Sudha Kusan v. State of Kerala and Others
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- Anil K. Narendran
- Judgment Date
- 2021-03-15
- Court Decision / Holding
- i) If an application in Form No.10 is not enclosed along with Ext.P6, the petitioner shall submit such an application before the 3rd respondent within two weeks from the date of receipt of a certified copy of this judgment. ii) Thereafter, the 3rd respondent Tahsildar shall consider that application and pass appropriate orders thereon, with notice to the petitioner and other affected parties and after affording them an opportunity of hearing, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a certified copy of this judgment.
- Final Disposition
- Writ petition disposed of with directions
Parties to the Case
Appellants / Petitioners
- Sudha Kusan
Respondents
- State of Kerala
- District Collector, Ernakulam
- Tahsildar, Kochi Taluk
- Village Officer, Elamkunnapuzha
- Taluk Surveyor, Kochi Taluk
- Station House Officer, Njarakkal Police Station
Legal Representation & Advocates
Counsels for Petitioners
- • Sri V. John Mani
- • Sri S. Jayan
- • Sri Jackson Johny
- • Sri Varghese Sabu
- • Sri Sethulakshmi K.K.
- • Smt. Gayathri Menon
- • Sri Sony P.G.
Counsels for Respondents
- • Sri Rekha C. Nair, Govt. Pleader
Case Synopsis & Summary
Sudha Kusan, the petitioner, claims ownership and possession of a 1.82 ares property in Re-survey No. 91/11-2 of Elamkunnapuzha Village, Kochi Taluk, based on Gift Deed No. 1033/2019 (Ext. P1). She approached the High Court under Article 226 seeking a writ of mandamus to the Tahsildar (3rd respondent) to demarcate and fix the boundary of the registered land and to issue a boundary sketch within a timeframe fixed by the court. She also sought mandamus to consider Ext. P6 (dated 18.01.2021) and to pass orders after affording a reasonable opportunity of hearing. The central issue is whether she is entitled to a mandamus directing the Tahsildar to point out boundaries under Rule 43 of the Kerala Survey and Boundaries Rules, 1964, based on Ext. P6. Rule 43 requires the land-holding to be demarcated via Form No.10 to the Tahsildar, with the Form containing a prescribed declaration. The petitioner cites Vinod Kumar v. District Geologist and others (2019 (3) KHC 79) to contend that failure to attach mandatory documents defeats a request for mandamus; yet, where essential statutory requirements are fulfilled, mandamus can issue. The respondents urge that if Form No.10 is not enclosed with Ext. P6, the petition should not be entertained, and if in order, the Tahsildar shall act within a time limit after hearing. The court disposed of the petition with directions, emphasizing compliance with statutory provisions and lawful action: (i) if Form No.10 was not enclosed with Ext. P6, the petitioner shall file it within two weeks; (ii) thereafter, the Tahsildar shall consider and decide within three months, after notice and hearing. The court also cited State of U.P. v. Harish Chandra and Bhaskara Rao A.B. v. CBI to reaffirm that mandamus cannot compel unlawful conduct or contravene statutory provisions. Ultimately, the petition was disposed with direction to act strictly in accordance with law.
Provisions of Law Cited
Legal Doctrines & Maxims
- No mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law.
- Generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions.
- Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law.
Submissions & Arguments
Contentions of Appellants / Petitioners
The petitioner submits that she seeks a mandamus to direct the 3rd respondent Tahsildar to point out the boundaries of her registered land under Rule 43 of the Kerala Survey and Boundaries Rules, 1964, based on Ext. P6. She contends that a boundary sketch must be issued and the application processed after providing an opportunity of hearing. She argues that Form No.10 must be submitted, and if not attached with Ext. P6, she should be permitted to file it within two weeks of receipt of a certified copy of the judgment in accordance with Vinod Kumar (2019 (3) KHC 79). The petitioner asserts that compliance with statutory procedure will uphold lawful possession and prevent encroachment, and requests timely and proper action by the Tahsildar.
Contentions of Respondents
The respondents contend that if Ext. P6 lacks Form No.10, the application cannot be entertained, and only if the application is in order should the Tahsildar consider it and pass orders after hearing within a court-fixed timeframe. They rely on statutory provisions and the Vinod Kumar decision to emphasize compliance with Form No.10 and the absence of authority to compel action contrary to law. They argue that the court should not issue mandamus to compel a result that would contravene legal requirements and that any boundary demarcation must follow the proper statutory process.
Cited Precedents (3)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Vinod Kumar v. District Geologist and others | 2019 (3) KHC 79 | Positive | Cited to show that absence of mandatory documents prevents a mandamus to compel consideration, aligning with statutory prerequisites under Rule 14 and related rules. |
| State of U.P. v. Harish Chandra | [(1996) 9 SCC 309] | Positive | Cited to support that no mandamus can compel actions contrary to law or to refrain from enforcing statutory provisions. |
| Bhaskara Rao A.B. v. CBI | [(2011) 10 SCC 259] | Positive | Cited to reinforce the principle that courts generally cannot direct actions contrary to law or statutory provisions; rule of law governs. |
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