Remanded

V.K Abraham v. the District Collector

Kerala HC7 Dec 2016WP(C)/9870/2015

Case brief

AI extract

What is this about?

A landowner challenged refusal to survey and demarcate land restored from forest vesting. The court quashed the rejection and remitted the matter, directing a survey of the 5.3396 hectares covered by the title deed within four months, with notice and a survey sketch. Claims concerning additional land were left open.

What did the court decide?

Rejection order quashed; matter remitted for fresh action and survey of 5.3396 hectares within four months of production of a certified judgment copy, with notice and issuance of a survey sketch.

V.K Abraham Vs the District Collector — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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WEDNESDAY, THE 7TH DAY OF DECEMBER 2016/16TH AGRAHAYANA, 1938

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WP(C).No. 9870 of 2015 (G)

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PETITIONER:

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V.K ABRAHAM, VALIYAVEETTIL PADICKAMALLIL HOUSE, VALLAMKULAM P.O., THIRUVALLA, PATHANAMTHITTA.

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BY ADV. SRI.V.K.ABRAHAM (PARTY-IN-PERSON)

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RESPONDENT(S)/RESPONDENTS:

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1. THE DISTRICT COLLECTOR, PALAKKAD - 678 001.

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2. THE TAHSILDAR, TALUK OFFICE, CHITTOOR P.O., PALAKKAD - 678 002.

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3. THE VILLAGE OFFICER, PALLASANA VILLAGE OFFICE, PALAKKAD - 678 008.

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4. THE DISTRICT SURVEY SUPERINTENDENT, PALAKKAD - 678 001.

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5. THE DIVISIONAL FOREST OFFICER, NENMARA, PALAKKAD - 678 508.

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BY SRI.SANDESH RAJA.K. SPECIAL GOVT. PLEADER (FOREST)

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SRI.K.J.MOHAMMED ANSAR, SPECIAL GOVT. PLEADER (REVENUE) SRI.V.M.SYAM KUMAR(AMICUS CURIAE)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 9870 of 2015 (G)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXT.P1:	TRUE COPY OF THE DOCUMENT NO. 2394/2006 OF KOLLANKODU SRO DATED 11/08/2006.
EXT.P2:	TRUE COPY OF THE DOCUMENT NO. 3388/2006 OF KOLLANKODU SRO DATED 08/12/2006.
EXT.P3:	TRUE COPY OF THE PETITION FILED BEFORE THE 2ND RESPONDENT ON 26/09/2011.
EXT.P4:	TRUE COPY OF THE ORDER PASSED BY 2ND RESPONDENT DATED 07/10/2011.
EXT.P5:	TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 16/11/2011.
EXT.P6:	TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 06/06/2012.
EXT.P7:	TRUE COPY OF THE APPLICATION FILED BY PETITIONER BEFORE THE 1ST RESPONDENT DATED 05/02/2013.
EXT.P8:	TRUE COPY OF THE JUDGMENT IN WPC.NO. 150/2014 OF THIS HON'BLE COURT DATED 08/01/2014.
EXT.P9:	TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR DATED 27/08/2014.
EXT.P10:	TRUE COPY OF THE ORDER ISSUED BY 1ST RESPONDENT DATED 24/10/2014.
EXT.P11:	TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT ISSUED TO THE PREDECESSOR OF INTEREST OF THE PETITIONER DATED 18/02/1992.
EXT.P12:	TRUE COPY OF THE PERIPHERY SKETCH ISSUED TO PREDECESSOR OF INTEREST OF THE PETITIONER 06/07/1990.
EXT.P13:	TRUE COPY OF THE JUDGMENT IN WP.NO.22870/2007 DATED 24/10/2007.
EXT.P14:	TRUE COPY OF THE ORDER PASSED BY THE FOREST TRIBUNAL, PALAKKAD IN OA NO. 138/76 DATED 14/06/1979.
EXT.P15:	A TRUE COPY OF THE JUDGMENT DATED 24.10.2007 OF THE HONOURABLE HIGH COURT.

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WP(C).No. 9870 of 2015 (G)

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EXT.P16: A TRUE COPY OF THE LETTER ISSUED BY THE CHIEF FOREST CONSERVATOR, EASTERN CIRCLE, PALAKKAD.

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EXT.P17: A TRUE COPY OF THE LETTER ISSUED BY THE ASSISTANT DIRECTOR, FOREST MINI SURVEY TO THE SURVEYS SUPTD.

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EXT.P18: TRUE PHOTOCOPY OF THE FIELD MAP ISSUED BY HE VILLAGE OFFICER OF FIELD NO.326 DATED 11.1.2016.

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RESPONDENT(S)' EXHIBITS: NIL

//TRUE COPY//

P.S. TO JUDGE

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ALEXANDER THOMAS, J.

W.P(C).No.9870 Of 2015

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Dated this the 7th day of December, 2016.

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J U D G M E N T

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The core subject matter of the Writ Petition is for the conduct of a proper survey of the petitioner's property covered by Ext.P-1 for identifying and demarcating the property covered by Ext.P-1 title deed (part of which was conveyed subsequently by him to his wife as per Ext.P-2) and Ext.P-12 periphery sketch by the forest authorities after giving due notice to the owners of neighbouring properties. A prayer is also made for a writ of certiorari to quash the impugned Ext.P-10 proceedings dated 24.10.2014 passed by the District Collector, Palakkad, consequent to a similar direction sought by the petitioner in an earlier round of writ litigation as per Ext.P-8 judgment. The major part of prayer No.(ii) is covered by prayer No.(i) except the aspect regarding the alleged ownership and possession rights of the petitioner in respect of 0.4900 hectares of property which is stated to be in the ownership of he petitioner's predecessor-in-interest, one Sri.Krishnankutty Mannadiar. It is not clear from a reading of prayer

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No.(ii) as to whether the said 0.4900 hectares of land, which is stated to be in the ownership of Sri.Krishnankutty Mannadiar, form part of the total extent of the land covered by Ext.P-1 title deed or whether it is in addition to the total extent of the land covered by Ext.P-1. The pleadings and materials on record disclose that the total extent of land covered by Ext.P-1 sale deed No.2394/2006 executed and registered on 11.8.2006 before the SRO, Kollengode, comes to 4.5140 hectares + 0.8256 hectares, thus totalling to 5.3396 hectares of land in survey numbers mentioned therein. The said extent of land forming part of the slightly larger extent of 14.82 acres of land (5.99 hectares) belonging to one Krishnankutty Mannadiar, S/o.Nani Amma, was the subject matter of O.A.No.138/1976 on the file of the Forest Tribunal, Palakkad. It appears that the said property belonging to Krishnankutty Mannadiar was private forest as envisaged in the Kerala Private Forest (Vesting and Assignment) Act, 1971, and the lands were notified to be vested with the State Government in terms of Sec.3(1) of the Act. The said land owner made application under Sec.8 of the Act, claiming that the said land is liable to be excluded from the said vesting process in terms of the mandatory provisions contained in Secs.3(2) & 3(3) thereof inasmuch as the said land was either under the actual personal

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cultivation or intended personal cultivation of the land owner and in that regard, the above O.A was instituted before the Forest Tribunal, Palakkad. The said Tribunal as per Ext.P-14 judgment dated 14.6.1979, allowed the said plea of the land owner and granted exclusion from the vesting process as per Secs.3(2) & 3(3) of the said Act and the total extent of land in respect of the decree of the Forest Tribunal, Palakkad, as per Ext.P-14(3) comes to 14.82 acres. Ext.P-14 judgment of the Forest Tribunal, Palakkad, in O.A.No.138/1976, was affirmed by a Division Bench of this Court as per judgment dated 28.9.1984 in M.F.A.No.451/1979. In compliance with the said judgment, the Government had restored the said land to the land owner on 18.2.1992 as per the direction issued by the State Government in proceedings No.8702/E2/89/F&WLD dated 27.6.1989. Thereafter the land, which was the subject matter of the O.A, was actually restored to Krishnankutty Mannadiar, as per Ext.P-11 proceedings dated 18.2.1992 in which it is stated that though the total extent of the land claimed in the O.A comes to 14.82 acres, the actual land that is available for restoration comes only to 4.5140 hectares comprised in Sy.No.299F5 Pt and 0.8260 hectares comprised in Sy.No.329C3 Pt., thus totalling to 5.34 hectares (4.5140 + 0.8260 = 5.3400). The land owner

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has also signed and accepted Ext.P-11 kychit receipt dated 18.2.1992 by which it is clearly stated that the actual area of the land restored to him comes to 5.34 hectares. Ext.P-12 is the periphery sketch of the area of the restored land, prepared by the forest authorities, along with Ext.P-11 kychit. Thereafter, it appears that Krishnankutty Mannadiar had conveyed the said land coming to 4.5140 hectares of land and additional extent of 0.8256 hectares of land, thus totalling to 5.3396 hectares to one Sri.Venugopal as per sale deed dated 20.1.1994 [which has been produced as Ext.P-9 in W.P.(C).No.22870/2007 which culminated in Ext.P-13/Ext.P-16 judgments]. Later, the said Venugopal had conveyed the said 5.3396 hectares of land to the petitioner herein and one Sri.M.K.Narayanan, as per sale deed dated 7.7.2005 [which has

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been produced as Ext.P-10 in the above referred W.P.(C). No.22870/2007]. Thus, it is stated that the petitioner herein and the said M.K.Narayanan, had ownership and possession rights over the said property as co-owners. It is later that the said co-owner, M.K.Narayanan, has conveyed his co-ownership rights in respect of the total extent of land coming to 5.3396 hectares as per Ext.P-1 sale deed No.2394/2006 executed and registered on 11.8.2006 before the SRO, Kollengode. It is also relevant to note that from and out of the said

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5.3396 hectares of land, which was owned and possessed by the petitioner, he had conveyed 2.0235 hectares forming part of the said land, to his wife Smt.Valsamma Abraham, as per Ext.P-2 sale deed No.3388/2006 executed and registered on 8.12.2006 before the SRO, Kollengode. It is seen from Ext.P-5 dated 18.8.2005 [produced in connected W.P.(C).No.28425/2014 filed by the petitioner] that possession certificate for the said total extent of land coming to 5.3396 covered by Ext.P-1 was issued to the petitioner and the previous coowner Sri.M.K.Narayanan, by the Village Officer, Pallassana. It is further seen from Exts.P-3 & P-4 produced in the above referred W.P.(C).No.28425/2014 that land tax was accepted from the petitioner for a total extent of land coming to 3.3021 hectares (comprising of 0.0250 hectares in Sy.No.113/1 + 2.4515 hectares in Sy.No.113/4 + 0.8256 hectares in Sy.No.76/21) from the petitioner and that land tax was accepted for 2.0235 hectares of land in Sy.No.113/4 from the petitioner's wife (which land appears to be in relation to Ext.P-2 title deed). The said Exts.P-3 & P-4 [produced in W.P.(C).No.28425/2014] are seen issued on 19.6.2013 by the Village Officer, Pallassana. It

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appears that pursuant to the direction issued in Ext.P-13/P-16 judgment dated 24.10.2007 in W.P.(C).No.22870/2007, the Village

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Officer concerned appears to have issued possession certificate dated 22.11.2007 [produced as Ext.P-6 in the above referred W.P.(C). No.28425/2014] in respect of 2.0235 hectares of land to the petitioner's wife (which appears to be in relation to Ext.P-2 sale deed) and the said extent of land is shown as lying in old Sy.No.299F/5 and resurvey number as 113/3. It appears that some disputes regarding the proper identification of the entire extent of land covered by Ext.P-1 were in existence between the petitioner and official respondents which led to the petitioner's institution of W.P.(C).No.23105/2010 in which this Court had passed judgment dated 18.1.2011 which reads as follows:

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“Petitioner is the owner of 5.34 hectors of land in Pallasana Village, Palakkad District. It appears that before the purchase, on implementation of the Kerala Private Forest Vesting and Assignment Act, 1971, the land including the property purchased by the petitioner, which originally belonged to one Krishnankutty Mannadiyar was treated as vested forest. By its order in O.A.No.138/1976, the Forest Tribunal Palakkad held the land exempted from vesting and that order was upheld by this court in its judgment in MFA.No.451/1979. Subsequent to the purchase of the property, petitioner applied for a possession certificate and that was declined. At that stage, he approached this court by filing WP(c).No.22870/2007. That writ petition was disposed of by Ext.P5 judgment . A reading of that judgment shows that according to the respondents petitioner had possessed 5.0040 hectors of land in Sy. No.113/3. The respondents also had conceded that after the judgment of the Forest Tribunal and this court, the land was restored to the original owner. On that basis the possession certificate was ordered to be given. According to the petitioner subsequent to the judgment, he made an application for getting the property mutated in his name. Orders have not been passed so far. It would appear from Ext.P10 that the file now has been forwarded to the Tahsildar. It is in these circumstances, complaining of inordinate delay in getting the property mutated, the petitioner approached this court.

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However, referring to Exts.P10 to P11, Government Pleader contends that in the survey records the property is still shown as vested forest and that despite lapse

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of time petitioner has not so far applied for getting the survey records corrected. It is stated that once, the survey records are corrected then only can the petitioner seek mutation of the property.

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From the order passed by the Forest Tribunal which was confirmed by this court and from the contents of Ext.P5, it is obvious that the land is not a vested forest. Therefore, even if there is any difference in the survey records that obviously is an erroneous entry and which has to be corrected.

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Taking note of the submission made by the Government Pleader that the petitioner has not made an application for getting the survey records corrected, it is clarified that it will be an application to the survey authority, in which event necessary order will be passed in the light of what is stated above. It is directed that such orders shall be passed by the competent authority at any rate within 4 weeks from the date of production of a copy of the judgment along with an appropriate application of the petitioner. Once the application is made as above, correction in the survey records disposed of, it will be open to the petitioner to produce a copy of the judgment before the 2nd respondent Tahsildar who shall pass appropriate orders on the application made by the petitioner under the Transfer of Registry Rules for getting the property mutated in his name. Such orders shall be passed at any rate within 4 weeks of production of a copy of the judgment. Petitioner shall produce a copy of the judgment along with a copy of the writ petition before respondents 1 and 2 for compliance.”

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Even after the compliance of the judgment in W.P.(C). No.23105/2010, the petitioner had alleged non-compliance of the said directions and he had instituted C.O.C.No.522/2011 [arising out of W.P. (C).No.23105/2010] in which this Court after considering the affidavits filed by the respondents therein had closed the C.O.C as per judgment dated 23.2.2012 in the following manner:

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“In view of the developments subsequent to the filing of the contempt case, this contempt petition is closed without prejudice to the right of the petitioner to challenge the order passed.”

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Thereafter, it appears that the petitioner had preferred

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Ext.P-7 application dated 5.2.2013 before the 1^st respondent praying for

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appropriate direction for the conduct of a proper survey in terms of the provisions contained in the Kerala Survey and Boundaries Act, 1961, and the rules framed thereunder in respect of the petitioner's property. This Court as per Ext.P-8 judgment dated 8.1.2014 rendered in W.P.(C). No.150/2014 filed by the petitioner, had disposed of the said Writ Petition with a direction to the 1st respondent to pass appropriate orders on the above said Ext.P-7 application, in accordance with law, with due notice to the petitioner and other parties, within 2 weeks from the date of receipt of a copy of the judgment. In the hearing that was conducted in the matter, the petitioner has said to have submitted Ext.P-9 submission note dated 27.8.2014. It also appears that Deputy Director of Survey has submitted report dated 12.3.2014 in the matter and the District Survey Superintendent, Palakkad, had also submitted a report dated 17.6.2014 in the matter which are referred to as items (3) & (4) in Ext.P-10. Thereafter, the 1st respondent District Collector has passed the impugned Ext.P-10 proceedings dated 24.10.2014 rejecting the request of the petitioner in Ext.P-7. It is in the context of the issuance of Ext.P-10 proceedings that the petitioner has instituted the present Writ Petition with the following prayers:

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i) issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents to measure the property as per the boundary

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shown in the sale deed and periphery sketch which are marked as Exhibits P1, P2 and P12 after giving notice to the property owners in the boundary;

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ii) issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents to survey the entire land covered by judgment in OA No.138/76 and demarcate the property covered by Exhibit P1 and P2 which is in the ownership and possession of the petitioner and demarcate 0.4900 which is now in the ownership of Krishnankutty Mannadiar.

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iii) Issue any other appropriate order or direction which this honourable court deems fit and proper in the nature and circumstances of the case.

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iv) Call for the records leading to Ext.P10 order dtd. 24/10/2014 bearing No.LRG6-2011/7989/9 of the 1st respondent and issue a writ of certiorari or any other appropriate writ, order or direction quashing the said Ext.P10 order.”

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The 5th respondent-DFO, Nenmara, has filed counter

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affidavit dated 27.11.2015. The details regarding the O.A proceedings up to the restoration of the land have been stated therein so also certain averments are made regarding the steps taken by the Forest Department to notify the above said property covered by the O.A as per the provisions contained in the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, and that subsequently, yet another proposal was initiated to notify the said land as per Sec.33(1) of the Kerala Forest Act, 1961. It is admitted in the counter affidavit of R-5 that it was found that it is not feasible to go forward with the proceedings under both the said enactments and those proposals have been dropped as against the petitioner's property. Certain other averments are also made regarding the initial prohibition of quarrying

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operation in a portion of the property and the subsequent modification made thereto, that quarrying operations may be done only after obtaining prior environmental clearance, etc. Those aspects are the subject matter of W.P.(C).No.28425/2014 and they do not have any bearing or relevance to the issues posed in this case. As regards the prayers made in this Writ Petition, it is clearly stated by the 5th respondent in his counter affidavit that no action for survey on the part of the Forest Department is required and the issues in relation to the matters raised by the petitioner are related with the Revenue Department, etc.

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The 1st respondent-District Collector has filed two counter affidavits in the matter. In the counter affidavit dated 18.10.2016 filed by the 1st respondent-District Collector, it is stated that the impugned Ext.P-10 order has been passed with a clear finding that there is no necessity to conduct any survey as per the provisions contained in the Kerala Survey and Boundaries Act and the Rules framed thereunder and that the remedy is to avail statutory appeal as envisaged in the Act and that in view of the existence of efficacious alternate remedy, it is not proper for the petitioner to invoke the remedy of judicial review as in the instant case. Paras 3 to 5 of the said counter affidavit of the 1st

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respondent dated 18.10.2016 read as follows:

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“3. It is submitted that the petitioner has been restored all the properties which were directed to be restore by the forest tribunal and it is submitted that 0.4900 hectares stated in the writ petition cannot be restored/used by the petitioner as the same is a forest land.

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It is submitted that this respondent has not convert any land into forest, but the lands were notified under the provisions of the various forest Act.

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It is humbly submitted that the petitioner is trying to grab the forest land by way of a direction to survey the property which is not maintainable. It is admitted in the writ petition that the land which were restored by the original application is only 4.5140 and the petitioner is not entitled for any other land which is not included in the judgment in original application. The totally extent shown in Ext.P-1 title deed is not the extent which was restored to the predecessor but 0.4900 hectares of land which was not in the possession or in the ownership of the predecessor in interest of the petitioner was illegally shown in Ext.P-1 sale deed. Hence the above property which is not the property of the petitioner or his predecessor in interest cannot be transferred to the petitioner and the same cannot be done by virtue of the provisions under the Kerala Survey and Boundaries Act. In the above circumstances, I humbly pray that this Hon'ble High Court may pleased to dismiss the writ petition with cost.”

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It is stated in para 3 of the said counter affidavit that 0.4900 hectares of

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land as stated in the Writ Petition cannot be restored or used by the petitioner as the same is a forest land. Further it is asserted in para 4 thereof that none of the Revenue authorities concerned, viz., R-1 to R-4, have not converted any land into forest land as alleged by the petitioner but that the lands were notified under the provisions of various Forest Acts. Further it is stated in para 5 thereof that the attempt of the petitioner to grab the forest land by way of a direction to survey the property and therefore such a prayer is not maintainable. Further that,

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it is admitted in the Writ Petition that the land which was restored in the O.A was transferred to the petitioner and that the petitioner is not entitled to any other land which is not included in the judgment in the O.A. Most of these averments lack precision or clarity on many crucial aspects. It is further stated in para 5 that the total extent shown in Ext.P-1 title deed is not the extent which was restored to the predecessor but that 0.4900 hectares was not in the possession or ownership of the predecessor-in-interest of the petitioner and the said extent of land was unlawfully shown in Ext.P-1 sale deed. Hence, it is contended that the above property (presumably 0.4900 hectares of land) which is not the property of the predecessor-in-interest of the petitioner, cannot be transferred to the petitioner under the provisions of the Kerala Survey and Boundaries Act, etc. Later, the 1st respondent had filed an additional counter affidavit dated 21.11.2016. Therein it is stated that the petitioner had submitted Ext.P-7 application in the wrong proforma and by quoting the wrong rules and that he ought to have filed statutory application in Form No.8 or 10 under Rule 27 and 43 of the Survey and Boundaries Rules and that whereas Ext.P-7 application was in Form No.15 and under Rule 68 of he Survey and Boundaries Rules and Sec.5 of the Survey and Boundaries Act. One of

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the main contentions raised in Ext.P-10 as well as in the additional counter affidavit of R-1 is that Rule 68 which comes under Sec.5 of the Act is in relation to survey of lands hit by sea erosion or action of river. That factual aspect raised by the petitioner does not have nothing to do with the survey of land which is constrained by occurrence of sea erosion or action of river and therefore, Ext.P-7 application itself is not maintainable. It is further stated that there is no illegality or impropriety or arbitrariness in the issuance of Ext.P-10 proceedings. More crucially, it is stated in para 7 of the additional counter affidavit as follows:

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“7. It is submitted that the land involved in O.A.No.138/1976 of Forest Tribunal, Palakkad has already been surveyed and demarcated while restoring the same to the then owners. The predecessor of the petitioner has got 4.5140 hectors of land in old sy. No.299/F5 pt and an extent of 0.8260 hectors of land in Sy.No.329/C3, on proper kaicheet and he has not disputed the same by way of challenge or in writing. The Tahsildar, Chittoor issued a proceedings by sub dividing the re.sy.No. As 76/18, 22 and 23. Among the above Re.sy.76/18, 22, 23 and 113/3 were remained as Government vested forest land and re.sy.No.76/21 with an extent of 0.8280 hector and in re.sy.no.113/4 having an extent of 4.5140 hectors land were mutated in the name of Krishnankutty Mannadiar, S/o.Naniyamma, Pallassana. In additional to that the District Survey Superintendent has reported that as per periphery sketch and document the south eastern boundary of the land in question is forest land, north western boundary is cemetery and western boundary is a canal and the same not included in the Re.sy.113/3. Since there is no hit by sea erosion or action of river in the said land and there is no need for surveying under section 5 of Survey and Boundaries Act.”

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The petitioner has filed a reply affidavit to meet the allegations and contentions raised in the counter affidavit filed by the respondents. The

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petitioner has filed an additional affidavit dated 9.12.2015 stating therein that some portion of the land belonging to the previous owner was not included in the notification issued for vesting of private forest land belonging to that person and that the land was originally taken over by the Forest Department as per vesting notification was restored but that the said additional land of the land owner which was not the subject matter of the vesting notification was later wrongly shown as “forest land” by the Revenue authorities. It appears from the said pleadings of the petitioner that the case sought to be projected by him is that the said additional land comes to 0.4900 hectares, which was wrongly shown as “forest land”, is lying in the western boundary of the petitioner's property, and that if the said stand of the Revenue authority is upheld, then it will amount to petitioner's land being bounded on all four sides by forest lands and that this is clearly wrong and illegal as only on three sides (north, east and south) the property is bounded by forest land and the western boundary of the petitioner's property is Revenue land and that the western boundary is not forest land, etc. The petitioner has placed reliance on Ext.P-18 field map said to have been prepared by the Village Officer, which is in respect of field No.326. It is contended by the petitioner that Ext.P12 periphery sketch

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prepared by the forest authorities shows that the western boundary of the petitioner's property is field No.326. Further that Ext.P-18 field sketch prepared by none other than the Revenue authorities would clearly show the field map of field No.326 and that it is shown clearly in Ext.P-18 that the eastern boundary of field No.326 is Sy.No.299/F, which according to the petitioner is the petitioner's property made mention in Ext.P-12 periphery sketch. It is contended by the petitioner that if actually the field No.326 is forest land (as contended in the first counter affidavit filed by R-1) then there is no question of revenue authority like the Village Officer preparing a field map of such a forest land and the mere fact that the revenue authorities have prepared a field map for field No.326, would be a clear testimony of the fact that the said property is revenue land and not forest land. It is also further stated in the additional affidavit dated 20.1.2016, wherein the petitioner has produced Ext.P-18 field sketch, that due to above said illegal action of the revenue authorities not only 3 boundaries in north, east and south, but also the western boundary is shown as forest land, which is a clear attempt on the part of the respondent to block entirely the entry into petitioner's property. The petitioner has also produced Exts.P-15, P-16 & P-17 in his reply affidavit.

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As the petitioner had appeared as party-in-person before this Court, this Court had earlier as per order dated 30.8.2016 had appointed Sri.V.M.Syam Kumar, learned Advocate, as Amicus Curiae to assist this Court in the adjudication of the matter.

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Heard the petitioner who has entered as party-in-person, as well as Sri.V.M.Syam Kumar, learned Amicus Curiae, Sri.K.Sandesh Raja, learned Special Government Pleader (Forests) appearing for the 5th respondent-DFO, Sri.K.J.Muhammed Ansar, learned Special Government Pleader (Revenue) appearing for respondents 1 to 4 revenue authorities. This Court would place on record its high sense of appreciation for the service rendered by Sri.V.M.Syam Kumar, learned Amicus Curiae, to highlight various aspects of the matter so as to assist this Court in the adjudication of the issues raised in this matter.

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After hearing all the parties as well as learned Amicus Curiae at length and on a consideration of the pleadings and materials on record, it appears that the main grievance of the petitioner is with regard to the challenge against Ext.P-10. Further it appears that one of the serious grievances projected in the Writ Petition is with regard to the alleged wrong manner in showing the western boundary of the property as forest land, which according to him, would result in entirely

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blocking his right of way and passage to his property and that such an action by a State authority is not only improper but also impermissible, etc.

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As regards the legality and propriety of the impugned Ext.P-10 proceedings, it is seen from a reading of the said proceedings that certain procedural/technical grounds are also stated therein to reject the petitioner's request for conduct of survey apart from the aspects relating to the merits of the matter mentioned therein. Moreover, it is also contended in the counter affidavits filed by the 1st respondent that the petitioner has efficacious alternate remedy by way of statutory appeal as per the provisions of the Survey and Boundaries Act and that therefore the petitioner should be relegated to such alternative efficacious remedy and therefore initially it would be necessary to consider such technical grounds relied on by R-1, etc. The first technical ground relied on by the 1st respondent is that Ext.P-7 application has been submitted in Form No.15 which is relatable to Rule 68 of the Survey and Boundaries Rules r/w Sec.5 of Survey and Boundaries Act. That the survey conceived in Sec.5 of the Act as well as Rule 68 of the Rules should be the one, which is instituted on account

¶113

of lands being hit by sea erosion or action of river, etc. Sec.5

¶114

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¶115

W.P(C).No.9870 Of 2015

¶116

of the Act reads as follows:

¶117

“5. Survey of lands hit by sea erosion or action of river.- The registered holder of any land may apply to the Government or to any officer or authority authorised by the Government in this behalf for the survey of his land on the ground that a portion of the land has been lost by sea erosion or action of river; and thereupon the Government or such officer or authority, as the case may be, may order the survey of the land.”

¶118

Rule 68 of the Survey and Boundaries Rules provides as follows:

¶119

“68. Application for survey under Section 5.- The application of the registered holder for survey under Section 5 shall be in Form No.15 and shall be submitted to the Collector through the Tahsildar. Each such application must bear the countersignature of the Village Officer of the village in which the property is situated and shall be accompanies by a chalan receipt of Five rupees under the appropriate head. If the Collector, after such enquiry as he may deem fit, it satisfied that a survey under Section 5 is necessary, he shall order accordingly.”

¶120

Accordingly, it is contended by the respondents that going by the nature of the grievances projected in Exts.P-7 and P-9, the petitioner should have submitted an application in Form No.8 or Form No.10, which are relatable to Rule 27 & 43 of the Survey and Boundaries Rules and that therefore when the petitioner has consciously opted to submit his request in the application in Form No.15, the said request in Ext.P-7 is not maintainable for the mere reason that jurisdictional facts required for the invocation of the said power as per Sec.5 and Rule 68 are relating to the occurrence of sea erosion or river erosion does not exist in the facts of this case and therefore Ext.P-7 application is not maintainable. Though at first blush the said argument is technically

¶121

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¶122

W.P(C).No.9870 Of 2015

¶123

sound, it is ill to come from the mouth of a statutory authority like R-1, after having conceded to Ext.P-8 judgment. The petitioner has appeared as party-in-person. Even according to him, he does not possess high educational qualifications. During the course of his submissions he has pointed out that he had spent his major part of his life by working at Nagaland in dealing with petty contractual matters and he has studied only up to standard VIII. The main prayer of the petitioner is for conduct of a survey so as to properly identify and demarcate the land covered by Ext.P-1 title deed and Ext.P-12 periphery sketch. Even a bare reading of the averments in the additional counter affidavit of the 1st respondent reveal that even the 1st respondent and the officials under him have also understood the nature of the grievances projected by him in the Writ Petition. Due to petitioner's lack of technical expertise, the matters arising under the Survey and Boundaries Act (which indeed requires quite a high expertise for ordinary citizens to be well accustomed), he has in his own limited understanding preferred Ext.P-7 application in Form No.15 which is relatable to Rule 68 r/w Sec.5 of the Act. When such an application is preferred by a citizen like the petitioner, if the 1st respondent or his officials felt that the grievances of the petitioner

¶124

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¶125

W.P(C).No.9870 Of 2015

¶126

would have been redressed only by submitting the application in Form No.8 or 10, then the 1st respondent was obliged to have pointed out these defects and should have instructed the petitioner to submit an application in a defect free manner so as to enable him to file the requisite application in Form No.8 or 10. There is yet another important aspect of the matter. Due to non-consideration of Ext.P-7 application, persons like the petitioner were constrained to approach this Court by filing W.P(C).No.150/2014 which led to Ext.P-8 judgment. At least before the rendering of Ext.P-8 judgment, respondents represented through the learned Government Pleaders could have easily pointed out before this Court that the submission of the application by the petitioner was in a wrong proforma and he is bound to submit the application in the correct proforma. This has not been done. Respondents did not raise any serious objections in the limited direction that was sought by the petitioner from this Court in the matter of considered disposal of Ext.P-7 application. Therefore, this Court, due to the non objections on the part of the respondents, had disposed of the said Writ Petition by directing as per Ext.P-8 judgment that a considered decision should be rendered on Ext.P-7 application. Therefore, at least thereafter the 1st respondent should have requested

¶127

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W.P(C).No.9870 Of 2015

¶129

him to file the application in the correct proforma. If in spite of this, the petitioner had not cared to cure the defects, then certainly the 1st respondent would have been justified in rejecting Ext.P-7 on the technical ground that it has not been preferred in the correct proforma. Therefore, this Court is of the considered opinion that rejecting Ext.P-7 application on the ground that it has not been submitted in the correct proforma is to say the least improper and would also amount to abdication of the statutory duty cast on the 1st respondent. It should also be borne in mind that the present Writ Petition is the fourth writ litigative proceedings that has been initiated by the petitioner in a matter like this. Accordingly, this Court has no hesitation to hold that the impugned rejection of the petitioner's request as per Ext.P-10 is grossly improper and unfair. This Court would also certainly agree with the submission made by Sri.V.M.Syam Kumar, learned Amicus Curiae appointed by this Court, that the said stand of the 1st respondent in rejecting the petitioner's request on the aforestated ground amounts to nothing short of “wednesbury unreasonableness”. On this ground alone the impugned Ext.P-10 rejection order is liable to be quashed and the matter is to be remitted to the 1st respondent for considering the matter afresh.

¶130

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W.P(C).No.9870 Of 2015

¶132

As regards the second technical ground based on the availability of statutory appeal remedy, it is to be noted that the request of the petitioner for conduct of survey has not been rejected on merits but has only been rejected on the ground that in view of the report submitted by the survey authorities it is not necessary to conduct survey and consequently the request is liable to be rejected on account of the submission of the application in the wrong proforma. The request for survey made by the petitioner would come within the scope and ambit of Sec.4 of the Act and as rightly pointed out by the 1st respondent in his additional counter affidavit, the application should be submitted in Form No.8 or 10 which are relatable to Rule 27 and 43 respectively of the Survey and Boundary Rules. Only if a proper decision is taken by the authorities concerned on the request for survey, the persons concerned can avail of the appeal remedy as per Sec.11 of the Act. That stage of the matter has not arisen in the present case. Therefore, the second ground stated by the respondents that the Writ Petition should be dismissed on account of the availability of appeal remedy is also ill founded. As regards the merits of the matter as reflected in Ext.P-10 rejection order, it is to be noted that it is stated in para 3 of Ext.P-10 that the District Survey Superintendent, Palakkad, has submitted a

¶133

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¶134

W.P(C).No.9870 Of 2015

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report dated 17.6.2014 [referred to as item No.(4) in Ext.P-10] wherein it is stated that the predecessor-in-interest of the petitioner was restored 4.5140 hectares of land in Sy.No.299/F5 (which is part of the restored land covered by Ext.P-12 periphery sketch) and that the said land in old Sy.No.299/F5 was originally in Sy.No.113/3 and in resurvey, Sy.No.113/3 was sub divided into 113/3 and 113/4 and after such further sub division, the property in Re.Sy.No.113/3 comes within the property of the petitioner which is also shown in the Basic Tax Register (BTR) and further that the property in Re.Sy.No.113/4 is in the name of Sri.Krishnan Kutty Mannadiar, S/o.Nani Amma, and that based on the direction of the Tahsildar concerned, changes were made in the records whereby petitioner's land is now shown in Re.Sy.No.113/4 and that the land in Re.Sy.No.113/4 is in the possession of the petitioner based on the findings pursuant to the inspection of the land and that therefore the request for conduct of survey of such land is not maintainable. Presumably, it appears that the objection stated therein is that after the sub division of land in Re.Sy.No.113/4 it is shown to be in the name of Krishnankutty, S/o.Nani Amma but that local inspection has revealed that the said land is in the possession of the petitioner and that in the absence of a request for survey made by the owner of the land as per

¶136

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¶137

W.P(C).No.9870 Of 2015

¶138

BTR (viz., Krishnankutty, S/o.Nani Amma), the petitioner cannot maintain an application for survey of the said land merely on the ground that he is in possession of the land. Assuming that the said finding is factually correct, still it is to be noted that it is admitted by the respondents in para 3 of Ext.P-10 that Re.Sy.No.113/3 is in relation to petitioner's land as per the BTR and that therefore, R-1 to R-4 were duty bound to conduct survey at least in respect of petitioner's land as per BTR and as per the title deeds produced by him. Therefore, the ground of rejection stated in para 3 of Ext.P-10 is also vitiated by irrelevant considerations and also for not taking into account the crucial and relevant aspect of the matter and therefore is unreasonable and arbitrary. There is yet another important aspect of the matter. It is clearly admitted in para 3 of Ext.P-10 that old Sy.No.299/F5 was later assigned as Re.Sy.No.113/3 and that the said Re.Sy.No.113/3 was subsequently sub divided into 113/3 and 113/4 and even corrections were made by the Tahsildar in the records, etc. The said Krishnankutty, S/o.Nani Amma, mentioned in para 3 of Ext.P-10 order can only be the applicant in O.A.No.138/1976 (viz., Krishnankutty Mannadiar, S/o.Nani Amma, as mentioned in the schedule of Ext.P-14 judgment in O.A.No.138/1976). From a perusal of the statutory provisions

¶139

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¶140

W.P(C).No.9870 Of 2015

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contained in Rules 22 and 23 of the Kerala Survey and Boundaries Rules, 1964, framed under the enabling provisions of the Kerala Survey and Boundaries Act, 1961, deal with the contingencies to make fresh sub-division and procedures for effecting sub-division and Rules 22

¶142

and 23 read as follows:

¶143

“Rule 22: When to make fresh sub-divisions.- A fresh sub-division in a survey

¶144

filed or sub-division thereof may be created in the following circumstances:-

¶145

(1) (a) When survey field or a sub-division of a survey field is to be further sub-divided under the rules for joint-registry or transfer of registry.

¶146

(b) When a transfer of registry of a portion of a survey number or sub-division is to be made as per the Kanam Tenancy, Act, 1955.

¶147

(2) When portions of Survey fields or sub-divisions are leased out under the rules for the issue of mining leases, and when portions of surveyed Government lands are leased out for a period of 12 years or more.

¶148

(3) When Government lands are transferred from assessed to unassessed

¶149

and vice-versa.

¶150

(4) When a new sub-division has to be created under the Kerala Land

¶151

Acquisition Act, 1961.

¶152

(5) When a sub-division has to be effected for transfer of Government land to the control of a Local Body or any Department of Government.

¶153

(6) When a sub-division has to be made under the Kerala Land Relinquishment Act, 1958 to writ off land tax after acceptance or the Relinquishment by the District Collector.

¶154

(7) When a sub-division has to be made for classification of land for the purpose of land revenue assessment.

¶155

(8) When a new sub-division has to be created for giving effect to any

¶156

law.

¶157

Rule 23: Procedure for effecting a sub-division.- In cases of fresh sub-division under (2) to (8) of Rule 22 the provisions of Section 6, 7, 9, 10, 11 and 13 of the Act shall be followed. The notice under sub-section (2) of Section 9 shall be in Form No.4 and the notice under sub-section (2) of Section 10 or sub-section (1) of Section 11 shall be in Form No.5.”

¶158

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W.P(C).No.9870 Of 2015

¶160

A perusal of the reasonings given in Ext.P-10 as well as the averments in the counter affidavit filed by the respondents in this case prima facie would show that none of the jurisdictional facts stipulated in Rule 22 may have arisen in the instant case in the creation of new sub division and moreover it would also prima facie disclose that mandatory procedure under Rule 23 for effecting sub division may not have been followed in the instant case. Therefore, this Court only would wonder as to how and why the revenue authority and survey department have taken resort to the measure to create individual sub divisions in the resurvey process. These aspects of the matter should also be duly considered by the 1st respondent at the time of consideration of the matter during the remit.

¶161

A reading of the second counter affidavit filed by the 1st respondent as well as Ext.P-10 rejection order passed by him would show that there is much variance in the stand taken by the 1st respondent. In the first counter affidavit filed by the 1st respondent it proceeds as if, at least by implication, that the western boundary of the petitioner's property is 0.4900 hectares of land which is forest land, etc. But, very conspicuously there are no averments in the first counter affidavit of R-1 as to the survey number whereas in the additional counter affidavit filed

¶162

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W.P(C).No.9870 Of 2015

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by the 1st respondent it is clearly stated that the Deputy Survey Superintendent has reported that as per Ext.P-12 periphery sketch and documents (presumably which is reference to Ext.P-1 title deed) to the south eastern boundary of the land in question is forest land, the northwestern boundary is cemetery and north western boundary is canal, but that western boundary is not included in Re.Sy.No.113/3. Ext.P-1 title deed as well as its prior title deed mentioned herein above would show that northern boundary and southern boundary are forest land but that the western boundary is canal and cemetery. Therefore, the said averments in the counter affidavit in no way goes to contradict the implication flowing from the averments in the first counter affidavit that the western boundary is also forest land and on the other hand the second counter affidavit clearly states that as per the document (Ext.P1) and periphery sketch (Ext.P-12), the western boundary is a canal and the north-western boundary is cemetery and that the same are not included in Re.Sy.No.113/3. In para 7 of the counter affidavit, it is also stated that the properties in Re.Sy.No.113/3 is remained as Government vested forest land. It is clearly admitted in para 7 of the additional counter affidavit of R-1 that the western boundary is not a forest land. But, still, there are many other contradictions as between the position disclosed

¶165

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¶166

W.P(C).No.9870 Of 2015

¶167

in the counter affidavit of R-1, vis-a-vis, para 3 of impugned Ext.P-10 order. For instance, it is stated in para 7 of the additional counter affidavit that the petitioner's predecessor-in-interest was restored 4.5140 hectares of land in old Sy.No.299/F5 pt and an extent of 0.8260 hectares of land in Sy.No.329/C3, on proper kychit and further that the Tahsildar, Chittur, issued proceedings by sub dividing resurvey number as 76/18, 22 & 23 and among the above Re.Sy.Nos.76/18, 22 & 23 and 113/3 were remained as Government vested forest land and Re.Sy.No.76/21 with an extent of 0.8260 hectares and in Re.Sy.No.113/4 having an extent of 4.5140 hectares of land were mutated in the name of Krishnankutty Mannadiar, S/o.Nani Amma, etc., whereas it is stated in para 3 of Ext.P-10 that an extent of land coming to 4.5140 hectares of land in Sy.No.299/F5 was restored to the predecessor-in-interest of the petitioner as per the periphery sketch and the said land was coming within Re.Sy.No.113/3 which was subsequently sub divided as 113/3 and 113/4 and the land in Sy.No.113/3 is the land of the petitioner as shown in BTR and the land in Sy.No.113/4 is in the name of Krishnankutty Mannadiar, S/o.Nani Amma and that later, the Tahsildar, made changes in the records, whereby the land in Re.Sy.No.113/4 is shown to be in the possession of the petitioner. Para 3 of Ext.P-10 omits

¶168

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¶169

W.P(C).No.9870 Of 2015

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to say about the 0.8260 hectares of land covered by Ext.P-12 periphery sketch about which mention is made in the additional counter affidavit and the said land is also part of Ext.P-1 title deed as well as its prior title deed, which is shown therein as lesser extent of 0.8260 hectares. That apart, it is stated that the petitioner's land coming to an extent of 4.5140 hectares (which is major part of Ext.P-1 title deed) after sub division is in Re.Sy.No.113/3 whereas in the additional counter affidavit of R-1, it is stated that petitioner's land coming to an extent of 4.5140 hectares is now in Re.Sy.No.113/4 and that the land in Re.Sy.No.113/3 as well as in Re.Sy.No.76/18, 22, 23 remained as Government vested forest land. Therefore, there appears to be absolutely no consistency or accuracy even in the assertion of basic factual details in a case like this, which involves survey and identification of properties. That apart, it is to be noted that this Court had directed the official respondents to pass appropriate orders in Ext.P-7 application in accordance with law. The application made by the petitioner is in terms of the provisions contained in the Act and the Rules and therefore the order that is passed pursuant thereto as the one contained in Ext.P-10 is a statutory order passed by a public authority. The said position has been well settled in the case Commissioner of Police v. Gordhanbas Bhanji reported in AIR

¶171

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¶172

W.P(C).No.9870 Of 2015

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1952 Ker 16 and the said legal position was reiterated and reaffirmed in the celebrated case Mohinder Singh Gill v. Chief Election Commissioner reported in (1978) 1 SCC 405. Though the said legal position is mainly in relation to statutory orders, the Apex Court recently in the case Reshmi Metaliks v. Kolkata metropolital Development Authority reported in (2013) 10 SCC 95 has held that the said legal principles relating to statutory orders are also applicable even when administrative authorities are passing orders in relation to contractual matters as well. The present case is one relating to statutory order passed under the Survey and Boundaries Act and therefore the said legal position laid down by the Apex Court in Gordhanbas Bhanji's case (supra) as well as Mohinder Singh Gill's case (supra) would apply with full force and vigour. Hence respondents can place reliance only on the grounds or reasons stated in the impugned rejection order and they cannot substantiate any additional grounds or reasons by filing additional pleadings in a case like this. That apart, the most worrisome and disturbing matter is that the respondents 1 to 4 have not come forward even with the minimal accurate factual aspects of the matter in a case like this.

¶174

There is yet another important aspect of the matter which should be dealt with by this Court in the matter in relation to prayer No.

¶175

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¶176

W.P(C).No.9870 Of 2015

¶177

(ii) of this Writ Petition which reads as follows:

¶178

“ii) issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents to survey the entire land covered by judgment in OA No.138/76 and demarcate the property covered by Exhibit P1 and P2 which is in the ownership and possession of the petitioner and demarcate 0.4900 which is now in the ownership of Krishnankutty Mannadiar.”

¶179

Going by the confused state of affairs that is disclosed from Ext.P-10 rejection order in para 3 thereof as well as varying stands of the 1st respondent in the first counter affidavit as well as the second counter affidavit, this Court is not now getting into detailed analysis of the factual scenario in that regard. The petitioner has submitted additional affidavit dated 6.12.2016 in pursuance of this Court's interim order dated 5.12.2016 that he has no ownership right over 0.4900 hectares of land comprised in Sy.No.113/4 of Pallassana Village, Chittur Taluk, Palakkad District, which is presently in his possession. Since the facts are quite confusing, this Court has specifically requested the Amicus Curiae to have a discussion with the petitioner regarding this aspect and both the petitioner as well as the Amicus Curiae has submitted before this Court that the averment of the petitioner in para 3 of the said additional affidavit that he has no ownership right over 0.4900 hectares of land in Re.Sy.No.113/4 of Pallassana Vilage, Chittur Taluk, Palakkad District is in relation to Re.Sy.No.113/4 as stated in para 3 of

¶180

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¶181

W.P(C).No.9870 Of 2015

¶182

Ext.P-10 and not in the context of averments in para 7 of the additional counter affidavit filed by the 1st respondent. It is also pointed out in the said additional affidavit that the said land coming to 0.4900 hectares of land in Re.Sy.No.113/4 is in the possession of the petitioner. The said submission made by the petitioner in para 3 of the additional affidavit appears to be in consonance with the averments in para 3 of the impugned Ext.P-10 rejection order inasmuch as the 1st respondent would also clearly stated therein that after sub division of the Re.Sy.No.113/3 as 113/3 and 113/4, petitioner's land coming to 4.5140 hectares as shown in the BTR comes under Re.Sy.No.113/3 and further that the land shown in Re.Sy.No.113/4 is in the name of Krishnankutty Mannadiar, S/o.Nani Amma, and further that local inspection has revealed that the said land in Re.Sy.No.113/4 is in the possession of the petitioner. Therefore while remitting the matter it is made clear that the survey for the identification and demarcation of the properties based on the claims of ownership right arising from Ext.P-1 title deed can only be in relation to the total extent of land coming to 5.3396 hectares (viz., 4.5140 + 0.8260 = 5.3396 hectares) as covered by Ext.P-1 title deed and such claims for ownership rights cannot be in respect of any extent of land which is in addition to the said total extent of land coming to

¶183

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¶184

W.P(C).No.9870 Of 2015

¶185

5.3396 hectares shown in Ext.P-1. If the petitioner has got a case that he is in possession of any extent of land over and above the said 5.3396 hectares covered by Ext.P-1 title deed and Ext.P-12 periphery sketch, then this Court is not entering into such areas and all such issues are left open.

¶186

Accordingly, it is ordered that the impugned Ext.P-10 rejection order is tainted by unreasonableness, arbitrariness and impropriety and the same is liable to be quashed and it is accordingly so ordered. The matter is remitted to the consideration of the 1st respondent and other competent officials of the Survey Department for action afresh.

¶187

In this regard, it is made clear that since the application was submitted in the wrong proforma, the petitioner will ensure that the requisite application for the request of survey of his lands covered by Ext.P-1 title deed should be in Form No.8 or 10 r/w Rules 27 and 43 of the Survey and Boundaries Rules so that his request is one that comes within the scope and ambit of Sec.4 of the Act. Since the conduct of the survey is based on the claims of ownership rights flowing from Ext.P-1, it is also to be noted that the petitioner has already conveyed part of

¶188

the said total extent of 5.3396 hectares covered by Ext.P-1 to his

¶189

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¶190

W.P(C).No.9870 Of 2015

¶191

wife as per Ext.P-2 sale deed. The said extent of land covered by Ext.P2 comes to 2.0235 hectares. Therefore, for proper and effective consideration of the matter, it should be ensured that the requisite applications in the correct proforma is submitted by the petitioner as well as his wife. It is made clear that the survey for the proper identification and demarcation of properties should be confined to the ownership rights flowing from Ext.P-1 title deed, which is confined to only a total extent of 5.3396 hectares (which is in consonance with Ext.P-12 periphery sketch), it is ordered that respondents 1 to 4 are obliged to conduct an effective survey so as to correctly identify and demarcate the properties coming to an extent of 5.3396 hectares as covered by Ext.P-1 title deed as well as the prior title deeds and Ext.P-12 periphery sketch. If the petitioner has a contention that 0.4900 hectares of land or any part thereof would also form part of the above said total extent of 5.3396 hectares of land, it would be open for him to raise any such contention before respondents 1 to 4 and those aspects should also accurately and correctly identified by respondents 1 to 4 in pursuance of the remit made by this Court. If on the other hand, the petitioner has any claim of rights regarding possession of any extent of land which is over and above the total extent of 5.3396 hectares of

¶192

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¶193

W.P(C).No.9870 Of 2015

¶194

land covered by Ext.P-1 title deed, all those issues are left open. After completing the process of survey, respondents 1 to 4 will ensure that the process of survey is undertaken with prior notice to the petitioner and with opportunity to the petitioner to point out his submissions and contentions and the outcome of the survey proceedings should also be duly intimated to the petitioner. It is also made clear that respondents 1 to 4, after conclusion of the survey process, will issue survey sketch regarding the proper identification and demarcation of the total extent of land coming to 5.3396 hectares covered by Exts.P-1 title deed and P-12 periphery sketch. If, after the due survey process, it is found that all four sides are bounded by forest land, then the 5th respondent should seriously consider about the grant of right of due passage and access to the petitioner for free and unhindered access to his property. If, on the other hand, it is found that the western boundary is Government owned Revenue land, then the 1st respondent-District Collector should seriously consider and take a decision on the matter of granting free and unhindered access and passage to the petitioner for entry into his property. If, on the other hand, it is found that the western boundary is revenue land in the name of a private individual, then it is for the petitioner to work out his remedies in accordance with law, in regard to right of passage, etc.

¶195

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¶196

W.P(C).No.9870 Of 2015

¶197

Accordingly, it is ordered that respondents 1 to 4 should

¶198

comply with the direction issued by this Court for conducting and completing the survey of the land covered by Exts.P-1 and P-12 as early as possible, at any rate, within an outer time limit of four months from the date of production of a certified copy of this judgment. The petitioner will also make available copies of Exts.P-1 and P-2 sale deeds as well as prior title deeds which have been produced in Exts.P-9 & P- 10 in W.P.(C).No.22870/2007 before the 1st respondent while submitting the application as directed above. Accordingly, the following orders are issued:

¶199

(i) It is declared that the impugned Ext.P-10 rejection order is tainted by illegality, impropriety and unreasonableness and the same is quashed and the matter is remitted to the 1st respondent for consideration of the matter afresh.

¶200

(ii) It is further ordered that the request for survey for proper identification and demarcation of the properties based on the ownership rights flowing from Ext.P-1 title deed will be confined to total extent of land coming to 5.3396 hectares as covered by Ext.P-1 sale deed and Ext.P-12 periphery sketch.

¶201

(iii) In case the petitioner has any claims that the aforesaid 0.4900 hectares of land forms part of the said 5.3396 hectares of land covered by Ext.P-1 title deed and Ext.P-12 periphery sketch, it will be open to him to advance and

¶202

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¶203

W.P(C).No.9870 Of 2015

¶204

establish any such case in which case, respondents 1 to 4 will duly advert to those aspects.

¶205

(iv) It is further ordered that respondents 1 to 4 are obliged in law and are duty bound to ensure that a proper survey is conducted so as to correctly and accurately identify and demarcate the entire extent of land coming to 5.3396 hectares covered by Ext.P-1 title deed as well as Ext.P-12 periphery sketch and respondents 1 to 4 are duty bound to complete the survey process in that regard within the above said time limit and after due prior notice to the petitioner and due opportunity to him during the conduct of survey process and shall duly intimate the outcome of the survey process to the petitioner and should also issue survey sketch, showing accurately the descriptions of boundaries on all four sides, to the petitioner so as to properly and accurately identify and demarcate the said properties mentioned herein above. For properly identifying the western boundary, the respondents 1 to 4 will also examine Ext.P-18 field sketch.

¶206

(v) If after the survey process, it is found that on all four sides of the property are bounded by forest land, then the 5th respondent should seriously consider the grant of due access and passage so as to facilitate the unhindered entry of the petitioner to his property. If, on the other hand, it is found that the western boundary of the petitioner's property is Government owned revenue land, then the said direction in the matter of consideration of grant of access should be duly considered by the 1st respondent-District Collector. It is further made clear that on the other hand, if the western boundary is a property which is in the name of a private individual, then it is for the petitioner to work out his remedies in accordance with law. The entire process as

¶207

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¶208

W.P(C).No.9870 Of 2015

¶209

directed above in the matter of conduct and conclusion of the survey process should be completed and finalised by respondents 1 to 4, within a period of 4 months from the date of production of a certified copy of this judgment.

¶210

If the petitioner has got any case that he is in possession of any extent of land which is over and above the said total extent of 5.3396 hectares as covered by Exts.P-1 and P-12, all such issues are left open. The Registry will furnish a copy of this judgment to the Amicus Curiae, Sri.V.M.Syam Kumar.

¶211

With these observations and directions, the Writ Petition (Civil) stands finally disposed of.

¶212

Sd/-

¶213

ALEXANDER THOMAS, Judge.

¶214

bkn/-

V.K Abraham v. the District Collector

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V.K Abraham v. the District Collector

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P.v.Joseph Vs the District Collector, Alappuzha

Madhavi Vs State of Kerala

Anil Kumar G Vs Vijayakumar