Kerala High Court
K.G.Kuruvila vs State Of Kerala on 6 January, 2025
W.P.(C) No.36481 of 2022 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
WP(C) NO. 36481 OF 2022
PETITIONER:
K.G.KURUVILA, AGED 66 YEARS
S/O. LATE K. M. GEORGE, RESIDING AT 3-A,
CORDIAL REGENCY APARTMENTS, VELLAYAMBALAM,
THIRUVANANTHAPURAM - 695010.
BY ADV JAMES KURIAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE DISTRICT COLLECTOR,
COLLECTORATE, THRISSUR-680003.
3 THE FOREST RANGE OFFICER,
PATTIKKAD, THRISSUR-680652.
4 THE THAHASILDAR (LAND REVENUE)
THRISSUR-680 020.
5 THE TALUK SURVEYOR,
THRISSUR TALUK, THRISSUR-680 020.
6 VILLAGE OFFICER
MADAKKATHARA, THRISSUR -680651.
ADDL.R7 THE ASSISTANT DIRECTOR OF FOREST MINI SURVEY,
KOZHIKODE.
IS SUO MOTU IMPLEADED AS ADDL.R7 AS PER ORDER DATED
W.P.(C) No.36481 of 2022 2
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01.01.2023 IN WP(C) 36481/2022
OTHER PRESENT:
GP- NIMA JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.36481 of 2022 3
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VIJU ABRAHAM, J.
.................................................................
W.P.(C) No.36481 of 2022
.................................................................
Dated this the 6th day of January, 2025
JUDGMENT
The petitioner has approached this Court seeking the following
reliefs:
"i. Issue a writ in the nature of Mandamus forbearing the 3 rd
respondent with the survey of the property 4 acres and 09 cents
(1.6471 Ha) of land in Survey Nos.862; 863/1,4; 865/1,2 & 394/2 in
Madakkathara Village, Thrissur District.
ii. Issue a writ in the nature of Mandamus or any other
appropriate writ, direction or order commanding the 5 th respondent to
complete the survey of the property 4 acres and 09 cents (1.6471 Ha)
of land in Survey Nos.862; 863/1,4; 865/1,2 & 394/2 in Madakkathara
Village, Thrissur District without any further delay;
iii. Issue a writ in the nature of Mandamus or any other
appropriate writ, direction or order commanding the 6 th respondent to
receive tax in respect of the property 4 acres and 09 cents (1.6471 Ha)
of land in Survey Nos.862; 863/1,4; 865/1,2 & 394/2 in Madakkathara
Village, Thrissur District without any further delay;
iv. Issue such other writ, direction or order as are just and
necessary in the facts and circumstances of the case to meet the ends
of justice.
v. Issue a direction to dispense with filing of the translation of
vernacular documents produced with this writ petition."
2. The specific case of the petitioner in this writ petition is that 4
acres and 09 cents (1.6471 Ha) of land in Survey Nos.862; 863/1,4;
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865/1,2 & 394/2 in Madakkathara Village, Thrissur District devolved on the
petitioner and his brothers (Mathew and Augustine) consequent to the
death of their mother Mary George. Though the petitioner and his brothers
are in possession of the above mentioned land, an extent of 62 cents in
survey No.394/2 happened to be shown as belonging to one
Sri.K.M.Ignatious by a mistake. Petitioner's mother Mary George obtained
the said property as per Ext.P1 partition deed executed on 19.08.2004.
Petitioner submits that tax in respect of the said property was paid only till
2007 and that the petitioner has approached the 6 th respondent for
remitting tax, the same refused to accept tax and Ext.P5 order was issued
wherein the petitioner was directed to produce the original title deed of the
property, encumbrance certificate and was also intimated that after a site
visit of the property a decision could be taken regarding acceptance of tax.
Petitioner produced all the said documents as requested by the
authorities. On receipt of the same the 6th respondent informed the
petitioner that since 62 cents of land in survey No.394/2 belongs to one
K.M.Ignatious and the same is lying contiguous to the property of the
petitioner and his brothers, the petitioner has to apply to the 4 th
respondent for fixation of the boundary, then only the request for survey
and demarcation of the property could be considered. It is contended that
the 6th respondent along with the revenue assistant inspected the property
inter se and submitted a report to the 4 th respondent confirming the
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possession of the petitioner in respect of the property and also confirming
the fact that he has received all the documents which the petitioner was
required to produce as per Ext.P5. When the petitioner attempted to
construct a storage shed in connection with the construction of a
compound wall around the property, there was obstruction from certain
persons. Thereupon Ext.P6 complaint was preferred before the
Superintendent of Police, Thrissur. The Circle Inspector after submitting
the complaint summoned the petitioner to police station and the petitioner
was directed to ascertain and confirm that the property trespassed upon
by the respondents comes within the survey numbers of the property in
the petitioner's possession and ownership. Thereupon petitioner has
submitted Ext.P8 application before the 5th respondent for getting the
boundary of the property demarcated. Since there was attempt to trespass
upon the petitioner's property petitioner has approached the Munsiff's
Court, Thrissur by filing O.S.No.988 of 2022 and obtain Ext.P9 order of
injunction. Later petitioner has received Ext.P10 notice from the 5 th
respondent Taluk Surveyor fixing the date for survey of the property. On
the said date the survey was objected by the 3 rd respondent Forest
authority and because of the said objection the survey could not be
completed. Thereupon the petitioner has submitted Ext.P12 complaint
before the 2nd respondent District Collector to complete the survey and
fixation of boundary of the petitioner's property. It is due to the delay in
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finalising the same that the petitioner has approached this Court seeking
the abovestated reliefs.
3. A counter affidavit has been filed by the 3 rd respondent Forest
Range Officer, Pattikkad, Thrissur wherein it is contended that the land
obtained by the petitioner's mother is part of the land leased out by the
Diwan of Cochin for rent and the said lease was to Cochin Rubber
Company Ltd. and it was only for a period of 99 years. Since the
Government leased out the land any subsequent transfers made by the
Cochin Rubber Company Ltd is absolutely illegal and therefore the non-
receipt of tax in respect of the said property is perfectly in order. It is
further stated that the 6th respondent Village Officer has reported that
though the petitioner was directed to produce the original deed and
encumbrance of the land for collection of tax the petitioner has not
produced the same till date. It is further stated that the land is a forest
lease land and any kind of survey and demarcation for fixation of the
boundary shall be done jointly with the Kerala Forest Department. Since
the property now claimed by the petitioner form part of leased land by the
Diwan of Cochin of the erstwhile Cochin Sirkar the petitioner cannot lay a
claim on the property which has been a notified reserve.
4. When the matter came up for consideration on 09.01.2023 this
Court has passed an interim order directing respondents 4 and 5 to
arrange for a joint survey including the 7 th respondent or the officers under
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the Forest Department and the Revenue Department and the petitioner
and make available a report before the court. Thereupon along with memo
dated 05.04.2024 the report of the joint survey was submitted by the
learned Government Pleader for the perusal of the Court. A perusal of the
said report revealed that the survey has been completed demarcating the
boundaries and fixing the same and also recommended that Form No.13
of the Kerala Survey and Boundaries Rules could be issued to the
petitioner, Additional Director of Forest Mini Survey, Forest Range Officer,
Pattikkad, Thrissur and Divisional Forest Officer, Thrissur. The report also
revealed that the survey has been conducted in respect of survey No.863
which shared boundaries with properties in survey No.394, 862, 864 and
865 and that on 27.11.2023 all the officers connected with the same were
present and they were convinced with the fixation of the boundaries.
5. A reply affidavit has been filed by the petitioner in answer to the
counter affidavit filed by the Government wherein it is stated that the
predecessor-in-interest of the petitioner's mother purchased the property
as per Ext.P14 document No.371/1/1120 ME (1944) and the petitioner's
mother along with others purchased the property as per Ext.P15
document No.1791 of 1966 dated 17.06.1966. By Ext.P13 the erstwhile
Cochin Rubber Company conveyed the leased property with other items,
ie. patta lands also to the predecessor-in-interest of petitioner's mother. It
is clearly stated that the land leased out from Diwan of Cochin along with
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other items shown in the schedule of property conveyed in Ext.P13 which
were revenue land at the time of Ext.P13, ie., 1944 and the very same
survey numbers of the petitioner's property that are in the schedule of
properties are shown as "Pandaravaka Verum Pattom". In Ext.P14 also
the petitioner's properties in the survey numbers are referred to as
"Pandaravaka Verum Pattom". Petitioner further contended in the reply
affidavit that portion of the property lying contiguous to the schedule
property was acquired by KSEB. In connection with the said land
acquisition L.A.A. No.595 of 1992 was filed and the said appeal relates to
L.A.R. No.45 of 1986 which is in respect of patta land and L.A.R. No.44 of
1986 which is in respect of the lease land and by Ext.P15 judgment this
Court has conclusively said that patta land conveyed along with the lease
land was purely revenue land and on the basis of the same it is contended
that the property owned by the petitioner is not a forest land, but clearly a
revenue land and the respondents have absolutely no locus to raise any
claim over the petitioner's property. Petitioner further submits that the
stand in the counter affidavit that the lease is only for 99 years also cannot
be accepted. In Ext.R3(a) which is the original lease deed of 1082 ME it is
stated that the lease is one written "forever" and in Ext.P15 judgment also
it is categorically held that lease is a permanent one. Ext.P13 conveyance
deed also shows that that the deed in favour of Thattil Kochuvareed by
Cochin Rubber Company is not only in respect of the lease land but also
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along with other patta lands purchased by erstwhile Cochin Rubber
Company. Therefore the contention that the land of the subject land of the
petitioner formed part of the forest land is absolutely without any basis.
Pursuant to the direction issued by this Court the survey was conducted
and Exts.P16 and P16(a) report and sketch clearly show that there is no
forest land sharing boundaries with the petitioner's property. Petitioner
also relies on Ext.P17 communication issued by the Village Officer,
Madakkathara and Ext.P18 which would show that the survey numbers of
the properties of the petitioner will not come under forest land. On the
basis of the same it is contended that there is absolutely no reason for the
forest authorities to object to the survey as they have absolutely no claim
over the subject property.
6. An additional counter affidavit has been filed by the 3 rd
respondent wherein it is submitted that though a joint survey was ordered
by this Court as the survey is to take place in the forest lease land and
due to lack of survey sketch and other records and fixation of survey
stones faced practical obstacles to complete the survey and the survey
could not be completed properly and the joint survey team could fix survey
stones only in survey No.863 which is sharing boundary with other survey
numbers and survey numbers including 394, 862, 864 and 865 have not
been surveyed. Therefore it is contended that the survey conducted and
the sketch and report submitted are not complete. Thereupon the 3 rd
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respondent has submitted Ext.R3(c) request to the Tahsildar (Land
Records) to clarify whether the entire survey of the disputed land has
been completed and whether there has been any finding in the survey as
the petitioner's claimed land is forest lease land falling in survey No.272 of
Madakkathaa Village.
7. An additional reply affidavit has been filed by the petitioner
wherein it is contended that one of the adjacent land owner has filed writ
petition before this Court as W.P.(C) No.7387 of 2010 in respect of the
very same issue and by Ext.P19 judgment the matter was relegated to the
Government for a decision and thereupon the Government took a decision
as per Ext.P20 that plot No.272 is not touching either survey Nos.868/1,
865/1, 863 and 394/2 which are in the possession of the petitioner and
that the survey revealed some encroachment in the road puramboke in
survey No.394/3 which is to be verified by the Revenue Departments and
Public Works Department.
8. I have heard the rival contentions of both sides.
9. From the averments of both sides it is seen that essentially the
issue is as to whether the property in question is a forest land or a
revenue land as claimed by the petitioner. Ext.P20 is an order passed by
the Government in respect of a land adjacent to the subject land and there
is a clear finding by the Government that plot No.272 which is forest land
is not touching either survey No.868/1, 865/1, 863 and 394/2 which are
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under the possession of the petitioner therein. It is further to be seen that
a perusal of the schedule of Ext.P13 by which the land was transferred to
Thattil Kochuvareed by the Cochin Rubber Company shows that the
properties in the survey numbers in question are referred to as
"Pandaravaka Verum Pattom" which admittedly revealed that the said land
is a revenue land. The specific case of the petitioner is that the property
conveyed as per Ext.P12 includes both the lease land as well as the patta
land which was purchased by the erstwhile Cochin Rubber Company and
it is the said land which is conveyed to the petitioner's mother and others
as per Ext.P14. A joint survey was conducted as directed by this Court as
per order dated 09.01.2023 and Exts.P16 report and P16(a) sketch
revealed that there is no forest land on any of the boundaries of the
petitioner's property. It is true that the Forest Department has a case that
the survey has not been conducted properly and all the properties in
survey No.394, 862, 864 and 865 have not been surveyed and that a
request has been made as per Ext.R3(c) to Tahsildar (Land Records) to
clarify whether the entire survey of the disputed land has been completed.
Whatever that be, now a survey has been conducted which revealed that
none of the subject properties is sharing boundaries with the forest land. A
perusal of the report and sketch produced along with the memo revealed
that the survey has been completed in respect of property in survey
No.863 which shares boundary with the properties in survey Nos.394,
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862, 864 and 865 and that Form No.13 could be issued. Form No.13 is
issued as per Rules 51 and 52 of the Kerala Survey and Boundaries
Rules. Rule 51 deals with the notice of completion of work. The said
Section mandates that after the application and records are received from
the Survey Officer the Tahsildar shall issue a notice in Form No.13 or
Form No.14, as the case may be, to all parties affected by the survey,
about the completion of the work. Rule 52 refers to appeals if there is any
complaint regarding the re-fixation of boundaries. Now the survey has
been completed and boundaries have been re-fixed. True, the forest
authorities have a complaint and for which they have preferred Ext.R3(c)
before the Tahsildar (land Records).
In view of the above facts and circumstances I am inclined to
dispose of the writ petition as follows:
The further proceedings pursuant to the survey conducted as
per the direction of this Court on 09.01.2023 shall be completed and Form
No.13 as mandated in Rules 51 and 52 of the Kerala Survey and
Boundaries Rules shall be issued to the parties/authorities concerned. Tax
in respect of the property shall be received on the basis of the joint survey
conducted as per the direction issued by this Court if there are no other
impediment. The receipt of tax in respect of the subject property based on
the survey and demarcation conducted in the joint survey will not stand in
the way of the forest authorities to agitate their claim raised based on
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Ext.R3(c) complaint before the Tahsildar (Land Records). If any further
proceedings are to be initiated based on Ext.R3(c) complaint it shall be
with notice to the petitioner and all other affected parties. It is made clear
that this Court has not expressed any opinion regarding the ownership
and possession of the said property, but only directing the authorities to
take further action on the basis of the report and sketch prepared in the
joint survey conducted as per the directions issued by this Court on
09.01.2023.
With the abovesaid directions the writ petition is disposed of.
Sd/-
VIJU ABRAHAM
JUDGE
cks
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APPENDIX OF WP(C) 36481/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PARTITION DEED DATED
19.8.2004 EXECUTED BETWEEN MARY GEORGE
AND CO-OWNERS.
Exhibit P2 TRUE COPY OF THE HEIRSHIP CERTIFICATE
DATED 23.9.2013
Exhibit P3 TRUE COPY OF THE THANDAPER DETAILS OF
PETITIONER'S MOTHER, MARY GEORGE.
Exhibit P4 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
DATED 18.12.2021 IN RESPECT OF PARCEL OF
LAND
Exhibit P5 TRUE COPY OF THE ORDER DATED 14.12.2021
ISSUED BY THE 6TH RESPONDENT
Exhibit P6 TRUE COPY OF THE PETITION DATED
6.12.2021 SUBMITTED BY THE PETITIONER
BEFORE THE SUPERINTENDENT OF POLICE
THRISSUR WITH ANNEXURES.
Exhibit P7 TRUE COPY OF THE COMPLAINT SUBMITTED BY
THE PETITIONER BEFORE HE SUPERINTENDENT
OF POLICE THRISSUR ON 16.12.2021.
Exhibit P8 TRUE COPY OF THE APPLICATION DATED
14.12.2021 SUBMITTED BY THE PETITIONER
BEFORE THE 5TH RESPONDENT
Exhibit P9 TRUE COPY OF THE ORDER OF INJUNCTION
DATED 21.5.2022 FROM THE MUNSIFF'S COURT
THRISSUR.
Exhibit P10 TRUE COPY OF THE NOTICE DATED 1.9.2022
ISSUED BY THE 5TH RESPONDENT TO THE
PETITIONER.
Exhibit P11 TRUE COPY OF THE DISCHARGE SUMMARY OF
THE PETITIONER DATED 25.6.2022.
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Exhibit P12 TRUE COPY OF THE PETITION 5.10.2022
DATED SUBMITTED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT.
Exhibit P13 True copy of the Document No. 371/1/1120
ME (1944)
Exhibit P14 True copy of the document No. 1791/1966
dated.17.06.1966
ExhibitP15 True copy of judgment inLAA.595/1992
dated.23.05.2003 passed by this Hon'ble
Court
Exhibit P16 True copy of the Survey Sketch prepared
by Taluk Surveyor dated 27-11-2023
Exhibit P16(a) True copy of the Survey Sketch prepared
by Taluk Surveyor dated 27-11-2023
Exhibit P17 True copy of the letter dated 01.09.2023
issued by the Village Officer,
Madakkathara with its typed copy
Exhibit P18 True copy of the plan filed along with
Ext-P14 showing the survey numbers of
Petitioner's patta lands on the western
sid
Exhibit -P19 True Copy of the judgment dated
25.09.2013 passed by this Hon'ble court
Exhibit -P20 True copy of the order dated 03.02.2014
G.O.Rt.No.48/2014/F and WLD issued by
the Government
RESPONDENT EXHIBITS
Exhibit R3(a) True copy of the lease deed No.2860
/1082 ME and 436/1083 ME along with the
typed copy.
ExhibitR3(b) True copy of the report of the taluk
surveyor along with sketch dated
27.11.2023
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ExhibitR3(c) True copy of letter dated 06.04.2024 by
Forest range Officer
