Research › Search › Judgment

Kerala High Court · body

2018 DIGILAW 110 (KER)

Nandakumar v. District Collector, Ernakulam

2018-02-01

MARY JOSEPH, P.R.RAMACHANDRA MENON

body2018
JUDGMENT : Ramachandra Menon, J. 1. Ext.P10 order passed by the 2nd respondent herein (pursuant to Ext.P9 verdict passed by a Division Bench of this Court in D.B.P.No.138/2012 for finalising the statutory appeal in terms of the relevant provisions of The Kerala Land Conservancy Act, 1957) is under challenge. The basic question to be considered is whether the remand ordered by the 2nd respondent after setting aside Ext.P8 order passed by the 4th respondent, for not having obtained consent of the District Collector (allegedly as stipulated under Section 13A of The Kerala Survey and Boundaries Act, 1961) is correct or sustainable, more so when no such stipulation is seen from the said provision. 2. A brief description of the factual position is necessary, to have clarity as to the sequence of events and proceedings which resulted in Ext.P10. The petitioner is stated as an ardent devotee of Udayathumvathil Sree Krishna Swamy temple and was a member of the Temple Advisory Committee, whose tenure is admittedly over. He is aggrieved of the encroachment of the Devaswom property by the nearby inhabitants; particularly the respondents 6 to 11. It is stated that the encroachment on the Devaswom property was brought to the notice of the Authorities concerned; but no timely action was taken from any corner. In the said circumstances, the petitioner in O.P.No.2340/2001 had approached this Court (preferred by the Udayathumvathil Sree Krishna Swamy Temple Kshetra Kshema Samithi, joining hands with another person) which culminated in Ext.P1 judgment dated 18.9.2001, relegating the said petitioners to move the civil court. Pursuant to the said verdict, O.S.No.1685 of 2002 was filed before the civil court by the Devaswom Board and another. The Advocate Commissioner appointed by the Court (to cause the properties to be measured out based on relevant survey records and the 'Thanathu register' maintained by the Devaswom) inspected the properties and effected measurement with the assistance of the competent authority of the Survey/Revenue departments and Ext.P2 report, along with the sketch, was submitted; identifying as many as 'nine encroachments' over the property belonging to the Devaswom. However, in the due course, it was realized by the Devaswom that no suit was maintainable before the civil court (presumably by virtue of the bar under Section 20A of The Kerala Land Conservancy Act) and hence Ext.P3 memo was submitted by the learned Standing Counsel for permission to withdraw the suit without prejudice to pursue other appropriate remedies. It is stated that the suit was dismissed as withdrawn accordingly, granting the liberty as above. 3. Despite the lapse of six years, no further step was pursued by the Devaswom; which made the devotees to file a complaint before the Ombudsman for Travancore & Cochin Devaswoms, referring to actual facts and figures, as borne by Ext.P4. Pursuant to the said complaint, the Ombudsman visited the temple and submitted Ext.P5 report dated 30.6.2012 before this Court, which was the subject matter of consideration in D.B.P. No. 138/2012. Paragraphs 3 and 4 of the said report are relevant and hence they are reproduced below:- “3. All the documents were sent with the complaint itself. Notwithstanding stop memo, I am informed that construction was continued. Now the Special Tahsildar has agreed to measure the property and find out whether there is trespass. According to the Special Tahsildar, only if there is trespass as per the resurvey records, action can be taken. Otherwise the resurvey records have to be got corrected first and then alone action can be taken. 4. The basic document of the Devaswom land is the Thanathu Register. If there is variation between the extent in Thanathu Register and measurements after resurvey and the person in possession is not in a position to produce document to support his title, then it may be a case where the extent shown in the Thanathu Register can be relied on. The Hon'ble High Court had already directed in DBA N.43 of 2011 to measure the land involved in that case on the basis of old survey records. In DBP No.139 of 2011, the Hon'ble High Court had given detailed directions to attend to requests of correction of survey records promptly.” 4. The Hon'ble High Court had already directed in DBA N.43 of 2011 to measure the land involved in that case on the basis of old survey records. In DBP No.139 of 2011, the Hon'ble High Court had given detailed directions to attend to requests of correction of survey records promptly.” 4. It has been pointed out by the learned Ombudsman as well, that suit is not maintainable by virtue of the bar under Section 20A of the Land Conservancy Act and as such necessary proceedings have to be taken by the Special Tahsildar in terms of the Land Conservancy Act; in turn suggesting to pass appropriate orders by this Court. The position was taken note of by the Bench, leading to Ext.P6 order dated 12.9.2012 (common order passed in the D.B.P.No.138 of 2012, along with connected cases) whereby certain specific observations were made as to the misconception of the officers concerned, in pursuing the proceedings in terms of the Land Conservancy Act and the necessity to rely on the 'old survey records' to identify the encroachments, besides pointing out the futility in solely relying on the 'Re-Survey records'. It was accordingly, that the Special Tahsildar was directed to file a statement before the Ombudsman for further steps. Later, this Court had occasion to consider the issue again on the 1st November, 2012, in view of the lapses noted on the part of the Authorities concerned. Ext.P7 order was passed on that day, observing that immediate stern action shall be taken in all the cases referred to therein. Pursuant to the said direction, the matter was finalized by the Special Tahsildar, after affording an opportunity of hearing to all concerned, by passing Ext.P8 order on 21.6.2013. As per the said order, encroachments to an extent of 0.0535 hectares in the hands of 'nine different persons' were identified and vacant surrender was ordered to be effected within fifteen days; lest coercive steps should be pursued, invoking the power vested with the Executive Magistrate in this regard. 5. It is stated that the some of the occupants of the lands moved this Court by filing W.P.(C)No.1677/2013 and W.P. (C)No.31557/2014, challenging the 'stop memo' issued in the matter of construction being carried out in the properties concerned. 5. It is stated that the some of the occupants of the lands moved this Court by filing W.P.(C)No.1677/2013 and W.P. (C)No.31557/2014, challenging the 'stop memo' issued in the matter of construction being carried out in the properties concerned. It was however brought to the notice of this Court, that Ext.P8 order passed by the Special Tahsildar had already been subjected to challenge by the aggrieved parties before the appellate authority (the second respondent herein) by filing a statutory appeal. In the said circumstances, D.B.P.No.138/2012 was closed, directing the appellate authority to pass final orders in the appeal, as borne by Ext.P9 dated 13.10.2014. Later, the writ petitions filed by the parties concerned, challenging the 'stop memo' also came to be closed, to facilitate disposal of the appeal preferred before the second respondent. 6. Pursuant to finalization of the matter before this Court, the appeal preferred before the second respondent was considered by the said respondent, who passed Ext.P10 order dated 20.1.2016. It is observed therein that the measurement conducted even as per the 'Re-Survey records' revealed as many as 'seven encroachments'. It was also observed that there was some difference between the measurements as per the 'Old survey records' and the measurement effected as per the 'Re-Survey records'. However, the second respondent held that no consent of the District Collector was obtained for causing measurement of the property in terms of 'Section 13A' of The Kerala Survey and Boundaries Act, 1961; which was held as a fatal mistake. In the said circumstances, Ext.P8 order passed by the 4th respondent was set aside, with liberty to proceed with further steps afresh, after obtaining consent of the District Collector. This is under challenge in this writ petition on several grounds. 7. The respondents 6 and 7 have filed counter affidavit, pointing out that the petitioner does not have any 'locus standi' to file the writ petition. The properties originally belonged to the V.T.K. Estate, a portion of which was purchased by the father of the 7th respondent (father in law of the 6th respondent), who later obtained Ext.R6(b) 'Pattayam' (assignment certificate). On demise of the father, the property came to the hands of the legal heirs and by virtue of Ext.R6(a) release deed executed by the other legal heirs, the 7th respondent became the absolute owner of the property concerned, who is enjoying the same with exclusive possession and title. On demise of the father, the property came to the hands of the legal heirs and by virtue of Ext.R6(a) release deed executed by the other legal heirs, the 7th respondent became the absolute owner of the property concerned, who is enjoying the same with exclusive possession and title. Ext.R6(c) is the sketch prepared by the Village Officer and Ext.R6(d) is the possession certificate. A copy of the judgment passed by a learned Single Judge of this Court in W.P. (C)No.31557/2014, directing finalization of the appeal preferred before the Revenue Divisional Officer is also produced as Ext.R6(e) (which was incomplete as the 2nd page was missing on the date of hearing). Respondents 8, 9 and 10 have filed separate counter affidavits pointing out that the property came to their hands from one deceased Govindan who was the defendant in O.S.No.9/1957, which was a suit filed by the plaintiffs before the Sub Court, Ernakulam seeking for realization of the arrears of lease rent, the compensation for cutting down of trees and also for surrendering the possession. It is stated that Ext.R8(a) is the decree passed on 7.8.1961 in respect of the total extent of 65 cents. Ext.R8(b) is the 'patta' obtained by the legal heirs, on the demise of Mr. Govindan and the said property was subsequently partitioned and the same is stated as possessed by the respondents 8 and 10. It is stated that no excess land is possessed by them. It is also added that the 9th respondent is not holding any property, but for the land owned and possessed by his wife covered by Ext.R8(c) having an extent of 4.6 cents in Sy.No.535/5. With reference to the above materials, it is stated that no part of the land belonging to the Devaswom is owned, possessed or enjoyed by the said respondents who derived the flow of title from the property comprised in Survey No.535/5 (Re-Survey No.49/9-part). It is also pointed out before this Court that Ext.P4 is a bogus complaint and that the persons at Sl.Nos.1 and 2 have not signed the same. Although the 11th respondent has entered appearance through a lawyer of his choice, no counter affidavit has been filed by him. 8. It is also pointed out before this Court that Ext.P4 is a bogus complaint and that the persons at Sl.Nos.1 and 2 have not signed the same. Although the 11th respondent has entered appearance through a lawyer of his choice, no counter affidavit has been filed by him. 8. The learned counsel appearing for the party respondents, the learned Government Pleader who entered appearance on behalf of the respondents 1 and 2 and also the learned Standing Counsel appearing for the respondent Devaswom Board at length. 9. With regard to the 'locus standi' of the petitioner to file this Writ Petition (as questioned by the party respondents herein), it is true that Ext.P1 writ petition was filed by the Temple Advisory Committee and another; while Ext.P2 civil suit was filed by the Cochin Devaswom Board and another. It is pointed out by the learned counsel for the petitioner that he was a member of the Temple Advisory Committee earlier; the tenure of which Committee is already over and as such, he has filed the present proceedings as an ardent devotee, with all prudence and bonafides; more so since he was pursuing the matter earlier as well. 10. The fact that the petitioner herein was pursuing the matter earlier before this Court is evident from Ext.P6 order in D.B.P.No.138/2012, where the 7th respondent is shown as represented by the present petitioner. Same is the position with regard to the complaint preferred by the devotees before the Ombudsman, where name of the petitioner is specifically adverted to as complainant in Ext.P5 report submitted by the Ombudsman. In the above circumstances, this Court finds that the objections raised by the party respondents as to the 'locus standi' of the petitioner is thoroughly wrong and misconceived and that the same does not hold any water at all. 11. With regard to the challenge raised against Ext.P10 order passed by the 2nd respondent, ordering remand after setting aside Ext.P8 order of the 4th respondent [despite the observation/finding rendered as to the encroachment even as per the 'Re-Survey record'] is that no “sanction of the District Collector” was obtained to have any re-fixation of boundaries in terms of “Section 13A” of The Kerala Survey and Boundaries Act. The last two paragraphs (prior to the order portion) reveal that such an idea was gathered by the 2nd respondent/Sub Collector as submitted by the Taluk Surveyor before him. The last two paragraphs (prior to the order portion) reveal that such an idea was gathered by the 2nd respondent/Sub Collector as submitted by the Taluk Surveyor before him. It was accordingly, that Ext.P8 order was set aside for not having obtained 'consent' from the District Collector in terms of “Section 13A” of the Act and to proceed with further steps afresh, only after obtaining such consent. The question is whether any such consent is envisaged under Section 13A of the Kerala Survey and Boundaries Act. 12. Section 13A of The Kerala Survey and Boundaries Act reads as follows:- “13A. Power of revision by the Collector.- (1) Notwithstanding anything contained in Section 13, the Collector may on an application from any person or any authority, examine the record in respect of the determination of any boundary which has been completed and the fact of such completion has been notified under Section 13, to satisfy himself as to the legality of the determination of such boundary, and if, in any case, the Collector is satisfied that the determination of such boundary should be modified or revised, on the ground of any discrepancy, inaccuracy, defect or mistake of any kind crept in such determination, he may pass orders accordingly: Provided that the Collector shall not pass any order affecting any party unless such party has had an opportunity of making a representation. (2) Where determination of any boundary is modified or revised by an order under subsection (1), the Survey Officer shall publish the fact of such modification or revision, as the case may be, in the Gazette and also in the notice-board of the Village Office to which the survey relates.” From the above, it is quite obvious that Section 13A of the above Act deals with the 'revisional power' of the District Collector; that too to be exercised only on the basis of any application preferred before him either by the individual/party or by the Department. This power is to be exercised for re-fixation of the boundary only in respect of the dispute as to the finalisaton of the proceedings in terms of “Section 13”. Section 13 of The Kerala Survey and Boundaries Act reads as follows:- “13. This power is to be exercised for re-fixation of the boundary only in respect of the dispute as to the finalisaton of the proceedings in terms of “Section 13”. Section 13 of The Kerala Survey and Boundaries Act reads as follows:- “13. Completion of demarcation to be notified.- when the survey of any land or boundary which has been notified under Section 4 or ordered under Section 5 has been completed in accordance with the orders passed under Section 9, Section 10 or Section 11, the Survey Officer shall notify the fact in the Gazette, and a copy of such notification shall be posted in the village office, if any, of the village to which the survey relates. Unless the survey so notified is modified by an order of the Collector under Section 13A or is modified by a decree of a Civil Court under the provisions of Section 14, the record of the survey shall be conclusive proof that the boundaries determined and recorded therein have been correctly determined and recorded.” 13. Nowhere either under Section 13 or under Section 13A of the Act, is there any stipulation as to the “consent of the District Collector” to be obtained for effecting measurement of the properties concerned. That apart, there is no case for the party respondents or anybody else, that they had any such case before, as to the necessity to rely upon the provisions of The Kerala Survey and Boundaries Act or as to the alleged 'consent' to be obtained from the District Collector in any manner to carry out a direction given by this Court as per Ext.P6. There is a clear finding by this Court [as discernible from the directions given in Exts.P6 and P9] as to the necessity to proceed with further steps in terms of The Kerala Land Conservancy Act to safe-guard the properties belonging to the Devaswom, if at all there is any encroachment. The role of this Court, exercising 'parens patriae' jurisdiction is to protect the property of the Deity; the Deity of a Hindu Temple being a perpetual minor. This is evident from the observations contained in Ext.P6 verdict passed by this Court; which also reveals the misconception nurtured by the officers concerned in invoking the provisions under The Kerala Land Conservancy Act. This is evident from the observations contained in Ext.P6 verdict passed by this Court; which also reveals the misconception nurtured by the officers concerned in invoking the provisions under The Kerala Land Conservancy Act. Paragraphs 1 and 2 of Ext.P6 are quite relevant in this regard and hence they are extracted below:- “These matters relate to various allegations as to encroachment into different parcels of lands under the control of the Travancore and Cochin Devaswom Boards. Hearing the learned counsel for the parties, the learned amicus curiae on behalf of the learned Ombudsman, the learned Senior Government Pleader, the respective standing counsel for the Travancore Devaswom Board and the Cochin Devaswom Board, we see that the officers entrusted with the authority to initiate proceedings under the Kerala Land Conservancy Act,1957; for short, the 'L.C. Act'; in relation to the lands belonging to the Travancore and Cochin Devaswom Boards or under their control, appear to be labouring under a misconception about such proceedings. 2. Land conservancy proceedings cannot be carried out merely based on re-survey records. Entries in re-survey records are predominantly on the basis of possession as of now. They would be totally worthless, when the question is as to whether lands vested in deities have been encroached upon and controlled by the Devaswom Boards and trustees, reduced to occupation by private persons or other agencies. Obviously, the prior revenue records have to be looked into to ascertain whether there is any parcel which stands vested, in a particular deity. If that be so, collateral materials will also have to be looked into to ascertain the genesis of the property. Even if there is no revenue record in that regard, the vesting, if any, in any deity has to be ascertained. The Courts act parens patriae in that regard. Foundation for land conservancy proceedings could be generated in terms of that legislation. Of course, summary procedure in terms of the L.C. Act has to be understood and applied in the light of the binding precedents laid down by the Hon'ble Supreme Court of India and jurisdictional High Court.” 14. The legal position has been made clear by the Hon'ble Apex Court as to the role to be played by this Court in exercising the 'parens patriae' jurisdiction in Gopalakrishnan v. Cochin Devaswom Board reported in [2007 (4) KLT 965 (SC)]. The legal position has been made clear by the Hon'ble Apex Court as to the role to be played by this Court in exercising the 'parens patriae' jurisdiction in Gopalakrishnan v. Cochin Devaswom Board reported in [2007 (4) KLT 965 (SC)]. The said decision was referred to and relied on by a Division Bench of this Court as well, in the ruling reported in Travancore Devaswom Board v. Mohanan Nair (2013 (3) KLT 132). In the said circumstances, the properties of the Devaswom, if at all encroached by anybody and if any assignment/conveyance has been effected without involvement of the Devaswom, securing 'pattayam' or such other deeds, the same cannot confer any right upon the parties concerned, unless the title so derived is clear in all respects. There cannot be any dispute that the remedy to retrieve such property belonging to the Devaswom is by resorting to the course stipulated in The Kerala Land Conservancy Act. The necessity to proceed with such steps stands crystalised by virtue of the direction given by this Court to the Special Tahsildar as referred to already. It was in exercise of such power, that notice was given to all concerned and the matter was finalised by the 4th respondent as per Ext.P8. This has been interdicted by the 2nd respondent as per Ext.P10, wrongly adverting to the mandate of Section 13A of The Kerala Survey and Boundaries Act, which provision is not at all attracted to the case in hand. 15. Ext.P10 order passed by the 2nd respondent is not correct or sustainable and it requires to be set aside on the sole ground that Section 13A is not attracted; nor does it stipulate any 'consent' from the District Collector. When there is a clear direction given by this Court to have the proceedings finalized in terms of The Kerala Land Conservancy Act, it was not for the 2nd respondent or the District Collector or anybody else to rewrite the direction given by this Court. Ext.P10 order passed by the 2nd respondent clearly displays the lack of understanding and the casual way in which orders are being passed by the 2nd respondent. As mentioned already, the necessity to obtain the 'consent' of District Collector [allegedly in terms of Section 13A of the Land Conservancy Act] was cited as the reason to interdict Ext.P8, merely based on the opinion put forward by the Taluk Surveyor. As mentioned already, the necessity to obtain the 'consent' of District Collector [allegedly in terms of Section 13A of the Land Conservancy Act] was cited as the reason to interdict Ext.P8, merely based on the opinion put forward by the Taluk Surveyor. The said version of the Taluk Surveyor was glibly swallowed by the 2nd respondent who is stated as a member of the Indian Administrative Service, without taking the minimum pain to go through the said provision. The fact that the officer has not gone through the provision is quite evident, insofar as the said provision only deals with the 'revisional jurisdiction' of the District Collector; that too on an application by the party/the Department to have the matter reconsidered where the proceedings were finalised in terms of Section 13. Had minimum effort been taken by the 2nd respondent, just to read the provision before passing the order, the mistake would not have occurred in Ext.P10. In the said circumstance, Ext.P10 stands set aside and the matter is remitted to the 2nd respondent for fresh consideration in terms of the directions already issued, to deal with the merits of Ext.P8 in accordance with law, after affording an opportunity of hearing to all the parties concerned. This shall be done at the earliest, at any rate, within a period of 'three months' from the date of receipt of a copy of this judgment. 16. It is brought to the notice of this Court that when the matter was admitted by this Court an interim order was passed, that any construction activity would be provisional and subject to further orders and also at the risk of the persons making the construction. The said order will continue to govern the field, till the matter is finalised by the 2nd respondent afresh. 17. Since much time of the Court has been caused to be wasted because of the casual exercise done by the 2nd respondent and since much hardship has been caused to the petitioner in moving this Court by way of appropriate proceedings against Ext.P10 and further since we have arrived at a clear finding that the 2nd respondent had not gone through Section 13A of The Kerala Survey and Boundaries Act, 1961 to understand its scope but for relying on the 'opinion of the Taluk Surveyor', this Court finds that the 2nd respondent is liable to satisfy cost. We take a lenient view and restrict the cost as Rs.10,000/- (Rupees Ten thousand only) which shall be satisfied to the petitioner within one month. The Government shall recover the cost from the particular officer who passed Ext.P10 in a casual manner. The writ petition stands allowed. A copy of the judgment shall be forwarded to the Chief Secretary of the State for further steps with regard to the course of action mentioned above.