Linu M.A vs The District Collector
2021 Latest Caselaw 9629 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

     TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943

                      WP(C).No.15064 OF 2020(G)

PETITIONER:
               LINU M.A.
               AGED 27 YEARS
               W/O.AMIT VISWANATH, MADATHIPARAMBIL HOUSE,
               MURIYAMANGALAM, MAMALA P.O., THIRUVANKULAM,
               ERNAKULAM DISTRICT, PIN-682305.

               BY ADVS.
               SRI.P.K.SOYUZ
               SRI.E.V.BABYCHAN

RESPONDENTS:

      1        THE DISTRICT COLLECTOR
               CIVIL STATION, KAKKANADU, ERNAKULAM, PIN-682030.

      2        THE TAHSILDAR (LR),
               TALUK OFFICE, KUNNATHUNADU, POOPPANI ROAD,
               PERUMBAVOOR P.O., ERNAKULAM DISTRICT, PIN-683543.

      3        THE DISTRICT SURVEY SUPERINTENDENT,
               ERNAKULAM, CIVIL STATION, KAKKANADU,
               ERNAKULAM, PIN-682030.

      4        THE HEAD SURVEYOR,
               KUNNATHUNADU TALUK, TALUK OFFICE KUNNATHUNADU,
               POOPPANI ROAD, PERUMBAVOOR P.O.,
               ERNAKULAM DISTRICT, PIN-683543.

      5        THE TALUK SURVEYOR,
               KUNNATHUNADU TALUK (IN CHARGE OF THIRUVANIYOOR
               VILLAGE), TALUK OFFICE, KUNNATHUNADU, MUDAVOOR P.O.,
               MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686669.

      *ADDL    JACOB K.A, KAVANAKUZHI VEEDU, THIRUVANIYOOR VILLAGE,
      R6       KUNNATHUNADU TALUK-682308
               *IS IMPLEADED AS ADDITIONAL 6TH RESPONDENT AS PER
               ORDER DATED 23.3.2021 IN I.A.NO.1 OF 2021.


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD          ON
23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.15064 OF 2020(G)                 2




                                     JUDGMENT

The petitioner states that she is the absolute owner in title and

possession of 45.80 Ares of land comprised in Re-Sy. No.83/3 in Block No.42

of Thiruvaniyoor Village. She is aggrieved by Ext.P5 notice issued by the 2nd

respondent as per which she has been informed that it has been decided to

deduct an extent of 11.28 Ares of land from the Thandaper account of the

petitioner. The petitioner contends that no notice was served to her prior to

Ext.P5 notice and according to her, the decision to deduct 11.28 Ares was

taken without affording the petitioner an opportunity of being heard. It is in

the afore circumstances that the petitioner is before this Court seeking the

following reliefs.

i. call for the records leading to Exhibit P5 notice and quash the same by issue of a writ of certiorari or such other writ order or direction.

ii. Declare that 45.80 Ares (113.17 cents) of land comprised in Re.Sy.No.83/3 in Block No.42 of Thiruvaniyoor Village, Kunnathunadu Taluk is in the exclusive ownership and possession of the petitioner.

iii. Issue a writ of mandamus or any appropriate writ, order or direction directing commanding (sic) the 2nd respondent to conduct a hearing and consider and dispose Ext.P6 objection/complaint as contemplated in Rule 61 of Kerala

Survey and boundaries Rules 1964 and take decision after conducting survey with due notice to the petitioner. iv. issue a writ of mandamus or any appropriate writ, order or direction directing the respondents 2 to 5 to consider and dispose Ext.P8 application in Form No.10, after following the procedures prescribed in Kerala Survey and boundaries Rules and take decision after conducting survey with due notice to the petitioner.

2. A counter affidavit has been filed by the 2nd respondent wherein

it is stated that one Jacob has filed an application seeking to effect mutation

of 10.12 Ares of property comprised in Re-Sy.No.83/1 in Block No.42 of

Thiruvanniyoor Village. On inspection of the village records, it was found

that the total extent of property in Re-Sy.No.83/1 in Block No.42 is 4.7020

hectares and the said property is distributed among 40 Thandaper holders.

Separate notices were issued to the land holders intimating them of the

proposal to survey the land on 25.1.2020. The survey was proceeded with

and it was found that the total extent of land in Sy. No. 83/1 in Block No.42

was 4.7145 hectares and it was further found that the measurements of the

common boundary sharing Re-sy. Nos.83/1 and 83/3 in Block No.42 does not

match the Field Measurement Book. It was in the said circumstances that

steps for alteration of the boundary was initiated. When Form 14 notice was

issued to the petitioner informing her of the change in extent, she submitted

her objection and insisted that the survey shall be conducted only in her

presence. In compliance of her request, the Taluk Surveyor has again

measured out the property in Re-Sy.No.83/3 and on computation of the

records, it was found that there was no reduction in extent. The respondent

has produced Ext.R2(b) report of the Taluk Surveyor. It is contended that

there is no change in the area possessed by the petitioner, but there is only

an alteration in the boundary of the property. It is also stated that if the

petitioner has any grievance, she can very well approach the District Survey

Superintendent, Ernakulam under Rule 52 of the Survey and Boundaries

Rules, 1964.

3. In the counter affidavit filed by the additional 6th respondent, it

is stated that it is at his instance that the survey was conducted. He would

state that Ext.P5 notice has been cancelled and a fresh notice has been

issued under Form 14. In that view of the matter, the petitioner cannot have

any further grievance.

4. I have heard Sri. Sri.P.K.Soyuz, the learned counsel appearing for

the petitioner, Sri. Joji George Jacob, the learned counsel appearing for the

party respondent and the learned Government Pleader.

5. The main grievance of the petitioner at the time of filing of the

writ petition was concerning Ext.P5 notice as per which, the 2nd respondent

took a decision to reduce 11.28 Ares from the property owned by the

petitioner and comprised in Re-Sy. No.83/3 in Block No. 42 of Thiruvaniyoor

village. Her contention is that the survey of her property was conducted in

her absence and thereafter, the respondents have proceeded to reduce the

extent. However, in the counter affidavit filed by the respondents, they have

stated that Ext.P5 notice has since been withdrawn on receipt of Ext.P6

objection filed by the petitioner. The property was again measured out and

the respondents came to a conclusion that there is no change in the extent

of land possessed by the petitioner. However, they have concluded that the

boundaries of the properties falling in Re-Sy Nos. 83/1 and 83/3 are to be

altered. I find that the petitioner has already approached the 2nd respondent

and filed Ext.P8 application in Form No.10. The learned counsel appearing

for the party respondent has submitted that the said respondent has no

objection in considering the request of the petitioner for pointing out the

boundaries of registered land that has already been demarcated and

surveyed. In that view of the matter, I am of the considered opinion that

dispute between the parties can be resolved by directing the 2nd respondent

to consider Ext.P8 and finalize the proceedings with notice to the petitioner

as well as the party respondent.

In the result, this writ petition will stand disposed of directing the 2nd

respondent to consider Ext.P8 application and conclude the proceedings as

per procedure and in accordance with law with notice to the petitioner as

well as the additional 6th respondent. The entire exercise shall be completed

within a period of 3 months from the date of receipt of a copy of this

judgment.

Sd/-

RAJA VIJAYARAGHAVAN V

JUDGE sru

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE SETTLEMENT DEED NO.3411 OF 2016 DATED 5.7.2016 OF PUTHENCRUZ S.R.O.

EXHIBIT P2 TRUE COPY OF THE SALE DEED NO.323 OF 2005 OF PUTHENCRUZ SRO DATED 14.1.2005 NO.4503/1979

EXHIBIT P3 TRUE COPY OF THE SALE DEED NO.5228 OF 1996 OF PUTHENCRUZ SRO DATED 6.9.1996.

EXHIBIT P4 TRUE COPY OF THE LAND TAX RECEIPT DATED 4.5.2020.

EXHIBIT P5 TRUE COPY OF THE NOTICE NO.C5-14183/19 ISSUED BY THE 2ND RESPONDENT IN FORM NO.14.

EXHIBIT P6 TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 3.7.2020.

EXHIBIT P7 TRUE COPY OF THE RECEIPT DATED 3.7.2020.

EXHIBIT P8 TRUE COPY OF THE APPLICATION IN FORM NO.10 DATED 3.7.2020.

EXHIBIT P9 TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT DATED 3.7.2020.

EXHIBIT P10 TRUE COPY OF THE RECEIPT NO.G3-6489/2020, DATED 3.7.2020.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R6 A TRUE PHOTOOPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER DATED 25.10.2019

EXHIBIT R6 B A TRUE COPY OF THE CANCELLED EXHIBIT P5 NOTICE ISSUED BY THE 2ND RESPONDENT TO THE WRIT PETITIONER

EXHIBIT R6 C A TRUE COPY OF THE FRESH NOTICE

SUBSEQUENT TO CACELATION OF EXHIBIT P5 NOTICE BY THE 2ND RESPONDENT TO THE WRIT PETITIONER

EXHIBIT R2A THE TRUE COPY OF FORM 14 NOTICE ISSUED BY THE 2ND RESPONDENT

EXHIBIT R2B THE TRUE COPY OF REPORT OF TALUK SUREYOR DATED 28.7.2020