Leelabhai v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940** ## **WP(C).No. 4839 of 2019** ## **PETITIONER:** **LEELABHAI, AGED 75 YEARS, W/O. LATE PADMANABHAPILLAI, SREEGRIHAM, NADUVILE MURI, THUMPAMON, ADOOR, PATHANAMTHITTA 689 502.** **BY ADVS.SRI.K.SHAJ SRI.RENJIT GEORGE** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 THE DISTRICT COLLECTOR, COLLECTORATE ROAD, PATHANAMTHITTA 689 645.** - **3 THE TAHSILDAR, ADOOR TALUK, ADOOR 691 523.** - **4 THE TALUK SURVEYOR, ADOOR TALUK, ADOOR 691 523.** - **5 THE VILLAGE OFFICER, THUMPAMON VILLAGE, THUMPAMON, PATHANAMTHITTA DISTRICT 689 502.** - **6 THE SECRETARY, THUMPAMON GRAMA PANCHAYAT, ANANDAPALLY, THUMPAMON ROAD, THUMPAMON, KERALA 689 502.** |**7**|**RAJAPPAN,**| |---|---| ||**AGED 52 YEARS,**| ||**S/O. THANKAPPAN,**| ||**KIZHAKKOTTUCHARINJATHIL THEKKEKOTTANIYIL, NADUVILE**| ||**MURI, THUMPAMON, ADOOR, PATHANAMTHITTA 689 502.**| **WP(C).No. 4839 of 2019** **2** **8 VIJAYAMMA, AGED 50 YEARS, W/O. RAJAPPAN, KIZHAKKOTTUCHARINJATHIL THEKKEKOTTANIYIL HOUSE, NADUVILE MURI, THUMPAMON, ADOOR, PATHANAMTHITTA 689 502.** **9 SINDHU RAJAPPAN, AGED 29 YEARS, D/O. RAJAPPAN, KIZHAKKOTTUCHARINJATHIL, THEKKEKOTTANIYIL HOUSE, NDUVILE MURI, THUMPAMON, ADOOR, PATHANAMTHITTA 689 502.** ## **OTHER PRESENT:** **SMT.A.C.VIDHYA, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 4839 of 2019** **3** # **ALEXANDER THOMAS, J.** ## **= = = = = = = = = = = = = = = = = W.P.(C) No.4839 of 2019** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 20[th] day of February, 2019 ## **J U D G M E N T** ## The prayers in the above writ petition (Civil) are as follows: - _“A). to call for the records leading to the issuance of Exhibits P3 notice issued by the sixth respondent and P4 sketch prepared by the fifth respondent and to issue a writ of certiorari and quash the same._ - _B) to issue a writ of mandamus or any other appropriate writ order or direction directing the sixth respondent to keep in abeyance all further proceedings pursuant to Exhibit P3 to enable the petitioner to approach the second respondent to file an application under Section 13A of the Kerala Survey and Boundaries Act, 1961 to rectify the errors that have crept in the re-survey plan;_ - _C) pass such other writ order or direction that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case;_ - _D) to award the cost of this petition.”_ 2. Heard Sri.K.Shaj, learned counsel appearing for the petitioner and Smt.A.C.Vidhya, learned Government Pleader appearing for official respondents 1 to 5. In the nature of the orders proposed to be passed in this Writ Petition, notices to contesting respondents 6 to 9 will stand dispensed with. 3. According to the petitioner, part of his property which is within his lawful title, possession and enjoyment has been illegally shown as **WP(C).No. 4839 of 2019** **4** “puramboke” due to serious errors and mistakes in the re-survey process. The petitioner also suspects that it could be due to the illegal influence asserted by the contesting respondents 7 to 9 on the authorities concerned. The petitioner would point out that the impugned Ext.P-4 re-survey sketch has been prepared on the basis of such defective re-survey plan and without notice to the petitioner and that the same can be interfered with in the light of the dictum laid down by this Court in the judgment in the case in _**Muhammed Kutty v. Tahsildar**_ [2013(1)KLT 133]. 4. According to the petitioner, his registered holding is demarcated by 30 year old boundary. That a way granted to the predecessor-in-title of respondents 7 to 9 for ingress and egress to the kudikidappu by the predecessor in title of the petitioner for 40 years back and portions of the property of the petitioner is now wrongly shown as puramboke in the said re-survey plan. It is further stated that the petitioner as well as the property owner opposite to the way have already secured injunction order from the civil court concerned. The complaint of the petitioner now he has been served with Ext.P-3 order dated 04.01.2019 issued by the 6[th] respondent-Thumpamon Grama Panchayath which according to the petitioner is even otherwise in violation of law and unsustainable. Apart from seeking to challenge Exts.P-3 & P-4, the **WP(C).No. 4839 of 2019** **5** petitioner seeks direction to the 6[th] respondent to keep in abeyance all further proceedings pursuant to Ext.P-3 notice to enable the petitioner to approach the 2[nd] respondent-District Collect to file a revision petition under Sec.13A of the Kerala Survey & Boundaries Act to correct and rectify the serious errors and mistakes that are crept in the re-survey plan. It is in the light of these factual averments, the petitioner has filed the instant Writ Petition (Civil) with the aforementioned prayers. 5. The petitioner would contend that the impugned Ext.P-3 notice is _per se_ illegal as it is in blatant violation of the mandatory procedure prescribed under Rule 5 of the Kerala Panchayath Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996, which mandates free service of notice to the occupant before eviction, etc. Further, the petitioner would point out that the impugned Ext.P-4 re-survey plan, in view of the dictum laid down by this Court in _**Muhammed Kutty v. Tahsildar**_ [2013(1)KLT 133]. 6. Sri.K.Shaj, learned counsel appearing for the petitioner would submit on the basis of instructions of his party that the petitioner would immediately file a statutory revision petition under Rule 13A of the Kerala Survey & Boundaries Act, 1961 before the 2[nd] respondent-District Collector, who is the statutorily designated revisional authority, so as to challenge **WP(C).No. 4839 of 2019** **6** and seek remedial action on the serious errors and mistakes that are crept in the re-survey process as referred to in Ext.P-4 re-survey sketch. The petitioner would contend that part of the property, which is within the lawful possession, enjoyment and title of the petitioner, has been wrongly and incorrectly shown in the re-survey process and if the revisional authority adjudicates the matter and orders for the conduct of a survey and measurement of the subject property on the basis of title deeds of the petitioner, old survey records, re-survey records, etc., then it could be clear like the day light that the re-survey is vitiated by serious errors and mistakes and that the description in the re-survey process that part of the petitioner’s property is puramboke, is factually wrong and unsustainable and corrective orders could be obtained from the revisional authority to ensure the entire extent of land which shown as the registered deed of the petitioner, so as to correct the said mistake in the re-survey process, etc., it is urged. 7.Accordingly, it is for the petitioner to file such statutory revision petition under Sec.13A before the 2[nd] respondent-District Collector for ventilating his grievances, within a period of two weeks from the date notified for receiving a certified copy of this judgment, along with all supporting materials and along with a certified copy of this judgment. **WP(C).No. 4839 of 2019** **7** Upon the receipt of the same, the 2[nd] respondent will take up the said revisional request of the petitioner and will ensure that a survey and measurement of the subject property is got effected with the aid and assistance of the 4[th] respondent-Taluk Surveyor with prior notices to the petitioner, respondents 6 to 9 and other affected neighbouring property owners, if any. In the said survey, the Surveyor will examine the title deeds, old survey records, re-survey records and any other relevant piece of materials and then may ascertain as to the correctness of the petitioner’s submissions that the re-survey process is vitiated by serious wrongs and errors and whether the said property now shown as puramboke in the re-survey plan is actually property within the title and possession of the petitioner as contended by him. The Surveyor will give a comprehensive report on the outcome of his survey, measurement and demarcation of the subject property, along with a copy of the survey sketch. The copies of the survey report and survey sketch shall be given in advance to the petitioner and contesting respondents 6 to 9, so as to enable them and the parties should be given a reasonable time to submit their written submissions/written objections in the matter before the 2[nd] respondentDistrict Collector. The 2[nd] respondent-District Collector will consider the submissions of the parties and after affording a reasonable opportunity of **WP(C).No. 4839 of 2019** **8** being heard to the petitioner and respondents 6 to 9, will render a considered decision, so as to finally dispose of the said revisional requests of the petitioner under Sec.13A, without much delay, preferably within a period of four months from the date of production of a certified copy of this judgment. Until the final orders are passed by the respondent-District Collector in the abovesaid revision proceedings, all further coercive steps pursuant to the impugned Exts.P-3 notice and P-4 survey sketch shall be kept in abeyance. However, it is made clear that in case the petitioner does not file the abovesaid revision petition before the 2[nd] respondent-District Collector within the aforesaid time limit, then the benefit of this interim direction to keep in abeyance the impugned proceedings, shall stand vacated automatically, without any further orders from this Court. With these observations and directions, this Writ Petition (Civil) will stand disposed of. Sd/- **ALEXANDER THOMAS JUDGE** vgd **WP(C).No. 4839 of 2019** **9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF PARTITION DEED NO. 2187/2012 OF ADOOR SRO.** **EXHIBIT P2 THE TRUE COPY OF LAND RECEIPT FOR THE YEAR 2018-2019 ISSUED TO THE PETITIONER BY THE VILLAGE OFFICER, THUMPAMON.** - **EXHIBIT P3 THE TRUE COPY OF NOTICE DATED 4/1/2019 ISSUED BY THE SIXTH RESPONDENT THE PETITIONER.** - **EXHIBIT P4 THE TRUE COPY OF THE SURVEY SKETCH PREPARED BY THE FIFTH RESPONDENT VILLAGE OFFICER.** - **EXHIBIT P5 THE TRUE COPY OF OBJECTION DATED 7/1/2019 SUBMITTED BY THE PETITIONER TO THE FIFTH RESPONDENT.** - **EXHIBIT P6 THE TRUE COPY OF CASE STATUS REPORT OBTAINED FROM THE INTERNET IN RESPECT OF O.S. NO. 238/2017 ON THE FILE OF THE ADOOR MUNSIFF'S COURT.** **EXHIBIT P7 THE TRUE COPY OF INTERIM INJUNCTION ORDER DATED 13/2/2019 IN I.A. NO. 93/2019 IN O.S. NO. 15/2019 OF THE MUNSFIF'S COURT, ADOOR.**