Kerala High Court
M.J.Scaria vs The State Of Kerala on 1 October, 2018
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY ,THE 01ST DAY OF OCTOBER 2018 / 9TH ASWINA, 1940
WP(C).No. 9427 of 2018
PETITIONER/S:
M.J.SCARIA,
(OUSEPH SCARIA), AGED 78, S/O JOSEPH,
RESIDING AT MAPPLASSERIL HOUSE,
MANAKKAD P.O., THODUPUZHA-685 584.
BY ADVS.
SRI.G.SREEKUMAR (CHELUR)
SMT.SARITHA THOMAS
RESPONDENT/S:
1 THE STATE OF KERALA,
REP. BY THE SECRETARY TO THE GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM. 695001.
2 THE THODUPUZHA MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,
MUNICIPAL OFFICE,THODUPUZHA,
IDUKKI-685584.
3 THE MUNICIPAL ENGINEER,
THODUPUZHA MUNICIPALITY,
THODUPUZHA P.O., IDUKKI. 685584.
4 THE SECRETARY,
THODUPUZHA MUNICIPALITY,
MUNICIPAL OFFICE,THODUPUZHA,
IDUKKI. 685584.
5 THE DEPUTY SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI CORRUPTION BUREAU,
IDUKKI UNIT, MUTTOM, IDUKKI DISTRICT.685001.
6 SRI. DILEEP M.S.,
AGED 48 YEARS, S/O MADHAVAN,
ABHILASH HOUSE,VAZHARHOOR,
NEYYATTINKARA PO, THIRUVANANTHAPURAM,
NOW WORKING AS ASSISTANT EXECUTIVE ENGINEER,
BLOCK PANCHAYATH, SULTHAN BATHERY,
WAYANAD DISTRICT.685601.
W.P.(C) No.9427 of 2018 2
7 SRI. T.G AJEESH,
SECRETARY, THODUPUZHA MUNICIPALITY,
AGED 40 YEARS,S/O GOPI,
THENGEPPURAKKAL HOUSE,
INJIYANI P.O.,MUNDAKKAYAM,
KOTTAYAM DISTRICT.678001.
8 SRI. SHAII J.,
AGED 48 YEARS, S/O M JAMALUDHEEN KUNJU,
VALLOPPILLIL HOUSE, KARUNAGAPPALLI P.O.,
KOLLAM-NOW WORKING AS ASSISTANT EXECUTIVE
ENGINEER,BLOCK PANCHAYATH, VAZHOOR,
KOTTAYAM-678001.
9 SRI SHIJU C.S.,
S/O C.K SHIVAN, SHINANDANAM,
MANGATTUKAVALA,THODUPUZHA,
NOW WORKING AS ASSISTANT ENGINEER,
L.S.G.D ENGINEERING WING,
THODUPUZHA MUNICIPALITY-685001.
10 SMT. ANITHAMOL M.K.,
AGED 45 YEARS, W/O P.V RAMESH,
PAZHAYIDATH HOUSE,NAGAPPUZHA PO,
KALOORKKADU-NOW WORKING AS TALUK SURVEYOR,
TALUK OFFICE, THODUPUZHA-685001.
11 SRI NAHAS N.M.,
S/O MOIDEEN, NADUVILAVEETTIL HOUSE,
FLAT NO.4B, ABAD, NEAR HIGH COURT OF KERALA,
GO-SREE ROAD, ERNAKULAM,SUPERINTENDING ENGINEER,
LSGD SOUTH CIRCLE, THIRUVANANTHAPURAM. 695001.
BY ADVS.
R1 & R5 BY SRI.MANURAJ.K.J,GOVERNMENT PLEADER
R2 TO R4 BY SRI.UNNIKRISHNAN V.ALAPPATT, SC,
THODUPUZHA MUNICIPALITY.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.9427 of 2018 3
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:
"i) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2nd respondent to immediately to restore the occupancy of the commercial building of the petitioner as is seen in Ext.P16 and also to provide occupancy to the residential house and to number the building, immediately in the interest of justice;
ii) To issue a writ of mandamus or any other appropriate writ, order or direction commanding 1st respondent to take action against the other respondents for all the illegalities perpetrated by them, in the nature of their administrative actions in the interest of justice; and
iii) To pass any such or further orders as the petitioner may seek and this Hon'ble Court deem fit to."
2. Material facts for the disposal of the writ petition are as follows:
3. Petitioner is the owner of the property covered by Ext.P1 registered document and situate in Survey Nos.825/1 and 825/3 of the Manakkad Village. The said property is known as "Ideenal Purayidam", which was having a larger extent as per the prior title deeds. According to the petitioner, the property is situated within specific boundaries. The land and residence of the petitioner comes within Ward No.33 of the Thodupuzha Municipality. From Ext.P1, an extent of 10 cents of land W.P.(C) No.9427 of 2018 4 is transferred in favour of his wife as per a gift deed. However, the land remains contiguous without any physical separation from the gifted land and Ext.P1 property.
4. Subsequent to Ext.P1, an extent of 83.5 cents of land lying at the north-eastern boundary of Ext.P1 land was acquired by the Government of Kerala, for the purpose of construction of a 'Laksham Veedu' colony, in the year 1972, evident from Ext.P2. At that point of time, the property was within the limits of the Manakkad Panchayat, and therefore, the land was assigned in the name of Manakkad Panchayat to be conveyed to the Government of Kerala. Later, it became vested with the Thodupuzha Municipality. Prior to the execution of Ext.P2 proceedings, a detailed survey of the land in question was undertaken under the provisions of the Land Acquisition Act. On a verification of Ext.P2, it is discernible that, the southern boundary of Ext.P2 land is the "Ideenal Purayidam". The acquisition is also reflected in the Puramboke register of the year 1975-76, evident from Ext.P3. Therefore, according to the petitioner, the only Puramboke land available in Survey No.825/3 is 83.5 cents covered by Ext.P2 document. There was a 'thodu' as a natural boundary which was later converted into a Municipal road which remained on the W.P.(C) No.9427 of 2018 5 east and north of Ext.P1 land. Ext.P2 land is on the north of the said Municipal road.
5. In the year 1998, an extent of 0.5 cents of land was gifted by the petitioner from the north-eastern part of Ext.P1 land for the purpose of constructing a public water tank, evident from Ext.P4 registered deed dated 11.06.1998. While so, as per the Gazette notification of the year 2000, re-survey was effected in respect of the fields comprised in Survey Nos.825/1 and 825/3 of Manakkad Village and new sub divisions were introduced and boundaries were re-fixed as per the same, which was done in accordance with Sec.6 of the Kerala Survey and Boundaries Act.
6. While continuing so, petitioner was issued with a notice of survey at the instance of the 10th respondent, informing that a survey will be conducted on 15.10.2014. Even though petitioner requested for three days' time to produce documents, it was not granted and the survey was conducted. Case of the petitioner is that, a false survey report was submitted by the 10 th respondent. However, challenging the survey, petitioner has filed O.P.(C) No.3154 of 2013 and has secured Ext.P7 judgment dated 22.11.2013. Thereupon, the 10th respondent prepared a sketch and handed over the same to the Municipal W.P.(C) No.9427 of 2018 6 authorities along with a report stating that Ext.P4 property was not taken from the land belonging to the petitioner.
7. Thereupon, the District Collector and other officials, inspired by local politicians, trespassed into the property of the petitioner and demolished its boundary wall, in the guise of re-connecting the water supply to the tank in Ext.P4 property. At that point of time, apprehending high handed action from the so called officials, petitioner approached the Munsiff's Court, Thodupuzha, seeking injunction. However, entering appearance in the suit proceedings and seeking time for filing counter, further trespass was committed. But the Advocate Commissioner appointed in O.S.No.353 of 2014, has submitted a report, evident from Ext.P8. According to the petitioner, since the boundary was demolished, the said suit became infructuous. Thereupon, petitioner has approached the Lok Ayukta by filing complaint No.1357 of 2014, alleging mal-administration on the part of the authorities, which is still pending.
8. It is also pointed out that, it was on the basis of the wrong survey sketch prepared by the 10th respondent, demolition was effected. The case of the petitioner is that, prior to all these actions, a W.P.(C) No.9427 of 2018 7 building permit for construction of a commercial building in the property covered by Ext.P1 document was secured by the petitioner. Accordingly, the construction of the commercial building was completed and the petitioner applied for occupancy on 23.01.2015. The completion of construction of the commercial building was after the initiation of proceedings covered by Ext.P9 before the Lok Ayukta. Notice was issued by the Municipality stating that the construction of ramp to the building was in violation of the Building Rules.
9. Anyhow, later, the 6th respondent as per Ext.P16 addressed the Assistant Executive Engineer, Thodupuzha Municipality by Ext.P6 communication directing to take urgent steps to cancel the occupancy issued to the petitioner immediately. Apparently, on the basis of the complaints, Vigilance enquiry was launched and the Vigilance has drawn a report also, evident from Ext.P28, wherein there was recommendation to the Municipal Engineer, Thodupuzha to allot occupancy certificate and building number to the commercial building and the residential building of the petitioner situated in Survey Nos.825/3 and 825/1 of Manakkad Village. Other findings are also rendered as per Ext.P28.
W.P.(C) No.9427 of 2018 8
10. A statement is filed for and on behalf of the respondent Municipality. Among other contentions, it is stated that, while processing the case files, objections were noticed on the construction based on the survey sketch produced. There was existence of two different sketches in the Case Section of Municipality, issued by the Taluk Surveyor, which shows that there is puramboku land in the property in question. On the basis of a legal opinion from the Standing Counsel for the Municipality that the pendency of the cases before the civil courts will not affect the issuance of the Completion Certificate, occupancy was issued and the building was numbered. But, based on a report of the Engineering wing that the legal opinion is not sustainable, already issued occupancy certificate was cancelled. Thereupon, a letter was forwarded to the District Collector seeking measurement and fixation of the boundaries of the property of the petitioner.
11. As per the instruction of the District Collector, the District Survey Superintendent prepared a report and sketch, in which it is clearly stated that, all the three earlier sketches were not correct, but ruled out the possibility of any puramboke land being included in the property of the petitioner. Based on the W.P.(C) No.9427 of 2018 9 above report, the Municipality has issued a detailed notice to the petitioner directing him to submit a fresh application along with fresh layout drawings based on the new sketch as the facts in the original application and documents were reported as incorrect. But the petitioner refused to submit fresh application and insisted to reinstate the cancelled occupancy. Since the petitioner put forth stiff resistance over the issue, the Council has taken a resolution to issue occupancy certificate and to number the building of the petitioner. However, since the Council has taken a decision not in accordance with law, the Secretary has intimated the same to the Government.
12. Thereupon, the Deputy Chief Engineer, Local Self Government Department as per letter dated 19.01.2018 has instructed the Engineering office to get the report from the District Collector and initiate further action in respect of the application submitted by the petitioner for occupancy. Based on the said report, a notice is again issued to the petitioner to submit application with detailed drawings based on the survey sketch issued by the District Survey Superintendent. In sum and substance, it is submitted that, if a fresh application earmarking the location of his buildings based on the W.P.(C) No.9427 of 2018 10 sketch issued by the District Survey Superintendent is submitted, it will be considered, and if found satisfactory, occupancy certificate will be issued. These are the basic background facts available before this Court to consider the issues raised in the writ petition.
13. The discussion of facts made above would make it clear that, there was serious dispute with respect to the property held by the petitioner as per Ext.P1 and based on other documents executed by the petitioner as per Ext.P4. Learned counsel for the petitioner submitted that, petitioner would be satisfied, if a direction is issued to the Secretary of the 2nd respondent to re- consider the issue with respect to the cancellation of the occupancy, since it was cancelled without issuing any notice to the petitioner.
14. Having regard to the facts and circumstances of the case and taking into account the contentions raised by the 2nd respondent Municipality that it is prepared to consider issuance of occupancy certificate to the petitioner, on the petitioner submitting a fresh application along with necessary documents, I think it is only appropriate that a direction is issued to the Secretary of the 2nd respondent or any other competent W.P.(C) No.9427 of 2018 11 officer to take a decision in the subject matter, after providing an opportunity of hearing to the petitioner.
15. Therefore, there will be a direction to the competent among the officers of the Municipality to take a decision with respect to the application submitted by the petitioner for occupancy, after providing an opportunity of hearing to the petitioner, and to attain finality at the earliest, and at any rate, within a month from the date of receipt of a copy of this judgment. Petitioner is also at liberty to file any additional representation before the 2nd respondent along with any documents required for establishing his case.
The writ petition is disposed of with the aforesaid directions.
Sd/-
SHAJI P.CHALY JUDGE W.P.(C) No.9427 of 2018 12 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SALE DEED BEARING NO.725 OF 1972 OF THE THODUPUZHA S R O DATED 04.04.1972.
EXHIBIT P2 A TRUE COPY OF THE SALE DEED BEARING NO.1307 OF 1972, DATED 28.6.1972 IN THE NAME OF THE GOVERNOR OF KERALA THROUGH THE LOCAL AUTHORITY CONVEYING TITLE PERTAINING TO 83.5 CENTS OF LAND AS PER STATUTORY RULES.
EXHIBIT P3 A TRUE COPY OF THE PURAMBOKE REGISTER OF THE YEAR 1975-76 OF THE MANAKKAD VILLAGE DATED NIL.
EXHIBIT P4 A TRUE COPY OF THE REGISTERED DEED DATED 11.06.1998 EXECUTED BY THE PETITIONER BEARING NO. 1482 OF 1988 OF THE THODUPUZHA S R O. EXHIBIT P5 THE TRUE COPY OF THE RELEVANT PAGE OF THE ASSET REGISTER OF THE SECOND RESPONDENT DATED NIL.
EXHIBIT P6 THE TRUE COPY OF THE REPORT OF THE SPECIAL COMMITTEE CONSTITUTED BY THE WATER AUTHORITY DATED 14.1.2016.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN OP(C) 3154 OF 2013 BY THIS HON'BLE COURT DATED 22.11.2013. EXHIBIT P8 A TRUE COPY OF THE COMMISSIONER'S REPORT BY ADV.PRASAD, FILED IN O.S NO.353 OF 2014 ON THE FILE OF THE MUNSIFF COURT, THODUPUZHA DATED 1.11.2014.
EXHIBIT P9 A TRUE COPY OF THE ORDER BY WHICH THE COMPLAINT 1357 OF 2014 OF THE PETITIONER IS ADMITTED BEFORE THE HON'BLE LOKAYUKTHA 7.11.2014.
EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 05.02.2015 BEARING NO.B A/342/13-14 SO ISSUED TO THE PETITIONER.
EXHIBIT P11 A TRUE COPY OF THE REPLY THERETO DATED 15.2.2015.
W.P.(C) No.9427 of 2018 13EXHIBIT P12 A TRUE PHOTOGRAPH OF THE LOCATION OF THE BUILDING AND ROAD LEVEL AT THE TIME OF COMMENCEMENT OF THE BUILDING CONSTRUCTION DATED NIL.
EXHIBIT P13 A TRUE PHOTOGRAPH OF THE BUILDING AFTER CHANGING OF THE ROAD LEVEL BY KSTP DATED NIL.
EXHIBIT P14 A TRUE COPY OF THE REMINDER APPLICATION DATED 23.3.2015 WHICH WAS FILED WITH THE 2ND RESPONDENT OFFICIALLY ON 4.4.2015 FOR RECOGNIZING THE DUE OCCUPANCY CERTIFICATE DERIVED TO HIM AS PER THE OPERATION LAW. EXHIBIT P15 A TRUE COPY OF THE RECEIPT ISSUED THERETO ON 4.4.2015.
EXHIBIT P16 A TRUE COPY OF THE FILE NOTES IN CONNECTION WITH THE UP TO DATE PROCEEDINGS OF DIFFERENT DATES.
EXHIBIT P17 TRUE COPY OF THE REPORT FILED BY THE TOWN PLANNER IDUKKI IN THIS REGARD DATED 15.4.2016.
EXHIBIT P18 A TRUE COPY OF THE SAID COMPLAINT DATED 14.8.2015.
EXHIBIT P19 A TRUE COPY OF THE QUICK VERIFICATION REPORT SUBMITTED BY THE FIFTH RESPONDENT DATED 31.8.2016.
EXHIBIT P20 A TRUE COPY OF THE SAID REPORT DATED 29.08.2016 OF THE DISTRICT SURVEY SUPERINTENDENT.
EXHIBIT P21 A TRUE COPY OF THE REQUEST OF THE PETITIONER DATED 29.8.2016.
EXHIBIT P22 TRUE COPY OF THE LETTER ISSUED BY THE DEPUTY DIRECTOR SURVEY IDUKKI DATED 20.1.2017. EXHIBIT P23 A TRUE COPY OF THE RELEVANT MINUTES OF THE SAID COUNCIL OF THE 2ND RESPONDENT DATED 26.4.2017.
EXHIBIT P24 A TRUE COPY OF THE REPRESENTATION GIVEN TO THE SECRETARY TO THE LOCAL SELF GOVERNMENT DEPARTMENT DATED 7.3.2017.
W.P.(C) No.9427 of 2018 14EXHIBIT P25 A TRUE COPY OF THE FIR DATED 05.10.2017 BEARING NO.VC.11/17/SCE AGAINST THE 11TH RESPONDENT BY THE VACB.
EXHIBIT P26 A TRUE COPY OF THE COMPLAINT DATED 02.05.2017 PLACED AGAINST THE 11TH RESPONDENT BY THE PETITIONER.
EXHIBIT P27 A TRUE COPY OF THE COMMUNICATION OF THE VIGILANCE DATED 24.9.2016.
EXHIBIT P28 THE COPY OF THE ENTIRE FILE BEARING NO.RA3/20 IN RESPECT TO THE PETITIONER'S GRIEVANCE WITH FILES NOTE KEPT IN THE OFFICE OF THE SECRETARY TO THE LOCAL SELF GOVERNMENT AUTHORITIES.
EXHIBIT P29 A TRUE COPY OF THE COMMUNICATION OF A PARTICULAR COUNCILOR BEING A MEMBER OF THE SUB-COMMITTEE DATED 7.4.2017.
EXHIBIT P30 A TRUE COPY OF THE COUNCIL DECISION OF THE 2ND RESPONDENT DATED 26.4.2017.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R4(A) TRUE COPY OF THE ORDER NO.AEE/LSGD/342/13-14 DATED 2-7-2015 EXHIBIT R4(B) TRUE EXTRACT OF THE RELEVANT PAGE OF DISPATCH REGISTER.
//TRUE COPY// P.S. TO JUDGE St/-