WPC 2424/2020 High Court of Kerala Uploaded by HJames Joseph Adhikarathil Kottayam When there is a

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942 WP(C).No.2424 OF 2020(C) PETITIONER: DR. THOMAS MATTATHIL, AGED 70 YEARS, S/O.ULAHANNAN THOMAS, MATTATHIL HOUSE, KIZHAPARAYAR P.O., POOVARANI VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

BY ADVS. SRI.P.K.SOYUZ SRI.E.V.BABYCHAN RESPONDENTS: 1

DISTRICT COLLECTOR, CIVIL STATION, KAKKANADU, ERNAKULAM, PIN-682 030.

2

THE TAHSILDAR(LR), TALUK OFFICE MUVATTUPUZHA, MUDAVOOR P.O., MUVATTUPUZHA, ERNKAULAM DISTRICT, PIN-686 669.

3

THE DISTRICT SURVEY superintendentENT, ERNAKULAM, CIVIL STATION, KAKKANADU, ERNAKULAM, PIN-682 030.

4

THE HEAD SURVEYOR, MUVATTUPUZHA TALUK, TALUK OFFICE MUVATTUPUZHA, MUDAVOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686 669.

5

THE TALUK SURVEYOR, MUVATTUPUZHA TALUK (IN CHARGE OF MARADY VILLAGE), TALUK OFFICE MUVATTUPUZHA, MUDAVOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN686 669.

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6

THE VILLAGE OFFICER, MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN686 661.

R1-6 BY GOVERNMENT PLEADER K J MOHAMED ANZAR SPL GP

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT Dated this the 2nd day of July 2020 This matter is related to the alteration of recorded areas in survey records. The District Collector passed an order after adverting to the report of the Head Surveyor of Survey and Land Records and the Tahsildar (LR).

2.

The District Collector rejected the request stating that the

petitioner has no records to claim the excess land. The District Collector considered the matter based on the direction of this Court in W.P.(C)No.7717/2019.

This Court directed the District Collector to

consider Ext.P5 application and thereafter to effect the transfer of registry in terms of Rule 28 of the Transfer of Registry Rules.

3.

The point for consideration is as to whether the petitioner is

entitled to area alteration.

4.

In this regard, it is appropriate to refer the report of the Head

Surveyor of Survey and Land Records produced as Exts.P6 and P7. In Ext.P6 report, the Head Surveyor of Survey and Land Records reported

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that invoking Rule 61 of the Survey and Boundary Rules, 1964, (for short the “Rules”) the alteration can be effected. The Head Surveyor of Survey and Land Records also gave reasons for such alteration.

According to him, the property is within the physical boundaries and the neighbouring owners are not affected by such alteration. The Tahsildar also recommended for alteration.

5.

When there is a conflict between the boundary and extent,

the boundary will prevail. The report itself clearly indicates that the petitioner is holding the entire extent of the land. It is also stated that no neighbouring owner will be affected on account of such alteration.

6.

The Surveys and Boundary Rules, 1964 contemplate the

procedure for the alteration of the recorded areas. Rule 60 of the Rules says that when ever the correction of measurements involves a change in the existing area of the field or sub division by more than five percent, the area in the memorandum of alteration shall be checked and certified as correct by the superintendent of Survey and Land Records of the district and the district collector shall be competent authority to sanction the alteration of area. Thereafter, the Rule was amended. The amended

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Rule was produced as Ext.P8. The amendment came in the year 2017.

This Rule enables the Head Surveyor of Survey and Land Records instead of the superintendent of Survey and Land Records, to certify correction.

7.

In the light of the clear finding that the excess land is

bounded within the physical boundary, the District Collector could not have rejected it stating that the petitioner had no title to it. As already noted when there is a conflict between the extent shown in a document and the boundaries, the boundaries would prevail.

8.

The order passed by the District Collector is set aside. It is

also relevant to point out Ext.P16 recommendation given by the District Survey superintendent to the District Collector for effecting such alteration in the light of the report of the Head Surveyor of Survey and Land Records and the Tahsildar. Consequent upon the rejection by the District Collector, the Tahsildar also rejected the petitioner's claim by Ext.P17 order. In view of the fact that the Head Surveyor of Survey and Land Records is the competent authority in terms of rule 61 of the Rule and the fact that the Head Surveyor of Survey and Land Records and the

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Tahsildar have already approved the alteration of the recorded areas, the District Collector shall accord necessary sanction in terms of Rule 60 of the Rules to effect the necessary alteration in the survey records.

Accordingly the impugned orders are set aside.

9.

The District Collector shall grant sanction within one month

and consequently, the Tahsildar is directed to effect transfer of registry under Rule 28 of the Transfer of Registry Rules in favour of the petitioner without any further delay thereon.

This writ petition is disposed of as above.

Sd/A.MUHAMED MUSTAQUE JUDGE PR

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APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1

TRUE COPY OF THE SALE DEED NO.4507/1979 OF MUVATTUPUZHA SRO DATED 22.12.1979.

EXHIBIT P2

TRUE COPY OF THE SALE DEED NO.4503/1979 OF MUVATTUPUZHA SRO DATED 22.12.1979.

EXHIBIT P3

TRUE COPY OF THE SALE DEED NO.2480/1985 OF MUVATTUPUZHA SRO DATED 20.06.1985.

EXHIBIT P4

TRUE COPY OF THE APPLICATION DATED 01.12.2016.

EXHIBIT P5

TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE 1ST RESPONDENT DATED 05.04.2017.

EXHIBIT P6

TRUE COPY OF THE REPORT DATED 28.02.2018 OF THE 4TTH RESPONDENT.

EXHIBIT P7

TRUE COPY OF THE RECOMMENDATION FORWARDED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT DATED 09.07.2018.

EXHIBIT P8

TRUE COPY OF THE GOVERNMENT ORDER GO(P) 70/2017/RD DATED 24.11.2017.

EXHIBIT P9

TRUE COPY OF THE APPLICATION SENT TO THE 2ND RESPONDENT DATED 14.01.2019.

EXHIBIT P10

TRUE COPY OF THE JUDGMENT IN WPC NO.7717 OF 2019 DATED 02.07.2019.

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EXHIBIT P11

TRUE COPY OF THE ORDER DATED 30.07.2019 IN WPC NO.7717 OF 2019.

EXHIBIT P12

TRUE COPY OF THE LETTER NO.F4 16165/2016 DATED 22.01.2018 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P13

TRUE COPY OF THE AREA ALTERATION MEMORANDUM IN FORM NO.97 OF SURVEY MANUAL ALONG WITH THE REVISED SKETH AND AREA CALCULATION STATEMENT.

EXHIBIT P14

TRUE COPY OF THE LETTER NO.F4 16165/2016 DATED 13.11.2019 SENT BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.

EXHIBIT P15

TRUE COPY OF THE COVERING LETTER SENT

BY THE 1ST RESPONDENT DISTRICT COLLECTOR DATED 21.11.2019.

EXHIBIT P16

TRUE COPY OF THE OPINION LETTER NO.G14974/2019 DATED 22.11.2019 SENT BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT.

EXHIBIT P17

TRUE COPY OF THE PROCEEDINGS NO.D2774/19 DATED 14.11.2019 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P18

TRUE COPY OF THE ORDER IN COC NO.2371 OF 2019 DATED 26.11.2019.

EXHIBIT P19

TRUE COPY OF THE ORDER NO.DCEKM/9887/2017-L16 DATED 30.11.2019 OF THE 1ST RESPONDENT.