IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 WP(C).No. 17907 of 2007(F) ------------------------------------- PETITIONER(S): ------------------------ 1. KURIAN, S/O. THOMAS, AGED 73 YEARS, PADAVIL HOUSE, KONGINIPADAM, KATTAPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 2. GRACY KUTTY, W/O. KURIAN, AGED 61 YEARS PADAVIL HOUSE, KONGINIPADAM, KATTAPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. MR.VINOD RAVINDRANATH RESPONDENT(S): ------------------------- 1. THE KATTAPANA GRAMA PANCHAYAT, KATTAPANA, IDUKKI DISTRICT, REPRESENTED BY THE SECRETARY. 2. THE TAHSILDAR, TALUK OFFICE, UDUMBANCHOLA, IDUKKI DISTRICT. R1 BY ADVS.MR.K.K.CHANDRAN PILLAI , MR.A.S.SAJUSH PAUL. R2 BY GOVT. PLEADER MR.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.17907/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMMUNICATED DTD. 5.11.04 OF THE DY. SECRETARY, LOCAL SELF GOVT. DEPARTMENT. P2:- COPY OF THE AGREEMENT DTD. 5.3.04 WITH A SKETCH OF THE FORMATION OF 3 METERS WIDTH ROAD. P3:- COPY OF THE ORDER DTD. 9.6.05 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. P4:- COPY OF THE NOTICE DTD. 19.8.05 GIVEN BY THE SUB INSPECTOR OF POLICE, KATTAPANA TO THE PETITIONER. P5:- COPY OF THE ORDER DTD. 5.7.05 OF THE IST RESPONDENT PANCHAYATH. P6:- COPY OF THE JUDGMENT DTD. 21.3.06 IN WPC. NO.26571/05. P7:- COPY OF THE ORDER OF THE TRIBUNAL DTD. 10.8.06 IN APPEAL NO.173/06. P8:- COPY OF THE ORDER DTD. 19.1.07 IN APPEAL NO.428/06 OF THE TRIBUNAL FOR LOCAL SELF GOVT. INSTITUTIONS, THIRUVANANTHAPURAM. P9:- COPY OF THE PLAN PREPARED BY THE REVENUE DIVISIONAL OFFICER REFERRED AS EXT.P4 IN EXT.P8 ORDER. P10:- COPY OF THE LETTER DTD. 11.4.07 OF THE 2ND RESPONDENT. P11:- COPY OF THE COMPLAINT DTD. 29.8.07 SUBMITTED BY THE IST PETITIONER BEFORE THE SUB INSPECTOR OF POLICE, KATTAPANA. P12:- COPY OF THE RECEIPT OF COMPLAINT DTD. 29.8.07 ISSUED BY THE SUB INSPECTOR OF POLICE, KATTAPANA TO THE IST PETITIONER. P13:- COPY OF THE PHOTOGRAPHS SHOWING THE ILLEGAL CONSTRUCTION MADE BY THE IST RESPONDENT IN MY PROPERTY. P14:- COPY OF THE PROCEECINTS OF THE TAHSILDAR UDUMANCHOLA DTD. 22.2.06. P15:- COPY OF THE ROAD REGISTER OF THE IST RESPONDENT MAINTAINED FOR THE YEAR 1969-70. W.P.(C)NO.17907/2007 RESPONDENT'S EXHIBITS R1(a):- COPY OF THE SKETCH PREPARED BY THE REVENUE DIVISIONAL OFFICER DURING 1967. R1(b):- COPY OF THE SKETCH PREPARED IN 1988 BY THE TALUK SURVEYOR. R1(c):- COPY OF THE AN UN- REGISTERED DOCUMENT DTD. 11.5.01 PRODUCED BY THE PETITIONER BEFORE THE GRAMA PANCHAYATH. R1(d):- COPY OF THE CONSENT OF 2ND PETITIONER GIVEN TO THE IST PETITIONER. R1(e):- COPY OF THEDOCUMENT NO.4255/2000 DTD. 12./12.2000 OF TE KATTAPANA SUB-REGISTRY OFFICE. R1(f):- COPY OF THE DOCUMENT NO.4254/2000 DTD. 12.12.2000 OF THE KATTAPANA SUB-REGISTRY OFFICE. R1(g):- COPY OF THE APPLICATION DTD. 7.12.01 SUBMITTED BY THE PETITIONER ALONG WITH ONE SRI.M.C. THOMAS. R1(h):- COPY OF THE ORDER DTD. 19.4.02 ISSUED BY THE THEN SECRTARY OF THE GRAMA PANCHAYAT. R1(i):- COPY OF THE APPLICATION DT.D 4.3.05 SUBMITTED BY THE PETITIONERS. R1(j):- COPY OF THE RESOLUTION NO.IV(10) DTD. 15.2.07 PASSED BY THE PANCHAYAT COMMITTEE. R1(k):- COPY OF THE LETTER DTD. 20..07 ADDRESSED TO THE PETITIONER FROM THE GRAMA PANCHAYAT. R2(a):- COPY OF THE REPORT DTD. 11.4.07 BY THE TALUK SURVEYOR TO THE 2ND RESPONDENT. TRUE COPY P.A. TO JUDGE tss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.17907 OF 2007 ------------------------------------------- Dated this the 24th day of August, 2009 JUDGMENT 1.The petitioners seek directions on the strength of an order issued by the Tribunal for Local Self Government Institutions. 2.The petitioners applied for building permit. Later, certain decisions were taken by the first respondent Panchayat interfering with that construction activity. The premise for such action appears to be a dispute between the Panchayat and the petitioners as to the identity of an item of property, over which, the Panchayat is carrying on certain constructions. The constructions being made by the Panchayat were so made subject to the result of this writ petition, by an interim order issued in this case. Later, the Panchayat were also reminded by this Court as per a later order that if they ultimately looses the case, they may be liable to pull down the portion of the structure that were being erected encroaching into the piece WPC.17907/07 Page numbers of land which the petitioners call as belonging to them. Obviously therefore, the ultimate issue is regarding the identity of a property. The Tribunal had also apparently noticed this issue. That is why directions were issued to have survey identification. The fact of the matter remains that the Tahsildar of Udumbanchola had not been able to complete the survey. I say this in the light of the report, which is not on record, stating that the parties, though were present, did not sign the mahazars being drawn up at the time of being surveyed. The decision of the survey authority cannot be thrust upon the parties, either it be a Panchayat or a citizen. They have remedies against the decision of survey authorities. Equally, it has to be remembered that on questions relating to title to property, the decisions of the civil court will override and prevail over the decision of survey authorities. Having noticed that the core issue relates to title and identification and because the lis between the parties could get crystallised only on completion of survey, it is ordered that the second respondent will carry out the survey operations at the earliest. WPC.17907/07 Page numbers The petitioners and the Panchayat will mark their appearance before the second respondent on 30.9.2009 for the aforesaid purpose. The decision of that survey need not be under the signature or concurrence of the parties. They have to be notified of the survey. If either the Panchayat or the petitioners feel aggrieved by the result of that survey, it will be open to either among them, to seek appropriate relief before the superior authorities dealing with survey and land records as also seek relief from civil court. The order of the Tribunal to re-consider the issue demitted for consideration to the Panchayat would thus be dependent on the result of the aforesaid procedure. The survey authorities will take into consideration the submissions of both sides relating to the identity of the document, on the basis of which, the survey has to be conducted. To enable that, the parties will be given an opportunity of hearing at the first instance before conducting the survey. All other issues are left open. All relevant Government records, including the counter affidavit of the WPC.17907/07 Page numbers second respondent, would also be adverted to since it appears that the Panchayat got the property from the Government. The writ petition is disposed of with the above directions. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.27/8.