IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 OP.No. 4059 of 2002(G) ---------------------- PETITIONER(S): --------------- P.C.MATHEW S/O.LATE PLEMEENA,POTHADI HOUSE,RIVER LANDING ROAD,VADUTHALA,KOCHI-23 BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. SPECIAL TAHSILDAR(LA),GREATER COCHIN DEVELOPMENT AUTHORITY,KADAVANTHRA,KOCHI-20 2. THE SUPERINTENDENT OF SURVEY AND LAND RECORDS (RESURVEY),ERNAKULAM SOUTH. 3. STATE OF KERALA,REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,SECRETARIAT, THIRUVANANTHAPURAM. GOVT. PLEADER SRI. ARAVIND KUMAR BABU, T.K. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 4059/2002. -------------------------------------------------------------- EXT.P1 TRUE COPY OF PATTA DT. 21-7-1969 EXT.P2 EXTRACT OF THANDAPER REGISTER. EXT.P3 TRUE COPY OF SKETCH. EXT.P4 TRUE COPY OF BASIC TAX RECEIPT. EXT.P5 REPRESENTATION DT. 21-8-2001. EXT.P6 NOTIFICATION DT. 7-8-2001. EXT.P7 REPRESENTATION DT. 24-8-2001. EXT.P8 TRUE COPY OF ENDORSEMENT. EXT.P9 PETITION DT. 30-8-2001. EXT.P10 JUDGMENT IN O.P.27604/2001. EXT.P11 REPRESENTATION DT. 27-11-2001. EXT.P12 ORDER DT. 22-12-2001. EXT.P13 ORDER DT. 6-6-2003. EXT.P14 BASIC TAX RECEIPT. EXT.P15 TRUE COPY OF SKETCH. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 4059 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd October, 2009. J U D G M E N T 43.500 cents of land comprised in Sy. No. 645/8 of Mulavukadu village of Kanayannur Taluk was originally assigned to the petitioner's mother and Ext. P1 patta was issued by the Tahsildar as per proceedings No. B6.LA.569/651. The mother of the petitioner is no more. On the death of the mother, the property devolved by succession on the petitioner and his brothers and sisters. Ext. P2 is the 'Thandaper' account in respect of the property, in which the property is shown in the name of the petitioner's mother. For the purpose of construction of Goshree bridges, the property in and around the petitioner's property were acquired. But in the list of properties acquired, the survey number of the property belonging to the petitioner was omitted. The petitioner approached the survey authorities. The petitioner was relegated from one authority to another and ultimately the Deputy Director of Survey and Land Records, Ernakulam passed Ext. P 12 order, which reads thus: “In O.P. No. 27604/2001 the Hon'ble High Court has directed the Superintendent of Survey and Land Records (Resurvey), Ernakulam South, the 2nd respondent to consider and dispose the Ext. P7 petition filed by Sri. P.C. Mathew within two months from the date of receipt of a copy of the judgment. In Ext. P7 petition Sri. P.C. Mathew has requested to rectify the erroneous classification of his mother's property as poramboke in the resurvey records of Mulavukadu village. He has further stated that the property is included in the land proposed to be acquired for Ernakulam – Vypeen Bridge and that any delay in the rectification of the mistake would cause irreparable loss to him. The superintendent of Survey and Land Records (Resurvey), Tripunithura is in charge of the resurvey of Mulavukad village and hence the responsibility for the disposal of Ext. P7 petition devolves upon him. It is true that an extent of 43.500 cents had been assigned to Smt. Plemeena, Petitioner's mother from the river poramboke in Sy. No. 845 of Mulvukad village as per B6 LA 569/97 of the O.P No. 4059/02 -: 2 :- Tahasildar, Kanayyannur. But no land tax had been paid up to 24.7.01 for the said property included in thandaper number 715. It was only on 25.7.01 that the petitioner remitted land tax for the first time. A fair chunk of the property, which the petitioner claims to have been assigned to his mother, has been reclaimed as part of the Gosree project and certain other portions are occupied by four outsiders. There is not an iota of evidence to prove that the assignee or her successor-in-interest has ever occupied or cultivated the parcel of land said to have been assigned from river poramboke. The rules for the conduct of resurvey does not permit the creation of a subdivision with fictitious boundaries from the river poramboke in favour of a person having no possession. In the circumstances the request of the petitioner is rejected. The Ext. P7 petition is disposed of accordingly.” The petitioner is challenging the same. 2. The petitioner submits that the reasons stated in the same are totally perverse. According to the petitioner, the fact that land tax was not paid and the property was not actually occupied are no reasons to deny the petitioner and his brothers and sisters title to the property insofar as admittedly the property was assigned in favour of the petitioner's mother. It is also submitted that simply because somebody else has encroached in the property is also no reason to deny title to the petitioner and his siblings. The petitioner therefore seeks the following reliefs: “i. Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext. P 12; ii Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to make necessary corrections in the resurvey records in respect of the 43.500 cents of land in Sy. No. 845/8 in Mulavukadu Village showing the petitioner's mother as the Thandaper holder and the petitioner and other legal heirs of the deceased mother as the present owners and occupants of the said property; iii. Issue a writ of mandamus or any other appropriate writ, order or direction directing the first respondent to acquire whatever extent of land held by the petitioner and other legal heirs O.P No. 4059/02 -: 3 :- of their deceased mother comprised in Sy. No. 845/8 of Mulavukadu village, for the purpose of the Goshree Project, by including the said property in the notification issued by him, by issuing an erratum notification.” 3. I have heard the learned Government Pleader also. The learned Government Pleader reiterates what has been stated in Ext. P12 order. 4. I have considered the rival contentions in detail. 5. As is clear from Ext. P12 order itself, admittedly, the property in question was assigned in favour of the petitioner's mother. That property has been included in Thandaper No. 715 in the name of the petitioner's mother. Therefore, the title of the petitioner and his siblings in respect of the property is clearly admitted. Once that is admitted, the other reasons mentioned in Ext. P12 order cannot be held against the petitioner and his siblings to deny their title to the property. Accordingly, Ext. P 12 order is quashed. The 2nd respondent is directed to re-consider the matter in the light of the findings herein. Consequential orders shall be passed as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. Sd/- S. Siri Jagan, Judge. Tds/ O.P No. 4059/02 -: 4 :-