T.K.Thomas Vaidyan vs The District Collector
2022 Latest Caselaw 10890 Ker

WP(C) Nos.17832, 34462 of 2009
& 35433 of 2016                        1



                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
                             WP(C) NO. 34462 OF 2009
PETITIONER/S:

              T.K.THOMAS VAIDYAN
              AGED 51 YEARS
              KIZHAKKEKARA MURI, MYNAGAPPALLY VILLAGE,, KUNNATHUR
              TALUK, KOLLAM (DT), NOW RESIDING AT, VAIDYA TOWERS,
              CHINNAKKADA, KOLLAM.

              BY ADVS.
              SRI.RAJU JOSEPH (SR.)
              SRI.C.JOSEPH ANTONY
              SRI.SOJAN JAMES


RESPONDENT/S:
    1     THE DISTRICT COLLECTOR

      2       THE REVENUE DIVISIONAL OFFICER KOLLAM.

      3       THE SUPERINTENDENT OF SURVEY LAND
              RECORDS, OFFICE OF THE DISTRICT, COLLECTOR, KOLLAM.

      4       THE TAHSILDAR KOLLAM TALUK KOLLAM.

      5       THE VILALGE OFFICER KOLLAM EAST VILLAGE
              KOLLAM.


OTHER PRESENT:

              SRI.K.M.FAISAL, GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 03.11.2022, ALONG WITH WP(C).17832/2009, 35433/2016, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) Nos.17832, 34462 of 2009
& 35433 of 2016                        2



                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
                             WP(C) NO. 17832 OF 2009
PETITIONER/S:

              CORPORTION OF KOLLAM
              ITS SECRETARY, KOLLAM.

              BY ADVS.
              SRI.M.K.CHANDRA MOHANDAS
              S.SREEKUMAR (KOLLAM)


RESPONDENT/S:

      1       THE TRIBUNAL FOR LOCAL SELF GOVERNMENT I
              INSTITUTIONS, THIRUVANANTHAPURAM.

      2       THE SECRETARY LOCAL SELF GOVERNMENT
              DEPARTMENT, GOVT. OF KERALA.

      3       T.K.THOMAS VAIDHYAN VAIDHYA TOWERS
              ARAM ROAD, CHINNAKKADA, KOLLAM.

              BY ADVS.
              SRI.C.JOSEPH ANTONY
              SRI.RAJU JOSEPH SR.
              SRI.SOJAN JAMES, SRI.K.M.FAISAL, GP



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 03.11.2022, ALONG WITH WP(C).34462/2009 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) Nos.17832, 34462 of 2009
& 35433 of 2016                        3



                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
                             WP(C) NO. 35433 OF 2016
PETITIONER/S:

              T.K. THOMAS VAIDYAN
              AGED 58 YEARS
              THENUGVILAYIL HOUSE, KIZHAKKEKARA MURI,
              MYNAGAPPALLY VILLAGE, KUNNATHUR TALUK, KOLLAM,NOW
              RESIDING AT VAIDYA TOWERS, CHINNAKKADA, KOLLAM.

              BY ADVS.
              SRI.RAJU JOSEPH (SR.)
              SRI.GEORGE KUTTY MATHEW
              SRI.C.JOSEPH ANTONY



RESPONDENT/S:

              THE SECRETARY, MUNICIPAL CORPORATION,KOLLAM
              MUNICIPAL CORPORATION,KOLLAM-691001.

              BY ADVS.
              SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT
              SRI.M.K.CHANDRA MOHAN DASSCKOLLAM MPT
              S.SREEKUMAR (KOLLAM)



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 03.11.2022, ALONG WITH WP(C).34462/2009 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) Nos.17832, 34462 of 2009
& 35433 of 2016                     4




                     P.V.KUNHIKRISHNAN, J
                 ---------------------------------------
              W.P.(C) Nos.17832 & 34462 of 2009
                        and 35433 of 2016
                  --------------------------------------
            Dated this the 3rd day of November, 2022


                                 JUDGMENT

These three writ petitions are connected and therefore, I

am disposing of these writ petitions by a common judgment.

2. I will narrate the facts in W.P.(C.) No. 34462/2009

first. The petitioner is the owner in possession of 50 cents of

land comprised in Sy.No. 9483 of Kollam East Village (Re.Sy

No. 18 Block No.157). According to the petitioner, he

obtained the same as per Exts.P1 to P3 sale deeds. The

eastern boundary of the property is Chinnakkada-Asramom

Public Road. The petitioner had constructed apartments in the

western portion of the property and sold 20 of them to third

parties. It is the case of the petitioner that he is staying in one

of the apartments. The remaining 25 cents of land on the side

of Chinnakkada-Asramom Public Road was utilised for WP(C) Nos.17832, 34462 of 2009

constructing a Hotel building and the construction is already

completed in accordance to the plan approved by the Kollam

Corporation. It is also submitted that the re-survey authorities

had measured the property in the absence of the petitioner

while he was employed abroad. It is the specific case of the

petitioner that no notice as contemplated under Sec. 10 of the

Survey and Boundaries Act was served on the petitioner

before they refixed the boundary of the petitioner's property

with the public road. On coming to know about the alteration

of the boundary by the revenue authorities, the petitioner filed

representation before them during the year 2000, but there

was no response. The petitioner therefore, filed Ext.P5

petition before the 3rd respondent requesting him to correct

the mistake in the re-survey. While the said petition was

pending, the 4th respondent initiated action under the Land

Conservancy Act on the basis of the disputed re-survey plan

alleging that the petitioner is in unauthorised occupation of

road puramboke to the extent of 3.25 ares. It is also pleaded

by the petitioner that the entire property in his possession is WP(C) Nos.17832, 34462 of 2009

in private holding and covered by Exts.P1 to P3 sale deeds

and the 4th respondent passed final order directing the

petitioner to vacate the alleged encroachment as per Ext.P6.

It is the case of the petitioner that earlier the Village Officer

had issued a possession certificate to the petitioner in respect

of his property inclusive of the disputed portion. It is also the

case of the petitioner that the encumbrance certificate was

also obtained from the Sub-Registrar's Office which will not

show that there was any encroachment. Ext.P6 order was

challenged before the 2nd respondent. By Ext.P10 order, the

2nd respondent kept the land conservancy proceedings in

abeyance for 6 months in order to get final order in the

petition pending before the 3 rd respondent. It is the case of

the petitioner that 3rd respondent did not complete the

proceedings within the said period. The petitioner therefore,

approached the 1st respondent in revision. The 1st respondent

passed an interim order staying the further proceedings in the

Land Conservancy Act and called for a report from the 3 rd

respondent after measuring the disputed property with WP(C) Nos.17832, 34462 of 2009

reference to the old survey records and title deeds. But

without measuring the property as directed earlier, it is

submitted that the 3rd respondent send a report on the basis of

the re-survey records and on that sole basis the 1 st respondent

has dismissed the revision petition is the contention raised in

this writ petition. The 4th respondent issued orders to vacate

the alleged road puramboke pursuant to the order of the 1 st

respondent in revision. It is the case of the petitioner that

since there is no other statutory remedy to challenge the

order of the 1st respondent, the petitioner filed this writ

petition.

3. W.P.(C.) No. 17832/2009 is filed by the Kollam

Corporation. The 3rd respondent who is the petitioner in W.P.

(C.) No. 34462/2009 had obtained a permit to construct the

commercial cum hotel building from the Corporation of

Kollam. The Corporation initiated action under Sec. 406 of the

Kerala Municipality Act for the alleged violation of the

conditions contained in the permit. The Taluk Surveyor has

furnished the survey sketch which will show that the 3 rd WP(C) Nos.17832, 34462 of 2009

respondent has made encroachment into the puramboke land.

The action against the encroachment is pending before the

District Collector. While so, it is the case of the petitioner in

W.P.(C.) No. 17832/2009 that the 3rd respondent submitted an

application for occupancy on 26.9.2008. The Corporation

informed the 3rd respondent on 6.10.2008 that his application

cannot be considered. Thereafter, the 3 rd respondent

submitted an objection against the stand of the Corporation

pursuant to which Corporation has conducted a joint

inspection of the construction and the findings were

communicated to the 3rd respondent vide order dated

27.1.2009. The 3rd respondent challenged the same before the

Tribunal for Local Self Government Institutions contending

that it was after the lapse of 15 days after the date of

submission of the application for occupancy certificate which

violates proviso to Rule 22(3) of the Kerala Municipality Building

Rules. The Tribunal as per Ext.P5 order, set aside the order

dated 27.1.2009 of the Corporation holding that the order

violates the proviso of Rule 22(3) o f the Kerala Municipality WP(C) Nos.17832, 34462 of 2009

Building Rules. Challenging that order of the Tribunal, W.P.

(c.) No. 17832/2009 is filed.

4. W.P.(C.) No. 35433/2016 is filed by the same

petitioner in W.P.(C.) No. 34462/2009. The same is filed

challenging Ext.P7 demand notice for the alleged

unauthorised construction.

5. Heard Senior Counsel Adv. Raju Joseph for the

petitioners in W.P.(C.) Nos. 34462/2009 and 35433/2016

instructed by Sri.Joseph Antony C. I also heard Sri.S.

Sreekumar, who appeared for the petitioner in W.P.(C.) No.

17832/2009. I also heard the learned Government Pleader

who appeared for the official respondents in these writ

petitions.

6. After hearing both sides, I am of the opinion that the

entire issue in these writ petitions can be resolved by surveying

the property in dispute based on the title deeds of the

petitioners in W.P.(C.) Nos. 34462/2009 and 35433/2016 and

other documents available in the department with notice to all

the petitioners. Based on the survey report, the Survey

Department can find out whether there is any encroachment WP(C) Nos.17832, 34462 of 2009

from the side of the petitioner in W.P.(C.) No. 34462/2009.

The survey should be conducted in accordance to the law and

also after giving notice to all other affected parties.

Therefore, these writ petitions are disposed of with the

following directions :

1) The 3rd respondent in W.P.(C.) No. 34462/2009 is

directed to survey the property in dispute in this case

with notice to the all the petitioners in these cases.

2) The petitioner in W.P.(C.) No. 34462/2009 and W.P.(C.)

35433/2016 is free to produce the photocopies of the title

deeds and tax receipts of his property before the 3 rd

respondent at the time of inspection and the 3 rd

respondent will consider those title deeds also at the

time of survey to identify the property.

3) The above survey shall be completed by the 3 rd

respondent in W.P.(C.) No. 34462/2009 as expeditiously

as possible at any rate, within three months from the

date of receipt of a copy of this judgment. The 3rd

respondent in the above case will intimate the result of WP(C) Nos.17832, 34462 of 2009

the survey to the petitioners in these cases.

4) Based on the survey report, the Corporation is free to

proceed in accordance to law.

SD/-

P.V.KUNHIKRISHNAN JUDGE SKS WP(C) Nos.17832, 34462 of 2009

APPENDIX OF WP(C) 35433/2016

PETITIONER EXHIBITS

EXHIBIT P1: TRUE COPY OF THE ORDER IN APPEAL NO.50/2007 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS DATED 21.4.2007.

EXHIBIT P2: TRUE COPY OF THE ORDER OF THE TRIBUNAL IN APPEAL NO.121 OF 2009 DATED 23.4.2009.

EXHIBIT P3: TRUE COPY OF THE TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX FOR THE YEAR 2015-2016 IN RESPECT OF CELLAR FLOOR DATED 25.2.2016.

EXHIBIT P4: TRUE COPY OF THE TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX IN RESPECT OF GROUND FLOOR FOR THE YEAR 2013-2014 DATED 31.3.2014.

EXHIBIT P5: TRUE COPY OF THE TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX IN RESPECT OF THE FIRST FLOOR FOR THE YEAR 2015-2016 DATED 25.2.2016.

EXHIBIT P6: TRUE COPY OF THE TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX IN RESPECT OF THE 2ND FLOOR FOR THE YEAR 2015-2016 DATED 25.2.2016.

EXHIBIT P6(A): TRUE COPY OF THE TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX IN RESPECT OF THE 2ND FLOOR FOR THE YEAR 2015-2016 DATED 25.2.2016.

EXHIBIT P7: TRUE COPYOF THE DEMAND NOTICE ISSUED BY THE RESPONDENT DATED 6.10.2016.

WP(C) Nos.17832, 34462 of 2009

APPENDIX OF WP(C) 34462/2009

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO. 2529/91 DATED 28.08.1991

EXHIBIT P2 TRUE COPY OF THE SALE DEED NO. 770/92 DATED 28.02.1992

EXHIBIT P3 TRUE COPY OF THE SALE DEED NO. 3435/91 DATED 15.11.1991

EXHIBIT P4 TRUE COPY OF THE APPROVED PLAN UPTO 2ND FLOOR

EXHIBIT P5 TRUE COPY OF THE PETITION SUBMITTED BEFORE THE 3RD RESPONDENT DATED 20.02.2005

EXHIBIT P6 TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT B.16. 35220/05 DATED 28.12.2005

EXHIBIT P7 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO.3144/93 DATED 20.11.1993

EXHIBIT P8 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 19.11.1993

EXHIBIT P9 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 07.10.2002

EXHIBIT P10 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT IN THE APPEAL DATED 10.3.2007

EXHIBIT P11 TRUE COPY OF THE REVISION PETITION FILED BEFORE THE 1ST RESPONDENT DATED 28.7.2007

EXHIBIT P12 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 31.07.2007 WP(C) Nos.17832, 34462 of 2009

EXHIBIT P13 TRUE COPY OF THE REVISIONAL ORDER NO. L6-

40708/07 DATED 12.11.2009

EXHIBIT P14 TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 23.11.2009

EXHIBIT P15 TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 23.11.2009 WP(C) Nos.17832, 34462 of 2009

APPENDIX OF WP(C) 17832/2009 PETITIONER'S EXHIBITS

EXT.P1 A TRUE COPY OF THE ORDER NO.TP2-29271/97 DATED 1.2.2007

EXT.P2 A TRUE COPY OF THE PERMIT NO. BRE/G/63-95-96 DATED 29.3.2006

EXT.P3 A TRUE COPY OF THE NOTICE NO. TP2/BRC/63/1995-96 DATED 6.10.2008 TO THE 3RD RESPONDENT

EXT.P4 A TRUE COPY OF THE ORDER DATED 27.1.2009

EXT.P5 A TRUE COPY OF THE ORDER DATED 23.4.2009

RESPONDENT'S EXHIBITS :

EXT.R3(A) TRUE COPY OF POSSESSION CERTIFICATE NO.2391/02 DATED 7.10.2002 ISSUED BY THE VILLAGE OFFICER, KOLLAM

EXT.R3(B) TRUE COPY OF ORDER NO.B-688/06/K.DIS DATED 10.3.2009 PASSED BY THE REVENUE DIVISIONAL OFFICER, KOLLAM

EXT.R3(C) TRUE COPY OF THE INTERIM ORDER PASSED BY THE DISTRICT COLLECTOR NO.40708/07L1 DATED 31.7.2007

EXT.R3(D) TRUE COPY OF ORDER IN APPEAL NO.50/07 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS DATED 21.4.2007

EXT.R3(E) TRUE COPY OF ORDER DATED 4.2.2008 ISSUED BY THE SECRETARY

EXT.R3(F) TRUE COPY OF ORDER OF THE TRIBUNAL IN APPEAL NO.89/08 DATED 11.6.2008

EXT.R3(G) TRUE COPY OF APPROVED PLAN IN RESPECT OF THE BUILDING UPTO 2ND FLOOR ANNEXURE A1 TRUE COPY OF THE ORDER DATED 12.11.2009 OF THE DISTRICT COLLECTOR, KOLLAM