Ramar v. State Of Kerala

Alexander Thomas, J—The case of the petitioner is that he is the title holder of properties covered by Ext.P-1 sale deed no.2194 dated 25.9.2013 of SRO, Devikulam and the property has been mutated in the name of the petitioner and that he has been paying basic tax as evident from Ext.P-3 land tax receipt dated 22.6.2016 issued by the village officer concerned. The petitioner would further aver that his property was surveyed and demarcated by the 4th respondent Tahsildar and the 5th respondent survey officer, on the basis of the petition filed before the 3rd respondent Sub Collector. The petitioner would aver that though survey work has been completed on 28.5.2014 as discernible from Ext.P-6, the survey sketch has not been issued to the petitioner and that the petitioner has approached the authorities by submitting Ext.P-7 representation dated 25.6.2014, which has not evoked any response. It in the light of these factual aspects that the petitioner has filed the instant Writ Petition (Civil) with the following prayers:

"(i) Call for the entire records from the respondents concerning the issue raised in the Writ Petition and Exhibits produced herein.

(ii) Issue a writ of mandamus directing the respondent Nos.1 to 5 to see that the property of the petitioner is surveyed and demarcated in the light of Revenue records and issue certificates thereof so that to comply with the proceedings in Ext.P-6 within a time frame."

2. During the pendency of this Writ Petition, instructions were called for from the learned Government Pleader and it appears that on 10.11.2017, it was submitted by the learned Government Pleader that there is a suit, in which the petitioner is a party and that the parties in the said suit are to be brought to on record in these proceedings. Pendency of the said civil suit as per O.S.No. 39/2014 on the file of Munsiff''''''''s Court, Devikulam, has been stated by the petitioner in para 5 of the W.P.(C). Thereafter, the petitioner has filed I.A.No.18298/2017 along with accompanying affidavit dated 20.11.2017 for orders from this Court to implead the plaintiffs in the said suit. Copy of the plaint and order of the interim injunction in that suit have been produced along with the said affidavit as per Exts. P-8 and P-9. This Court as per order dated 24.11.2017 had ordered impleadment of the said additional parties as additional respondents 6, 7 and 8 in the W.P.(C) and notices have been duly served on them, who have entered appearance through Sri.G.Sreekumar (Chelur).

3. Heard Sri.N.M.Varghese, learned counsel appearing for the petitioner, Smt.A.C.Vidhya, learned Govt. Pleader appearing for official respondents 1 to 5 and Sri.G.Sreekumar (Chelur) learned counsel appearing for additional respondents 6 to 8.

4. It can be seen from Ext.P-8 plaint that additional respondents 6 to 8 has filed O.S.No.39/2014 before the Munsiff''''''''s Court, Devikulam, seeking to declare that the plaintiffs therein have the right of quasi-easement and public right of user in the B schedule road including the C schedule portion thereof and also to restrain the defendant (petitioner herein) his men and workers from committing waste in the B schedule road including the C schedule portion thereof or causing any obstruction thereto or making any construction therein or committing any act which may disturb the plaintiffs'''''''' peaceful user and enjoyment thereof by a decree of permanent prohibitory injunction. It can be seen from Ext.P-9 interim order dated 6.2.2014 rendered by the Munsiff''''''''s Court, Devikulam on I.A.No.136/2014 in O.S.No. 39/2014 that that the Munsiff''''''''s court has issued an interim order so as to restrain the respondent in that I.A. (petitioner herein) his men and workers committing waste in the B schedule road including the C schedule portion thereof or causing any obstruction thereto or making any construction therein or committing any act which disturb the petitioners'''''''' (additional respondents 6 to 8 herein) peaceful user and enjoyment thereof until further orders.

5. Now it is submitted by Smt.A.C.Vidhya, learned Govt. Pleader learned Senior Govt. Pleader appearing for official respondents 1 to 5 that instructions have been furnished by the 4th respondent Tahsildar, Devikulam that report of the Tahsildar regading demarcation of the property could not be done in view of the interim injunction order granted by the civil court and that the petitioner''''''''s property could not be measured and demarcated by the Taluk surveyor and so the sketch and survey report cold not be issued to the petitioner.

6. The petitioner''''''''s specific case is that the entire survey work has been completed and that all that was to be done by respondents 1 to 5 was to issue the copy of the survey sketch as envisaged in Sec. 11(2) of the Kerala Survey & Boundaries Act, 1961. whereas on the other hand, the 4th respondent Tahsildar would submit that, in view of Ext.P-9 interim injunction order of the civil court, the report of the Taluk Surveyor or the demarcation could not be effected and further that the petitioner''''''''s property could not be measured and demarcated by the Taluk Surveyor and so the survey sketch could not be issued to the petitioner, etc.

7. In this regard, it is to be noted that, merely because survey and demarcation of properties were effected by the statutory officer under the Kerala Survey & Boundaries Act, 1961 and the rules framed thereunder by itself will not confer any right on the beneficiaries of such process, which are not otherwise available to them in law. So also, merely because of the survey and demarcation of the properties as per the abovesaid Act, will not result in prejudicing or taking away rights of any third parties which are otherwise available to them in law. Therefore, even if survey process and demarcation of the petitioner''''''''s properties is completed by the statutory authorities that by itself will not confer any right which is not otherwise available to the party and that by itself will not take away the rights of the third parties like contesting respondents 6 to 8, if such rights are otherwise available to them in law. Even if such statutory survey and demarcation of the properties are duly completed as per the abovesaid Act, nothing in law would prevent a aggrieved person to agitate any issues, if he has any legally justiciable cause of action by filing appropriate civil litigative proceedings and such parties like additional respondents 6 to 8 are able to establish their rights over the petitioner, before the civil court in the manner known to law, then the survey and demarcation of the properties under the abovesaid Act will not in any manner whittle down or preclude the parties like the additional respondents 6 to 8 from agitating and establishing their rights in civil courts, if such rights are otherwise available to them in law. Therefore, pendency of Ext.P-8 suit and Ext.P-9 interim order by itself shall not be a valid ground for postponing or delaying the completion of due process of surveying and demarcation of the properties as per the provisions contained in the Kerala Survey & Boundaries Act, 1971 and the rules framed thereunder. So also, it would be appropriate to bear in mind that well settled legal position enunciated in decisions of various courts including this Court as in Manjeri Muncipality v. A.M. Mohammed Ali, (2015) 1 KLT 612 (D.B) that an injunction cannot be granted by a civil court against statutory authority so as to prevent that authority from discharging its statutory functions and duties.

8. Accordingly, it is ordered that in case the survey and demarcation process has already been duly completed, then a copy of the survey sketch should be served to the petitioner as envisaged under Sec. 11(2) of the Kerala Survey & Boundaries Act, 1961, on payment of requisite fee in that regard, by the 4th respondent. The copy of the order and copy of the map recording the boundaries, may be furnished by the 4th respondent to the petitioner, on payment the requisite costs/fee in that regard, without much delay preferably within a period of three weeks from the date of production of a certified copy of this judgment. If, on the other hand, if the survey and demarcation process has not so far been completed, then the 4th respondent shall ensure that the process of survey, measurement and demarcation of the petitioner''''''''s property are duly effected and completed without much delay, after due notice to the petitioner and contesting respondents 6 to 8 and process in that regard should be completed within two months from the date of receipt of the requisite documents including production of a certified copy of this judgment.

9. The requisite documents including copy of the map determining the boundaries as envisaged in Sec. 11(2) of the abovesaid Act should be furnished to the petitioner as well as to additional respondents 6 to 8, if they so desire, but subject to payment of the prescribed costs in that regard. If the parties concerned have any grievance regarding the said survey process and identification and demarcation of the boundaries, then they will be at liberty to ventilate their grievances in terms of the provisions contained in the abovesaid Act. It is also made clear that the completiton of the process survey, measurement and identification of the petitioner''''''''s property as directed above will not by itself be the basis for prejudicing any of the rights and contentions of additional respondents 6 to 8 in their civil litigative proceedings, which are to be decided independently, in accordance with law.

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