Biju Skaria vs State Of Kerala

Muralee Krishna S, J.

This writ petition is filed under Article 226 of the Constitution of India by the petitioner seeking a writ of mandamus commanding respondents 2 and 3 to measure and demarcate the landed property having an extent of 60.31 Ares in Sy.No.63/1-2 and 14.97 Ares in Sy No.39/183-1 of Chathurangapara Village obtained by him as per Ext P1 sale deed. According to the petitioner, during the rainy season soil erosion happens in the locality of his property and in order to protect his land, construction of a retaining wall is highly necessary. The petitioner approached the 2nd respondent-Tahsildar, Taluk Office, Udumbanchola, with Ext P4 application to demarcate the boundary of the property. But, the demarcation is delayed without any reason or justification.

On 10.9.2024, when this matter was taken up for consideration, this Court suo motu impleaded the District Collector, Idukki as additional 5th respondent who has filed a counter affidavit dated 19.10.2024. Paragraph No.3 of the counter affidavit reads as follows:

“3. The application submitted by the petitioner before the 2nd respondent for demarcation of the land included in Ext P1 sale deed was forwarded by the 2nd respondent to the Taluk Surveyor for necessary action. Despite earnest efforts to locate the Field Measurement Sketch of the land, for the purpose of measuring the property of the petitioner, the Taluk Surveyor was unable to locate the Field Measurement Sketch. Consequently, a letter was addressed to the Central Survey Office, Thiruvananthapuram and requested to tender a copy of the Field Measurement Sketch. Copy of the letter sent to the office of the Central Survey Office, Thiruvananthapuram, dated 13.6.2024 is produced herewith and may be marked as Ext R5(a). In response to Ext R5(a) communication, a letter was received by the 2nd respondent from the office of the Central Survey, in which it was stated that the sketch in question is not available in the Central Survey Office, Thiruvananthapuram. Copy of the letter dated 20.6.2024 is produced herewith and may be marked as Ext R5(b). It is respectfully submitted that the Taluk Surveyor informed that, without the Field Measurement Sketch, demarcation of the land cannot be conducted. Therefore, this respondent cannot acknowledge about the location of the property correctly, as mentioned in Ext P1 sale deed.”

Heard the learned counsel appearing for the petitioner and the learned Government Pleader appearing for the respondents.

The learned counsel for the petitioner submitted that it is the statutory obligation of the respondents to survey the land of the petitioner when an application was made under Kerala Survey and Boundaries Act, 1961. The respondents cannot escape from their statutory responsibility by stating that the field measurement sketch is unavailable in their offices.

The learned Government Pleader submitted that it is not possible for the respondents to demarcate the property without a field measurement sketch, which is unavailable even in the office of Central Survey, Thiruvananthapuram. In a similar situation, in Contempt of Court Case(C) No.840 of 2023, this Court ordered the parties to approach the competent Civil Court for the purpose of demarcating the property.

Ext P1 title deed of the petitioner is not disputed by the respondents. The contention of the 5th respondent is that the field measurement sketch is unavailable in the Revenue offices including in the Central Survey Office, Thiruvananthapuram, and hence it is not possible for them to identify and demarcate the property of petitioner.

It is true that as per the order dated 7.11.2023 in Contempt Case (C) No.840 of 2023, a learned Single Judge of this Court closed the contempt case without prejudice to the right of the petitioners therein to move the competent Civil Court. But the facts of the case in our hands are entirely different. It could be seen from the judgment of Contempt Case (C) No.840 of 2023 that there was boundary dispute between the petitioners therein and the neighbouring owner. It was under that circumstance, the Court directed the petitioners therein to approach the competent Civil Court. But in this case, neither the petitioner nor the respondents have a case that the petitioner is having boundary dispute with the neighbouring property owner.

In M/s. Ellora Stone Aggregates vs The Village Officer and others [2020 (2) KLT 675] another Single Bench of this Court, when the respondents therein raised a contention of non-availability of survey plan, held that non-availability of the records cannot be a reason to deny revenue records like survey map and sketch. With the available records or by conducting survey, the survey map shall be issued to the petitioner. Needful shall be done to issue survey map and sketch to the petitioner within a period of two months after notice to the petitioner.

In  this  case,  the  petitioner  approached  the  2nd respondent Tahasildar with Ext.P4 application to demarcate the boundary of his property based upon Ext.P1 sale deed by which he obtained the same. According to the respondents, it is not possible to identify the boundary of the property of the petitioner for the reason that the field measurement sketch pertaining to that property is unavailable in the revenue offices. The issue before us is whether the revenue officials, especially those from the Survey Department can evade their statutory duty by saying that a document which ought to have been maintained in their office is not available.

The Kerala Survey Boundaries Act, 1961 ('the Act' in short) was enacted on 22.12.1961 with an object to consolidate, amend and unify the law relating to the survey of land and settlement of boundary disputes in the State of Kerala. Section 2(vi) of the Act defines 'survey'. As per the said Section, survey includes all operations incidental to the determination, measurement and a record of a boundary or boundaries or any part of a boundary and includes a resurvey. As per Section 2(viii) of the Act, survey officer means any officer appointed by the Government as a survey officer under Section 3. As per Section 3, the Government may by notification in the Gazette, appoint any officer either by name or by virtue of this office to be a survey officer for all or any of the purposes of the Act.

A detailed procedure is provided under Chapter II of the Act for conducting survey of lands which includes resurvey. As per Section 4, the Government or subject to the control of the Government or authority authorised by the Government in this behalf, may, by notification in the Gazette order the survey of any land or of the boundary of any land or of the boundary forming the common limit of any Government land and any registered land. As per Section 5, a registered holder of any land may apply to, the Government or to any officer or authority authorised by the Government in this behalf for the survey of his land on the ground that portion of the land has been lost by sea erosion or action of river. The manner in which the survey has to be conducted is detailed in Sections 6 to 8 of the Act. Vast authority is given to the survey officer as per sections 7 and 8 of the Act. As per Section 8, every survey officer shall be bound to carry out the survey in the manner prescribed; provided that for the purpose of speedy survey of the vast area of land, the Government may by notification in the official gazette authorise the concerned survey officer to conduct the survey through aerial survey or other suitable modern methods utilizing services of expert agencies specified by the Government in the notification.

As per Section 9 of the Act, the survey officer has the power to determine and record as undisputed any boundary in respect of which no dispute is brought to his notice. As per Section 10, the survey officer has power to determine and to record a disputed boundary with reasons. The recourse against the decision of the survey officer taken under Sections 6, 7, 9 or 10 is provided in Section 11 of the Act by way of an appeal to the prescribed authority. As per Section 13, on completion of demarcation 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 the District Collector under Section 13A or by a Civil Court under Section 14, the survey shall be conclusive proof of the boundaries determined by the survey officer. As per Section 13A, power of revision is given to the District Collector against the completion of the demarcation under Section 13, if he is not satisfied as to the legality of the determination on the ground of any discrepancy, inaccuracy, defect or mistake of any kind crept in such determination. As per Section 14 of the Act, any person being aggrieved by the determination of the boundary under Sections 9, 10, 11 or by an order passed by the Collector under Section 13A may institute a suit within one year from the date of notification under Section 13.

Provisions are made under Kerala Survey and Boundaries Rules 1964, for inspection, upkeep and repair of survey marks by the authority concerned. The Rules provide the procedure for conducting survey, resurvey, effecting subdivisions, correction in the previous survey measurements, etc.

The reading of various provisions in the Act and rules would make it clear that a complete procedure is provided in the Act for survey including resurvey of the land whether it is Government land or in the possession of a registered holder.

In Sabu v. Sasi [2022 (2) KLT 722], a learned Single Judge of this court considered the essential components of a survey map and their importance by appointing the Assistant Director of Survey in Charge of Deputy Director of Survey, Ernakulam as Amicus Curiae. In paragraph 14 of the judgment, the learned Single Judge extracted the relevant portion of the report submitted by the amicus curiae. Paragraphs 14 to 18 of the judgment read thus:

“14. The relevant portion of the report submitted by the Amicus Curiae is extracted below:-

"Surveying is the process of making such measurements as will determine the relative positions of points on the surface of the earth in order that the shape and extent of any position of earth's surface may be ascertained and delineated on a map or plan. A plan is therefore the representation to some scale, of the ground and the objects upon it.

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The following are the various components of a survey plan:-

a. G-Line: G-line outlines the making of the entire sketch. It is an imaginary line that converts the sketch into various sizes of triangles to fix the boundary lines and the various points in the sketch. Errors in G-line will affect all the pertinent calculations.

b. F-Line: F-line signifies the actual field boundaries in the outer lines of the sketch. Its points are fixed with reference to its offset distance from the G-line.

c. Check-Lines: Check Lines are lines that divide a survey field into triangles, so that off-sets can be laid to the field line points, and thereby area can be calculated.

d. Sub-Divisional Lines: Subdivision lines demarcate a small portion of land within a survey number. A sub-divisional extent of a polygon is directly correlated to the extent found for the particular subdivision. The subdivision lines are generally defined through a ladder, or the likes of it.

e. Ladder: The field line points are defined with reference to an offset distance from the G-line or check line. The offset distance may deviate to the left or right side of the G-line. This left or right angle deviation is highlighted by the ladder.

f. Extension Lines: Each survey number field forms a crucial part of the village map, and as a result of it, other fields surround each sketch. The precise direction wherein the subject field joins the neighbouring field is depicted on the survey map as an extension line.

g. Neighbouring Field Survey Nos. : The other fields surround each of the survey sketches. These surrounding field numbers are marked around each FMB.

h. Off-set: It is the perpendicular distance which is the least distance to a point measured from a G line or Checkline. In a Survey, the position of the details such as boundaries, buildings, roads etc. is located with respect to the Surveyline by means of lateral measurement taken at right angles to the survey line. Every offset has two measurements 1) the distance along the chainline called Chainage and 2) the length of the offset.

i) Field Measurement Sketch/FM Sketch: Field Measurement of a field is a plan plotted to scale in the field measurement sheet with triangulation measurements and offsets. As a rule, the top of the page will represent north, but when it does not, the north point line should be shown. Measurements of F lines, G lines and Checklines are recorded in the sketch.

The G line measurements, Check lines measurement and offsets are neatly entered in the 'ladder' in the FM sheet. Offset are numbered in series in red ink from the bottom of the ladder.

The direction of adjoining field boundaries, and adjoining survey numbers are entered in the sides of the field.

The ladder is necessary to plot the field and verify the shape and area of the field. It is not possible to plot and calculate area or refix the field with boundary measurements only.

j) Measurement of Fields: An Eyesketch of the field to be surveyed is prepared before taking the measurements. All side and subdivision boundaries measured are noted in the Eyesketch. Junctions are named A, B, C, D etc. G lines connecting injunctions are then measured. Offsets are taken for field boundary bends from G lines. Offsets for subdivision points are taken from checkline. Offsets are recorded in the field book (Ladder) on the left or right of the line. Each point of the field can be refixed using this ladder.

The principle of `Chain surveying' is to divide the field into a framework of triangles. The sides of a triangle are measured directly in the field. Each field is divided into triangles by chaining lines called Diagonal or Check-lines from tri-junction to tri-junction and the Offsets taken from G-line or Check-line to the bend points.

The Amicus Curiae submitted that Ext.C3(a) plan is styled as a field measurement sketch (FM Sketch). An FM Sketch shall contain `F-line', `G-line', 'Check-line' and 'Offset' measurements. The `G-line' measurements, Check-line' measurements and 'Offset' are entered in the 'Ladder' in the FM sheet. In addition, the direction of adjoining field boundaries and adjoining survey numbers are entered on the sides of the field. ‘Ladder' is necessary to plot the field and verify the area of the field. It is impossible to plot and calculate the area or re-fix the field with the aid of boundary measurements (F-lines) only. To re-fix the field 'G-lines', 'Check-lines', F-lines' and 'Offsets' are required. A survey plan becomes complete and self-explanatory only when it contains the requirements mentioned above.

Ext.C3(a) plan contains only `F-lines', which cannot be used to find the area of any of the properties described therein and to identify the boundaries of the properties. Ext.C3(a) plan relied on by the Courts below has not been prepared following the requirements mentioned above. It is impossible to ascertain how 'C' schedule property was identified as 617 sq.links by the surveyor from Ext.C3(a) Survey Plan. `G-line', `F-line', and 'Sub-Divisional Lines' are necessary for plotting and re-fixing the boundary of a property and 'Check-line' and 'Ladder' are necessary for computing the area of the property surveyed. Ext.C3(a) plan, which is made part of the decree is not useful to find the area of the property depicted therein and to fix the boundaries of the property.

It is pertinent to note that the appellant had questioned the veracity of Ext.C3(a) plan in the Trial Court itself. A specific objection was raised, stating that the plan was incomplete. In the objection to the Commission Report and plan, the appellant contended that the area of the property could not be tabulated from the plan and boundaries cannot be fixed due to the lack of diagonal lines. The Trial Court and the First Appellate Court lost sight of those vital aspects while decreeing the suit. Ext.C3(a) is insufficient to identify the properties in dispute. The Trial Court and the First Appellate Court ignored the fact that Ext C3(a) plan was incomplete, even when the appellant raised such a contention in the Trial Court itself.”

It is trite that as far as determination of title is concerned, the powers invested on the Survey Officers as well as the District Collectors under the Kerala Survey Boundaries Act is only to determine the boundaries of the land and not to decide title to the properties. In Cochin Devaswom Board v. Union of India [2023 (6) KHC 328], this court held thus:

“13. S.2(vi) of the Kerala Survey and Boundaries Act, 1961 defines 'survey'. Survey includes all operations incidental to the determination, measurement and record of a boundary or boundaries or any part of a boundary and includes a resurvey. True, it is an inclusive definition. But this definition or any other provision in the Act confers power on the survey authorities to decide a question regarding title to a property. S.4 of the Act empowers the Government or, subject to the control of the Government, the officer authorised in this behalf, may by notification in the Gazette, order the survey of any land or of any boundary of any land or of the boundary forming the common limit of any Government land and any registered land. A land owner may under S.5 of the Act apply for survey of his land on the ground that a portion of his land has been lost by sea erosion or action of river. When a survey is ordered under any of the said provisions, S.6 of the Act insists on the Survey Officer to publish a notification in the Gazette in the prescribed manner inviting all persons having any interest in the land or in the boundaries of which the survey has been ordered, to attend either in person or by agent at a specified place and time and from time to time thereafter when called upon for the purpose of pointing out boundaries and supplying information in connection therewith.

S.13 of the Kerala Survey and Boundaries Act declares that when the survey of any land or boundary which has been notified under S.4 or ordered under S.5 has been completed in accordance with the orders passed under S.9, S.10 or S.11, the Survey Officer shall notify as prescribed therein. Unless the survey so notified is modified by an order of the Collector under S.13A or is modified by a decree of a Civil Court under the provisions of S.14, the record of the survey shall be conclusive proof that the boundaries determined and recorded therein have been correctly determined and recorded.

Under Section 9 of the Act the Survey Officer has power to determine and record as undisputed any boundary in respect of which no dispute is brought to his notice. As per Section 10 of the Act, where a boundary is disputed, the survey officer shall after making such inquiries as he considers necessary, determine the boundary and record it in accordance with his decision with reasons in writing for arriving at that decision. Those provisions make it clear that the powers invested on the Survey Officers as well as the District Collectors under the Act is only to determine the boundaries of the land and not to decide title to the properties. Its corollary is that the survey authorities or the District Collector shall not decide the question of the title based on resurvey records.”

A person having boundary dispute with the neighbour, which is not settled by the demarcation of the boundary by the survey officer can move the civil court for fixation of boundary based upon the title deed relied by him. In the instant case, the petitioner is not having grievance that the boundary of his property is disputed by the neighbouring property holder. The only remedy he needs is fixation of the boundary of his property on the basis of his title deed, in order to protect his property from soil erosion by constructing a compound wall. To identify the exact boundary through which he had to construct the compound wall, he approached the 2nd respondent. Only if there is a boundary dispute with his neighbour or if he is not satisfied with the boundary determined under Section 9, or 10 or aggrieved by an order passed under Section 13A, he would be able to approach the civil court. Moreover, even if he approaches the civil court, it would not be possible to demarcate his property based on his title deed, unless the field measurement sketch is available with the village officer or the Taluk Surveyor.

The 5th respondent has no case that the entire Field Measurement Book is not available in the revenue offices. It is not possible for the 5th respondent to contend that since the field measurement sketch of a particular survey number or property is not available in the revenue offices, the petitioner has to approach the civil court for the purpose of demarcating the boundary. The officials concerned can measure the property by relying on the Field Measurement Sketches of adjoining survey numbers and other available records. If a mandatory document which ought to have been kept in the revenue offices is unavailable, it is the duty of the officials including the Government to make an alternative solution for the same. As discussed above, there is provision in the Act to conduct re-survey of the property by the Government, by following the procedure prescribed in the Act and rules, so as to prepare the survey sketch of a particular property or properties.

In such circumstances, we dispose of this writ petition directing the 1st respondent-State of Kerala to conduct the survey of the property of the petitioner through the concerned survey officials to demarcate the boundaries of the property in Ext.P4 application, which shall be completed within a period of four months from the date of receipt of certified copy of this judgment and thereafter the 2nd respondent-Tahsildar shall take a decision on Ext P4 application.