Shyni v. District Collector, Kozhikode District & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY ,THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940** **WP(C).No. 1938 of 2019** ## **PETITIONER/S:** **SHYNI, AGED 40 YEARS D/O RAGHAVAN, PARAMBHATH PULIKAL P.O., VADAKAA TALUK, KOZHIKODE DISTRICT-653707.** ## **BY ADV. SRI.PHILIP M.VARUGHESE** ## **RESPONDENT/S:** |**1**|**THE DISTRICT COLLECTOR,**| |---|---| ||**KOZHIKODE DISTRICT CIVIL STATION, KOZHIKODE-**| ||**673020.**| |**2**|**THE TAHSILDAR,**| ||**VATAKARA TALUK, MINI CIVIL STATION, VATAKARA,**| ||**KOZHIKODE DISTRICT-673 020.**| |**3**|**THE DEPUTY DIRECTOR SURVEY AND LAND RECORDS,**| ||**KOZHIKODE-673020.**| |**4**|**THE TALUK SURVEYOR,**| ||**TALUK OFFICE, VATAKARA, KOZHIKODE DISTRICT-673**| ||**020.**| |**5**|**VILLAGE OFFICER,**| ||**VELOM, POOLAKKOL KOZHIKODE DISTRICT-673507.**| **OTHER PRESENT:** **SMT.A.C.VIDHYA, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.1938/2019 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------- W.P.(C)No.1938 of 2019 ---------------------------------------------Dated this the 25[th] day of January, 2019 ## **JUDGMENT** The main prayer in the above Writ Petition (Civil) is as follows: _“A) Issue a writ of Mandamus, or any other appropriate writ, order or direction, directing the respondent No.4 to measure the property of the petitioner covered by ExhibitP1, P2, P4& P5 on the basis of actual physical possession of the petitioner._ 2. It is stated that the petitioner is having ownership, possession and enjoyment in respect of 8 Ares of property in old survey No.317/1 (Resurvey No.317/23) in Velam Village, Vadakara Taluk, Kozhikode Revenue District on the basis of Ext.P5 registered sale deed dated 30.10.2017. It is stated that the extent of land contained in the prior title deed of the petitioner is also 8 Ares. The said property was duly mutated in the name of the petitioner and the land tax has also been accepted from her by the 5[th] respondent as evident from Ext.P1 land tax receipt dated 18.4.2018, wherein the extent of land is clearly shown as 8 Ares. In Ext.P2 possession certificate dated 25.10.2018 issued by the 5[th] respondent Village Officer, it is W.P.(C)No.1938/2019 3 shown that the extent of land is 8 Ares. In Ext.P4 encumbrance certificate dated 28.11.2018 issued by the Sub Registrar concerned, it is clearly shown that the extent of land of the petitioner covered by Ext.P5 sale deed is 8 Ares. However, when the petitioner had approached the 5[th] respondent Village Officer later for getting the latest possession certificate, he has issued Ext.P3 possession certificate dated 30.11.2018, wherein the extent of land is shown only as 5.26 Ares. The petitioner would assert that the action on the part of the 5[th] respondent Village Officer in showing the extent of land in Ext.P3 possession certificate dated 30.11.2018 only as 5.26 Ares instead of 8 Ares as shown in the other documents in clearly illegal and wrong and such reduction in land area has been shown by the revenue authorities without prior notice and opportunity to the petitioner. That thereupon the petitioner had filed application dated 22.11.2018 in Form No.10 under the provisions of the Kerala Survey and Boundaries Act and the Rules framed thereunder before the 2[nd] respondent Tahsildar and the 4[th] respondent Taluk Surveyor praying that the property should be surveyed and measured with reference to her title deed in 4 W.P.(C)No.1938/2019 order to ensure that the extent of land is clearly shown as 8 Ares in the records concerned and so that the mistakes in Ext.P3 possession certificate could be rectified so as to show the correct extent of land. 3. The respondents were given several occasions to file their statement in the matter. The learned Government Pleader was requested to get instructions in the matter. Today when the matter was taken up for consideration, Smt. A.C. Vidhya, the learned Government Pleader appearing for the respondents submitted that the 5[th] respondent Village Officer had furnished a written statement as per letter No.16/19 dated 23.1.2019 and has also made available a copy of the said letter for the perusal of this Court. It is stated therein that when the revenue recovery steps were contemplated as against the petitioner’s husband Sri. Mani presumably, in respect of the above said subject property, steps were taken to ascertain the actual extent of the property. On inspection it was found that the part of the subject property is actually lying not only in resurvey No.317/11 and that the property in Survey No.317/11 is shown as road puramboke and that since there was no clear demarcated boundaries between 5 W.P.(C)No.1938/2019 the petitioner’s property as well as the said road puramboke in resurvey No.317/11, and as part of the property of the petitioner was found to be lying also in resurvey No.317/11, steps were taken by him to exclude the road puramboke area in resurvey No.317/11 from the total extent of the petitioner’s property and that therefore, it was found that the actual extent of property of the petitioner is only 5.26 Ares and not 8 Ares and that the petitioner is also convinced about such aspects etc. 4. From the above said stand of the 5[th] respondent, this Court has no hesitation to hold that the entire procedure adopted by the respondents more particularly, the 5[th] respondent to unilaterally reduce the total extent of the land of the petitioner is illegal, improper and arbitrary. It is interesting to note that, what is stated in the said letter dated 23.1.2019 of the 5[th] respondent is that they suspected whether the petitioner has the entire extent of property of 8 Ares and that therefore, they conducted an inspection and that they were convinced that the part of the property of the petitioner is lying in Resurvey No.317/11, which is road puramboke property and that this stand is taken by the 5[th] respondent when he also admits the same breadth that there is no W.P.(C)No.1938/2019 6 boundary properly demarcating between the petitioner’s property and the road puramboke. When that is the admitted position, it was highly illegal and improper on the part of 5[th] respondent to have taken unilateral action to reduce the extent of the property, is purely based on _conjectures and surmises_ , as it is clearly admitted in the said letter that there is no demarcation between the petitioner’s property and the so called road puramboke and that he had taken steps to exclude as far as possible the said road puramboke property from the property of the petitioner. What exactly is the official sanctity for such due process which is depriving the proprietary rights of a person, is not known. It can only said that the said procedure adopted by the 5[th] respondent is highly arbitrary and capricious. Accordingly, it is so ordered and declared that the unilateral action of the 5[th] respondent in holding that the actual extent of land area of the petitioner is only 5.26 Ares and not 8 Ares is illegal and improper. This Court is reinforced in saying so, because it is also submitted by the petitioner that even in the prior title deed of the predecessor –in-interest of the petitioner/vendor, the extent of subject property has been clearly shown as 8 Ares. Thereafter, in Ext.P5 sale deed, Ext.P1 7 W.P.(C)No.1938/2019 land tax receipt, Ext.P3 possession certificate and Ext.P4 encumbrance certificate, the respondents had consistently shown the extent of land as 8 Ares. When that is the indisputable position, the unilateral adverse action taken by the 5[th] respondent, t0 say the least, is highly illegal and arbitrary. 5. It is also stated in the above said letter of the 5[th] respondent that the petitioner had submitted an application in Form No.10 before the 2[nd] respondent Tahsildar for survey, measurement and demarcation of the boundaries of the petitioner’s property and that the said application has been forwarded to the 5[th] respondent, which has been numbered in that office as 246/18 etc. The petitioner has also stated that the said application has also been submitted before the 4[th] respondent Taluk Surveyor. 6. Having regard to the facts and circumstances of this case, it is ordered that the 2[nd] respondent Tahsildar will take up the application submitted by the petitioner for survey, measurement and demarcation of the boundaries of the petitioner’s property and will ensure that the proper and effective survey and measure is got done by the 4[th] respondent Taluk Surveyor with due prior notice to the petitioner and any 8 W.P.(C)No.1938/2019 other affected neighbouring property owners. The Surveyor concerned should conduct survey, measurement and demarcation of the petitioner’s property on the basis of the prior title deeds of the petitioner, Ext.P5 title deed, old survey records, resurvey records and any other relevant piece of materials, which may be pointed out by the petitioner. The surveyor will furnish a comprehensive report on the outcome of the survey, measurement and demarcation of the boundaries of the petitioner’s property covered by Ext.P5 sale deed and should also annex therewith a survey sketch. A copy of the report of the surveyor along with the copy of the survey sketch should be given by the 2[nd] respondent Tahsildar in advance to the petitioner. Thereafter, the petitioner may submit her written submissions in the matter before the 2[nd] respondent, who will thereafter take steps to finalise the request made by the petitioner for survey, measurement and demarcation of the boundaries in accordance with law. The petitioner has made certain contentions based on the legal positions laid down by this Court in the decision as in _**Savithri Ammal Vilasini Ammal**_ v. _**Jayaram Pillai, Padmavathy Amma**_ reported in [1989 (2) KLT 709]. It is for the petitioner W.P.(C)No.1938/2019 9 to urge all those aspects before the 2[nd] respondent Tahsildar, who will consider and advert to those aspects as well while finalizing the matter. It is also made clear that since the 5[th] respondent Village Officer has already taken a view in the matter, the 2[nd] respondent Tahsildar and the 4[th] respondent Taluk Surveyor should ensure that the incumbent in the post of the 5[th] respondent Village Officer, who had taken the impugned action as referred to hereinabove, shall not be associated with the decision making process to ensure due regard to fairness and impartiality in the decision making process. The entire process in this regard should be duly completed without much delay, preferably within a period of three months from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. sd/- ## **ALEXANDER THOMAS, JUDGE** acd W.P.(C)No.1938/2019 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** - **A TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE 5TH RESPONDENT DATED 18.4.2018** - **EXHIBIT P2 A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE 5TH RESPONDENT DATED 25.10.2018** - **EXHIBIT P3 THE CERTIFICATE ISSUED BY THE 5TH RESPONDENT DATED 30.11.2018** - **EXHIBIT P4 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE IN RESPECT OF THE PROPERTY OWNED BY THE PETITIONER DATED 20.11.2018** - **EXHIBIT P5 A TRUE COPY OF THE SALE DEED IN FAVOR OF THE PETITIONER DATED 30.10.2017** - **EXHIBIT P5 (a) A TRUE COPY OF THE ROUGH SKETCH SHOWING THE DESCRIPTION OF THE PROPERTY OF EXHIBIT P5 DATED NIL** **EXHIBIT P6** - **A TRUE COPY OF THE RECEIPT ISSUED BY THE 4TH RESPONDENT DATED 22.11.2018** TRUE COPY P.S. TO JUDGE.