Kerala High Court
Baby Mathew vs State Of Kerala on 13 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
WP(C) NO. 16208 OF 2021
PETITIONER:
BABY MATHEW,
AGED 61 YEARS
S/O. MATHEW, KURUVATHAZHA HOUSE, KADANAD KARA,
KADANAD VILLAGE, MEENACHIL TALUK, KODUMPIDI P.O,
KOTTAYAM DISTRICT-686 653, MOB. 9447910944.
BY ADVS.
V.RAJENDRAN (PERUMBAVOOR)
N.RAJESH
GOPAKUMAR P.
RESPONDENTS:
1 STATE OF KERALA,
REP. BY PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE,
SECRETARIAT, THIRUVANANTHAPURAM-695 001
2 DISTRICT COLLECTOR,
KOTTAYAM KUMALI ROAD, COLLECTORATE , KOTTAYAM, PIN-
686 002
3 THAHASILDAR, MEENACHIL TALUK, MINI CIVIL STATION
PALA KOTTAYAM DISTRICT PIN 686575
3 TALUK SURVEYOR,
MEENACHIL TALUK OFFICE, MINI CIVIL STATION, PALA,
KOTTAYAM DISTRICT, PIN-686 575
4 VILLAGE OFFICER,
KADANAD VILLAGE OFFICE, KADANAD P.O, KOTTAYAM-686
653
2
W.P.(C)No. 16208 of 2021
VILLAGE OFFICER,
KADANAD VILLAGE OFFICE, KADANAD P.O, KOTTAYAM-
5
686 653
6 KADANAD GRAMA PANCHAYATH,
REPRESENTED BY SECRETARY, KADANAD P.O,
KOTTAYAM-686 653
BY ADV GEORGEKUTTY MATHEW
GP RESHMI THOMAS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
W.P.(C)No. 16208 of 2021
JUDGMENT
Dated this the 13th day of January, 2022.
The petitioner impugns Ext.P10 notice issued by the
Taluk Surveyor under the provisions of the Kerala Survey
and Boundaries Act, 1961, saying that the survey
proposed thereunder is illegal, unlawful and
unconstitutional.
2. Sri.V.Rajendran (Perumbavoor) - learned
counsel for the petitioner, explains that, on an earlier
occasion, when the Panchayat alleged that his client had
encroached into a "Puramboke" area, he had approached
the Munsiff's Court, Pala, by filing O.S.No. 37 of 2011; in
which - on the basis of certain directions of this Court in
W.P.(C)No. 16208 of 2021
W.P.(C). No. 32962 of 2007 - the parties entered into a
compromise, based on the measurement of the
properties in Re.Sy.Nos.296 and 554/3 conducted by the
Taluk Surveyor. He pointed out that the compromise in
question is Ext.P6, in which, Paragraph No.6 records
specifically that the Taluk Surveyor had made available
to the Panchayat a Report and Field Sketch and that
based on the same, they were also convinced that there
was no encroachment from the side of his client into any
"Puramboke" area. He then submitted that, based on
this compromise, O.S.No.37 of 2011 was withdrawn, as is
evident from Ext.P7 judgment; but that the Panchayat,
instead of acting as per the said compromise, seems to
have approached the Taluk Surveyor again seeking
survey of the property, which has now culminated in
Ext.P10 notice. He argued that, therefore, Ext.P10 is
contumacious and is intended to get over Ext.P6
W.P.(C)No. 16208 of 2021
compromise and thus prayed that the same be set aside.
3. In response, Sri.Gerogekutty Mathew - learned
Standing Counsel for the 6th respondent - Panchayat,
submitted that petitioner is in encroachment of
"Puramboke" area in Re.Sy.No.296 and that this is
manifest because, even as per his title documents, he
has property only in Re.Sy.No.297. He argued that,
therefore, when the petitioner is in encroachment in such
fashion, he cannot turn around and say that a further
survey, as proposed in Ext.P10, cannot be taken forward.
He, therefore, prayed that this writ petition be dismissed.
4. I have evaluated, the afore submissions and
have also gone through the various materials available
on record, particularly Ext.P6.
5. As rightly stated by Sri.V.Rajendran
(Perumbavoor) - learned counsel for the petitioner,
Ext.P6 is a compromise between the parties filed before
W.P.(C)No. 16208 of 2021
the Competent Civil Court, in which it has been expressly
recorded that petitioner has not encroached into any
area in Re.Sy.No.296, which is also evident from the
Report and Field Sketch of the Taluk Surveyor, after he
had surveyed the areas in the said survey number, along
with that in Re.Sy.554/3.
6. Obviously, therefore, any further survey could
have been ordered by the Panchyat only on the edifice of
an allegation that, subsequent to Ext.P6, the petitioner
has encroached into areas in Re.Sy.No.296 and not
otherwise. However, to a pointed question from this
Court, Sri.Georgekutty Mathew was unable to inform this
Court whether the Panchayat has any such case; but
very pertinently he submitted that his client is presently
not in possession of the Report and the Field Sketch of
the Taluk Surveyor mentioned therein.
7. Therefore, merely because the Panchayat is
W.P.(C)No. 16208 of 2021
not in possession of the Report and Field Sketch prepared
by the Taluk Surveyor, it would not give them justification
to seek further survey because, as I have already said
above, Ext.P6 is not merely a Memorandum of
Compromise between the parties, but it has obtained the
stamp of approval of the competent Civil Court, which is
evident from the fact that petitioner had withdrawn
O.S.No.37 of 2011, based on the same.
8. To paraphrase, unless the Panchayat has a
case that petitioner has encroached into the property in
Re.Sy.No.296, subsequent to Exts.P6 and P7, I do not
think that they are justified in seeking further survey
under aegis of the Taluk Surveyor in the manner as has
been proposed through Ex.P10, because, otherwise, it
can only be construed to be an attempt to get over the
compromise recorded in Ext.P6.
Resultantly, I order this writ petition and set aside
W.P.(C)No. 16208 of 2021
Ext.P10; however, with a consequential liberty being
reserved to the 6th respondent - Panchayat, to seek a
survey, but only after affording an opportunity of being
heard to the petitioner and only after its competent
Authority entering an opinion that he has trespassed into
the property and further in Re.Sy.No.296 subsequent to
Exts.P6 and P7, make it clear that any such conclusion
will be based strictly on the Report and Field Sketch of
the Taluk Surveyor, which has been recorded in Ext.P6
compromise.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Raj/13.01.2022.
W.P.(C)No. 16208 of 2021
APPENDIX OF WP(C) 16208/2021
PETITIONER EXHIBITS
DATED 22.03.2004 OF RAMAPURAM SRO.
Exhibit P2 TRUE COPY OF LAND TAX RECEIPT NO.
KL05040 404450/2021 DATED 29.07.2021
ISSUED TO PETITIONER FROM KADANAD
VILLAGE OFFICER.
Exhibit P3 TRUE COPY OF POSSESSION CERTIFICATE
NO. 2498/08 DATED 29.08.2008 ISSUED
FROM THE KADANAD VILLAGE OFFICE.
Exhibit P4 TRUE COPY OF SALE DEED NO. 1434 DATED
18.08.2001 OF RAMAPURAM SRO.
Exhibit P5 TRUE COPY OF NOTICE NO. C3-3962/06
DATED 02.11.2007 ISSUED BY ADDITIONAL
THAHASILDAR MEENACHIL TALUK TO THE 6TH
RESPONDENT WITH A READABLE COPY
Exhibit P6 TRUE COPY OF REPORT OF SECRETARY OF
6TH RESPONDENT DATED 07.07.2014.
Exhibit P7 TRUE COPY OF JUDGMENT IN O.S. NO.
37/11 OF MUNSIFF COURT PALA DATED
24.11.2014.
Exhibit P8 TRUE COPY OF NOTICE ISSUED BY
PETITIONER TO THE 6TH RESPONDENT ON
07.11.2016 UNDER SECTION 249 OF THE
KERALA PANCHAYAT RAJ ACT.
Exhibit P9 TRUE COPY OF NOTICE NO. D9-3807/21
DATED NIL SENT BY 4TH RESPONDENT TO
W.P.(C)No. 16208 of 2021
THE PETITIONER WITH A READABLE COPY.
Exhibit P10 TRUE COPY OF NOTICE NO. D3-3807/21
DATED 30.07.2021 ISSUED BY THE 4TH
RESPONDENT TO THE PETITIONER.
Exhibit P11 TRUE COPY OF OBJECTION FILED TO
EXHIBIT P10 BY THE PETITIONER BEFORE
THE 3RD RESPONDENT ON 03.08.2021.
Exhibit P12 TRUE COPY OF OBJECTION FILED TO
EXHIBIT P10 BY THE PETITIONER BEFORE
THE 4TH RESPONDENT DATED 3.8.2021.
Exhibit P13 TRUE COPY OF NOTICE ISSUED UNDER
SECTION 80 CODE OF CIVIL PROCEDURE BY
COUNSEL FOR THE PETITIONER TO
RESPONDENT 2 TO 5.
Exhibit P14 TRUE COPY OF NOTICE ISSUED BY COUNSEL
FOR PETITIONER TO 6TH RESPONDENT ON
03.08.2021 UNDER SECTION 249 OF THE
KERALA PANCHAYAT RAJ ACT.
