Sabu Varghese vs State Of Kerala
2021 Latest Caselaw 1864 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

     MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                      W.P.(C) No.1205 OF 2021(A)

PETITIONER:

               SABU VARGHESE,
               AGED 46 YEARS, S/O VARGHESE,
               NARAKATHARAYIL HOUSE,
               IDUKKI COLONY P.O.,THANNIKKANDAM KARA,
               IDUKKI VILLAGE, IDUKKI TALUK,
               IDUKKI DISTRICT-685 602.

               BY ADVS.
               SRI.VARGHESE C.KURIAKOSE
               SHRI.SUSANTH SHAJI

RESPONDENTS:

      1       STATE OF KERALA
              REPRESENTED BY SECRETARY,
              DEPARTMENT OF REVENUE, SECRETARIAT,
              THIRUVANANTHAPURAM, PIN-695 001.

    * 2       THE TAHSILDAR, (CORRECTED)
              TALUK OFFICE, IDUKKI TALUK,
              IDUKKI COLONY P.O.,
              IDUKKI DISTRICT-682 602.

          *   THE DESCRIPTION OF THE SECOND RESPONDENT IN THE
              CAUSE TITLE IS SUO MOTU CORRECTED AS 'TAHSILDAR(LR)'
              AS PER ORDER DATED 18-01-2021 IN W.P.(C)NO.1205/2021.

      3       THE TALUK SURVEYOR,
              TALUK OFFICE, IDUKKI TALUK,
              IDUKKI COLONY P.O.,IDUKKI DISTRICT-685 602.

    R1-R3     SMT.K.AMMINIKUTTY, SENIOR GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.1205 OF 2021(A)
                                    -2-


                                JUDGMENT

The petitioner, who is stated to be the owner in possession of

property having an extent of 81 square metres in Sy.No.161/1-

549-1 and another extent of 4.05 Ares comprised in Sy.No.161/1-

549 of Idukki Village, covered by Ext.P1 settlement deed No.1224

of 2020 of the Sub Registrar Office, Thoppramkudy and 15 Ares

and 37 square metres of land comprised in Sy.No.161/1-549-1,

covered by Ext.P2 settlement deed No.1255/2020 of the said Sub

Registrar Office, has filed this writ petition under Article 226 of the

Constitution of India, seeking a writ of mandamus commanding

the 2nd respondent Tahsildar, Idukki and the 3 rd respondent Taluk

Surveyor, Idukki to conduct and conclude measurement of the

property mentioned in Exts.P1 and P2 title deeds and fix the

boundaries, as requested in Exts.P5 and P6 applications dated

04.01.2021 pointing out the boundaries, as contemplated under

Rule 27 and Rule 43 of the Kerala Survey and Boundaries Rules,

1964.

2. Heard the learned counsel for the petitioner and also

the learned Senior Government Pleader appearing for the

respondents.

W.P.(C) No.1205 OF 2021(A)

3. The learned counsel for the petitioner would submit that

the petitioner submitted Exts.P5 and P6 applications before the 2 nd

respondent Tahsildar, for onward transmission to the 3rd

respondent Taluk Surveyor and those applications are now pending

consideration.

4. The learned Senior Government Pleader would submit

that, if Exts.P5 and P6 applications made by the petitioner are in

order and the petitioner has complied with the statutory

requirements, the 2nd and 3rd respondents shall consider the same

and pass appropriate orders thereon, within a time limit to be fixed

by this Court.

5. Having considered the submissions made by the learned

counsel on both sides, this writ petition is disposed of by directing

the 2nd and 3rd respondents to consider and take an appropriate

decision on Exts.P5 and P6 applications made by the petitioner,

within two months from the date of receipt of a certified copy of

this judgment, with notice to the petitioner and after affording him

an opportunity of being heard.

6. In State of U.P. v. Harish Chandra [(1996) 9 SCC

309] the Apex Court held that no mandamus can be issued to W.P.(C) No.1205 OF 2021(A)

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.

Therefore, in terms of the direction contained in this

judgment, 2nd and 3rd respondents shall take an appropriate

decision on 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 bpr W.P.(C) No.1205 OF 2021(A)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE SETTLEMENT DEED NO 1224/2020 OF SRO, THOPRAMKUDY DATED 06.10.2020

EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE SETTLEMENT DEED NO 1255/2020 OF SRO, THOPRAMKUDY DATED 13.10.2020

EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE BASIC TAX RECEIPT DATED 27.10.2020 ISSUED BY IDUKKI VILLAGE

EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE BASIC TAX RECEIPT DATED 18.11.2020 ISSUED BY IDUKKI VILLAGE

EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE APPLICATION SUBMITTED UNDER RULE 43 OF THE KERALA SURVEY & BOUNDARIES, RULES 1961 BEFORE THE 2ND RESPONDENT

EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE APPLICATION SUBMITTED UNDER RULE 27 OF THE KERALA SURVEY & BOUNDARIES, RULES 1961 BEFORE THE 2ND RESPONDENT

EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE ACKNOWLEDGMENT CARD SIGNED BY THE 2ND RESPONDENT

RESPONDENTS' EXHIBITS: NIL