High Court Kerala High Court

Kurian vs The Kattapana Grama Panchayat on 24 August, 2009

Kerala High Court
Kurian vs The Kattapana Grama Panchayat on 24 August, 2009
       

  

  

 
 
  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.
                  -------------------------------------------
                  W.P(C).No.17907 OF 2007
                  -------------------------------------------
             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

WPC.17907/07

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.

WPC.17907/07

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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

WPC.17907/07

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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.