Tessy vs The District Collector
2021 Latest Caselaw 17225 Ker

WP(C) NO. 16735 OF 2021         1

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
        THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
    FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
                       WP(C) NO. 16735 OF 2021
PETITIONER:

          TESSY
          AGED 72 YEARS
          D/O. THOMMAN, MANACKAL HOUSE, GOTHURUTH,
          CHENDAMANGALAM, PARAVUR TALUK, ERNAKULAM - 683513.

          BY ADVS.
          C.A.CHACKO
          C.M.CHARISMA



RESPONDENTS:

    1     THE DISTRICT COLLECTOR,
          ERNAKULAM, CIVIL STATION, KAKKANAD, ERNAKULAM
          DISTRICT, PIN - 682021.

    2     THE ASSISTANT EXECUTIVE ENGINEER
          PWD ROADS DIVISION, PWD OFFICE (ROADS DIVISION),
          NORTH PARAVUR, ERNAKULAM - 683513.

    3     THE TAHSILDAR (LR)
          PARAVUR TALUK OFFICE, NORTH PARAVUR, ERNAKULAM,

          PIN - 683513.

    4     THE TALUK SURVEYOR
          TALUK OFFICE, NORTH PARAVUR, ERNAKULAM,

          PIN - 683513.




          SMT K AMMINIKUTTY, SR GOVERNMENT PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 16735 OF 2021              2

                                  JUDGMENT

The petitioner states that on the strength of Ext.P1 deed, the petitioner is

having the right, title and possession of property having an extent of 6 cents

comprised in Sy. No.98/1 of Chendamangalam Village. In the said property, a

Cupola has been constructed by the Parishioners of the St. Sebastian's Church,

Gothuruth with the consent of the petitioner. The petitioner contends that

during re-survey, serious discrepancies have crept in and portions of the

registered holding of the petitioner have been categorised as road puramboke.

2. While so, Ext.P4 notice was issued by the 2nd respondent invoking

his powers under the Kerala Land Conservancy Act and the Rules framed

thereunder calling upon the Vicar of the St.Sebastian Church to remove the

encroachments made into the road puramboke in Sy.No.81/19-16 of

Chendamangalam Village. No notice was served on the petitioner, who is the

owner of the property. In the said circumstances, the petitioner approached

this Court and filed W.P.(C) No. 15590/2020 seeking directions and this Court

by Ext.P5 judgment, quashed the notice and directed the respondents 1 and 2

therein to issue fresh notice detailing the extent of encroachment into the PWD

road with reference to the survey sketch prepared by the Taluk surveyor. The

petitioner contends that the respondents did not comply with the directions and

in the said circumstances, she put up a boundary wall on some portions of the

Cupola. The 2nd respondent demolished the constructions carried out by the

petitioner, which led to the petitioner filing Cont. Case No.480/2021, which is

pending.

3. The petitioner contends that she has been served with Ext.P4

notice informing her that the property falling in various survey numbers

including the property of the petitioner would be measured. On receipt of the

notice, the petitioner is stated to have submitted Ext.P7 representation

requesting that the measurements be carried out taking note of the title deeds

of the properties and old survey records. The petitioner contends that her

request was ignored and Ext.P8 notice was issued informing her that the

property would be measured on 26.7.2021. However, the same was not

measured. The petitioner states that persons similarly placed as the petitioner

had approached this Court and after considering the contentions, Ext.P9

judgment has been passed. The prayer of the petitioner is for a direction to the

4th respondent to consider Ext.P7 representation and to conduct measurement

of the land on the basis of the title deeds of properties on either side of the

Gothuruth Vadakkumpuram PWD road and Ext.P3 survey sketch instead of re-

survey records.

4. I have heard Smt. C.M.Charishma, the learned counsel appearing

for the petitioner and Smt. K. Amminikutty, the learned senior Government

Pleader.

5. The learned counsel appearing for the petitioner submitted that

nothing has transpired on 26.7.2021 and her solitary prayer is for a direction to

the 4th respondent to consider Ext.P7 representation before finalizing the

proceedings.

6. The learned Government Pleader submitted that the resurvey

proceedings were completed way back and if the petitioner had any grievance,

they should have filed appropriate petitions as contemplated under law. It is

submitted that the resurvey records which have been finalized cannot be

ignored. However, it is submitted that if Ext.P7 is pending consideration and if

the proceedings have not been finalized, there is no impediment in considering

the representation.

Having regard to the facts and circumstances and the submissions made

across the Bar, this writ petition is disposed of directing the 3rd respondent to

consider Ext.P7 representation and issue necessary directions to the 4th

respondent to take note of the matters mentioned in Ext.P7, provided the

proceedings pursuant to Ext.P6 and P8 have not been finalized till date.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE IAP

APPENDIX OF WP(C) 16735/2021

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF RELEASE DEED NO.1100/1970 DATED 30.12.1969 IN FAVOUR OF PETITIONER.

Exhibit P2 PHOTOGRAPH OF CUPOLA IN PETITIONER'S PROPERTY.

Exhibit P3 TRUE COPY OF SURVEY SKETCH OF OLD SURVEY IN SURVEY NO.98 OF CHENDAMANGALAM VILLAGE.

Exhibit P4 TRUE COPY OF NOTICE DATED 24.02.2020 ISSUED BY 2ND RESPONDENT.

Exhibit P5 TRUE COPY OF JUDGMENT DATED 26.11.2020 IN WP(C) NO.15590/20 OF THIS HON'BLE COURT.

Exhibit P6 TRUE COPY OF NOTICE DATED 24.03.2021 ISSUED BY THE 4TH RESPONDENT.

Exhibit P7 TRUE COPY OF PETITIONER'S REPRESENTATION DATED 27.03.2021 TO THE 4TH RESPONDENT ALONG WITH ITS ACKNOWLEDGMENT CARD.

Exhibit P8 TRUE COPY OF NOTICE DATED 16.07.2021 ISSUED BY 4TH RESPONDENT.

Exhibit P9 TRUE COPY OF JUDGMENT DATED 22.07.2021 IN WP(C) NO.14584/2021 OF THIS HON'BLE COURT.

RESPONDENTS' EXHIBITS:

NIL