IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17907 of 2007(F)
1. KURIAN, S/O. THOMAS,
... Petitioner
2. GRACY KUTTY, W/O. THOMAS,
Vs
1. THE KATTAPANA GRAMA PANCHAYAT,
... Respondent
2. THE TAHSILDAR,
For Petitioner :SRI.VINOD RAVINDRANATH
For Respondent :SRI.K.K.CHANDRAN PILLAI
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :24/08/2009
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).No.17907 OF 2007
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Dated this the 24th day of August, 2009
JUDGMENT
1.The petitioners seek directions on the strength of an order
issued by the Tribunal for Local Self Government Institutions.
2.The petitioners applied for building permit. Later, certain
decisions were taken by the first respondent Panchayat
interfering with that construction activity. The premise for
such action appears to be a dispute between the Panchayat
and the petitioners as to the identity of an item of property,
over which, the Panchayat is carrying on certain constructions.
The constructions being made by the Panchayat were so made
subject to the result of this writ petition, by an interim order
issued in this case. Later, the Panchayat were also reminded
by this Court as per a later order that if they ultimately looses
the case, they may be liable to pull down the portion of the
structure that were being erected encroaching into the piece
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Page numbers
of land which the petitioners call as belonging to them.
Obviously therefore, the ultimate issue is regarding the
identity of a property. The Tribunal had also apparently
noticed this issue. That is why directions were issued to have
survey identification. The fact of the matter remains that the
Tahsildar of Udumbanchola had not been able to complete the
survey. I say this in the light of the report, which is not on
record, stating that the parties, though were present, did not
sign the mahazars being drawn up at the time of being
surveyed. The decision of the survey authority cannot be
thrust upon the parties, either it be a Panchayat or a citizen.
They have remedies against the decision of survey authorities.
Equally, it has to be remembered that on questions relating to
title to property, the decisions of the civil court will override
and prevail over the decision of survey authorities. Having
noticed that the core issue relates to title and identification
and because the lis between the parties could get crystallised
only on completion of survey, it is ordered that the second
respondent will carry out the survey operations at the earliest.
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The petitioners and the Panchayat will mark their appearance
before the second respondent on 30.9.2009 for the aforesaid
purpose. The decision of that survey need not be under the
signature or concurrence of the parties. They have to be
notified of the survey. If either the Panchayat or the
petitioners feel aggrieved by the result of that survey, it will be
open to either among them, to seek appropriate relief before
the superior authorities dealing with survey and land records
as also seek relief from civil court. The order of the Tribunal
to re-consider the issue demitted for consideration to the
Panchayat would thus be dependent on the result of the
aforesaid procedure. The survey authorities will take into
consideration the submissions of both sides relating to the
identity of the document, on the basis of which, the survey has
to be conducted. To enable that, the parties will be given an
opportunity of hearing at the first instance before conducting
the survey. All other issues are left open. All relevant
Government records, including the counter affidavit of the
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second respondent, would also be adverted to since it appears
that the Panchayat got the property from the Government.
The writ petition is disposed of with the above directions.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
kkb.27/8.