High Court of KeralaSingle JudgeWrit petition disposed of with directions

Sudha Kusan v. State of Kerala and Others

Case / Petition Number:WP(C).No.6585 OF 2021(W)

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

Article 226 of the Constitution of IndiaRule 43 of the Kerala Survey and Boundaries Rules, 1964Kerala Survey and Boundaries Rules, 1964

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 NameCitationTreatmentExplanation
Vinod Kumar v. District Geologist and others2019 (3) KHC 79PositiveCited 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]PositiveCited 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]PositiveCited to reinforce the principle that courts generally cannot direct actions contrary to law or statutory provisions; rule of law governs.

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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 ANIL K.NARENDRAN** **MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942** ## **WP(C).No.6585 OF 2021(W)** ## **PETITIONER:** **SUDHA KUSAN AGED 53 YEARS WIFE OF KUSAN K.P. KACHAPARAMBIL HOUSE, ELAMKUNNAPUZHA P.O. KOCHI 682 503.** **BY ADVS. SRI.V.JOHN MANI SHRI.S.JAYANT SRI.JACKSON JOHNY SHRI.VARGHESE SABU SHRI.SETHULAKSHMI K.K. SMT.GAYATHRI MENON SRI. SONY P.G.** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY REVENUE**| ||**DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM**| ||**695 001.**| |**2**|**DISTRICT COLLECTOR,**| ||**DISTRICT COLLECTORATE, ERNAKULAM 682 030.**| |**3**|**TAHASILDAR**| ||**TALUK OFFICE, KOCHI TALUK, KOCHI 682 001.**| |**4**|**VILLAGE OFFICER,**| ||**OFFICE OF THE VILLAGE OFFICE ELAMKUNNAPUZHA**| ||**VILLAGE, ELAMKUNNAPUZHA P.O. VYPIN, ERNAKULAM,**| ||**682 503.**| -2- WP(C).No.6585 OF 2021(W) **5 TALUK SURVEYOR, KOCHI TALUK OFFICE, GROUND FLOOR, KB JACOB ROAD, FORT KOCHI 682 001. 6 STATION HOUSE OFFICER NJARAKKAL POLICE STATION, SH 63, NJARACKAL, KOCHI, KERALA 682 505.** **R BY SMT. REKHA. C. NAIR, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- WP(C).No.6585 OF 2021(W) ## **JUDGMENT** The petitioner, who is stated to be the owner in possession of a property having an extent 1.82 Ares (4.50 cents) in Re-survey No.91/11-2 of Elamkunnapuzha Village, Kochi Taluk covered by Ext.P1 Gift Deed No.1033 of 2019 of Sub Registrar Office, Njarakkal, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 3[rd] respondent Tahsildar to take immediate action to demarcate and fix boundary of the aforesaid property and issue a sketch within a time limit to be fixed by this Court. The petitioner has also sought for a writ of mandamus commanding the 3[rd] respondent to consider and pass orders on Ext.P6 application dated 18.01.2021 after affording him a reasonable opportunity of being heard, within a time limit to be fixed by this Court. 2. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 3. The issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for a writ of -4- ## WP(C).No.6585 OF 2021(W) mandamus commanding the 3[rd] respondent Tahsildar to point out boundaries of his registered holding, under Rule 43 of the Kerala Survey and Boundaries Rules, 1964 based on Ext.P6 application made by the petitioner. 4. Rule 43 of the Kerala Survey and Boundaries Rules reads thus; **“43. Application for pointing out boundaries of registered lands already surveyed and** - **demarcated.** Application for pointing out boundaries of registered lands already surveyed and demarcated shall be made by the registered holder in Form No.10 to the Tahsildar of the Taluk in which the land is situated.” An application under Rule 43 of the Survey and Boundaries Rules has to be made in Form No.10, which shall contain a declaration as specified in that Form. 5. In **Vinod Kumar v. District Geologist and others [2019 (3) KHC 79]** in the context of Rule 14 of the Kerala Minor Mineral Concession Rules, 2015, this Court held that if the application made seeking permission under sub-rule (2) of Rule 14 for mineral transit pass is not supported by the mandatory documents as per the proviso to sub-rule (2) of -5- ## WP(C).No.6585 OF 2021(W) Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, it cannot be said that there is any failure on the part of the District Geologist in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus for considering that application. When the application made by the petitioner is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, this Court cannot direct the District Geologist to consider that application in contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law. 6. The learned counsel for the petitioner would submit that if an application in the prescribed Form, i.e., Form No.10 was not enclosed along with Ext.P6, the petitioner shall submit such an application within a period of two weeks from the date of receipt of a certified copy of this judgment. 7. The learned Government Pleader would submit that if the application made by the petitioner is in order and the -6- WP(C).No.6585 OF 2021(W) petitioner has complied with the statutory requirements, the 3[rd] respondent Tahsildar shall consider the same and take an appropriate decision thereon, within a time limit to be fixed by this Court. 8. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions; - i) In case an application in Form No.10 is not enclosed along with Ext.P6, as per the statutory mandate under Rule 43 of the Survey and Boundaries Rules, the petitioner shall submit such an application before the 3[rd] respondent, within two weeks from the date of receipt of a certified copy of this judgment. - ii) Thereafter, the 3[rd] 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 being heard, 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. 9. In **State of U.P. v. Harish Chandra [(1996) 9** **SCC 309]** the Apex Court held that no mandamus can be -7- WP(C).No.6585 OF 2021(W) issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, 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. The 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. 10. Therefore, in terms of the direction contained in this judgment, the 3[rd] respondent Tahsildar shall take an appropriate decision in the matter, strictly in accordance with law, taking note of the relevant statutory provisions and also the law on the point. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/16/3 -8- WP(C).No.6585 OF 2021(W) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE GIFT DEED NO. 1033/2019 OF NJARAKKAL SRO DATED 29.05.2019.** **EXHIBIT P2 TRUE COPY OF THE SKETCH OBTAINED FROM THE VILLAGE OFFICE ELAMKUNNAPUZHA SHOWING THE LIE OF THE PROPERTIES. EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 26.01.2021 IN FAVOUR OF THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE TAX RECEIPT FOR THE YEAR 2020-2021 DATED 19.06.2020. EXHIBIT P5 TRUE COPY OF THE FIR NO. 88/2021 DATED 06.02.2021 OF NJARAKKAL POLICE STATION. EXHIBIT P6 TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER TO 3RD RESPONDENT DATED 18.01.2021 WITH ITS ACKNOWLEDGEMENT OF RECEIPT.**