High Court of KeralaSingle Judge2015-07-24Writ petition dismissed with costs.

Leela Antony and Dr. Antony Peter v State of Kerala and others

Case / Petition Number:W.P.(C).No.29755 of 2004-P

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2015-07-24
Court Decision / Holding: The writ petition is dismissed with costs; the petitioners are mulcted Rs. 2,500 each, recoverable by the 2nd respondent. The court declined to grant relief under Article 226, noting abuse of process and directing the petitioners to pursue civil remedy if appropriate.
Final Disposition: Writ petition dismissed with costs.

Parties to the Case

Appellants / Petitioners

Leela Antony
Dr. Antony Peter

Respondents

State of Kerala represented by the Secretary to Government, Department of Local Administration
Assistant Executive Engineer, National Highway Sub Division, Kothamangalam
Survey Superintendent, Collectorate, Kakkanad

Legal Representation & Advocates

Counsels for Petitioners

• S.V. Balakrishnan Iyer (Senior Advocate)
• K.G. Pavithran

Counsels for Respondents

• Sri Manoj P. Kunjachan (Government Pleader)
• Sri Jayapradeep V. (Central Government Counsel)

Case Synopsis & Summary

The petitioners challenge the attempted takeover of their lands by the 2nd respondent for widening National Highway 49. They claim that the property—comprised in Survey No.1012/6A/1 in Kothamangalam Village—belongs to them by title evidenced through sale deeds, and that the State cannot “grab” their lands under the pretext of puramboke land and instead should pursue acquisition with compensation. They trace a sequence of proceedings: O.P. No.1780 of 2003, which resulted in Exhibit P1 directing demarcation, and a contempt case arising from alleged non-compliance. The petitioners allege that the survey conducted after the order was not properly recorded, that crucial records were unavailable, and that the sketch produced by the 2nd respondent was inaccurate or prepared without full information. They also contend that the matter has already spawned a civil remedy and that a writ petition is not the proper vehicle. In response, the respondents maintain that the land is puramboke and necessary for road widening, and point to the survey/sketch and related plans as compliant with court directions. They underscore that any dispute on boundary or measurements ought to be resolved in civil courts. The court ultimately finds abuse of process—rejects the writ petition under Article 226—and imposes costs (Rs. 2,500 per petitioner), relegating to civil remedy-control instead of allowing relief under the writ.

Provisions of Law Cited

Constitution of India, Article 226

Legal Doctrines & Maxims

abuse of process of law
ultra vires
intra vires

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that the NH 49 widening drive would deprive them of their lawful land, arguing the land is not puramboke and that compensation via acquisition should be pursued instead. They challenged the survey’s veracity and contended that essential survey sketches were not properly produced or recorded, casting doubt on measurement; they emphasized the availability of civil remedies and asserted that two writ petitions on the same matter indicate abuse of process.

Contentions of Respondents

The respondents contended that the land is puramboke and necessary for road widening, and that the survey/demarcation was conducted under court directions. They argued the writ petition is not the proper vehicle for resolving a boundary dispute and that civil proceedings provide the appropriate remedy. They highlighted the earlier orders and the administrative steps taken, asserting that the challenges relate to accuracy of survey and not to the legality of taking action.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Dhulabi v. State of Madhya Pradesh	AIR 1969 SC 78	Mentioned Only	Cited to support the principle that protection is available only to intra vires actions.
Mafatlal Industries Ltd. v. Union of India	1997 (5) SCC 536	Mentioned Only	Cited for the intra vires vs ultra vires framework relevant to the arguments on legality of actions.
O.P.No.1780/2003	O.P.No.1780/2003	Mentioned Only	Prior proceeding referenced; the present judgment notes Exhibit P1 arising from this case.
W.P.(C).No.32258 of 2004	W.P.(C).No.32258 of 2004	Mentioned Only	Second writ petition filed by the same parties; discussed in the judgment as context for dismissal of earlier contentions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY, THE 24TH DAY OF JULY 2015/2ND SRAVANA, 1937 ## W.P.(C).No.29755 of 2004 (P) ------------------------------------------------------ PETITIONER(S):- -------------------------- 1. LEELA ANTONY, AGED 48, W/O.P.D.ANTONY, PULICKAL HOUSE, RAMALLOOR, KOTHAMANGALAM (PO), ERNAKULAM DISTRICT-686 691. 2. DR.ANTONY PETER, AGED 61, S/O.PETER, RAMALLOOR KARA, KOTHAMANGALAM (PO) ERNAKULAM DISTRICT-686 691. BY ADVS.SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.K.G.PAVITHRAN RESPONDENT(S):- ---------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL ADMINISTRATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, NATIONAL HIGHWAY SUB DIVISION, KOTHAMANGALAM, ERNAKULAM DISTRICT. 3. THE SURVEY SUPERINTENDENT, COLLECTORATE, KAKKANAD, ERNAKULAM DISTRICT. R1 & R3 BY GOVERNMENT PLEADER SRI.MANOJ P.KUNJACHAN. R2 BY CENTRAL GOVERNMENT COUNSEL SRI.JAYAPRADEEP. V. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## W.P.(C).NO.29755 OF 2004-P ## **APPENDIX** PETITIONER'S EXHIBITS:------------------------------------EXT.P1 TRUE COPY OF THE JUDGMENT DATED 3.6.2004 IN O.P.NO.1780/2003 OF THIS HONOURABLE COURT. EXT.P2 TRTUE COPY OF THE NOTICE DATED 30.9.2004 ISSUED BY THE 2ND RESPOONDENT TO THE TENANT OF THE PETITIONERS. EXT.P2(a) TRUE COPY OF THE NOTICE DATED 3009.2004 ISSUED BY THE 2ND RESPONDENT TO THE TENANT OF THE PETITIONERS. EXT.P2(b) TRUE COPY OF THE NOTICE DATED 30.09.2004 ISSUED BY THE 2ND RESPONDENT TO THE TENANT OF THE PETITIONERS. EXT.P3 TRUE COPY OF THE JUDGMENT IN CONTEMT CASE (C) No.1294/2004 DATED 10.1.2005 PASSED BY THE HON'BLE HIGH COURT OF KERALA. EXT.P4 TRUE COPY OF THE LETTER DATED 1.9.04 [G1-1133/2004]. EXT.P5 TRUE COPY OF THE REPLY DATED 13.09.2004 [NO.2923/2004/L.DIS - OFFICE OF THE ASST. DIRECTOR, CENTRAL SURVEY OFFICE, TRIVANDRUM. EXT.P6 TRUE COPY OF THE NOTICE RECEIVED BY THE 1ST PETITIONER [G.2039/06 DATED NIL.]. EXT.P7 TRUE COPY OF THE LETTER SUBMITTED BY THE 1ST PETITIONER DATED 16.12.2006 TO THE DISTRICT SURVEY SUPERINTENDENT, ERNAKULAM. EXT.P8 TRUE COPY OF THE SALE DEED NO.2950/83. EXT.P9 TRUE COPY OF THE SALE DEED NO.2952/83. EXT.P10 TRUE COPY OF THE DOCUMENT NO.988/54. EXT.P11 TRUE COPY OF THE TAX RECEIPT DATED 3.7.2004. EXT.P12 TRUE COPY OF the TAX RECEIPT DATED 3.7.2004. EXT.P13 TRUE COPY OF THE ORDER NO.PW 2-7189/88 DATED 10.5.89 ISSUED BY THE MUNCIPAL COMMISSIONER, KOTHAMANGALAM. W.P.(C).NO.29755 OF 2004-P **- 2 -** EXT.P14 TRUE COPY OF THE ORDER NO.PW2-4868/93 DATED 10.11.93 ISSUED BY THE MUNCIPAL COMMISSIONER, KOTHAMANGALAM. EXT.P15 TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KOTHAMANGALAM, DATED 3.10.90. EXT.P16 TRUE COPY OF THE LETTER DATED 24.8.96. EXT.P16(a) TRUE COPY OF THE PLAN. EXT.P17 DATED NIL, TRUE COPY OF THE FIELD MEASUREMENT SKETCH OF SURVEY SUB-DIVISIONS OF SY.NOS.1110, 1111 AND 1112 OF KOTHAMANGALAM VILLAGE. EXT.P18 DATED NIL, TRUE COPY OF THE A B SKETCH IN RELATION TO 1012/6 OF KOTHAMANGALAM VILLAGE ISSUED FROM CENTRAL SURVEY OFFICER, TRIVANDRUM. EXT.P19 DATED NIL, TRUE COPY OF THE LITHO SKETCH IN RELATION TO VARIOUS SURVEY NUMBERS INCLUDING SY.NO.1012. ## RESPONDENT'S EXHIBITS:- --------------------------------------- EXT.R2(A) & R2(B) TRUE COPY OF THE SURVEY SKETCH AND PLAN PREPARED BY THE 3RD RESPONDENT. Vku/- [ true copy ] ## K. Vinod Chandran, J ------------------------------------------W.P.(C).No.29755 of 2004-P ------------------------------------------Dated this the 24[th] day of July, 2015 ## **JUDGMENT** The petitioners in the above writ petition challenge the attempted action of the 2[nd] respondent, to take over certain properties of the petitioners, for the widening of the road. The petitioners together had 4 cents of land, comprised in Survey No.1012/6A/1 of Kothamangalam Village and certain shop rooms thereon. The title of the petitioners is asserted by two sale deeds. 2. The essential contention of the petitioners before this Court was that the attempt of the 2[nd] respondent is to grab their lands for the widening of National Highway 49 [for brevity “NH 49”] on the ground that it is puramboke land; when the 2[nd] respondent could as well take acquisition proceedings and pay compensation to the land owners. When initially the attempt was made, the petitioners were before this Court with O.P.No.1780 of 2003, which was disposed of by Exhibit P1 judgment. Exhibit P1 directed a proper application to be made before the 3[rd] respondent to demarcate the land and the same was directed to WP(C).No.29755 of 2004 - 2 - be done by the said respondent within one month. The 3[rd] respondent therein, the Survey Superintendent, is the 3[rd] respondent here also. 3. Alleging non-compliance of the order contained in Exhibit P1, a contempt case had been filed, as Cont. Case (C) No.1294 of 2004. Alleged contemnor having retired from service, the then incumbent was made a party. Even the present incumbent submitted before Court that the 1[st] respondent, the alleged contemnor had in fact conducted a survey on 19.07.2004 prior to his retirement on 30.09.2004. The petitioners contended that certain documents were not available in the office of the contemnor and, therefore, submitted that the survey conducted cannot be accepted. The 2[nd] respondent in the contempt case contended before Court that the 1[st] respondent had merely sought for clarification and it was not as if the records were not available in the office of the Survey Superintendent. The Court noticed that the petitioners are disputing the correctness of the measurement. However, the Court felt that the same has to be adjudicated in a fresh proceeding and closed the contempt case without prejudice to the contentions of both the parties. WP(C).No.29755 of 2004 - 3 - 4. The aforesaid writ petition was filed challenging the survey said to have been conducted; but, however, without producing the sketch prepared at the survey. The petitioners in the above writ petition contended that actually no survey was conducted and they did not receive any survey sketch. The above writ petition was filed on 08.10.2004 and a _status quo_ order was passed on 11.10.2004. The 2[nd] respondent very alertly filed a counter affidavit on 28.10.2014, producing the survey sketch and plan prepared on the survey conducted in accordance with Exhibit P1 judgment, as Exhibits R2(A) & R2(B). 5. The sketch and plan were seriously disputed by the learned Senior Counsel appearing for the petitioners on the ground that the measurements are not correct and seeks to substantiate such contention on the basis of the documents received by the petitioners from the office of the Survey Superintendent and the Central Survey Officer, produced as Exhibits P17 and P18. In the course of hearing, however, Exhibit P6 was referred to, in which it was disclosed that a notice was issued by the District Survey Superintendent in pursuance of directions in another writ petition, bearing number W.P.(C). WP(C).No.29755 of 2004 - 4 - No.32258 of 2004. In such circumstance, this Court called for the Judges Papers of W.P.(C).No.32258 of 2004. 6. W.P.(C).No.32258 of 2004 is seen to have been filed on 02.11.2004, within a month from the date on which the present writ petition was filed. Therein, Exhibits R2(A) and R2(B) produced in this writ petition were produced as Exhibits P12(a) and P12(b) and the same were challenged on the ground of defect in measurements. A learned Single Judge of this Court dismissed the writ petition with the following observations: “The dispute raised in this Writ Petition is a boundary dispute, which can be effectively adjudicated in a civil suit and not in a writ petition. Accordingly, the Writ Petition is dismissed without prejudice to the contentions of the petitioners and their right to move the competent civil court. Since the contention of the petitioners is that the survey records have been manipulated and illegal survey reports - Exts.P12(a) and P12(b) have been prepared, those actions are ultravires and therefore, the competent civil court can entertain the suit, even if there is any bar under the Land Conservancy Act. Protection is available only to intra vires actions (see the decisions of the Apex Court in _Dhulabi v. State of Madhyapradesh_ (AIR 1969 SC 78) and _Mafatlal Industries Ltd. v. Union of India_ [1997 (5) SCC 536]”. WP(C).No.29755 of 2004 - 5 - 7. The challenge raised in the present writ petition, filed before W.P.(C).No.32258 of 2004, hence, no longer survives. It is also a matter of concern that the present writ filed in the year 2004 was pending in this Court till today with a _status quo_ order, while the said contentions were addressed in another writ petition [W.P.(C).No.32258 of 2004] filed by the very same parties subsequent to the present one and the extra-ordinary remedy under Article 226 of the Constitution declined. The respondent authorities also seems to have been unaware of the two writ petitions filed, especially since the NH Sub Division, Kothamangalam was never issued with notice in W.P.(C). No.32258 of 2004 and that writ petition was dismissed at the admission stage itself. The petitioners, however, cannot feign ignorance of having initiated two proceedings. 8. The pendency of the first writ petition is not seen referred to in the second writ petition. This Court, hence, finds that there is clear abuse of process of law and there is suppression of material facts. The petitioners were relegated to the civil Court remedy in 2004 itself. If the petitioners have taken up the said remedy, then definitely that could be continued; but, however, if WP(C).No.29755 of 2004 - 6 - they have not, their conduct as also the long passage of time disentitles the petitioners from raking up the issue now. This Court already declined exercise of jurisdiction under Article 226 and relegated the petitioners to the civil remedy, this Court does not find any reason compelling to invoke exercise of such jurisdiction in a writ petition filed earlier to that dismissed. In taking such view, this Court is considerably persuaded by the fact that the petitioners have employed subterfuge in filing the two writ petitions on the same grounds within a period of one month, which has to be deprecated. In such circumstances, the petitioners shall be mulcted with a cost of Rs.2,500/- [Rupees two thousand and five hundred] each, which shall be recovered by the 2[nd] respondent. The writ petition would stand dismissed with costs to the respondents, in addition to the cost imposed as above. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]