IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 WP(C).No. 11003 of 2009(U) -------------------------- PETITIONER(S): --------------- 1. ANILKUMAR, S/O.KARUNAKARAN, AGED 53 YEARS, SREEVILASAM, AMBALAKKARA HOUSE, KIZHAKKEKARA, KOTTARAKKARA, KOLLAM. 2. BAIJU K., SREEVILASAM, AMBALAKKARA BUNGLOW, THRIKKANANMANGAL, KOTTARAKKARA, KOLLAM. BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENT(S): --------------- 1. DISTRICT COLLECTOR, KOLLAM. 2. DEPUTY DIRECTOR OF SURVEY AND LAND RECORDS, KOLLAM. 3. TAHSILDAR, KOTTARAKKARA. 4. ADDL.TAHSILDAR, KOTTARAKKARA. 5. DIRECTOR OF SURVEY AND LAND RECORDS DIRECTORATE, THIRUVANANTHAPURAM. 6. DISTRICT SUPERINTENDENT OF SURVEY, KOLLAM. MS.K.R.DEEPA, GOVERNMENT PLEADER MR.M.P.ASOK KUMAR, FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2010, ALONG WITH WP(C) NO.8983/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.11003/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF SALE DEED DATED 14/08/1995. P2 : COPY OF LETTER DATED 29/07/1998. P3 : COPY OF REPORT DATED 19/02/1999. P3(a) : COPY OF LOCATION SKETCH. P4 : COPY OF NOTICE NO.B2:13900/2007 DATED 26/05/2007. P5 : COPY OF NOTICE NO.B2:13900/2007 DATED 26/05/2007. P6 : COPY OF ORDER IN WP(C) NO.16450/2007 DATED 07/06/2007. P7 : COPY OF JUDGMENT IN WP(C) NO.16450/2007 DATED 01/08/2007. P8 : COPY OF PROCEEDINGS OF THE DISTRICT COLLECTOR. P9 : COPY OF ORDER OF THE DISTRICT SUPERINTENDENT OF SURVEY ALONG WITH THE SKETCH AND ACCOMPANIMENTS. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------ WP(C) Nos.11003 of 2009 (U) & 8983 of 2010 (W) -------------------------- Dated, this the 31st day of March, 2010 J U D G M E N T WP(C) No.11003/2009 The petitioners submit that by Ext.P1 sale deed executed on 14/08/1995, they purchased an extent of 2.22 ares of land in survey No.78/16 (R.S.No.141/27) of Kottarakkara Village. They applied for mutation. But however that was not allowed on the allegation that the property is a thodu puramboke. They made a complaint to the District Collector in February, 1999. That was forwarded to the Tahsildar for report. Ext.P3 is the report of the Tahsildar, which suggests that in the resurvey, a portion of the petitioners' property was mistakenly included in the thodu puramboke. It was also recommended to rectify the mistake. 2. While the matter was thus pending consideration of the District Collector, the petitioners' were allegedly threatened with eviction by Exts.P4 & P5 notices issued under the Kerala Land Conservancy Act. That made them to file a writ petition before this WP(C) No.11003/2009 & 8983/2010 -2- Court as WP(C) No.16450/07, in which, by Ext.P6 order, further proceedings pursuant to Exts.P4 & P5 were stayed. Finally, the writ petition was disposed of by Ext.P7 judgment dated 01/08/2007 directing that Exts.P4 & P5 will be treated as notice, and that the petitioners will file their objections and that the matter will be considered by the District Collector with notice to the parties. It was also directed that while considering the matter as above, the District Collector shall duly advert to Ext.P3 report of the Tahsildar. 3. In compliance with the directions in Ext.P7 judgment, the District Collector heard the parties on 20/09/2007. The Deputy Director of Survey submitted his report dated 23/10/2007, and thereafter on 01/01/2008 yet another report was submitted by the District Survey Superintendent. After receipt of these reports, the District Collector did not hear the parties. Taking these reports also into account, the Collector passed Ext.P8 order dated 31/01/2008. In that order, the District Collector accepted that there is a mistake in the resurvey and that there has been increase in the extent of the thodu puramboke. On this basis, the District Collector held that rectification is warranted. 4. Accordingly the matter was forwarded to the Deputy WP(C) No.11003/2009 & 8983/2010 -3- Director Resurvey, who in turn, forwarded the matter to the District Survey Superintendent. The District Survey Superintendent issued Ext.P9 proceedings dated 19/03/2008. In Ext.P9 proceedings, the District Survey Superintendent found that the thodu puramboke is situated in Resurvey No.141/19 and that the actual extent of land available in that survey number was 0.6970 hectors. Proceeding further, it was held that going by the survey records, the extent of the land in Survey No.141/19 ought to have been only 0.6860 hectors. On this basis, it was ordered that an extent of 0.0110 hectors, being the excess available, will be added to the petitioners' property in Resurvey No.141/27. The petitioners complain that in the process, there has been reduction of considerable extent of their property, which they had purchased by Ext.P1 and it is with this grievance, WP(C) No.11003/2009 is filed. 5. It is also pointed out that while the aforesaid controversy was thus alive, in 1998, the petitioners obtained a building permit from the Kottarakkara Grama Panchayat and constructed a hotel building. Construction was completed and thereupon they applied to the Panchayat to assign number to the building. However, in view of the controversy regarding the extent of the property, which WP(C) No.11003/2009 & 8983/2010 -4- was remaining unsettled, the Panchayat did not number the building and deferred the matter. That led the petitioners to file WP(C) No.8983/2010. 6. The issue that arises for consideration in WP(C) No.11003/2009 is the correctness of Ext.P9 order passed by the District Survey Superintendent. By this order, as against the claim of the petitioners that they are entitled to be restored a larger extent of land, the District Survey Superintendent has ordered restoration of 0.0110 hectors of land only. This view has been taken on the basis that in Resurvey No.141/19, there is only 0.0110 hectors in excess. Therefore if any more land is to be given to the petitioners, there will be proportionate reduction in the thodu puramboke. This view has been taken apparently based on the inspection reports of District Head Surveyor and District Survey Superintendent. 7. A reading of Ext.P8, the District Collector's order, shows the impression that the District Collector has not specified the actual extent of the land, which the petitioners are entitled to. The order does not even say what should the actual extent of land in the thodu puramboku in Resurvey No.141/19 and the excess extent included in the said re-survey number. It is apparently because of WP(C) No.11003/2009 & 8983/2010 -5- this ambiguity that the District Survey Superintendent had to determine the actual extent in Survey No.141/19, and the excess extent which is to be added to the petitioners' resurvey number. 8. In my view, since in Ext.P7 judgment, the District Collector was directed to consider the claim of the petitioners and pass final orders in the matter, actual extent of land available in survey No.141/19, and the extent of land which ought to have been retained in that survey number, and to be restored to the petitioners resurvey number, are matters which ought to have been considered and determined by the District Collector himself. Despite having obtained reports from different authorities, this has not been done. For that reason, I am inclined to direct the District Collector to consider the matter afresh with notice to the parties and pass fresh orders on the claim of the petitioners. 9. Therefore, I dispose of the writ petition with the following directions :- That it will be open to the petitioners to file an appropriate representation before the District Collector along with a copy of this judgment, in which event, the District Collector shall consider the claim of the petitioners, and pass appropriate orders in the matter WP(C) No.11003/2009 & 8983/2010 -6- as directed in Ext.P7 judgment. This shall be done with notice to respondents 2 & 3 as well. Orders shall be passed as expeditiously as possible, at any rate, within one month of production of a copy of this judgment. It is made clear that it will be open to the District Collector to obtain further reports or rely on the reports that are already available. In so far as WP(C) No.8983/2010 is concerned, numbering of the building sought for by the petitioners, can only be done after orders are passed in pursuance to the directions in the judgment in WP(C) No.11003/2009. Therefore, once orders are passed by the District Collector, and the controversy regarding the extent of the property of the petitioners is resolved, depending upon the nature of the order, it will be open to the petitioners to move the Panchayat afresh, in which event, the Panchayat will consider the matter and take necessary action on the application made by the petitioners for numbering their building. These writ petitions are disposed of as above. (ANTONY DOMINIC, JUDGE) jg