan and a permit granted if the plan submitted is in compliance with the Building Rules. The petitioner took the risk in having made the construction in a property in which he had no title. The Tribunal, in Exhibit P8, examined the title deeds and found that the property covered by the deeds have been shown in survey numbers different from which now the eviction is sought now. The Tribunal refused to place any reliance on the tax receipts, since the said receipts does not show the survey number. The building permit was also found to be issued for construction in survey Nos.266/7, 266/15A and 266/12. The land now sought to be restored is in Survey Nos.265/1 and 266/4. 13. The petitioner obviously had purchased certain properties by Exhibits P11 and P12 and had taken possession of the properties in the puramboke; either deliberately or mistakenly, and made constructions in the land. If it is deliberate, the petitioner has no remedy, but has to suffer the consequence. If it is mistakenly; then the petitioner could take appropriate remedy WP(C) No.3570 of 2008 - 9 - against the vendor in the sale deeds, but even then would have to suffer the consequence of eviction. The petitioner does not have a case that the land in the possession of the petitioner is in a different survey number from that indicated in the orders for eviction. The eviction is ordered from Survey Nos.265/1 and 266/4 and the petitioner has no claim of title over the property comprised in those survey numbers. If at all the petitioner's property is situated in the Survey numbers shown in the title deeds [266/7, 266/15A and 266/12], then he has to initiate proper proceeding for recovery from those who are in possession. 14. The construction made now is obviously in river puramboke, in Survey Nos.265/1 and 266/4 over which the petitioner has no claim of title, even as per the title deeds. The order of the lower authorities has been affirmed by the Tribunal by a reasoned order after adverting to the documents produced being the title deeds, the tax receipts, the building permits and the like. The concurrent findings are not possible of interference under Article 226 of the Constitution of India. WP(C) No.3570 of 2008 ## - 10 - 15. The learned Counsel for the petitioner has placed much reliance on the interim order dated 08.04.2008, wherein this Court had directed that _“a sketch will be prepared showing the properties covered by the title documents and the puramboke properties separately”._ On the very same day, the Taluk Surveyor who conducted the survey has placed on record the survey sketch by a statement dated 08.04.08 and marked it as Annexure 1. The property now in possession of the petitioner has been clearly demarcated in Survey numbers 265/1, 266/4, 266/7 and 267/15. The properties in 265/1 and 266/4 respectively have an extent of 37.65 and 2.223 cents, which is the land comprised in the river and thodu puramboke, from which the petitioner is sought to be evicted. An extent of 6.158 cents conceded for road in Survey 266/7 is also shown. The balance properties in possession of the petitioner in Survey 266/7 and 267/15 respectively 31 and 1.433 cents is the only property in possession of the petitioner, as per the title deeds Exhibits P11 and P12. 16. Even then in compliance with the interim order, a further survey was conducted the proceedings of which are - 11 - WP(C) No.3570 of 2008 evidenced in the documents produced along with memo dated 09.06.08. The Taluk Surveyor issued notice as per communication dated 12.05.08 produced along with the memo. This has been received by the petitioner. The survey sketch is also produced along with the memo which indicates the very same measurements as has been disclosed in the original survey conducted at the initiation of the proceedings. The land in possession of the petitioner as seen from the title deed is separately demarcated and that is only 32.433 cents as found in Survey 266/7 and 267/15. The other properties in the possession of the petitioner is in Puramboke comprised in Survey 265/1 and 266/4.The contention now raised that the properties in accordance with the title deeds have not been demarcated is unwarranted. As has already been noticed though the properties are shown in survey numbers 266/7, 266/15A and 266/12 in the title deeds a portion of the land in occupation of the petitioner, purportedly by virtue of the title deeds are in river and thodu Puramboke in different survey sub division. This is sought to be evicted. WP(C) No.3570 of 2008 - 12 - 17. The petitioner's case is that by Exhibit P11 the petitioner purchased 25 cents in Survey No.266/7 and by Exhibit P12 a total of 36.5 cents; being 12.5 cents comprised in Survey No.266/7, 18.5 cents in Survey No.266/15A and 5.5 cents in Survey No.266/12, was obtained. The eviction has been ordered from Survey Nos.265/1 and 266/4. As per the survey, conducted twice the petitioner was found in occupation of 37.158 cents in Survey 266/7 (including 6.158 cents through which road is laid). This is almost equal to the extent claimed from Exhibit P11 & P12; which is 37.5 cents. There is only 1.433 cents available in 267/15 as per the survey, while according to Exhibit P12 the petitioner purchased 18.5 cents. As for Survey 266/12 it is not anywhere near the subject properties as is clear from the survey sketch and not lying contiguously. The petitioner also is in possession of a total of 78.264 cents as per the survey sketch {38.591 cents (6.158 +31.000+1.433) as per the title deeds and 39.873 cents (37.650+ 2.233) in the puramboke} far in excess of his claim of 61.5 cents as per Exhibits P11 & P12 title deeds. In such circumstance, there could be no interference caused to the eviction proceedings. WP(C) No.3570 of 2008 - 13 - 18. The petitioner has filed an amendment application [I.A.No.2353 of 2008] to declare that the petitioner is not liable to be evicted from the property for reason of he having possessed the said lands for more than 30 years and also a further direction to compel the 2[nd] respondent to measure out the property with relevant records. Though the petitioner has not moved the amendment application, it is allowed. However, there is no reason why the prayers should be granted. The first prayer sought in the amendment is in effect the claim of adverse possession, which has been dealt with by this Court in this judgment and negatived. The second prayer to measure out the property is also unnecessary, since, as noticed above, twice measurement was conducted with notice to the petitioner. Writ Petition would stand dismissed. The Municipality can take immediate steps to recover possession. The parties to suffer their respective costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]