The petitioner is aggrieved by the reduction in area in respect of 'C' schedule property in Ext.P1 partition deed allotted to the petitioner's brother Abdul Jabbar. By virtue of Exts.P2 and P3, the said Abdul Jabbar sold the property to one Alikutty and by Exts.P4 and P5 sale deeds, the said Alikutty conveyed the said property to the petitioner and his brothers, namely, Thampi Rawther and Nezimudeen. The extent of the property covered by the said document is 3 Acres. By a subsequent deed, the said Nezimudeen sold his share to the petitioner. Presently, the petitioner and his brother Thampi Rawther are title holders of 2 Acres and 1 Acre respectively. But, now, after the resurvey proceedings, it is found that on account irregularities in the resurvey, the present area is 2 Acres and 40 cents; whereas the correct area is 3 Acres. Now, the petitioner has only 1 Acre and 60 cents instead of 2 Acres.
2. In the event of wide spread protests and objections raised against the resurvey proceedings, the resurvey authorities decided to conduct a survey adalath and accordingly called for applications from the land owners for the purpose of rectifying mistakes in the resurvey proceedings. Though the petitioner submitted Ext.P6 application for rectifying the error in the resurvey proceedings, no steps were taken by respondents 1 and 2. In the said event, the petitioner filed W.P.(c) No.32498/11 before this Court for a direction to the respondents 1 and 2 to consider Ext.P6 on merits and initiate steps in the matter of rectification of mistakes in the survey proceedings. The above writ petition was disposed of by directing the petitioner to file an application before the Additional Tahsildar concerned seeking rectification of the alleged mistake in the resurvey records. It is also directed that if such an application is made, the same will be dealt with in accordance with law.
3. In compliance with the said direction, the petitioner filed Ext.P8 application before the Additional Tahsildar concerned seeking rectification of the mistake. Thereafter, no action had been taken on Ext.P8 application. Then the petitioner again filed W.P.(c) No.23137/13 before this Court for issuing a writ of mandamus directing the 3rd respondent to consider Ext.P8 on merits and this Court passed an order as prayed. This Court directed the 3rd respondent to dispose of Ext.P8 on merits within two months from the date of receipt of a copy of the judgment. Consequent on Ext.P9, the 3rd respondent passed Ext.P10 order declining to interfere in the matter stating that the reduced portion is a “thodu puramboku”. The legality and propriety of of the findings by which the petitioner's request had been rejected is under challenge in this writ petition.
4. The learned counsel for the petitioner submits that though the petitioner had been given an opportunity of being heard, the impugned order was passed on a finding that the disputed portion of the property is lying as a “thodu puramboku”. Thus, the petitioner had not been given an opportunity to make an effective defensive argument to the finding that the disputed portion is lying as 'thodu puramboku', which is found in the revenue and resurvey records. Thus, the 3rd respondent committed grave error in not considering the merits of Exts.P6 and P8 applications. Exts.P6 and P8 are the applications to rectify the errors and irregularities in the resurvey. But without considering the merits of the contentions raised by the petitioner, the 3rd respondent rejected the applications on a finding that the said property is a 'thodu puramboku', vested in the local authority, as per the revenue records.
5. This writ petition is filed seeking issuance of a certiorari or other appropriate writ, order or direction quashing Ext.P10. Admittedly, the resurvey proceedings under the Kerala Survey and Boundaries Act, 1961 have not been completed so far and final notification has not been effected so far. This writ petition is filed during the course of resurvey proceedings. The grievance of the petitioner is that out 2 Acres of property which is in the possession and enjoyment of the petitioner, 60 cents has been reduced in extent in the resurvey records, which is being finalised.
6. In my view, the grievance of the petitioner is a fact in issue dealt with the proceedings contemplated under the Survey and Boundaries Act. The scope and extent of the interference of this Court under writ jurisdiction is very limited, for the correction of the area of the property in resurvey records. Moreover, the petitioner would get an opportunity to raise his objection, after the publication of draft notification. The only question to be considered in the writ jurisdiction is whether there is any illegality or irregularity in the decision making process under which Exts.P6 and P8 applications had been dismissed. Going by the impugned order, it is seen that pursuant to an order passed by this Court, the petitioner was heard on 6/12/2013 and he contended that the property that lies adjoining to Manimala river and a canal belongs to him and he has been enjoying the said property since last so many years. It is also contended that the said property is conveyed by virtue of the sale deed in his favour. On the basis of the arguments advanced by the petitioner before the 3rd respondent, the Taluk Surveyor was directed to examine the petitioner's claim that the property lies adjoining to Manimala river and a canal belongs to him. After conducting a local inspection and verifying the revenue records, the Taluk Surveyor reported that the property over which the petitioner claims, title and possession is a 'Sirkar thodu puramboku' comprised in R.S.No.1 in Block No.23 of Erumely South Village. In the above context, the 3rd respondent arrived at a finding that since the disputed property is vested in Panchayat as 'thodu puramboku', the said property cannot be set apart in favour of the petitioner, in the resurvey records.
7. Going by the proceedings, I do not find any kind of illegality or irregularity in the decision making process. When it is found that the disputed property is a 'thodu puramboku', it is for the petitioner to establish that the alleged 'thodu puramboku' is not a 'Sirkar thodu puramboku' and it is his property. In exercise of the jurisdiction under Art.226 of the Constitution of India, this Court is not expected to establish right; but can enforce an established right only. Moreover, the petitioner has no case that reduction in the extent of his property was caused by any kind of mala fides or bias towards him. Here, the right and possession over the said disputed property is a fact in issue which deserves to be established by the procedure laid down either under the Survey and Boundaries Act or before the civil court. Hence the petitioner is relegated to approach the civil court or seek proper remedies provided under the Survey and Boundaries Act.
This writ petition is disposed of in the above terms.
Sd/-
(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge