Sandhia vs The State Of Kerala Represented By The ...
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Kerala High Court

Sandhia vs The State Of Kerala Represented By The ... on 24 May, 2024

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
    FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
                   WP(C) NO. 17949 OF 2023
PETITIONERS:

    1    SANDHIA
         AGED 52 YEARS
         ROMEO,W/OROMEO MARKOSE, CHERUKOTH HOUSE,
         KULASEKHARAMANGALAM VILLAGE, KULASEKHARAMANGALAM
         MURI , KULASEKHARAMANGALAM P O, VAIKOM TALUK,, PIN
         - 686608
    2    NIYA ROMY MARKOSE
         AGED 25 YEARS
         D/O ROMEO MARKOSE,
         CHERUKOTHHOUSE,KULASEKHARAMANGALAMVILLAGE,KULASEKHA
         RAMA NGALAM MURI , KULASEKHARAMANGALAM P O, VAIKOM
         TALUK, , REPRESENTED BY THE POWER OF ATTORNEY AND
         HER MOTHER SANDHIA ROMEO W/O ROMEO MARKOSE
         CHERUKOTH HOUSE, KULASEKHARAMANGALAM VILLAGE,
         KULASEKHARAMANGALAM MURI , KULASEKHARAMANGALAM P O,
         VAIKOM TALUK,PIN - 686608
    3    SARAH ROMY MARKOSE
         AGED 20 YEARS
         D/O ROMEO MARKOSE,
         CHERUKOTHHOUSE,KULASEKHARAMANGALAMVILLAGE,KULASEKHA
         RAMA NGALAM MURI , KULASEKHARAMANGALAM P O, VAIKOM
         TALUK, , REPRESENTED BY THE POWER OF ATTORNEY AND
         HER MOTHER SANDHIA ROMEO W/O ROMEO MARKOSE
         CHERUKOTH HOUSE, KULASEKHARAMANGALAM VILLAGE,
         KULASEKHARAMANGALAM MURI , KULASEKHARAMANGALAM P O,
         VAIKOM TALUK, PIN - 686608
         BY ADVS.
         P.K.MURALEEDHARAN
         SUNU P.JOHN
RESPONDENTS:
    1     THE STATE OF KERALA REPRESENTED BY THE DISTRICT
          COLLECTOR
          AGED 20 YEARS
          KOTTAYAM DISTRICT, CIVIL STATION, KOTTAYAM,
          PIN - 686002
 W.P.(C). No.17949 of 2023             :2:



      2       THE VILLAGE OFFICER
              VADAYAR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT.,
              PIN - 686605
      3       THE TALUK SURVEYOR
              VAIKOM TALUK, TALUK OFFICE, VAIKOM, P.O. VAIKOM,
              PIN - 686141
      4       THE TAHSILDAR,(LAND RECORDS) VAIKOM TALUK
              TALUK OFFICE, VAIKOM P O, KOTTAYAM DISTRICT.,
              PIN - 686141
OTHER PRESENT:

              GP-DEEPA V


       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   24.05.2024,        THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C). No.17949 of 2023      :3:



                           VIJU ABRAHAM, J.
         --     -- -- -- -- -- -- -- -- -- -- -- --
                       W.P.(C) No.17949 of 2023
         --     -- -- -- -- -- -- -- -- -- -- -- --
                   Dated this the 24th day of May, 2024

                              JUDGMENT

The above writ petition is filed challenging Exts.P5(a), P6(a)

and P7(a) series of reports, Exts.P10, P10(a) and P10(b) series of

orders and Ext.P11(a) plan.

2. It is averred in the writ petition that the petitioners are

mother and children who are absolute owners in occupation of

landed property lying in Vadayar village, Vaikom Taluk. By virtue

of Ext.Pl release deed, the husband of the 1 st petitioner released his

undivided interest over the property purchased in the joint name of

husband and wife as per Ext.P2 sale deed. The 1 st petitioner is the

absolute owner of the property obtained as per Ext.P1 release deed

and thus the 1st petitioner is having a total extent of 90.5 cents

lying in survey No.299/1A and 299/1C as per the deeds. Later the

1st petitioner executed Ext.P3 settlement deed in favour of the 2 nd

petitioner and also executed Ext.P4 settlement deed in favour of

the 3rd petitioner. Thus the 1st petitioner remains to have absolute

title and possession over the balance 48.5 cents as per records,

whereas petitioners 2 and 3 as per records is now having 21 cents

each under their title by virtue of the above said settlement deeds

executed by the 1st petitioner. Resurvey was conducted and on a

perusal of the resurvey plan, the petitioners came to know that the

total extent of property was recorded wrongly and found that there

is a difference in the measured extent of the property belonging to

the petitioners. It is contended that as per the resurvey plan the

property of the 1st petitioner was reduced to 1.1570 hectares from

0.1821 hectares. Likewise, in the case of the 2 nd petitioner the

same was reduced to 0.0780 hectares from 0.850 hectares and in

the case of the 3rd petitioner it was reduced from 0.0850 hectares

to 0.0803 hectares. Realising the difference in the extent of

property, the petitioners have preferred separate applications

before the resurvey authorities for correcting the mistakes, as per

Exts.P5, P6 and P7. On the said applications, reports were

submitted by the Taluk Surveyor as per Exts.P5(a), P6(a) and P7(a)

respectively. In the said reports the stand taken by the authorities

is that there is no anomaly in the resurvey and that certain extent

of property claimed to be in the possession of the petitioners is part

of the puramboke thodu on the southern side of the property of the

petitioners. To verify the factual position of the existence of the

thodu puramboke on the southern boundary of the property of the

petitioners, Ext.P8 application was filed by the 1 st petitioner before

the local authority under the Right to Information Act. As per the

relevant documents given by the local authority as per Exts.P9 and

Exts.P9(a), there is no thodu puramboke lying in the survey

numbers of the petitioners' property. The application submitted by

the petitioners for correction of the resurvey mistakes has been

rejected as per Exts.P10, P10(a) and P0(b) orders upholding the

report submitted by the Taluk Surveyor, which is produced as Exts.

P5(a), P6(a) and P7(a). The petitioners relying on Ext.P11, which is

the old survey plan dated 21.04.1958 would submit that the width

of the thodu in the said plan is 49 links whereas in the resurvey

plan dated 12.10.2022, which is produced as Ext.P11(a), the width

of the thodu is marked as 16 metres. The learned counsel for the

petitioners would submit that 49 links is approximately 9.80 metres

and in Ext.P11(a), the width of the thodu is shown as 16 metres

which is apparently a mistake on the face of the record. The

petitioners would also submit that after execution of Exts.P3 and

P4 documents, the property was mutated in the name of

petitioners 2 and 3 and land tax was also received as is evident

from Exts.P12 and P13 and in respect of the remaining property in

the ownership and possession of the 1 st petitioner as per Ext.P14

thandapper account. It is aggrieved by the reduction in the extent

of land of the petitioners, they have approached this Court.

3. A detailed counter affidavit on behalf of the 4 th respondent

has been filed wherein paragraph 4 reads as follows:

"4. After the implementation of re-survey records in Vadayar Village, the first petitioner's land is comprised in resurvey No.159/6 with an extent of 15.70 Ares, the second petitioner's property is comprised in Re survey No.159/9 with an extent of 07.80 Ares and the third petitioner's property is comprised in Re survey No. 159/10 with an extent of 08.03 Ares in Re survey Block No. 19. According to the re- survey records the extent of land of all petitioners are less than that of the document area. In this circumstances the petitioners submitted separate applications before the fourth respondent, the Tahsildar (LR), Taluk Office, Vaikom for rectifying the area difference in re-survey records. On the basis of this applications the Taluk Surveyor conducted a field verification and submitted a report to the fourth respondent. According to this report the actual possession of the petitioners is including a part of the puramboke land (Thodu) located on the southern boundary of the total property. The purambok land is comprised in re- survey No. 159/11. Re-survey No. 159/11 is correlated to the old survey No. 297/1, 297/15 and 298/24-

1. So it is clear that the petitioners have no document right in Re survey No. 159/11. In this case, the petitioners have been informed in writing that it would not be possible to make solution on the application. At this juncture the

petitioners approached this Honourable Court with this Writ Petition."

5. Admittedly tax was paid for the whole extent of land as

evident from Exts.P12 and P13 tax receipts and Ext.P14

thandapper account. A perusal of Ext.P11, which is the old survey

plan dated 21.04.1958, the width of the thodu is shown as 49 links,

but a perusal of Ext.P11(a), which the resurvey plan dated

12.10.2022, the width of the thodu on the southern side of the

property of the petitioners is shown as 16 metres. A perusal of the

impugned orders would reveal that none of these matters were

considered in a proper manner and the applications submitted by

the petitioners have been rejected without assigning any reasons,

except to state that certain portion of the property of the

petitioners is included in the thodu puramboke on the southern

side. The contentions raised based on Exts.P11 old survey plan and

P11(a) resurvey plan, were not considered while issuing the

impugned orders.

6. In view of the above facts and circumstances of the case, I

am of the opinion that the matter requires reconsideration at the

hands of the 4th respondent. Accordingly, Exts.P10, P10(a), P10(b)

orders are set aside with a consequential direction to the 4 th

respondent to reconsider the applications submitted by the

petitioners as Exts. P5, P6 and P7 and take fresh decision in the

matter after affording an opportunity of being heard to the

petitioners, within an outer limit of one month from the date of

receipt of a copy of this judgment. Taking into consideration the

contention of the petitioners on the strength of Exts.P12 to P14,

there will be a direction to the 4 th respondent to accept tax in

respect of the property covered by Exts.P1 to P4 documents

provisionally, subject to the outcome of the proceedings before the

4th respondent.

The writ petition is disposed of as above.

Sd/-

VIJU ABRAHAM JUDGE sm/

APPENDIX OF WP(C) 17949/2023

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE RELEASE DEED NO. I 159/2002 OF SRO THALAYOLAPARAMBU DATED 28/5/2002 Exhibit P2 A TRUE COPY OF THE SALE DEED NO. 653/1997 OF SRO THALAYOLAPARAMBU DATED 20/2/1997 Exhibit P3 A TRUE COPY OF THE SETTLEMENT DEED NO.75/2021 OF SRO THALAYOLAPARAMBU DATED 13/01/2021 Exhibit P4 A TRUE COPY OF THE SETTLEMENT DEED NO.

74/2021 OF SRO THALAYOLAPARAMBU DATED 13/01/2021 Exhibit P5 A TRUE COPY OF THE RE-SURVEY ADALATH APPLICATION FILED BY THE FIRST PETITIONER SANDHIA ROMEO DATED 26/10/2022 Exhibit P5(a) A TRUE CO OF THE REPORT DATED 26/12/2022 OF THETALUK SURVEVOR Exhibit P6 A TRUE COPY OF THE RE-SURVEY ADALATH APPLICATION SUBMITTED BY THE SECOND PETITIONER NIYA ROMY MARKOSE DATED 26/10/2022 Exhibit P6(a) A TRUE COPY OF THE REPORT DATED 26/12/2022 OF THE SURVEYOR ON EXT. P6 APPLICATION Exhibit P7 A TRUE COPY OF THE RE-SURVEY ADALATH APPLICATION DATED 26/10/2022 Exhibit P7(a) A TRUE COPY OF THE REPORT DATED 26/12/2022 OF THE SURVEYOR ON EXT. P7 APPLICATION Exhibit P8 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE FIRST PETITIONER UNDER THE RIGHT TO INFORMATION ACT VIDE DATED 16/1/2023 BEFORE THE PANCHAYATH PUBLIC INFORMATION OFFICER Exhibit P9 A TRUE COPY OF THE RELEVANT PAGES OF THE ASSET REGISTER DATED NIL OF THE PANCHAYATH THALAYOLAPARAMBU Exhibit P9(a) A TRUE COPY OF THE REPLY DATED 2/2/2023 GIVEN BY THE PUBLIC INFORMATION OFFICER AND DEPUTY TAHSILDAR, TALUK OFFICE VAIKOM Exhibit P10 A TRUE COPY OF THE ORDER OF THE TAHSILDAR, LAND RECORDS DATED 28/1/2023

Exhibit P10(a) A TRUE COPY OF THE ORDER DATED 28/1/2023 ISSUED BY THE TAHSILDAR, LAND RECORDS, VAIKOM Exhibit P10(b) A TRUE COPY OF THE ORDER DATED 28/1/2023 ISSUED TO THE THIRD PETITIONER BY THE TAHSILDAR, LAND RECORDS Exhibit P11 A TRUE COPY OF THE OLD SURVEY PLAN DATED 21/4/1958 OF THE PETITIONERS PROPERTY AND THE THODU LYING BY THE SIDE OF THE PROPERTY Exhibit P11(a) A TRUE COPY OF THE RE-SURVEY PLAN DATED 12/10/2022 OF THE PETITIONER'S PROPERTY AND THE THODU LYING BY THE SIDE OF THE PROPERTY Exhibit P12 A TRUE COPY OF THE LAND TAX RECEIPT VIDE DATED 20/4/2021IN THE NAME OF NIYA ROMY MARKOSE T.P NO. 28281 Exhibit P13 A TRUE COPY OF THE LAND TAX RECEIPT DATED 20/4/2021 IN THE NAME OF SARAH ROMY MARKOSE, THE THIRD PETITIONER T.P NO.

28282 Exhibit P14 A TRUE COPY OF THE THUNDAPPER ACCOUNT IN THE NAME OF THE FIRST PETITIONER ISSUED VIDE DATED 25/3/2023