IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 WP(C).No. 9603 of 2005(R) PETITIONER(S): SECRETARY, ARAYANCODU GRAMA PANCHAYATH. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): 1. DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM. 2. REVENUE DIVISIONAL OFFICER, OFFICE OF REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM. 3. ASSISTANT DIRECTOR OF SURVEY, OFFICE OF ASSISTANT DIRECTOR OF SURVEY, NEYYATTINKARA. 4. SUPERINTENDENT OF SURVEY, OFFICE OF SUPERINTENDENT OF SURVEY, NEYYATTINKARA. 5. TALUK SURVEYOR, TALUK OFFICE, NEYYATTINKARA. 6. VILLAGE OFFICER, KEEZHAROOR. 7. TAHSILDAR, TALUK OFFICE, NEYYATTINKARA. 8. ISSAC THOMAS, ERUMETTU VEEDU, EDAVAL DESOM, KEEZHAROOR VILLAGE. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R8 GOVT. PLEADER SRI.M.R. SABU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 9603/2005. ----------------------------------------------------------------- EXT.P1 TRUE COPY OF JUDGMENT DT. 9-6-2003 IN O.S.721/98 OF PRINCIPAL MUNSIFF, NEYYATTINKARA. EXT.P2 DECREE DT. 9-6-2003 IN DO. DO. EXT.P3 NOTICE DT. 19-10-2004. EXT.P4 COMPLAINT DT. 7-10-2004. EXT.P5 INTIMATION DT. 13-10-2004. EXT.P6 NOTICE DT. 19-11-2004. EXT.P7 NOTICE DT. 23-12-2004. EXT.P8 COMPLAINT DT. 16-4-2007. EXT.P9 COMPLAINT DT. 16-4-2007. EXT.P10 FIR DT. 17-4-2007 EXT.P11 STATEMENT DT. 24-4-2007. RESPONDENTS' EXHIBITS: ------------------------------------ EXT.R8(a) ORDER DT. 27-5-2004. EXT.R8(b) LETTER DT. 8-8-2004. EXT.R8(c) RECEIPT DT. 20-1-1995. EXT.R8(d) RECEIPT DT. 5-6-2004. EXT.R8(e) NOTICE DT. 11-11-2003. EXT.R8(f) RELEVANT PAGE OF SETTLEMENT REGISTER. EXT.R8(g) PARTITION DEED. EXT.P8(h) LETTER DT. 26-4-2007. EXT.R8(i) TRUE COPY OF OBJECTION OF R4. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 9603 of 2005 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 28th November, 2008. J U D G M E N T The petitioner is a Panchayat. Their contention in the writ petition are as follows: 2. The father of the 8th respondent obtained by way of assignment under the Kerala Land Reforms Act, 1.34 acres of land in survey no. 202/7A. On the northern and eastern boundaries of the said property, there was a river puramboke vested in the Panchayat extending to 8.14 acres. The father of the 8th respondent sold 1.28 acres to different persons under various sale deeds leaving a balance of 6 cents only out of the 1.34 acres obtained by him under the Kerala Land Reforms Act. However, he executed a settlement deed in favour of the 8th respondent settling 58½ cents in the said survey number. Thereafter, the resurvey authorities measured the property, but included the river puramboke also in the properties of the 8th respondent. That was objected to by the the petitioner. The matter was taken before the survey adalath and pursuant to the orders of the survey adalath, a rectification order 55/96 was passed and a final plan was prepared on 30-12-1996. Against the same, the 8th respondent filed O.S.No. 721/1998, before the Munsiff's Court, Neyyattinkara, which was dismissed by Ext. P1 judgment. Ext. P2 is the decree in that suit. Thereafter, the 8th respondent is stated to have filed an application before the 4th respondent for re-fixation of the boundaries of the 8th respondent 's property. A re-fixation order was passed allegedly without notice to the petitioner. Pursuant to the same, Ext. R8(a) order was passed on 27-5-2004. The 8th respondent also obtained mutation in respect of the said properties behind the back of the petitioner. The petitioner is stated to have come to know about the proceedings only when the 8th respondent tried to cut an Anjili tree standing in the river puramboke. Accordingly, Ext. P4 complaint W.P.C. No. 9603/2005 -: 2 :- was filed before the 1st respondent with copy to the 3rd respondent . Pursuant to the same, the 3rd respondent gave Ext. P6 notice for a site inspection on 26-11-2004. On that day, no inspection was conducted. Later on, when the petitioner contacted the 3rd respondent he was directed to be present along with documents on 3-1-2005. On 3-1- 2005, when the Panchayat approached the 3rd respondent they were informed that further notice would be issued in that regard. It is since nothing happened even thereafter, the petitioner has approached this Court seeking the following reliefs: “i) To issue a writ of mandamus or any other appropriate writ, order or direction to 3rd and 4th respondents to complete the proceedings initiated in pursuance to Exhibit P4 to determine the disputed boundaries within such time fixed by this Hon'ble Court; ii) To issue a writ of mandamus or any other appropriate writ, order or direction to respondents 1 to 7 not to permit respondent No. 8 to cut and remove Anjali tree deriving authority under Order dated 27-5-2004 refixing the boundaries. iii) To issue a writ of mandamus or any other appropriate writ, order or direction to 7th respondent to treat the transfer of registry of property of 8th respondent comprised in Old Survey No. 202/7A of Kezharoor Village as a contested case and enquire and dispose off with notice to the petitioner.” 2. A counter affidavit and an additional counter affidavit have been filed by the 8th respondent. He relies on Ext. R8(a) order stated to have been passed pursuant to his application for re-fixation of boundaries. He would submit that the petitioner cannot feign ignorance about the proceedings since Ext. R8(e) notice was issued to the petitioner as early as on 11-11-2003. The 8th respondent would submit that in so far as the the petitioner has not challenged Ext. R8 (a), the writ petition is not maintainable. 3. I have considered the rival contentions in detail. 4. The 8th respondent does not dispute that a rectification order was passed and a final plan in respect of the properties were prepared W.P.C. No. 9603/2005 -: 3 :- on 30-12-1996 . Section 13 of the Survey and Boundaries Act provides thus: “13. Completion of demarcation to be notified:- When the survey of any land or boundary which has been notified under Section 4 or ordered under Section 5 has been completed in accordance with the orders passed under Section 9, Section 10 or Section 11, the Survey Officer shall notify the fact in the Gazette, and a copy of such notification shall be posted in the village office, if any, of the village to which the survey relates. Unless the survey so notified is modified by a decree of a Civil Court under the provisions of Section 14, the record of the survey shall be conclusive proof that the boundaries determined and recorded therein have been correctly determined and recorded.” (Emphasis supplied) The 8th respondent had in fact filed a suit under Section 14 of the Survey and Boundaries Act, which was dismissed by Ext. P1 judgment and Ext. P2 decree. That being so, the 8th respondent could not have got the boundaries re-determined against the final plan prepared on 30-12-1996. For enabling him to get the boundaries re- fixed, the 8th respondent relies on a casual observation of the civil court in Ext. P1 judgment contained in the second of the two paragraphs numbered as 9, wherein it is stated thus: In this circumstances, if the boundaries that separates survey nos. 203/1 and 202/7A is properly located the dispute can be resolved.” The 8th respondent also relies on the observation in paragraph 12 to the effect that it appears that A3 order is not fully correct. Those two observations are merely casual observations and not a specific finding. No relief is also granted to the 8th respondent on that basis. That being so, when the suit itself was dismissed, the 8th respondent would not get any right based on those observations, especially when the final plan prepared on 30-12-1996 has become final the challenge against which was dismissed by the civil court in Ext. P1 judgment. Therefore, all proceedings taken by the 4th respondent for changing W.P.C. No. 9603/2005 -: 4 :- the final plan prepared on 30-12-1996, which has become final on dismissal of the 8th respondent's suit by Ext. P1 judgment, is totally illegal and unsustainable. Ext. R8(a) passed by the 4th respondent against the final plan is therefore not only null and void and non est in so far as the same is against Ext. P1 judgment and Ext. P2 decree, which upholds the final plan dated 30-12-1996. Ext. R8(a) has the effect of nullifying Exts.P 1 and P2 which cannot be permitted under law. Therefore, even if the petitioner has received Ext. R8(e) notice, no right can devolve on the 8th respondent on the basis of Ext. R8(e). Further, Ext. R8(e) is only a notice for measurement and before passing Ext. R8(a) order, the petitioner ought to have been put on notice. Further, Section 13 of the Survey and Boundaries Act is intended for the purpose of giving finality to the proceedings under the Act and therefore the same cannot be allowed to be re-opened, which if permitted would be against the purpose of Section 13. Accordingly, it is declared that all further proceedings contrary to the final plan prepared on 30-12-1996 in respect of the said properties are non est. In the above circumstances, respondents 3 and 4 are directed to complete the proceedings pursuant to Ext. P4, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment, in accordance with the above findings. . The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/