MANI SUNDARESAN and SREELATHA v. STATE OF KERALA and ORS

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945** ## **WP(C) NO. 17308 OF 2020** ## **PETITIONERS:** - **1 MANI SUNDARESAN AGED 44 YEARS W/O.SUNDARESAN, RESIDING AT MANIMANDIRAM, BUDHANOOR, ENNAKKAD PIN-689 510.** - **2 SREELATHA AGED 38 YEARS W/O.VIDYADHARAN, VIRUTHIYETH, BUDHANOOR, ENNAKKAD PIN-689 510.** ## **BY ADV BABU PAUL** ## **RESPONDENTS:** - **1 STATE OF KERALA REP BY THE SECRETARY, DEPARTMENT OF REVENUE THIRUVANANTHAPURAM.** - **2 THE DISTRICT COLLECTOR COLLECTORATE, ALAPPUZHA-688001** - **3 THE VILLAGE OFFICER ENNAKAD VILLAGE, CHENGANNUR-689 510.** - **4 THE DISTRICT SURVEY SUPERINTENDENT COLLECTORATE -688 001.** - **5 THE TAHSILDAR (LAND RECORDS) CHENGANNUR, ALAPPUZHA DIST-688 001.** - **6 SANTHAMMA W/O.VIJAYAN, GOPALAKRISHNA MANDIRAM, BUDHANOOR, ENNAKKAD PIN-689 510.** - **7 SHIBU S/O.VIJAYAN, GOPALAKRISHNA MANDIRAM, BUDHANOOR, ENNAKKAD PIN-689 510.** ## **MRS. SHEEJA** **WP(C) NO.17308 OF 2020** **2** - **8 D/O.VIJAYAN, MADUKKA (TAPASYA) HOUSE, PARUMALA P.O., MANNAR, PIN-689 626.** - **9 VISWANATHAN, VADAKKOTTIL, BUDHANOOR, ENNAKKAD PIN-689 510.** - **10 GOURI AMMA VADAKKOTTIL, BUDHANOOR, ENNAKKAD PIN-689 510.** - **11 SUJATHA RAJAN** - **VADAKKOTTIL, BUDHANOOR, PULIYOOR, CHENGANNUR, PIN-689 510.** - **12 SURESH KUMAR VADAKKOTTIL, BUDHANOOR, PULIYOOR, CHENGANNUR, PIN-689 510.** - **13 SANIL KUMAR VADAKKOTTIL, BUDHANOOR, PULIYOOR, CHENGANNUR, PIN-689 510.** - **14 BINDU SREENIKUMAR VADAKKOTTIL, BUDHANOOR, PULIYOOR, CHENGANNUR, PIN-689 510.** - **15 DIVAKARAN VADAKKOTTIL, BUDHANOOR, PULIYOOR, CHENGANNUR, PIN-689 510.** **BY ADVS. ADVOCATE GENERAL OFFICE KERALA SRI.K.RAJESH KANNAN** **SHRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL()** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO.17308 OF 2020** **3** ## **JUDGMENT** The petitioners assail Ext.P1 on the strength of various assertions and allegations; primarily of them being that it has been issued without affording them an opportunity of being heard and without even giving them a copy of the survey report and sketch prepared by the 4[th] respondent - District Survey Superintendent. 2. Sri.Babu Paul.K – learned counsel for the petitioners, pointed out that this is not the first time that his clients have been forced to come before this Court; and that they had earlier obtained Ext.P2 judgment, wherein, a learned Judge of this Court directed the District Survey Superintendent to identify their land, as also that of the party respondents, and to then take a decision with respect to their request for cancellation of transfer of Registry effected on the same. He submitted that obviously, therefore, what was intended by this Court that survey be done with notice to his clients and that they be heard before any order adverse to them is issued. He asserted that, contrary to this, Ext.P1 has been issued without offering his clients even an opportunity of **WP(C) NO.17308 OF 2020** **4** putting for their version and without favouring them a copy of the survey sketch and report. He thus reiteratingly prayed that Ext.P1 be set aside. 3. Sri.Riyal Devassy – learned Government Pleader, submitted that the afore assertions of Sri.Babu Paul are not correct because, the counter affidavit filed by the 5[th] respondent clearly aver that, before Ext.P1 had been issued, the petitioners were given an opportunity of being heard. He added that there was no direction in Ext.P2 to the effect that survey should be done after notice to the petitioners, or they ought to have been heard during that process. He thus prayed that this Writ Petition be dismissed. 4. When I consider and evaluate the afore rival submissions, it is indubitable that Ext.P2 judgment directed the District Survey Superintendent to identify the property of the petitioners, as well as that of the party respondents. Therefore, even if no notice was required to be given at that point of time, it was imperative that the survey report and sketch had been made available to the petitioners, based on which alone, they could have focused their case. However, contrary to this, Ext.P1 does not even whisperingly say that any such had been done, or even that petitioners have given **WP(C) NO.17308 OF 2020** **5** an opportunity of being heard. 5. It is now well settled, starting from the celebrated judgment of the Honourable Supreme Court in **Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi [AIR 1978 SC 851]** , that an order will require to be justified by the respondents on the strength of its contents and not on the basis of the averments in the counter pleadings, when it is under challenge before this Court. 6. However, as regards the contention of Sri.Babu Paul K., that survey was done as per Ext.P2 judgment should also be found to be incompetent because no notice was given to his clients, cannot find my favour because there is no such stipulation therein; and obviously, what was required to be done was only that the resultant copies and reports be made available to them. 7. In the afore circumstances, I cannot find the averment in the counter affidavit of the 5[th] respondent to the effect that petitioner was heard before Ext.P1 had been issued, to be accurate or deserving of being approved. Resultantly, I allow this Writ Petition and set aside Ext.P1; with a consequential direction to the competent among respondents 4 and 5 to reconsider the matter, strictly **WP(C) NO.17308 OF 2020** **6** in terms of the directions in Ext.P2 judgment, after affording the petitioners and the party respondents the copies of survey report and sketch, as also an opportunity of being heard. **Sd/-DEVAN RAMACHANDRAN, JUDGE** lsn **WP(C) NO.17308 OF 2020** **7** ## **APPENDIX OF WP(C) 17308/2020** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE REPORT DATED 24/6/2020 BY 4TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WP(C) NO.39396/2016 DATED 26/6/2019.** **EXHIBIT P3 TRUE COPY OF THE SETTLEMENT DEED NO.1596/1993 OF THE SRO, MANNAR/DATED 8/1/1973.** **EXHIBIT P4 TRUE COPY OF THE ORDER OF 4TH RESPONDENT DT.25/5/2010.** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DT.29/3/2011 IN OP(C) NO.505/2011** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 29/10/2014 IN WPC NO.16892/2013** **EXHIBIT P7 TRUE COPY OF THE ORDER DT.6/10/2016 BY THE RESPONDENT.** **EXHIBIT P8 TRUE COPY OF THE NOE LEADING TO EXT P6 DATED 30/7/2016.** - **EXHIBIT P9 TRUE COPY OF THE OBJECTION FILED BEFORE THE 4TH RESPONDENT** - **EXHIBIT P10 TRUE COPY OF THE PETITION FILED BY THE PETITIONERS.** - **RESPONDENT EXHIBITS** **EXHIBIT R7 A TRUE COPY OF THE SALE DEED NO.405/1975 OF S.R.O. MANNAR DATED 3.3.1975 EXHIBIT R7 B TRUE COPY OF THE SALE DEED NO-403/1991 DATED 21.3.91 OF MANNAR S.R.O.** - **EXHIBIT R7 C TRUE COPY OF THE ORDER DATED 22.5.2013 ISSUED BY THE LAND REVENUE COMMISSIONER.** - **EXHIBIT R7 D TRUE COPY OF THE JUDGMENT DATED 29.2.2012 IN O.S. NO-3/2011 OF THE SUB COURT, CHENGANNUR.** - **EXHIBIT R7 E TRUE COPY OF THE JUDGMENT DATED 26.6.2019 IN WPC NO-39396/2016 OF THIS HON'BLE COURT.** **WP(C) NO.17308 OF 2020** **8** - **EXHIBIT R7 F PHOTOGRAPH TAKEN AFTER FIXING THE BOUNDARY BY THE RESPONDENTS 6 TO 8 AS PER THE DIRECTION OF THE REVENUE OFFICIALS.** - **EXHIBIT R7 G PHOTOGRAPH TAKEN AFTER FIXING THE BOUNDARY BY THE RESPONDENTS 6 TO 8 AS PER THE DIRECTION OF THE REVENUE OFFICIALS.** - **EXHIBIT R7 H TRUE COPY OF THE REPRESENTATION DATED 19.3.2020 FILED BY THE RESPONDENT 6 TO 8 BEFORE THE ADDITIONAL TAHASILDAR.** - **EXHIBIT R7 I TRUE COPY OF THE TAX RECEIPT DATED 27.8.2020 OF ENNAKKAD VILLAGE.** - **EXHIBIT R7 J PHOTOGRAPHS SHOWING THE UPROOTED CONCRETE PILLARS AND THE IRON PIPES AND IRON WIRE REMOVED.** - **EXHIBIT R7 K TRUE COPY OF THE COMPLAINT LODGED BEFORE THE STATION HOUSE OFFICER, MANNAR POLICE STATION ON 10.9.2020** - **EXHIBIT R7 L TRUE COPY OF THE RECEIPT ISSUED BY FROM MANNAR POLICE STATION TO THE RESPONDENT DATED 10.9.2020** - **EXHIBIT R7 M TRUE COPY OF THE COMPLAINT LODGED BEFORE THE DISTRICT POLICE CHIEF, ALAPPUZHA ON 16.9.2020** - **EXHIBIT R7 N TRUE COPY OF THE C.M.P. NO-1615/2020 DATED 16.9.2020 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT1, CHENGANNUR.** - **EXHIBIT R7 O TRUE COPY OF THE TREATMENT CERTIFICATE DATED 23.7.2019 ISSUED TO THE 6TH RESPONDENT BY RCC, THIRUVANANTHAPURAM.** **TRUE COPY** **P.A TO JUDGE** **LSN**