Disposed

M.K.Sivadasan, v. Adoor Municipality

Kerala HC7 Feb 2019WP(C)/3587/2019

Case brief

AI extract

What is this about?

The Court directed the respondents to maintain status quo regarding the petitioner's disputed property pending a final order on a revision petition under the Kerala Survey and Boundaries Act. It directed the District Collector to file a report explaining the delayed compliance with a prior judicial order. The Court held that the flood was not a valid excuse for the delay.

What did the court decide?

Direction to respondents to maintain status quo until final orders are passed on the revision petition; direction to District Collector to file a report explaining the delay in compliance.

M.K.Sivadasan, Vs Adoor Municipality — Property and Title | Kerala HC (2019)

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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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THURSDAY, THE 07TH DAY OF FEBRUARY 2019/ 18TH MAGHA, 1940

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WP(C).No. 3587 of 2019

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PETITIONER/S:

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M.K.SIVADASAN, AGED 66 YEARS SHIVAMANGALATHU HOUSE, MULAKUZHA P.O, MULAKUZHA VILLAGE, CHENGANOOR TALUK (REP. BY HIS POWER OF ATTORNEY HOLDER

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SRI. P. V. ABHILASH, S/O. VASUDEVANPILLAI, CHIEF EXECUTIVE OFFICER OF MARIA HOSPITAL HAVING RESIDENCE AT PUTHUVEETIL KIZHAKKETHIL HOUSE, PANNIVIZHA, AANANDAPALLY P.O, ADOOR).

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BY ADVS. SRI.JACOB P.ALEX SHRI.MANU SANKAR P. SRI.JOSEPH P.ALEX

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RESPONDENT/S:

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1 ADOOR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, OFFICE OF THE MUNICIPALITY, ADOOR, PATHANAMTHITTA PIN 691 523.

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2 SECRETARY, ADOOR MUNICIPALITY, OFFICE OF THE MUNICIPALITY, ADOOR, PATHANAMTHITTA PIN 691 523.

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3 DISTRICT COLLECTOR, PATHANAMTHITTA, CIVIL STATION, PATHANAMTHITTA PIN 689 645.

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OTHER PRESENT:

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SRI.K.SHAJ FOR R1 AND R2, SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER -R3

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 3587 of 2019

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ALEXANDER THOMAS, J .

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W.P(C).No.3587 Of 2019

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Dated this the 7^th day of February, 2019.

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J U D G M E N T

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The prayers in the above Writ Petition

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(Civil) are as follows:

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“i. Issue a writ in the nature of Mandamus or any other writ, order or direction commanding the 1^st respondent to consider and take appropriate decision on Exhibit P5 in accordance with law after affording an opportunity of hearing to the petitioner, within a time limit to be fixed by this Hon'ble Court;

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ii. Issue a writ in the nature of Mandamus or any other writ, order or direction commanding the respondents and officers under them not to take any steps to takeover any portion of the property that belongs to petitioner [13 cents (5.26 Ares) of land in Re.Sry No:635/5 corresponding to Old Sry No.395/2 of Adoor Village] before the issuance of final Order on Exhibit P2 or without granting a reasonable opportunity to challenge the same, in the event of an adverse decision;

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iii.Issue such other appropriate writ, order or direction as this Hon'ble Court may deem just and fit in the circumstances of the case.”

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2. Heard Sri.Jacob P.Alex, learned counsel

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for the petitioner, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for R-3 and Sri.K.Shaj, learned Standing Counsel for

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Adoor Municipality appearing for R-1 & R-2.

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WP(C).No. 3587 of 2019

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3. The petitioner claims to be in settled possession of 13 cents (5.26 ares) in Re.Sy.No.635/5 (old Sy.No.395/2) of Adoor Village, Adoor Taluk, Pathanamthitta Revenue District. According to the petitioner, after resurvey the extent of the said subject property was erroneously reduced as 1.90 ares (4.6 cents). The petitioner had thereupon filed Ext.P-2 application dated 15.10.2016 under Sec.13A of the Kerala Survey and Boundaries Act, 1961 before the

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3^rd respondent-District Collector, who is the designated revisional authority in that regard urging that the said reduced extent of land as shown in the re-survey is vitiated by serious mistakes and errors and that the actual extent of the land continues to be 13 cents and not 4.6 cents (1.90 ares), etc., and steps should be taken to ensure that the said mistake in the resurvey is to be corrected so as to show the extent of the land as 13 cents. Since no action

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was forthcoming on Ext.P-2 revision petition, the

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WP(C).No. 3587 of 2019

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petitioner was constrained to approach this Court by filing a Writ Petition as W.P.(C).No. 18187/2017 before this Court in which this Court has rendered Ext.P-3 judgment as early as on 1.6.2017 whereby the respondent-District Collector was directed to consider and take a decision on the said revision petition as per Ext.P-4 therein/Ext.P-2 herein within 6 weeks, after affording a reasonable opportunity of being heard to the petitioner, etc. It is pointed out

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that though the petitioner was asked to appear before the 3^rd respondent in the said revisional proceedings, the matter has not so far been finalised and no final orders have been passed in Ext.P-2 till date. In the meanwhile, inspite of pendency of Ext.P-2 revision petition some of the officials of the Revenue Department had taken

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steps to enter into the said subject property in the possession of the petitioner and thereupon the petitioner was constrained to file Ext.P-4 civil suit as O.S.No.191/2018 on the file of the

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WP(C).No. 3587 of 2019

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Munsiff's Court, Adoor, impleading the said revenue authorities therein and seeking declaration of title and possession of the petitioner over plaint B schedule property and restraining the defendants or anybody under them from trespassing into the plaint B schedule property, etc. That after the issuance of summons on Ext.P-4 suit to the defendants therein, no further problems have arisen from the said parties. Now, the complaint of the

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petitioner is that respondents 1 & 2 have now belatedly raised a claim that the subject property or part thereof is belonging to them whereas the stand of the Revenue Department is that it is Government puramboke land and therefore respondents 1 & 2 are taking steps to trespass into the property and make construction therein.

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4. Per contra, Sri.K.Shaj, learned Standing

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Counsel for respondents 1 & 2 would submit on the

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basis of instructions of his party that the said property belongs to the respondent-Adoor Municipality as the property is vested with the Municipality concerned by the operation of the provisions contained in the Municipalities Act and the said Municipality is taking steps to auction the right to pluck the coconut from the coconut trees grown in that property, etc., and that even the petitioner has also participated in the said auction to bid for the right to pluck the coconut from the trees, etc.

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5. Those controversial aspects of the

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matter need not detain attention of this Court in the light of the material issue posed before this Court. The 3^rd respondent-District Collector was

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obliged in law to pass final decision on Ext.P-2 revision petition within 6 weeks in compliance of the directions issued by this Court in Ext.P-3 judgment rendered as early as on 1.6.2017 in W.P.(C).No.18187/2017 filed by the petitioner

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WP(C).No. 3587 of 2019

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therein. It appears that even now more than 19 long months have elapsed after the expiry of the time limit stipulated by this Court for compliance of the direction issued in Ext.P-3 judgment.

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6. The learned Government Pleader who has secured instructions from the liaison official concerned has now apprised this Court that so far no orders have been passed by the 3^rd respondent on Ext.P-2 revision petition. That aspect of the matter will be dealt with in the subsequent part of this judgment.

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7. Now, going by the core of the dispute raised in this Writ Petition, it is ordered that until final orders are passed by the 3^rd respondent on Ext.P-2 revision petition, the respondents will maintain status quo as regards the subject property covered by Ext.P-2 revision petition. Sri.Jacob P.Alex, learned counsel for he petitioner submits that the petitioner has a

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strong and reasonable apprehension that in view of the expiry of the time limit, the 3^rd respondent may pass some orders on Ext.P-2 revision without considering the merits of the matter, more so, particularly, even till date, the basic procedural formalities necessary for consideration of Sec.13A statutory revisional proceedings for conducting survey and measurement of the property to ascertain as to whether the impugned resurvey is vitiated by errors and mistakes, have not so far been conducted and that, in view of the order that may be proposed to be passed by the 3^rd respondent, the respondent might take steps to upset the status quo order and to make a " surgical strike " against the petitioner. That aspect of the matter is not necessarily the concern of this court inasmuch as the petitioner has already invoked the remedy by way of civil litigative proceedings in Ext.P-4 civil proceedings and it is not as if such issues

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cannot be raised before civil court in exercise

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WP(C).No. 3587 of 2019

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of the powers under Sec.9 of the Code of Civil Procedure and also the inherent powers in the CPC, in passing interim orders, if any such court is convinced that prima facie nature of the case and balance of convenience involved and therefore such a plea is not a proposed to be entertained

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in a petition under Article 226 of the Constitution of India and it is for the petitioner, if so advised, to approach the civil court either in Ext.P-4 civil proceedings, if it

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is so maintainable or in the proposed civil proceedings before the civil court as he may choose to do so in accordance with law.

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8. The abovesaid direction may not be sufficient as far as resolution of present transient issues between the petitioner and respondents. But the action of the District Collector in not having taken a final decision on Ext.P-2 revision petition even much after the

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expiry of the time limit stipulated in that

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regard by Ext.P-3 judgment is certainly a matter of serious worry for this Court especially in the matter of respect and deference of the respondents like the 3^rd respondent to judicial verdict of Ext.P-3. Learned counsel for the petitioner is certainly right in submitting that one of the minimum modicum of necessary fair procedures required for a fair and just adjudication of Sec.13A statutory revision proceedings is to ensure the conduct of a survey and measurement of the subject property with due prior notice to the revision petitioner and any other neighbouring property owners to ascertain the crucial fact as to whether the inpugned resurvey is vitiated on account of any serious mistakes or errors and ordinarily in such survey and measurement the surveyor concerned with due prior notice to the revision petitioner and other affected parties should carryout such survey and measurement with reference to title deeds, old

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survey records, resurvey records and other

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WP(C).No. 3587 of 2019

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relevant materials to ascertain the heart of the matter as to whether the impunged re-survey process is vitiated by any mistakes or errors as alleged by the revision petitioner. Ordinarily, without resorting to such a minimum procedure it is not immediately discernible to this Court as

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to the mechanism by which a statutory revisional authority under Sec.13A would justly and fairly adjudicate on the proceedings under Sec.13A. If as a matter of fact, such survey and measurement have not so far been done, even after 19 months and that too after the time limit stipulated by this Court in Ext.P-3 judgment. Certainly these matters would point out that the executive authorities are not showing necessary deference and concern for obeying and complying with the directives in judicial verdicts.

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9. This Court would anticipate that one of

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the pleas that likely to come from the 3^rd respondent would be that his District

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(Pathanamthitta) has been severely affected by flood which occurred in the State some time ago. But it is beyond any dispute that the said flood affected the State only some time in the 2^nd week of August, 2018 and certainly time and energies would have been expended by the authorities in givings measures and immediate relief in the flood affected areas. But, the crucial and relevant aspect of the matter as regards this issue is concerned, is that Ext.P-3 judgment was rendered as early as on 1.6.2017 and the time limit for compliance of the said judgment has expired at least by the 2^nd or 3^rd week of July, 2017. Even after the expiry of the said time limit, at least 13 long months have elapsed prior to the occurrence of the flood in the 2^nd week of August, 2018. The said anticipated plea of the 3^rd respondent cannot be countenanced by this Court. That apart, any matters like this, where directives of this Court are not complied with in

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the time limit stipulated by this Court, then it

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is obligatory on the part of the official like the 3^rd respondent to have filed requisite application along with supporting affidavit explaining the reasons for not complying with the directions and the minimum time limit required for complying with Ext.P-3 judgment. It appears that till date the 3^rd respondent has not cared to file any such application in W.P.(C).No. 18187/2017 for such extension of the time limit. The said action of the 3^rd respondent cannot be countenanced by this Court as one in consonance with the elementary notions of adherence to rule of law. Now it is also submitted by the learned Government Pleader on the basis of certain instructions conveyed to him that revision petition was entrusted to the Taluk Surveyor concerned for conducting survey and measurement.

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Under these circumstances, the 3^rd respondent will immediately file a report before this Court in this Writ Petition as to the reasons

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for the long delay on his part in not

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WP(C).No. 3587 of 2019

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complying with Ext.P-3 judgment at least well before the 1^st week of August, 2018 and as to why he has not chosen to file an extension application till date and also as to the procedural steps that he intends to take before he proposes to pass final orders on Ext.P-2 revision petition, etc.

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The Secretary of the Office of the Advocate General will forward a copy of this judgment to the 3^rd respondent for necessary information.

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

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Sd/- ALEXANDER THOMAS, Judge.

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bkn/-

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WP(C).No. 3587 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE SALE DEED NO 2407/2012 DATED 18/06/2012 OF ADOOR S.R.O.

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EXHIBIT P2 TRUE COPY OF THE REVISION PETITION DATED 15-10-2016 FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR.

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EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 01-062017 IN WPC 18187 OF 2017.

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EXHIBIT P4 TRUE COPY OF THE PLAINT IN OS NO. 191 OF 2018 ON THE FILES OF MUNSIFF'S COURT, ADOOR.

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EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 02-02-2019 SUBMITTED BY THE PETITIONER. BEFORE THE 2ND RESPONDENT WITH ACKNOWLEDGEMENT RECEIPT.

M.K.Sivadasan, v. Adoor Municipality

Case brief

What is this about?

What did the court decide?

M.K.Sivadasan, v. Adoor Municipality

Case brief

What is this about?

What did the court decide?

What the court decided

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