Abdul Razack Kuttasseri vs State Of Kerala
2021 Latest Caselaw 9436 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

     MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943

                        WP(C).No.2247 OF 2021(E)


PETITIONER/S:

                ABDUL RAZACK KUTTASSERI
                S/O. MOHAMED HAJI, PULAMKUNDIYIL HOUSE,
                VELLERI, CHAMRAKATTUR POST, AREEKODE-673 639

                BY ADVS.
                SRI.K.M.FIROZ
                SMT.M.SHAJNA

RESPONDENTS:

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

      2         RE-SURVEY ASSISTANT DIRECTOR,
                SURVEY OFFICE, MALAPPURAM-676 505

      3         ADDITIONAL TAHSILDAR,
                ERNAD TALUK, MANJERI, MALAPPURAM-676 505

      4         TAHSILDAR (LR)
                ERNAD , MANJERI, MALAPPURAM-676 505

      5         PADIYAN RAMACHANDRAN,
                S/O. PADIYAN UNNICHOZHI, AMBALAPARAMBU HOUSE,
                AREECODE AMSOM, VELLERI DESOM, P.O, CHEMBRAKKATTOOR,
                MALAPPURAM DISTRICT-676 639

      6         IBRAHIM
                S/O. KUTTASSERI MOHAMMED, KUTTASSERI, AREECODE AMSOM,
                VELLERI DESOM , P.O. CHEMBRAKKATOOR,
                MALAPPURAM DISTRICT-676 639.

      7         ISMAYIL,
                S/O. KUTTASSERI MOHAMMED, KUTTASSERI, AREECODE AMSOM,
                VELLERI DESOM , P.O. CHEMBRAKKATTOOR,
                MALAPPURAM DISTRICT-676 639.

      8         HAFSATH,
                D/O. KUTTASSERI MOHAMMED, KUTTASSERI, AREECODE AMSOM,
                VELLERI DESOM, P.O CHEMBRAKKATOOR,
 WP(C).No.2247 OF 2021(E)     2

             MALAPPURAM DISTRICT-676 639

      9      RAMLATH,
             D/O. KUTTASSERI MOHAMMED, KUTTASSERI, AREECODE
             AMSOM, VELLERI DESOM, P.O. CHEMBRAKKATTOOR,
             MALAPPURAM DISTRICT-676 639

      10     ASKARALI,
             D/O. KUTTASSERI MOHAMMED, KUTTASSERI, AREECODE
             AMSOM, VELLERI DESOM, P.O. CHEMBRAKKATOOR,
             MALAPPURAM-673 639

      11     JAFAR,
             S/O. KUTTASSERI MOHAMMED, KUTTASSERI, AREECODE
             AMSOM, VELLERI DESOM, P .O. CHEMBRAKKATTOOR,
             MALAPPURAM DISTRICT-676 639

      12     KADEEJA,
             D/O. KUTTASSERI MOHAMMED, KUTTASSERI, AREECODE
             AMSOM, VELLERI DESOM, P.O CHEMBRAKKATOOR,
             MALAPPURAM DISTRICT-676 639

             R5 BY ADV. SRI.VINOD RAVINDRANATH
             R6-12 BY ADV. SRI.K.SIYAMURSHID

             SMT SHEEJA CS, SR GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.2247 OF 2021(E)             3




                                 JUDGMENT

Challenging the order passed by the Survey Officer in Re-Survey

proceedings, the 5th respondent preferred an appeal before the Appellate

Authority under Section 11(1) of the Survey and Boundaries Act, 1961 (for

short, 'the Act'). Complaining of inaction, the 5th respondent approached

this Court and this Court by Ext.P4 judgment, directed the official

respondents to take a decision on the appeal in an expeditious manner.

Pursuant to the same, Exts P1 to P3 notices were issued to the petitioner by

the 4th respondent calling upon the petitioner to appear before the said

respondent with all original records pertaining to the property. The

petitioner contends that though he was arrayed as a respondent, the matter

was disposed of without issuing notice to him. He contends that the 4th

respondent has no jurisdiction to hear the appeal which is purportedly under

Section 11 of the Act. He would also contend that unless the appeal

memorandum as well as the copy of the impugned order is served on him,

he would not be able to understand what the grievance raised by the party

respondent pertains to. It is in the afore circumstances that the petitioner is

before this Court seeking the following reliefs.

i) to call for the records leading to Exhibits P1 to P6 and direct the respondent No.2 or 4 to issue copies requested in Exhibit P4 by issuing a writ of mandamus or any other appropriate writ, direction or order.

ii) to declare that appeal under Section 11 of the Kerala Survey and Boundaries Act, 1961 against order passed by the third respondent will not lie before the fourth respondent.

iii) To direct the respondent No.4 to keep in abeyance all the proceedings pursuant to Exhibit P3 pending issuance of copy by issuing a writ of mandamus or any other appropriate writ, direction or order.

2. In the counter affidavit filed by the 5th respondent it is stated

that the appeal is being heard by the 2nd respondent and he has been

served with Ext.R5(d) notice. It is pointed out that the appeal was preferred

by the appellate authority on 26.6.2013 and it is due to the delay in taking

up the appeal that he had approached this Court seeking orders.

3. I have considered the submissions advanced. The grievance of

the petitioner that the appeal is being heard by the Tahsildar and not the 2nd

respondent have no basis in view of Ext.R5(d) which is seen issued by the

Assistant Director, who is the appellate authority. His next grievance is that a

copy of the appeal memorandum as well as the impugned order has not

been served to him. I direct the petitioner to approach the 2nd respondent

within 10 days from today and file an application for issuance of copies of

the appeal memorandum as well as the order under challenge. A copy of

the same shall be furnished to the petitioner. Thereafter the matter shall be

posted and orders shall be passed expeditiously.

The Writ Petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V

JUDGE NS

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF NOTICE NO. H3-3697/19 DATED 27.11.2019 ISSUED BY TAHSILDAR (LR) ERNAD TALUK, MALAPPURAM DISTRICT, FOURTH RESPONDENT.

EXHIBIT P2 TRUE COPY OF NOTICE NO. H3-3697/19 DATED 9.1.2020 ISSUED BY TAHSILDAR (LR), ERNAD TALUK, MALAPPURAM DISTRICT, FOURTH RESPONDENT.

EXHIBIT P3 TRUE COPY OF NOTICE DATED 5.1.2021 ISSUED BY TAHSILDAR (LR) , ERNAD TALUK, MALAPPURAM DISTRICT, FOURTH RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 16.1.2019 PASSED IN W.P.C NO. 1339 OF 2019 BY HON'BLE HIGH COURT OF KERALA.

EXHIBIT P5 TRUE COPY OF APPLICATION DATED 25.1.2021 FILED BY THE PETITIONER BEFORE THE ASSISTANT DIRECTOR (SURVEY) FOR COPIES OF THE APPEAL MEMORANDUM, ORDER IMPUGNED THEREIN, NOTIFICATION TRANSFERRING THE MATTER TO THE TAHSILDAR (LR), ERNAD.

EXHIBIT P6 TRUE COPY OF APPLICATION DATED 25.1.2021 FILED BEFORE TAHSILDAR (LR), ERNAD BY PETITIONER.

EXHIBIT P7 A TRUE COPY OF THE COMMUNICATION BEARING NO.H3.3697/19 DATED 28/1/2021 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER

RESPONDENTS EXHIBITS:

EXHIBIT R5(A) TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 26.6.2013 FILED BY THE 5TH RESPONDENT BEFORE THE 2ND RESPONDENT

EXHIBIT R5(B) TRUE COPY OF THE NOTICE DATED 3.11.2018

EXHIBIT R5(B1) TRUE COPY OF THE COMMUNICATION DATED 20.3.2019.

EXHIBIT R5(C) TRUE COPY OF THE COMMUNICATION DATED

20.3.2019.

EXHIBIT R5(D) TRUE COPY OF THE NOTICE DATED 29.1.2021 ISSUED FROM TH OFFICE OF THE 2ND RESPONDENT.