Kerala High Court
Krishna Prasad S vs The Taluk Surveyor on 24 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
MONDAY, THE 24TH DAY OF JUNE 2024 / 3RD ASHADHA, 1946
WP(C) NO. 26268 OF 2023
PETITIONERS:
1 KRISHNA PRASAD S.,
S/O. K.C. SOMANATHAN, AGED 50 YEARS
KRISHNARPANAM, EXCEL PARK, S.T.P ROAD,
ELAMKULAM,KADAVANTHRA, KOCHI-, PIN - 682020
2 K. C. SOMANATHAN, S/O. U.K.MENON,
AGED 80 YEARS, KRISHNARPANAM, EXCEL PARK,
S.T.P ROAD, ELAMKULAM, KADAVANTHRA,
KOCHI-, PIN - 682020
BY ADVS.
SANTHEEP ANKARATH
PARVATHY SRIKUMAR
RESPONDENTS:
1 THE TALUK SURVEYOR
TALUK OFFICE, MANANTHAVADY,
WAYANAD DISTRICT, PIN - 670645
2 TAHASILDAR ( LAND RECORDS )
OFFICE OF SPECIAL TAHSILDAR (LR),
MANANTHAVADY, WAYANAD DISTRICT, PIN - 670645
3 TAHASILDAR
MANANTHAVADY TALUK, OFFICE OF TAHSILDAR,
MANANTHAVADY, WAYANAD DISTRICT, PIN - 670645
4 THE VILLAGE OFFICER
PAYYAMPALLY VILLAGE OFFICE, MANANTHAVADY,
WAYANAD DISTRICT, PIN - 670646
5 THE DISTRICT COLLECTOR
COLLECTORATE, WAYANAD, KALPETTA, PIN - 673022
6 DIRECTOR
SURVEY AND LAND RECORDS,
DIRECTORATE OF SURVEY AND LAND RECORDS,
THIRUVANANTHAPURAM, PIN - 695014
7 MANEESH M. K,
ERSTWHILE SURVEYOR, MANANTHAVADY,
TALUK OFFICE, WAYANAD DISTRICT, PIN - 670645
WP(C) No.26268 of 2023 2
8 SEBASTIAN P. J, ERSTWHILE TAHASILDAR (LR)
S/O. JOSEPH,PUTHENPARAMBIL HOUSE,
CHUNGAKKUNNU, POST KOTTIYOOR VILLAGE,
KANNUR DISTRICT, PIN - 670651
9 DIRECTOR, VIGILANCE & ANTI CORRUPTION BUREAU,
VIKASH BHAVAN P.O.,
THIRUVANANTHAPURAM, PIN - 695010
10 ELIYAMMA PHILIP (EXPIRED)
W/O. PHILIP, CHERUPARAMBIL VEEDU,
PAYYAMPALLY VILLAGE, MANANTHAVADY TALUK,
WAYANAD DISTRICT, PIN - 640646
11 C.K. PHILIP, S/O. KURIAN, CHERUPARAMBIL VEEDU,
PAYYAMPALLY VILLAGE, MANANTHAVADY TALUK,
WAYANAD DISTRICT, PIN - 640646
R11 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED
21.06.2024 IN IA NO.1 OF 2024.
12 SAINNABA KOLANGOTTIL
W/O. ABDULLA, KANIYAMBETTA,
WAYANAD DISTRICT, PIN - 673122
13 ABDULLAH,S/O. MARAKKAR,
KOLANGOTTIL HOUSE, KANIYAMBETTA,
WAYANAD DISTRICT, PIN - 673122
14 MUHAMMED SHAFI
S/O. ABDULLA, KOLANGOTTIL HOUSE, KANIYAMBETTA, WAYANAD
DISTRICT, PIN - 673122
15 STATE OF KERALA
REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
R1 TO R6, R9 & R15 BY GP DEEPA V.
R8 BY ADVS.Pranoy K. Kottaram Kottaram
GEORGE MATHEWS(K/550/2000)
R12 TO R14 BY ADVS.P.C.Chacko
ASHA P.KURIAKOSE(K/000784/1998)
SHERIL ABRAHAM(K/001334/2023)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.26268 of 2023 3
VIJU ABRAHAM, J.
.................................................................
W.P.(C) No.26268 of 2023
.................................................................
Dated this the 24th day of June, 2024
JUDGMENT
The above writ petition is filed seeking to quash Exts.P13 and P14 and for other consequential reliefs.
2. On 15.09.2007 the 2nd petitioner has purchased 1 acre and 25 cents of property in re-survey no.398/1 of Payyambally Village, Mananthavady Taluk as per Ext.P1 sale deed. Prior to the sale of the said property to the 2nd petitioner, the 11th respondent was holding title, ownership and possession of the said property which was having an extent of 2 acres and 55 cents which was obtained as per Ext.P2 sale deed executed on 12.03.1973, from one Kelakkunnathu Aboobacker. The said Aboobacker was granted Ext.P3 patta in respect of the said land. The 11th respondent has sold a portion of the property to one Smt.Leena Paul and the remaining portion having an extent of 1.25 acres was purchased by the 2 nd petitioner as per Ext.P1. Since there was no balance property remaining with the 11th respondent, original of the prior deeds was also handed over to the 2nd petitioner. Later on, the property was mutated in the name of the 2nd petitioner and he was paying tax as evidenced by Exts.P4 and P5. WP(C) No.26268 of 2023 4 While so, the 2nd petitioner executed Ext.P6 settlement deed (gift deed) in respect of 18 cents of property in favour of the 1 st petitioner on 24.06.2017. Later mutation was effected and a new Thandaper number was assigned as is evident from Exts.P7 and P8. It is contended that there was an attempt made by respondents nos.10 and 11 to illegally encroach upon the property of the petitioners by demolishing the northern boundary of the property claiming that the 10th respondent's property lie as the northern boundary of the petitioners' property which is adjacent to the PWD road. Though such intervention was prevented at that stage, due to Covid 19 pandemic and the subsequent lockdown restrictions, the petitioners were unable to visit the property. When the 1 st petitioner recently visited the property, he was surprised to see that a barbed wire fence was constructed encroaching on the petitioners' property whereby more than half of the road frontage was lost reducing the original 16.6 meters road frontage to 7 meters.
3. Petitioners submit that the entire proceedings were initiated allegedly on the basis of an application filed in Form no.8 for re-survey by the 10 th respondent. A glance of Ext.P9 application in Form no.8 itself shows the intention of forgery and manipulation as the date and place columns of the applications are kept blank and no details of prior survey number 828/11, the title deed number, extent of property and Sub Registrar Office are provided. As per the provisions of the Survey and Boundaries Act and WP(C) No.26268 of 2023 5 Rules, if the Tahsildar receives an application in the nature of Ext.P9, notice has to be issued under Form no.6 to the applicant as well as other registered holders adjacent to that property. In the present case no such notice was received by the petitioners. When an application was submitted under the Right to Information Act, the copies of said notices issued were provided as Exts.P10 and P11. Ext.P12 is another communication issued by the Taluk Surveyor, Mananthavady to Tahsildar (LR), Mananthavady which also obtained as per the provisions of the Right to Information Act and as per the said communication issued by the 7 th respondent he has already inspected and measured out the property before two months of issuance of Exts.P10 and P11 notices and he has recommended and reported that necessary changes are to be carried out in the revenue records. Based on the above communication of the 7 th respondent, without hearing the petitioners the 8th respondent issued a direction to alternate the survey measurements in the records as per the application of the 10 th respondent and also approved the revised sketch submitted by the 7 th respondent as per Ext.P13 order. The revised sketch submitted by the 7 th respondent was also approved as evident from Ext.P14. Nowhere in the communications and the orders the date of application by the 10 th respondent and issuance of notice to the other affected parties are shown. Petitioners would submit that the property of the 10th respondent is included entirely in block no.27, survey no.389/3 and partially included in survey WP(C) No.26268 of 2023 6 no.398/1. Even in the application made by the 10 th respondent, it is clearly stated that her property is included only in 398/3. But the 10 th respondent deliberately suppressed the said fact that the portion demarcated in survey no.398/1 belongs to the 2nd petitioner and a portion of property demarcated belongs to the 1st petitioner which he acquired in the year 2017 from the 2 nd petitioner as per document No.1738/I/2017. It is further contended that on a perusal of Exts.P10 and P11 notices allegedly issued to the petitioners herein it could be seen that the address of the 1 st petitioner is deliberately made incomplete and the address of the 2 nd petitioner is wrongly written without any clear address. In the said circumstance petitioners have filed Ext.P15 complaint before the Vigilance and Anti Corruption Bureau, the 9 th respondent herein, which was duly received as per Ext.P16 acknowledgement card. 1st petitioner also intimated these facts to the 4 th respondent Village Officer, 3rd respondent Tahsildar and the Sub Registrar, Mananthavady as evident from Ext.P17. It is in the said circumstance that the petitioners have approached this Court seeking to quash Exts.P13 and P14 and the proceedings pursuant to that.
4. A detailed counter affidavit has been filed by respondents 12 to 14 wherein it is stated that the issue involved in this writ petition is purely a civil dispute between the petitioners and respondents 10 to 14. That apart, it is contended that a civil suit is pending as O.S.No.179 of 2023 before the Munsiff's Court, Mananthavady for fixation of the boundary between the WP(C) No.26268 of 2023 7 property of petitioner and respondents 12 to 14 by appointing an advocate commissioner with the help of Taluk Surveyor on the basis of title deeds and FMB records. It is further contended that since the writ petition is filed challenging Exts.P13 order passed by the Tahsildar regarding fixation of the boundary the petitioner has an effective statutory remedy by filing an appeal under Section 11 of the Survey and Boundaries Act, 1961. It is further contended that the land originally belongs to one Vachikkal Manoharan, who was the owner in possession of 2 acres 43 cents of land in Payyampilly Village and he was issued with Ext.R13(a) patta dated 11.03.1971. Out of this 2 acres and 43 cents of land Vachikkal Manoharan sold 50 cents of land to the 10 th respondent on 07.07.1983 as per Ext.R13(b) sale deed. Though 50 cents of property mentioned in Ext.R13(b) was under the possession, ownership, cultivation and management of the 10th respondent, there was some mistakes in the land tax register and therefore the Village authorities were not receiving land tax for the entire property. In the abovesaid circumstance the 10 th respondent filed a complaint before the authorities and the 3 rd respondent has passed Ext.R13(c) order correcting the mistake in the records. Thereafter the 10 th respondent executed a sale deed in favour of the 12th respondent transferring her 1/3rd right over the 50 cents of property covered under Ext.R13(b). Similarly the 10th respondent executed a sale deed transferring her 1/3rd right in respect of the 50 cents of property covered by Ext.R13(b) WP(C) No.26268 of 2023 8 in favour of respondents 12 to 14 also as per Exts.R3(d) to R13(f). It is contended that thereafter respondents 12 to 14 are in possession, enjoyment and ownership of 50 cents of property covered under Ext.R13(b), as evident from Ext.R13(g) possession certificate. Thandaper account was assigned as per Ext.R13(h) and tax was paid as evident from Ext.R13(i). It is further contended that the claim of the petitioners that there is 16.6 metres road frontage to their property is not correct. When the petitioners tried to trespass into the property of respondents 12 to 14, they filed O.S.No.179 of 2023 before the Munsiff's Court, Mananthavady for fixation of the southern boundary of the plaint schedule property as per the title deeds of the plaintiffs and FMB of the plaint schedule property, after appointing an advocate commissioner with the help of a surveyor and seeking a decree of perpetual injunction from obstructing the plaintiffs from putting up compound wall upon the southern boundary of the plaint schedule property. It is also contended that the 2 nd petitioner purchased 1 acre and 25 cents of property from the 11th respondent on 15.09.2007 as per Ext.P1 and the property covered under Ext.P3 and Ext.R13(a) are entirely different and the FMB shows the correct details. In view of the same they sought for dismissal of the writ petition.
5. A memo has been submitted by the learned Government Pleader producing the report submitted by the Inspector of Police, Vigilance and Anti Corruption Bureau, Wayanad wherein it is stated that in response to WP(C) No.26268 of 2023 9 the petition filed by the 1st petitioner regarding the alleged encroachment of the landed property belonging to him and his father a surprise check was ordered by the Director of Vigilance and Anti Corruption Bureau. The relevant portion of the report of the Vigilance and Anti Corruption Bureau reads as follows:
" .......... .......... ........
At the time of above mentioned survey, the land in Survey No.398/3 was sharing its border with the land owned by the 2 nd petitioner. The 2nd petitioner has been paying Land Tax to the said property since 2017 to 2022. While conducting survey, Respondent No.7 did not comply the mandatory procedures of intimating the survey notice with adjacent land owners. The 1st and 2nd petitioners were fully ignorant regarding the survey conducted at their land. At the time of survey, the land in Survey No.398/1 did not have an extent of 1.0320 Hector. Years prior to the survey, the said land having an extent of 1.0320 Hector was divided into three portions. One portion having an extent of 0.5261 was owned by Leena Paul, another portion having an extent of 0.4324 Hector was owned by 2nd petitioner and remaining portion of 0.0735 Hector was owned by 1st petitioner. But, either the surveyor (Respondent No.7) or the Land Records Tahsildar, Mananthavady (Respondent No.2) did not consider the matter while effecting the change in the extent of land in Survey No.398/3.
............. ........... ...........
8. It is submitted that, the Surprise Check conducted by me could establish that, there was a procedural slip from the side of Respondent No.7 in conducting survey on the application of Respondent No.10. The allegation of encroachment of land raised by the petitioner could not be established in the Surprise Check. Hence, I have submitted the following recommendations in the Surprise Check Report. a. Recommendation may be given to Survey Superintendent of Wayanad to revoke the changes made in the BTR of Payyampally Village as per the survey conducted by Respondent No.1 and to WP(C) No.26268 of 2023 10 conduct fresh survey of the land owned by Respondent No.10 in the presence of the petitioners.
b. Recommendation may be given to Land Revenue Commissioner to initiate severe departmental disciplinary action against Respondent No.1 Sri Maneesh M.K., Taluk Surveyor, Manathavady after hearing his explanation."
The said report would reveal that the 7th respondent did not comply with the mandatory procedure of intimating the survey notice to the adjacent land owners and that the petitioners were fully ignorant regarding the survey conducted at their land and that there is a procedural slip from the side of 7th respondent in conducting the survey on the application of 10 th respondent and in the said circumstance it was recommended that the Survey Superintendent of the Wayanad District to revoke the changes made in the BTR of Payyappilly Village as per survey conducted by the 1 st respondent and to conduct a fresh survey of the land owned by the 10 th respondent in the presence of the petitioners and also it was recommended to the Land Revenue Commissioner to initiate severe departmental disciplinary action against Sri Maneesh M.K., Taluk Surveyor, Mananthavady after hearing his explanation.
6. It is seen that the notice in the writ petition has not been served on respondents 10 and 11. A perusal of the proceedings would reveal that service on 11th respondent has not been returned whereas 10th respondent had expired. Learned counsel appearing for respondents 12 to 14 would WP(C) No.26268 of 2023 11 submit that they have purchased the property having an extent of 50 cents from the 10th respondent and therefore there is no necessity for impleading the legal heirs of 10th respondent. Petitioners have already filed a petition to delete the 11th respondent from the party array which has been allowed by this Court as per order dated 21.06.2024 at the risk of the petitioners.
7. Heard the rival contentions of both sides.
8. The grievance raised by the petitioners is in respect of further proceedings initiated pursuant to the Form no.8 application submitted by the 10th respondent. The specific contention raised by the petitioners is that the survey was conducted without notice to them. The contention raised based on Exts.P10 and P11 notices would reveal that the address of the 1 st petitioner is incomplete in the said notice and a wrong address has been shown in respect of the 2nd petitioner in Ext.P11 whereas their address has been clearly stated in Ext.P6 settlement deed. Yet another aspect to be noted is that Exts.P10 and P11 are notices dated 13.11.2019 whereby a survey was fixed to be held on 27.11.2019. It is pertinent to note that Ext.P12 report is dated 24.09.2019 whereas the proposed survey as per Exts.P10 and P11 is fixed on 27.11.2019. Ext.P12 report has been submitted much before the proposed survey as evident from Exts.P10 and P11. Therefore the only conclusion that could be drawn is that Ext.P12 has been submitted without even conducting a survey fixed as per Exts.P10 and P11. It is in the said circumstance that the report of the 9th respondent WP(C) No.26268 of 2023 12 has become relevant wherein it is specifically recorded that the 7 th respondent has not complied with the mandatory procedure of intimating the survey notice to adjacent land owners and that the petitioners were fully ignorant regarding the survey conducted at their land and also recommended that a direction should be issued to the Survey Superintendent of Wayanad to revoke the changes made in the BTR of Payyappilly Village as per the survey conducted and to conduct a fresh survey of the land owned by the 10 th respondent in the presence of the petitioners.
In view of the above factual situation, I am of the view that Ext.P13 order and Ext.P14 revised sketch prepared on the basis of the survey conducted pursuant to Exts.P10 and P11 notices are liable to be interfered with. Accordingly the above writ petition is disposed of as follows:
(i) Exts.P13 order and Ext.P14 survey sketch approved by the 8 th respondent is accordingly quashed.
(ii) Since Ext.P9 application has been submitted by the 10 th respondent and that she is no more and that the property of the 10 th respondent has been purchased by respondents 12 to 14, if respondents 12 to 14 have any grievance regarding the extent of property, etc., it is for them to file necessary application in this regard. Since serious lapses have been stated from the side of the revenue authorities in issuing Exts.P13 and P14, I am of the view that if any application for re-survey is submitted WP(C) No.26268 of 2023 13 by respondents 12 to 14 before respondents 1 to 3, the said authorities shall intimate about filing of such application to the 5 th respondent District Collector, who shall depute the revenue officials for conducting a survey based on such application and the survey, etc. shall be done strictly under the supervision of the 5th respondent District Collector. The 5th respondent District Collector shall ensure that the survey and other proceedings are done strictly in accordance with the provisions of the Survey and Boundaries Act and Rules, with notice to the petitioners and any other affected parties.
With the abovesaid directions the writ petition is disposed of.
Sd/-
VIJU ABRAHAM JUDGE cks WP(C) No.26268 of 2023 14 APPENDIX OF WP(C) 26268/2023 PETITIONER EXHIBITS EXHIBIT P 1 TRUE COPY OF SALE DEED DATED 15-09-2007 REGISTERED AS DOC. NO. 2327/2007 EXECUTED BY THE 11TH RESPONDENT IN FAVOUR OF THE 2ND PETITIONER.
EXHIBIT P 2 TRUE COPY OF REGISTERED DOCUMENT NO.
541/1973 OF MANANTHAVADY SUB REGISTRAR OFFICE DATED 12.03.1973 EXECUTED BY KELAKKUNNATHU ABOOBACKER IN FAVOUR OF THE 11TH RESPONDENT.
EXHIBIT P 3 TRUE COPY OF PATTA BEARING NO. DK 342/ 65 DATED 05.06.1970.
EXHIBIT P 4 TRUE COPY OF LAND TAX RECEIPT ISSUED IN THE NAME OF THE 2ND PETITIONER DATED 13- 12-2007 BY THE 4TH RESPONDENT.
EXHIBIT P 5 TRUE COPY OF LATEST LAND TAX RECEIPT
DATED 15-07-2023 ISSUED BY THE 4TH
RESPONDENT IN FAVOUR OF THE 2ND
PETITIONER.
EXHIBIT P 6 TRUE COPY OF DOCUMENT NO. 1738/I/2017 OF
SRO MANANTHAVADY DATED 24-06-2017.
EXHIBIT P 7 TRUE COPY OF RECEIPT FOR MUTATION IN THE
NAME OF THE 1ST PETITIONER DATED 25-08-
2017
EXHIBIT P 8 TRUE COPY OF LATEST LAND TAX RECEIPT
DATED 15.07.2023 ISSUED BY THE 4TH
RESPONDENT IN FAVOUR OF THE 1ST
PETITIONER.
EXHIBIT P 9 TRUE COPY OF COPY OF THE FORM 8
APPLICATION, UNDATED FILED BY THE 10TH
RESPONDENT.
EXHIBIT P 10 TRUE COPY OF NOTICE ISSUED TO THE 1ST
PETITIONER DATED 13-11-2019
WP(C) No.26268 of 2023 15
EXHIBIT P 11 TRUE COPY OF NOTICE ISSUED TO THE 2ND
PETITIONER DATED 13-11-2019.
EXHIBIT P 12 TRUE COPY OF THE COMMUNICATION SENT BY
THE 7TH RESPONDENT TO THE 8TH RESPONDENT
DATED 24.09.2019.
EXHIBIT P 13 TRUE COPY OF ORDER DATED 02-03-2020
PASSED BY THE 8TH RESPONDENT DIRECTING
THE VILLAGE OFFICER TO ALTERNATE THE
SURVEY MEASUREMENTS IN THE REVENUE
RECORDS.
EXHIBIT P 14 TRUE COPY OF REVISED SKETCH SUBMITTED BY
THE 7TH RESPONDENT WHICH WAS APPROVED BY
THE 8TH RESPONDENT UNDATED.
EXHIBIT P 15 TRUE COPY OF COMPLAINT SENT BY THE
PETITIONERS TO THE VIGILANCE & ANTI
CORRUPTION BUREAU THROUGH REGISTERED
POST DATED 16-08-2022
EXHIBIT P 16 TRUE COPY OF ACKNOWLEDGMENT CARD DATED
20-08-2022 RECEIVED BY THE VIGILANCE &
ANTI CORRUPTION BUREAU.
EXHIBIT P 17 TRUE COPY OF LETTER SENT BY THE 1ST
PETITIONER TO THE 4TH RESPONDENT DATED
2.11.2022
EXHIBIT P 18 TRUE COPY OF ACKNOWLEDGEMENT CARD DATED
18.11.2022 BY THE 4TH RESPONDENT.
EXHIBIT P 19 TRUE COPY OF ACKNOWLEDGEMENT CARD DATED
05.11.2022 BY THE 3RD RESPONDENT
EXHIBIT P 20 TRUE COPY OF ACKNOWLEDGEMENT CARD DATED
05.11.2022 RECEIVED BY THE SUB REGISTRAR
RESPONDENT EXHIBITS
Exhibit-R13(a)(i) Readable copy of the Exhibit-R13(a)
Exhibit-R13(a) True copy of the Patta issued by the
special Thahasildar Manathavadi dated
11.03.1971 to Vachikkal Manoharan.
WP(C) No.26268 of 2023 16
Exhibit-R13(b) True copy of the sale deed dated
07.07.1983 executed by Manoharan in
favour of the 10th respondent.
Exhibit-R13(c) True copy of the order dated 02.03.2020
issued by the 3rd respondent
Exhibit-R13(d) . True copy of the sale deed dated
04.11.2020 executed by 10th respondent.
Exhibit-R13(e) True copy of the sale deed dated
04.11.2020 executed by 10th respondent
in favor of 13th respondent
Exhibit-R13(f) Ture copy of the Sale Deed dated
14.11.2020 executed by 10th respondent
in favor of the 14th respondent.
Exhibit-R13(g) True copy of the possession certificate
dated 04.11.2022 issued by Village
Officer Payampilly.
Exhibit-R13(h) True copy of the Thandaper Account dated
28.10.2022 issued by Village Officer
Payampilly.
Exhibit-R13(i) True copy of the Land Tax Receipt dated
08.05.2023 issued by Village Officer
Payampilly.
Exhibit-R13(j) True copy of the plaint dated 15.09.2023
in O.S. No. 179 of 2023 filed by the
respondents 12 to 14 before the Munisiff
Court, Manathavady