W. P. (C) No. 18777 of 2018, The Tahasildar (L.R) Chirayinkeezhu Taluk Office, Thiruvananthapuram v. Kerala Lok Ayukta and Udaya Varma

W. P. (C) No. 18777 of 2018 -1- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944 WP(C) NO. 18777 OF 2018** **PETITIONER/S:** - **1 THE TAHASILDAR (L.R) CHIRAYNKEEZHU TALUK OFFICE,THIRUVANANTHAPURAM.** - **2 THE VILLAGE OFFICER KILIMANOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV V. TEKCHAND, GOVERNMENT PLEADER** ## **RESPONDENT/S:** **1 THE KERALA LOK AYUKTA, REPRESENTED BY THE REGISTRAR,THIRUVANANTHAPURAM. 2 UDAYA VARMA, KAKKOTTU VEEDU,PONGANADU, KILIMANOOR,THIRUVANANTHAPURAM. BY ADVS. SRI. K. RAMACHANDRAN, SMT. BINDUMOL M C – R2. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. P. (C) No. 18777 of 2018 -2- ## **J U D G M E N T** S. Manikumar, C. J. Mr. Udaya Varma, the 2[nd] respondent herein, has preferred complaint No. 881 of 2014 before the Kerala Lok Ayukta, for the following reliefs:- “(i) There may be a finding that there is inordinate delay in completing the survey and demarcation of the property as per the direction of the Director of Survey; (ii) The Respondents may be directed to complete the survey as proposed in Notice No. Sy H3-1842/06 dated 26.01.2006 (Exhibit P-3) within a months time; (iii) There may be a finding that the survey personnel has committed gross negligence in finding that there is Puramboke land of 2 ½ cents of land in Survey No. 2746 and 2746 (1); (iv) The Respondents may be directed to effect mutation in respect of the entire property of the Complainant and his mother as per the documents.” ## 2. Before the Lok Ayukta, respondents have filed a statement, which is reproduced:- “The complainant’s father late Sreenivansan was the owner of 22 cents (8.90 Ares) of property in old survey No. 2746 W. P. (C) No. 18777 of 2018 -3- and in 2746(1) of Kilimanoor village. The resurvey records finalised and implemented in Kilimanoor village in 2004. As per the resurvey records the above land included in resurvey number 1/1, Block 30 of Kilimanoor village. The extent of the land as per the resurvey records is 7.90 Ares and the remaining land under his possession (1.00 are) is the part of the ‘puramboke vazhi’ in resurvey record marked as in Block Number 29 and resurvey Number 160/7. Even though the total extent of the land as per existing resurvey records is 7.90 ares, complainant’ father divided 8.90 ares among his three sons and his wife. Complainant's brothers Udaya Chandran and Udaya kumar got 2.43 ares each and the complainant and his mother got 02.02 ares each. The complainant argues that his father filed application before the resurvey authority to refix the puramboke land and no action was taken on it. Aggrieved by this the complainant filed this complaint before the honourable LokAyukta. ## Parawise Remarks ## 1. No remarks ## 2. No remarks 3. In 2004 resurvey records finalised and implemented in Kilimanoor village. As per the resurvey records the extent of the registered land under their possession included in resurvey number 1/1 in Block number 30 and the area is 7.90 ares land tax was paid for the extent of 7.90 ares in 2004-2005. W. P. (C) No. 18777 of 2018 -4- ## 4. No remarks ## 5. No remarks ## 6. No remarks 7. Eventhough the extent of the land as per resurvey records which is followed as the record of land from 2004 onwards is 7.90 ares the complainant’s father executed documents for the extent of 8.90 ares. So there is a shortage of 1.00 ares of land in village records. All others except the complainant effected mutation. The complainant got 2.02 ares of land as per document. But the extent of the property remains in village records as per thandaper number 1 in Block 30 is 01.02 ares 8. No remarks ## 9. No remarks 10. As per G.O(MS) 200/10 Government had stopped ‘survey Adalath' works through Re-survey superintendent offices and the power is transferred to Additional Tahsildar for rectifying the mistakes in resurvey records with effect from 31/05/2010. The complainant filed petition before the Director of survey on 20/01/2006 and it is also noticed that the complainant has not filed any petition before the Additional Tahsildar for rectifying the mistakes with valid supporting documents till date.” ## 3. After considering the pleadings, Lok Ayukta, by order dated W. P. (C) No. 18777 of 2018 -5- ## 10.11.2017 in complaint No. 881 of 2014, ordered thus:- “The Tahsildar (LR), Chirayinkeezhu is present. He submits that the property comprised in Block No. 29 and resurvey 160/17 is road Puramboke and that therefore the complainant is not entitled to have it mutated in his name. The Tahsildar is asked as to whether consequent on re-survey, registered holding will change its character and can be converted as Puramboke, when he has admitted that as per the old survey the said portion was part of registered holding of the complainant. His answer is in the negative. Re-survey authorities whoever he be, is not entitled to convent registered holding into puramboke and if that is done in the case of the complainant, the Tahsildar (LR) has to rectify the mistake and file report positively, by the next posting date. His stand that the said portion is now part of the road does not stand to reason. We do come across cases where private property is encroached upon either by Panchayat or by persons under the leadership of members of the Panchayat to form roads and in no time metal would be spread and tarring also will be done. If the stand taken by the Tahsildar (LR) is to be accepted, that also will be Road and recovery cannot be had. Fortunately, he submits that his registered holding cannot be converted into Puramboke on resurvey. If his property cannot be converted into road puramboke the property of the complainant also cannot be converted into road puramboke. He shall do the needful and submit report effecting mutation in the name of the complainant and causing tax to be received from him. Comply and report on 18.12 2017.” W. P. (C) No. 18777 of 2018 -6- 4. Being aggrieved, instant writ petition is filed on the grounds inter alia that Ext. P3 order passed by the 1[st] respondent Lok Ayukta is illegal and beyond jurisdiction, in the light of Section 12 of the Act. The Lok Ayukta is empowered to submit a report after due investigation before the competent officer. It has no jurisdiction to pass an order, giving a positive direction to the respondents in the complaint. The report of the Lok Ayukta can only be in the recommendatory nature, and therefore, Ext. P3 order is vitiated and liable to be interfered with by this Court. 5. Petitioners have submitted that by passing Ext. P3 order, the 1[st] respondent Lok Ayukta did not consider the statutory provisions dealing with mutation and payment of land tax. The Transfer of Registry Rules, 1966, deals with the mutation of land and the provisions of Kerala Land Tax Act, 1961, deals with the acceptance of land tax. A detailed procedure is prescribed in the matter of Transfer of Registry and Rule 18, 19 and 20 deals with the appellate as well as the revisional jurisdiction of the authorities under the Transfer of Registry Rules. Bypassing all these provisions, the Lok Ayukta ought not to have passed Ext. P3 order, directing the petitioners to effect mutation W. P. (C) No. 18777 of 2018 -7- and accept land tax in respect of land in question. 6. Mr. V. Tekchand, learned Senior Government Pleader appearing for the petitioners, made submissions on the grounds raised. 7. Ms. Bindumol M. C., learned counsel appearing for the 2[nd] respondent, made submissions to sustain the interim order. 8. As stated supra, when the complainant / 2[nd] respondent, has made an allegation of inordinate delay in completing the survey and demarcation of the property, and also prayed for a direction to complete the survey as proposed in Ext. P3 notice in Sy. H3-1842/06 dated 26.01.2006 filed therein, and consequently, sought for mutation in respect of the entire property of the complainant and his mother, as per the documents, posing certain questions to the Tahsildar (LR), Chirayinkeezhu, and after obtaining response, Kerala Lok Ayukta in complaint No. 881 of 2014 dated 10.11.2017 has ordered mutation and directed compliance on 18.12.2017. 9. The said interim order, is as good as a final order made in complaint No. 881 of 2014, effecting mutation in respect of the entire property of the complainant and his mother, before adjudicating the W. P. (C) No. 18777 of 2018 -8- rival contentions of the parties to the prayers sought for. 10. On the facts and circumstances of this case, granting an interim order of the abovesaid nature, would amount to granting the main relief itself, which the Hon'ble Supreme Court, time and again, has held as ‘not permissible’. On the said aspect, reference can also be made to few decisions of the Hon'ble Apex Court:- “(i) In **Deoraj v. State of Maharashtra** reported in **AIR 2004 SC 1975** , the Hon'ble Supreme Court, at para 12, held as follows: "Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case - of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the W. P. (C) No. 18777 of 2018 -9- injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent." (ii) In **State of U.P v. Ram Sukhi Devi, [(2005) 9 SCC 733]** , the Hon'ble Supreme Court held that final relief cannot be granted by way of interim relief. Paragraph 8 of the aforesaid decision is extracted hereunder:- "To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the Government Order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable Government Order has to be ignored. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd. (1985 (1) SCC 260 at p. 265), State of Rajasthan v. M/s Swaika Properties (1985 (3) SCC 217 at p.224), State of U.P. and Ors. v. Visheshwar (1995 Supp (3) SCC 590), Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa and Ors. (1995 Supp (2) SCC 593), Shiv Shankar and Ors. v. Board of Directors, U.P.S.R.T.C. and Anr. (1995 Supp (2) SCC 726) and Commissioner/Secretary to Govt. Health and Medical Education Department Civil Sectt., Jammu v. Dr. W. P. (C) No. 18777 of 2018 -10- Ashok Kumar Kohli (1995 Supp (4) SCC 214).] No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the matter as early as practicable preferably within six months from the date of receipt of this judgment.” 11. Record of proceedings shows that when the writ petition came up for hearing, on 07.06.2018, a Hon'ble Division Bench of this Court, while ordering notice to the 2[nd] respondent, suspended implementation of Ext. P3 order dated 10.11.2017 in complaint No. 881 of 2014 of the Lok Ayukta. 12. Giving due consideration to the material on record, interim order is made absolute. 13. Ext. P3 order of the Lok Ayukta in complaint No. 881 of 2014 dated 10.11.2017 is set aside. 14. Matter is remitted back to the Lok Ayukta for consideration on merits and in accordance with law. W. P. (C) No. 18777 of 2018 -11- Inasmuch as the complaint is pending from 2014 onwards, Lok Ayukta is requested to expedite the disposal. Sd/- **S. MANIKUMAR CHIEF JUSTICE** Sd/- **SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE W. P. (C) No. 18777 of 2018 -12- ## **APPENDIX OF WP(C) 18777/2018** **PETITIONER EXHIBITS EXHIBIT P1** **TRUE COPY OF THE COMPLAINT NO.881/2014A (EXCEPT THE DOCUMENT ATTACHED THEREWITH) FILED BEFORE THE IST RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE STATEMENT OF FACTS FILED BEFORE THE IST RESPONDENT BY THE PETITIONERS HEREIN** **EXHIBIT P3** **TRUE COPY OF THE ORDER DATED 10.11.2017 PASSED BY THE IST RESPONDENT IN COMPLAINT NO.881/2014A**