IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 WP(C).No. 14497 of 2009(F) -------------------------- PETITIONER(S): --------------- K.K.BUILDERS, A REGD.PARTNERSHIP FIRM, REP.BY ITS MANAGING PARTNER K.K.MOHANDAS, S/O.K.K.KUNHIRAMAN, AGED 53 YEARS,BUSINESS, HAVING ITS REGD. OFFICE AT PERAVOOR, MANATHANA AMSOM, PERAVOOR DESOM, PERAVOOR P.O., THALASSERY TALUK. BY ADV. SRI.SHAJI P.CHALY RESPONDENT(S): --------------- 1. KANNUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, KANNUR, KANNUR P.O., KANNUR TALUK. 2. THE SECRETARY, KANNUR MUNICIPALITY, KANNUR. 3. K.SUJITH, FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER, P.C.HOUSE, THANNADA, CHALA EAST P.O., KANNUR 670621. 4. K.JEEMA, FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER, P.C.HOUSE, THANNADA, CHALA EAST P.O., KANNUR 670621. 5. K.RESHMA, FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONER, P.C.HOUSE, THANNADA, CHALA EAST P.O., KANNUR 670621. R1, R2 BY ADV.SRI.K.K.CHANDRAN PILLAI, S.C. R3 TO R5 BY ADV. SRI.V.PREMCHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2009, ALONG WITH WPC NO. 18355 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.14497/09 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 5.5.09. EXT.P2: TRUE COPY OF THE JUDGMENT IN WPC.9834/09 DATED 1.1.09. EXT.P3: TRUE COPY OF THE REPRESENTATION FILED BY RESPONDENTS 3 TO 5 DATED 16.2.09. EXT.P4: TRUE COPY OF THE REPLY ISSUED BY THE PETITIONER TO RESPONDENTS 3 TO 5. EXT.P5: TRUE COPY OF THE RELEVANT PAGES OF THE BOT AGREEMENT. EXT.P6: TRUE COPY OF THE NOTICE ISSUED BY THE 2ND REPSONDENT DT.24.4.09. EXT.P7: TRUE COPY OF PHOTOGRAPH SHOWING THE NATURE AND LIE OF NEW ACCESS ROAD. EXT.P8: TRUE COPY OF SKETCH. EXT.P9: TRUE COPY OF PHOTOGRAPH SHOWING THE BUS STAND COMPLEX. RESPONDENT'S EXHIBITS: EXT.R3(a): TRUE COPY OF THE GIFT DEED DATED 10.7.1984 GIFT DEED NO.1621/84. EXT.R3(b): TRUE COPY OF THE SKETCHSHOWING THE LIE OF THE PROPERTY OF THE PETITIONERS. EXT.R3(c): TRUE COPY OF THE REPRESENTATION DATED 16.2.2009 FILED BY THE RESPONDENTS BEFORE THE 2ND RESPONDENT. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.14497 & 18355 OF 2009 ------------------------------------------- Dated this the 13th day of July, 2009 JUDGMENT 1.The first petitioner in the latter among the captioned matters and a couple of others moved this Court and obtained a direction to the Municipal Authority to hear their request for access through certain property. It appears that the Municipality and the petitioner in W.P(C).14497/09 have certain agreements between them. The Secretary of the Municipality, following the aforesaid judgment, recorded the statement of one of the complainants and conducted a site inspection, stated to be in the presence of the petitioner in W.P(C).14497/09 also. An order has been issued by the Secretary essentially on facts. It was wholly inappropriate that the said order has been issued without hearing the petitioner in W.P(C).14497/09 by giving him an opportunity to meet the materials which are being put against him. Not only that, the terms of the BOT agreement are also stated to be relevant to conclude on the mater either way. The said order, Ext.P1 in WPC.14497/09 & 18355/09 Page numbers W.P(C).14497/09, has been stayed by interim orders issued in that case. Alleging that utilising that opportunity that builder has made certain other constructions in the passage in question, W.P(C).18355/09 is filed seeking directions. 2.The aforesaid fact situation would show that all that is required is that the matter need not be held up here but has necessarily to go back for the Secretary of the Municipality to hear the parties and to decide afresh on the issue covered by Ext.P1 in W.P(C).14497/09 and also to consider the objections of the petitioners in W.P(C).18355/09 regarding certain constructions which are allegedly made as of now. Accordingly, Ext.P1 in W.P(C).14497/09 is quashed, opening up opportunity for parties to place all relevant materials before the Municipality to decide on matters referable to both the writ petitions. It is directed that final decision in the aforesaid matters will be taken within a period of 45 days from the date of receipt of a copy of this judgment. WPC.14497/09 & 18355/09 Page numbers 3.The parties are directed to mark their appearance before the Secretary of the Municipality on 27.7.2009 to enable the said officer to fix a date of hearing appropriately. All other issues are left open. These writ petitions are ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.13/7.