Kerala High Court
D.Sashikumari vs District Collector on 29 October, 2009
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
FRIDAY, THE 7TH DAY OF SEPTEMBER 2012/16TH BHADRA 1934
WP(C).No. 15232 of 2012 (D)
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PETITIONER(S):
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D.SASHIKUMARI,
W/O.RAMAKUMAR.R.S., RAM NIVAS, PATTUKULAM
VELIYANCODE, TRIVANDRUM-695512.
BY ADVS.SRI.V.B.UNNIRAJ
SMT.R.S.GEETHA
RESPONDENT(S):
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1. DISTRICT COLLECTOR,
TRIVANDRUM-695005.
2. THE TAHSILDAR,
NEYYATTINKARA TALUK, NEYYATTINKARA
TRIVANDRUM-695121.
3. THE ADDITIONAL TAHASILDAR,
NEYYATTINKARA TALUK, NEYYATTINKARA
TRIVANDRUM-695121.
4. DISTRICT SURVEY SUPERINTENDENT,
TRIVANDRUM-695121.
5. SUPERINTENDENT,
RE-SURVEY OFFICER, NEYYATTINKARA, TRIVANDRUM-695121.
6. VILLAGE OFFICER,
MARANELLUR VILLAGE, NEYYATTINKARA TALUK
NEYYATTINKARA, TRIVANDRUM-695512.
7. SPECIAL DEPUTY TAHSILDAR (R.R)
KERALA STATE FINANCIAL ENTERPRISES
AKSHAYA SHOPPING COMPLEX, NEYYATTINKARA
TRIVANDRUM-695121.
tss
W.P.(C) NO.15232/2012
8. THE KERALA STATE FINANCIAL ENTERPRISES LTD.
NEYYATTINKARA BRANCH, NEYYATTINKARA
TRIVANDRUM-695121.
9. BHASIRAJAN,
S/O.KARUNAKARAN NAIR, BHASANA PATTAKKULAM, PUNNAVOOR
NEYYATTINKARA, TRIVANDRUM-695121.
R1 TO R7 BY GOVT.PLEADER SRI.RENNY STEPHEN CHAMAPARAMBIL
BY ADV. SRI.P.V.LONACHAN,SC,KSFE LTD.
BY SRI.JOHNSON T.JOHN, SC, KSFE LTD.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22-08-2012, THE COURT ON 07/09/2012 DELIVERED THE FOLLOWING:
tss
W.P.(C) NO.15232/2012
APPENDIX
PETITIONER(S) EXHIBITS
P1:- PHOTOSTAT COPY OF THE PARTITION DEED DOCUMENT NO.2153/1973 OF
OORUTTAMBALAM SUB REGISTRY DTD. 3.9.1973.
EXHIBIT P2: A TRUE COPY OF THE REPRESENTATION DATED 29/10/2009 SUBMITTED BY
THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P3: A TRUE COPY OF THE REPORT NO.590/08 DATED 30/10/2008 SUBMITTED BY
THE 6TH RESPONDENT TO THE 2ND RESPONDENT.
EXHIBIT P4: A TRUE COPY OF THE LETTER NO.G1-4403/2009 DATED 7/2/2009
ADDRESSED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT.
EXHIBIT P5: A TRUE COPY OF THE REPRESENTATION FILED BEFORE THE 1ST
RESPONDENT ON 12/3/2010.
EXHIBIT P6: A TRUE COPY OF THE LETTER DATED 20/8/2010 ADDRESSED BY THE 5TH
RESPONDENT TO THE 3RD RESPONDENT.
EXHIBIT P7: A TRUE COPY OF THE REPRESENTATION DATED 11/2/2012 SUBMITTED
BEFORE THE IST RESPONDENT.
EXHIBIT P8: A TRUE COPY OF THE REPRESENTATION DATED 3/10/2009 SUBMITTED BY
THE PETITIONER BEFORE THE 7TH RESPONDENT.
EXHIBIT P9: A TRUE COPY OF THE SALE NOTIFICATION FOR SALE DATED 4/6/2012
PUBLISHED BY THE 7TH RESPONDENT.
RESPONDENTS' EXHIBITS
NIL
//TRUE COPY//
P.S. TO JUDGE
tss
P.R. RAMACHANDRA MENON, J.
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W.P. ) No.15232 OF 2012
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Dated this the 7th September, 2012
J U D G M E N T
The petitioner has approached this Court with the following prayers :
"a. Issue a writ of certiorari or other appropriate writ, direction or order calling for the records leading to Ext.P9 and quash the same.
b. Issue a writ of mandamus or other appropriate writ, direction or order compelling the respondents 1 to 5 to rectify the errors in the revenue, village and re-survey records and to include the entire 25 cents of land allotted to the petitioner as per Ext.P1 partition deed as expeditiously as possible.
c. Grant such other reliefs as may be prayed for and which are deemed just and proper in the circumstances of the case."
2. The sequence of events as narrated in the writ petition shows that the petitioner became the absolute owner of the property having an extent of 25 cents (10.12 Ares) comprised in old Survey No. 390/2 of Maranelloor Village of Neyyattinkara W.P. ) No.15232 OF 2012 2 Taluk, by virtue of Ext. P1 Partition Deed bearing No. 2153/1973 of Ooruttambalam Sub Registry, wherein the share alloted to the petitioner has been described as the 'C' schedule. According to the petitioner, ever since the execution of the said deed, the petitioner was enjoying the property with absolute ownership, exclusive possession and with clear and marketable title. But, by virtue of the employment of the husband of the petitioner, the petitioner was residing in different parts of the country and the property was being looked after by her brother, the 9th respondent, who owns the adjacent land.
3. When the petitioner came back to the native place, she was given to understand that the properties were got re-surveyed at the instance of the 9th respondent, without the consent or knowledge of the petitioner, whereby an extent of 7 cents of land forming part of the property owned, possessed and enjoyed by the petitioner as per Ext. P1 Partition Deed happened to be wrongly included in re-survey No.150/9, which pertains to the land owned and possessed by the 9th respondent/brother; while only an extent of 18 cents stood included in Re-survey No. 150/8 (old Survey No. 390/2) in the name of the petitioner. W.P. ) No.15232 OF 2012 3 Immediately, the petitioner preferred Ext. P2 representation dated 24.10.2008 before the second respondent.
4. Pursuant to the above steps, the sixth respondent/Village Officer inspected the property and submitted Ext. P3 report as to the correct factual position with regard to the title, ownership and enjoyment of the petitioner. It has been reported that a total extent of 25 cents belonging to the petitioner as on date falls in Re-survey Nos. 150/8 and 150/9 and that a portion falling in re-survey No. 150/9 stands included in the Thandapper Account No. 4638, in the name of the 9th respondent. Out of the said property alloted to the 9th respondent, 0.21 Ares of land stood transferred to 'Maranellur Grama Panchayath' and that an extent of 17.57 Ares of land in Re-survey No. 150/9 stands attached by the 7th respondent, pursuant to the steps under the Revenue Recovery Act for realization of the amounts due to the 8th respondent from the 9th respondent. It has been reported in Ext. P3, that the difference in the extent/mistake can be rectified by re-survey, once the attachment effected by the 7th respondent, is lifted.
5. On receipt of Ext. P3 report from the 6th respondent, the W.P. ) No.15232 OF 2012 4 3rd respondent forwarded the proceedings to the 5th respondent for further action, along with Ext. P4 covering letter dated 07.02.2009. Since nothing turned out in the positive for quite long time, the petitioner preferred Ext. P5 representation before the first respondent on 12.03.2010 for immediate intervention. Subsequently, the 5th respondent, as per Ext. P6 communication dated 20.08.2010, informed the third respondent that the matter had to be pursued by the Taluk Office, in view of the stipulation under G.O. (MS) 200/10/ Revenue dated 31.05.2010 referring to the on-going Survey Adalath proceedings being pursued through the Taluk Office. Nothing materialized thereafter, which made the petitioner to prefer Ext. P7 representation dated 11.02.2012 before the first respondent, requesting for immediate interference. In the meanwhile, without causing the mistake to be corrected, the property comprised in Re-survey No. 150/9 was put to sale, as per Ext. P9 sale notice dated 04.06.2012, published at the instance of the 7th respondent, which made the petitioner to approach this Court seeking for the reliefs, as aforesaid.
6. The Writ Petition was admitted, ordering 'urgent notice' W.P. ) No.15232 OF 2012 5 by speed post returnable within 10 days, on 29.06.2012. Despite the completion of service of notice, the respondents have not chosen to file any counter affidavit, with regard to the specific averments raised in the writ petition.
7. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for the respondents 1 to 6 and also the learned Standing Counsel appearing for the KSFE. There is nobody to represent the 9th respondent.
8. The flow of 'title', as projected by the petitioner stands undisputed and as such, it has to be held that the petitioner is the absolute owner of the property having an extent of 25 cents (10.12 Ares) in the Old survey No. 390/2 of Maranelloor Village, constituting the 'C' schedule in Ext. P1 Partition Deed executed nearly four decades back. There is no case for any of the respondents that the petitioner is also a contributory in causing part of the property owned by the petitioner, to be wrongly included in Re-survey No. 150/9, showing the same as part of the property covered by the Thandapper Account No. 4638 in the name of her brother/9th respondent.
9. It is settled law, that 'derivation of title' is not based on W.P. ) No.15232 OF 2012 6 the entries in the Revenue records by way of 'mutation' as per the Transfer of Registry Rules; nor can the mistake, if any, by way of Re-survey divest the petitioner from her 'title' over the property covered by Ext. P1. If the property belonging to the 9th respondent has been offered as security to the 8th respondent/KSFE, coercive proceedings, on default, if any, can be pursued only against that property, which was actually owned, possessed and enjoyed by the 9th respondent. For that matter, if any part of the property belonging to the petitioner happened to be wrongly shown as part of the property included in Survey No. 150/9, as if it were the property belonging to the 9th respondent and shown as covered by Ext. P9 sale notification, it cannot give any vested right to the KSFE, the 9th respondent or anybody, who purchases the property notified as per Ext. P9, except the actual extent owned by the 9th respondent, which was offered as security to the KSFE. It remains a fact that the petitioner has been knocking at the doors of the different authorities for the past more than four years, by submitting various representations, as borne by Exts.P2, P5 and P7 etc. It also remains a fact that the factual position was got enquired into by W.P. ) No.15232 OF 2012 7 conducting a spot inspection by the 6th respondent, who reported the outcome in support of the case projected by the petitioner to the 3rd respondent, vide Ext. P3. It was accordingly, that the 3rd respondent forwarded the proceedings to the 5th respondent, who however returned the same to the 3rd respondent vide Ext. P6, observing that remedy had to be facilitated at the office of the 3rd respondent itself.
10. To put it short, the respondents 1 to 6 are simply playing some 'hide and seek' game or appear to be simply trying to pass on the buck. This Court holds that the attachment over the property comprised in Resurvey No. 150/9 ordered at the instance of the KSFE cannot adversely affect the property belonging to the petitioner, in any manner and such attachment and the subsequent sale, if any, will stand confined only to the extent of property owned by the 9th respondent, obtained by him by virtue of the relevant title deed and never beyond.
11. In the above circumstances, the respondents 1 to 6 are directed to take appropriate steps to see that the mistake in the Re-survey Number is rectified by causing correction of the entries in the relevant records. No technical hurdle shall stand W.P. ) No.15232 OF 2012 8 in the way, in giving effect to the same and the attachment of the property will not be a bar in pursuing such proceedings; more so, when attachment itself is not an encumbrance. Necessary follow-up action shall be taken by the first respondent to ensure that the verdict passed by this Court is given effect to. The proceedings in this regard shall be finalized, as expeditiously as possible, at any rate, within 'three months' from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of this judgment, along with a copy of the writ petition before the 1st and 3rd respondents for further steps.
The Writ Petition is allowed to the said extent. No cost.
P. R. RAMACHANDRA MENON, JUDGE.
kmd/lk