IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 WP(C).No. 32575 of 2008(C) --------------------------------------- PETITIONER(S): ---------------------- 1. PRATHAP S.NAIR, VELLANGAL VEEDU, ULIYACOIL P.O., KOLLAM 2. ASHADEVI, VELLANGAL VEEDU ULIYACOIL PO., KOLLAM. BY ADV. MR.P.B.SURESH KUMAR, MR.LEO GEORGE. RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVENMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF SURVEY, SURVEY AND LAND RECORDS, KOLLAM. 3. ASSISTANT DIRECTOR, SURVEY AND LAND RECORDS, RE-SURVEY, KOLLAM. 4. LALITHAKUMARY, KRISHNAVILASOM, ULIYACOIL KOLLAM EAST P.O., KOLLAM. R1 TO R3 BY GOVERNMENT PLEADER MR.M.A. ASIF. R4 BY ADV. MR.NAGARAJ NARAYANAN, MR.RAJAN VELLOTH , MR.A.S.SABU, MR.SAIJO HASSAN , MR.BENOJ C AUGUSTIN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 32575/2008-C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN A.S. NO.19/1986 ON THE FILE OF THE DISTRICT COURT, KOLLAM DATED 10/07/1989. EXT.P2: COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT DATED 17/03/2003. EXT.P3: COPY OF THE TAX RECEIPT ISSUED TO LATE SREEDHARAN NAIR PURSUANT TO EXHIBIT P2 ORDER DATED 20/03/2003. EXT.P4: COPY OF THE DECREE IN O.S. NO.193/1995 ON THE FILE OF THE MUNSIFF'S COURT, KOLLAM DATED 09/01/1996. EXT.P5: COPY OF THE NOTICE ISSUED BY THE SECOND RESPONDENT TO THE SECOND PETITIONER DATED 03/10/2008. EXT.P6: COPY OF THE COMMUNICATION ISSUED BY THE SECOND RESPONDENT TO THE SECOND PETITIONER DATED 30/10/2008. EXT.P7: COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT DATED 28/10/2008. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE PARTITION DEED NO.920/92 OF THE SRO, KOLLAM. EXT.R4(b): COPY OF THE SALE DEED NO.2906/94 OF THE SRO, KOLLAM. EXT.R4(c): COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KOLLAM EAST VILLAGE DATED 07/12/2001. EXT.R4(d): COPY OF THE SALE DEED NO.630/1992 OF THE SRO, KOLLAM DATED 16/02/1992. EXT.R4(e): COPY OF THE SKETCH PREPARED BY TALUK SURVEYOR, KOLLAM DATED 10/08/2007. EXT.R4(f): COPY OF THE BASIC TAX REGISTER. EXT.R4(g): COPY OF THE ENCUMBRANCE CERTIFICATES DATED 27/08/2008. EXT.R4(h): COPY OF THE NEWS PAPER REPORT APPEARED IN MALAYALA MANORAMA DAILY DATED 03/07/2008. //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 32575 of 2008-C - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of January, 2010. JUDGMENT The petitioners are aggrieved by Ext.P7 order passed by the second respondent whereby the second respondent cancelled the order passed by the third respondent and restored a portion of the property of the first petitioner as pathway in the survey records. It is mainly contended that the said order is passed without notice to the petitioners and without hearing them. 2. Heard learned counsel for the petitioners, learned Govt. Pleader appearing for respondents 1 to 3 and learned counsel appearing for the 4th respondent. 3. The second petitioner is the mother of the first petitioner. The first petitioner owns 22.85 acres of property in Kollam East Village. There was a dispute regarding right of way raised by certain persons in the locality which culminated in Ext.P1 judgment in A.S. No.19/1986 on the file of the District Court, Kollam. It is stated that the said judgment has become final in S.A. No.939/1989. An execution petition is pending at the instance of the petitioners. wpc 32575/2008 2 4. It is also stated that a re-survey was conducted in the meanwhile and Ext.P2 is the resultant order passed thereon by the third respondent. A portion of the property held by late Sreedharan Nair, the father of the first petitioner, was ordered to be included in the thandapare account of the late Sreedharan Nair in the re-survey records. Accordingly, the petitioners are paying tax also. The same has already been implemented and Ext.P3 is produced to show that basic tax has been remitted thereafter. 5. Another suit, O.S. No.198/1995 was filed by Sreedharan Nair against the husband of the fourth respondent concerning the dispute regarding a portion of the pathway which was decreed as per Ext.P4. 6. The second respondent passed Ext.P7 order in the light of the complaint raised by the 4th respondent. Learned counsel for the 4th respondent submitted that now they are not having any access to go out of their property and Ext.R4(b) newspaper report has also been produced in this case. The fourth respondent has filed a detailed counter affidavit, wherein it is stated that they are entitled, as a matter of right, to use the pathway and now the ingress and egress are closed. 7. It is clear from Ext.P7 proceedings that the petitioners were not heard in the matter. As per Ext.P6 notice, the hearing was postponed to 5.11.2008 at the request of the counsel for the petitioners but an order as per Ext.P7 is seen passed on 28.10.2008. In that view of the matter, the same wpc 32575/2008 3 violates the principles of natural justice. 8. Therefore, I am not going into the merits of the contentions of the respective parties. Ext.P7 is quashed and a re-hearing will be conducted by the second respondent with notice to the petitioners and the 4th respondent and any other affected parties. Appropriate orders shall be passed after hearing the parties, within a period of two months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/