IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 WP(C).No. 27437 of 2005(N) -------------------------- PETITIONER: -------------------- G.THANKAPPAN, AGED 60, S/O.GANGADHARAN, SHELLS, CONVENT ROAD, PRAVACHAMBALAM, NEMOM, THIRUVANANTHAPURAM. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT OF SURVEY, (ALC), NEYYATTINKARA. 4. THE VILLAGE OFFICER, PALLICHAL VILLAGE, NEYYATTINKARA TALUK. 5. K.G.SUJANEDRAN, MALAYIL HOUSE, VEDIVACHAN COIL, THIRUVANANTHAPURAM 695 501. 6. KERALA LOK AYUKTHA, REP. BY REGISTRAR, NIYAMASABHA COMPLEX, THIRUVANANTHAPURAM. Addl. 7. SMT.SUBHAJA, W/O LATE K.G.SUJANENDRAN, KALAYIL HOUSE, VEDIVACHAN COIL, THIRUVANANTHAPURAM 695 501. 8. GOURI SUJAN, KALAYIL HOUSE, VEDIVACHAN COIL, THIRUVANANTHAPURAM. 9. LEKSHMI SUJAN, D/O LATE SUJANENDRAN, KALAYIL HOUSE, VEDIVACHAN COIL, THIRUVANANTHAPURAM. (ADDL.R7 TO R9 IMPLEADED AS PER ORDER DTD.4.12.2006 IN I.A.NO.14508/2006) ADV. SMT.LIGEY ANTONY FOR R5 GOVERNMENT PLEADER FOR R1 TO 4 SRI.L.MOHANAN FOR R7 TO R9 SMT.LIGEY ANTONY FOR R7 TO R9 SRI.M.V.KIRAN MOHAN FOR R7 TO R9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC No.27437 of 2005 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF G.O.Rt.2790/95 RD dtd. THIRUVANANTHAPURAM 26.7.1995. EXT.P2 TRUE COPY OF COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 12.9.2001. EXT.P3 TRUE COPY OF LETTER ISSUED BY 3RD RESPONDENT TO THE 4TH RESPONDENT BEARING NO.B1 945/01 DTD. 29.3.2004. EXT.P4 TRUE COPY OF TAX RECEIPT NO.1502567 DTD.1.4.2004 ISSUED FROM PALLICHAL VILLAGE OFFICE. EXT.P5 TRUE COPY OF ORDER IN COMPLAINT NO.622/04 ISSUED BY THE 6TH RESPONDENT. EXT.P6 TRUE COPY OF REPORT BEARING NO.B3-33223/04 DTD.6.5.2005 SUBMITTED BY 2ND RESPONDENT BEFORE THE 6TH RESPONDENT. EXT.P7 TRUE COPY OF ORDER IN COMPLAINT NO.622/2004 PASSED BY THE 6TH RESPONDENT DATED 19.8.2005. RESPONDENT'S EXHIBITS: EXT.R5(a) COPY OF THE COMPLAINT NO.622/04 BEFORE THE HON'BLE LOK-AYUKTA. TRUE COPY P.S.TO JUDGE CSS/ K.SURENDRA MOHAN, J. ------------------------------------------- WPC No.27437 of 2005 ------------------------------------------- Dated this the 4th August, 2011 JUDGMENT The petitioner has filed this Writ Petition challenging Ext.P7 order passed by the Lok Ayukta. As per the impugned order, the Lok Ayukta has set aside an order passed by the second respondent directing deletion of the name of the fifth respondent from the Re-Survey Revenue records and substituting the name of the petitioner as the owner, in relation to an extent of 2.90 Ares of land comprised in Re-Survey No.544/31, Block No.5 of Pallichal Village, Neyyattinkara Taluk. The order that was under challenge before the Lok Ayukta had been issued pursuant to a complaint made by the petitioner to the effect that a portion of his property had been erroneously included by the Re-Survey authorities in Re-survey No.544/31 and designated as belonging to the fifth respondent. 2. According to the petitioner, he is the owner of an extent of 52.687 cents of land in Survey No.24/1 of Pallichal Village. At the time of Re-Survey, an extent of WPC No.27437 of 2005 2 2.90 ares out of the said property was erroneously included in Re-Survey No.544/31 of Block No.5 by mistake and was designated as belonging to the fifth respondent. It is the further case of the petitioner that the fifth respondent owns properties only in Survey No.24/27A and had obtained the same as per Sale Deed No.481/1981 of Balaramapuram Sub Registry. 3. The petitioner also states that, the property claimed by him was part of a larger extent of one acre of property comprised in old Survey Nos.24/1, 24/27A and 24/27B. Out of the said property, land was acquired for the Neyyar Irrigation Canal and the remaining property continues to be in his possession and enjoyment. The disputed property is alleged to be part of the said remaining extent of property. 4. On coming to know of the mistake committed by the Re-Survey authorities, the petitioner submitted a complaint seeking rectification of the mistake. The said complaint is Ext.P2. On the basis of the petitioner's complaint, the matter was examined, the properties were WPC No.27437 of 2005 3 measured and a report was obtained by the second respondent through the third respondent. On the basis of the said report, it was found that a mistake had been committed in conducting the Re-Survey and therefore, necessary directions were issued for correction of the mistake. Thereafter, the second respondent directed the third respondent to effect necessary correction in the Revenue records consequent to such rectification. The third respondent then issued Ext.P3 proceedings directing the fourth respondent to alter the thandaper to the names of the petitioner and the other co-owners thereof. Accordingly, such correction was made. Thereafter, it is the case of the petitioner that he has been paying tax in respect of the property, as evidenced by Ext.P4. 5. The fifth respondent challenged Ext.P4 proceedings before the Lok Ayukta alleging that Ext.P3 order was vitiated by maladministration, rendering the same illegal and unsustainable. The said complaint was taken on file, numbered as Complaint No.622 of 2004 and was considered by the Lok Ayukta. The Lok Ayukta WPC No.27437 of 2005 4 initially passed a preliminary order directing the second respondent to re-examine the entire matter and to file a detailed statement. Pursuant to the said order, the second respondent examined the matter again and he too found that the rectification of the mistake that was effected as per Ext.P3 was perfectly in order and therefore filed a statement to the said effect. The petitioner also appeared on receipt of notice and contested the complaint by refuting the allegations made by the fifth respondent. The matter was considered by the Lok Ayukta thereafter and, finding that the order of rectification evidenced by Ext.P3 and reiterated by the report of the District Collector evidenced herein by Ext.P6 was without any justification, set aside the same as per Ext.P7 order. The authorities have also been directed to re-designate the 5th respondent as the owner of the disputed property by making necessary corrections in the Revenue records. The petitioner has filed this writ petition challenging the said order of the Lok Ayukta, aggrieved by the above findings and directions. WPC No.27437 of 2005 5 6. This writ petition is contested by the fifth respondent who has filed a detailed counter affidavit producing the complaint made by him before the Lok Ayukta with all the supporting documents appended thereto. According to the fifth respondent, he had acquired title and possession in respect of 8 cents of land comprised in Sy.No.24/27A of Pallichal Village, having purchased the same for valuable consideration as per registered Sale Deed No.481/1981 of Balaramapuram Sub Registry. Ever since purchase of the property, he has been in undisputed possession and enjoyment thereof. He had effected mutation of Revenue records in respect of the property to his name and had been paying the land tax in respect of the same continuously as evidenced by the tax receipts produced by him. It is the case of the fifth respondent that on the security of the said land owned and possessed by him, he had availed of a bank loan which has been subsequently paid off. The Possession Certificates produced by him evidences his possession. It was in the above circumstances that Re-Survey of the property was WPC No.27437 of 2005 6 conducted. On the basis of the Re-Survey, the land was included in Re-Survey No.544/31 in Block No.5 and his thandaper was changed to No.5917. On the strength of the new thandaper also, he has been remitting tax in respect of the property. It is the case of the fifth respondent that the said property is abutting the National Highway, N.H.47 and that he has been in possession and enjoyment of the property even after the Re-Survey proceedings. According to him, it is in the said circumstances that his name as the title holder in respect of the property was changed by the proceedings of the second respondent, without issuing any notice to him. 7. Being aggrieved by the said action, the fifth respondent had approached the Lok Ayukta complaining of the high handed acts of the second respondent. The Lok Ayukta had entertained his complaint, examined his contentions, given sufficient opportunity to the petitioner herein to contest the case, had called for a report from the second respondent regarding the genuineness of the allegations made in the complaint and had after due WPC No.27437 of 2005 7 consideration of all the aspects of the matter, found that the action of the second respondent in ordering rectification of the alleged mistake was totally unsustainable and liable to be set aside. Therefore, it is contended that Ext.P7 does not suffer from any infirmity warranting interference in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution. 8. A counter affidavit has been filed on behalf of the second respondent supporting the proceedings issued in rectification of the mistake committed by the Re-Survey authorities. According to the second respondent, the disputed land that is actually comprised in Re-Survey No.544/31 in Block No.5 of Pallichal Village is part of old Sy.No.24/1 with respect to which the petitioner has title. It is also pointed out that the fifth respondent's property comprised in old Sy.No.24/27A has been included on Re- Survey in Re-Survey No.544/12. It was on the basis of the above finding that the rectification had been conducted by the Survey authorities. Therefore, it is pointed out that WPC No.27437 of 2005 8 the rectification done was only proper and justified in the facts and circumstances of the case. 9. As per an order dated 23.12.2009, this Court had directed the third respondent to file an affidavit as to what was the old survey number of the property shown as item No.31 in Ext.P3. If it was not 24/1, then he has been specifically directed to state and produce the concerned sketch showing the lie of the property having old Sy.No.24/27A. He was also directed to state the correlation between the old survey No.24/1 and the Re-survey number assigned to the said old survey number. Accordingly, the third respondent has submitted a report and a plan, which are part of the record. The report has been submitted, according to the third respondent, after having conducted a measurement of the property in accordance with the previous sketches. As per the report, the third respondent has reported that the property comprised in Sy.No.24/1 is comprised in Re-Sy.No.544/31 at present. The disputed property has been indicated in yellow colour in the sketch that is appended to the report WPC No.27437 of 2005 9 of the third respondent. 10. I have heard Adv.V.Rajendran who appears for the petitioner, Mr.L.Mohanan who appears for the fifth respondent and the learned Government Pleader. I have been taken through the records of the case in detail and arguments have been addressed by the contesting parties, at considerable length. I have given anxious consideration to the rival contentions. 11. The dispute in the present case centres round the correction of a mistake that was committed in designating Re-survey numbers to the property of the petitioner. According to the petitioner, an extent of 2.90 Ares of property owned by him has been included in Re- sy.No.544/31 and the fifth respondent has been shown as the owner of the said property. Since the above was a mistake committed in conducting the Re-survey, the petitioner was entitled to approach the Survey authorities for correction of the mistake in terms of Ext.P1 Government order. Though a contention has been raised on behalf of the fifth respondent that after allotment of the WPC No.27437 of 2005 10 Re-survey number, the thandaper as well as the Re-survey number could be changed only in accordance with the provisions of the Kerala Survey and Boundaries Act, 1961 or the Transfer of Registry Rules, the fact remains that the Government has constituted a machinery for correction of mistakes committed during Re-survey as per Ext.P1 Government order. Since a separate machinery has been envisaged by the Government taking into account the fact that mistakes have been committed in the Re-survey proceedings that were conducted, I do not think that it is necessary for the petitioner to take resort to his civil remedies for the purpose of correcting such a mistake. Such mistakes could certainly be rectified and corrected by invoking the jurisdiction that has been conferred on the Survey authorities by Ext.P1 Government order and by approaching the Survey Adalath. Had such an authority not been constituted, for every mistake committed by the Survey authorities, the parties would have had to take resort to the more tedious and time consuming process of filing a suit. WPC No.27437 of 2005 11 12. Though it is contended by the counsel for the fifth respondent that Ext.P3 had been issued without notice to him, my attention has been drawn to a document produced by the fifth respondent before the Lok Ayukta, bearing No.B3 70670/00 dated 5.4.2003 which is a notice issued to him by the second respondent calling upon him to attend the office of the Deputy Collector on 23.4.2003 with necessary documents to prove his rights over the property owned by him. The said document is available at running page No.16 of Ext.R5(a). I also notice that Ext.P3 is dated 29.3.2004, about eleven months after the date of the said notice. Therefore, the fifth respondent had certainly been notified of the proceedings that were pending before the third respondent on the complaint made by the petitioner. 13. The Lok Ayukta has considered the dispute between the petitioner and the fifth respondent as though it were deciding a title dispute between the parties. The Lok Ayukta has based its conclusions on certain assumptions which do not find any support in the WPC No.27437 of 2005 12 documents produced before it. For instance, the Lok Ayukta has proceeded on the basis of the finding that, “Ext.P3 Re-Survey Plan would show that 2.90 Ares of land is lying as a separate plot within well defined boundaries”. There is no evidence available to show that the 2.90 ares of land referred to is a separate plot within well defined boundaries. The Lok Ayukta has further found that there was no reliable material on record to show that the disputed land forms part of old Survey No.24/1. At the same time, it is worth noticing that the Lok Ayuktha had initially directed the District Collector to personally examine the dispute between the parties, to correct the mistakes and to file a detailed statement. Accordingly, such a statement has been filed. 14. The statement filed by the District Collector pursuant to the above direction has been rejected in two cryptic sentences which are extracted hereunder. “In our view no cogent reason is given by the Collector for rejecting the petition filed by the complainant. On consideration of the facts and circumstance of this case we have no WPC No.27437 of 2005 13 hesitation to hold that the impugned order of the District Collector, Thiruvananthapuram is clearly unsustainable.” 15. Though the petitioner has relied on a decree obtained by him in O.S.No.841 of 1982, in appeal, the Lok Ayuktha has dismissed the said document for the only reason that the fifth respondent was not a party to those proceedings. Though the decree in the suit cannot bind the fifth respondent, the decree is certainly evidence of the petitioner's possession with respect to his property. The Lok Ayuktha has thus gone on to sift and discredit the documents produced by the fifth respondent to find justification to support its conclusion that the report of the Assistant Director, Re-Survey was not worthy of reliance. However, no reason is stated for the said conclusion. It cannot be disputed that the authorities had enquired into the complaint of the petitioner and had conducted repeated measurements of the property at various points of time. I find that before issuing Ext.P3 proceedings, the WPC No.27437 of 2005 14 complaint had been got enquired into and it was found that the complaint of the petitioner was justified. Thereafter, when Ext.P3 was challenged before the Lok Ayukta, pursuant to Ext.P5 preliminary order of the Lok Ayukta, the second respondent again examined the matter and found that the fifth respondent was not in possession of 2.90 Ares of land comprised in Re-Survey No.544/31. The above finding has been rejected by the Lok Ayukta holding that the same is not supported by any reliable evidence. Subsequently, in this writ petition, the third respondent was directed to again ascertain the genuineness of the dispute. Pursuant to the said direction, the third respondent has examined the matter again and has submitted a report and sketch showing that the complaint of the petitioner is genuine and that a mistake had been committed in the Re-survey proceedings, that required rectification and correction. 16. A contention has been raised by the counsel for the fifth respondent that Ext.P3 as well as the rectification ordered are vitiated by maladministration and undue WPC No.27437 of 2005 15 influence exerted by the petitioner. There is absolutely no evidence to support the above contention. Further, it does not stand to reason. How can all the authorities who have examined the matter successively from 2004 onwards be presumed to have acted under the undue influence of the petitioner? In view of the fact that all the authorities who have examined the matter again and again have found that the Re-survey number had been alloted on the basis of a mistake, it is absolutely necessary that the same is corrected without any further delay. 17. For the foregoing reasons, I find that Ext.P7 is unsustainable and is liable to be set aside. The same is accordingly set aside. Ext.P3 is restored. The authorities shall make necessary corrections in the Revenue records as directed in Ext.P3. However, I hasten to add that I have not proceeded to enter any findings on the rights of the parties either regarding title or possession in respect of the properties claimed by each of them. If the fifth respondent has any grievance regarding the correctness of Ext.P3, it will be open to the fifth respondent to take WPC No.27437 of 2005 16 recourse to his civil remedies. In such an event, the challenge if any made, shall be decided untrammelled by any of the observations made hereinabove. The Writ Petition is allowed. No costs. SD/- K.SURENDRA MOHAN, JUDGE css/