IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 WA.No. 991 of 2008() -------------------- AGAINST THE JUDGEMENT IN WPC.745/2008 .................... APPELLANT(S): PETITIONER ------------------------ V.GOPALAKRISHNAN NAIR, SREEVALSAM, PMC NO,.113 B/40, PATTAI,IRINGOL, PERUMBAVOOR. SMT.V.P.SEEMANTHINI, SENIOR ADVOCATE. BY ADV. SMT.S.KARTHIKA RESPONDENT(S): ---------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVT., REVENUE DEPARTMENT,TRIVANDRUM 2. DISTRICT COLLECTOR ERNAKULAM GOVERNMENT PLEADER SRI.BENJAMIN PAUL. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & T.R.RAMACHANDRAN NAIR, JJ. -------------------------------------------- W.A. No.991 of 2008 ---------------------------------------------- Dated 17th June, 2009. J U D G M E N T Kurian Joseph, J. Petitioner is the appellant. The petitioner has been before this court since the last two decades. The first original petition was filed in the year 1988 as O.P.No.7324/88. The issue pertains to the claim made by the petitioner for assignment of land under the Kerala Land Assignment Rules for an extent of 3 acres in the hilly area at Malayattoor, on the ground that he is an ex-service man. Thereafter, the petitioner approached this court in O.P.11922/92 (Ext.P4). That was disposed of by judgment dated 4.12.2003 directing the Government to take a decision on the representation filed by the petitioner, in the light of the stand as recorded in the judgment. It was noted in the judgment that no action had been taken in the matter of assignment and that the case of the petitioner would be considered according to the provisions contained in the Kerala Land Assignment Act and Rules. 2. Smt.V.P.Seemanthini, learned senior counsel WA NO.991/08 2 submits that since no action was taken within the time specified in Ext.P4 judgment, the petitioner approached this court for initiating contempt proceedings. Ext.P5 communication was produced in the contempt proceedings, and it is submitted that the contempt proceedings were closed without prejudice to the liberty to challenge the order. 3. Ext.P5 is a communication from the Additional Chief Secretary, Revenue Department to the Advocate General. It is stated in Ext.P5 that the writ petitioner had already been assigned an extent of one acre for agricultural purpose on 16.12.1994 and that the petitioner had sold the said property violating the conditions in the patta. It is also stated in the communication that the writ petitioner was no more. Still further it is observed that there is no land available for assignment to the petitioner. 4. The learned senior counsel submits that the petitioner is still alive and available, though he is not physically keeping well. It is also submitted that land is available at Malayattoor for assignment. It is further submitted that the petitioner had to transfer the earlier allotted land since it was not WA NO.991/08 3 possible at that time to cultivate the land owing to the resistance from the local people. Still further it is submitted that there is no violation of the conditions of patta. These submissions are refuted by the learned Government Pleader. Among other submissions, it is also pointed out that the writ petitioner having violated the conditions of patta, he is not entitled for assignment of Government land any more. It is also submitted that there is no land available for assignment. Still further it is submitted that Malayattoor is not a hilly area. Be that as it may, none of these aspects is seen considered by the Government while passing the impugned order. Whether there is an order at all is doubtful. At any rate, Ext.P5 cannot be treated as an order passed on the representation, pursuant to the direction issued in Ext.P4 judgment. Ext.P5 is only a communication. 5. The learned Single Judge refused to interfere with the order on the ground that the writ petitioner had approached this court belatedly and that he had transferred the land already assigned. But in view of the submissions noted by us above, apparently there has to be an order on merits. The delay as submitted by the learned senior counsel occasioned only owing to WA NO.991/08 4 the pendency of the contempt proceedings before this court. In that view of the matter, we set aside the judgment of the learned Single Judge. There will be a direction to the first respondent to pass a proper order adverting to the contentions taken by the parties on merits, some of which are referred to above. In the process, the petitioner shall be afforded an opportunity for hearing. He shall be permitted to appear either in person or through an authorised representative. In view of the advanced age of the petitioner, final orders as above shall be passed within two months from the date of production of a copy of the judgment by the appellant. The Writ Appeal is disposed of as above. KURIAN JOSEPH, JUDGE. T.R.RAMACHANDRAN NAIR, JUDGE. tgs KURIAN JOSEPH & T.R.RAMACHANDRAN NAIR, JJ. ---------------------------------------------- W.A. No.991 of 2008 ---------------------------------------------- J U D G M E N T Dated 17th June, 2009.