IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 WP(C).No. 25406 of 2003(M) --------------------------------------- PETITIONER(S): ----------------------- SHAJIMA IBRAHIM, AYSHA MANZIL, KACHERI ROAD, PUZHAVATHU, CHANGANACHERRY. BY ADV. MR.T.M.ABDUL LATHEEF RESPONDENT(S): -------------------------- 1. THE COMMISSIONER AND SECRETARY, REVENUE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOTTAYAM. 3. THE TAHSILDAR, CHANGANACHERRY. 4. P.M.ANSARI, PRIYADARSINI, KACHERI ROAD, CHANGANASSERY. 5. M.JAMEELA, DO.DO. R1 TO R3 BY GOVERNMENT PLEADER SMT.DEEPA K.R. R4 & R5 BY ADVS. MR.S.R.DAYANANDA PRABHU, MR.K.S.RAJESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.25406/2003 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REGISTERED SALE DEED DTD. 13.12.99. P2:- COPY OF THE SKETCH SHOWING LIE OF THE PROPERTY. P3:- COPY OF THE REPRESENTATION DTD. 27.4.92 FILED BEFORE THE GOVERNMENT. P4:- COPY OF THE COMMUNICATION FROM SECRETARY TO GOVT. TO DISTRICT COLLECTOR, KOTTAYAM. P5:- COPY OF THE COMMUNICATION DTD. 23.9.94 ISSUED BY THE IST RESPONDENT. P6:- COPY OF THE REPRESENTATION DTD. 22.10.94 TO the 2ND RESPONDENT. P7:- COPY OF THE REPRESENTATION DTD. 6.1.95 TO THE 2ND RESPONDENT. P8:- COPY OF THE ORDER DT. 14.2.95. RESPONDENT'S EXHIBITS R4(1):- COPY OF THE ENQUIRY REPORT DTD. 28.12.92 OF THE 3RD RESPONDENT AND SUBMITTED TO THE DISTRICT COLLECTOR , KOTTAYAM. R4(2):- COPY OF THE SALE DEED NO.2004/1977 DTD. 31.8.77 OF CHANGANACHERRY SUB REGISTRY OFFICE. R4(3):- ROUGH SKETCH OF THE PROPERLY DTD. NIL. R4(4):- COPY OF THE SALE DEED NO.1324/86 DTD. 31.5.86 OF CHANGANACHERRY SUB REGISTRY OFFICE. R4(5):- COPY OF THE SETTLEMENT DEED NO.887/1995 DTD. 13.3.95 OF CHANGANACHERRY SUB REGISTRY OFFICE. R4(6):- COPY OF THE JUDGMENT DTD. 1.8.02 IN OP. NO.1983/95. TRUE COPY P.A. TO JUDGE tss V.K.MOHANAN, J. --------------------------- WP(C) NO. 25406 OF 2003 ------------------------------------ DATED THIS THE 24TH DAY OF AUGUST 2009 J U D G M E N T - - - - - - - - - - - The challenge in this Writ Petition is mainly against Ext.P8 order by which Commissioner/Secretary to Revenue (A) department informed the District Collector, Kottayam that the puramboke land lying in Survey No.46/7 of Changanassery Village can be assigned to the holders of the land. Therefore the main grievance for the petitioner is against Ext.P8. It is also prayed in the Writ Petition for the issuance of a writ in the nature of Mandamus directing respondents 1 to 3 to implement Exts.P4 and P5. 2. The case of the Petitioner is that she purchased 8 cents of property as per Ext.P5 sale deed dated 13-12-1999. To the northern side of the property so purchased there is a property belonging to respondents 4 and 5. According to the Petitioner the access to her property, purchased as per WP(C) NO. 25406 OF 2003 2 Ext.P1, lying through the puramboke land starting from Kacheri Road and ending at the northern boundary of Chithrakulam. It is the further case of the Petitioner that predecessor in interest of the Petitioner had approached this Court by filing OP No. 1983 of 1995 on the allegation that respondents 4 and 5 has closed the pathway beginning from Kacheri Road. They have filed Ext.P3 representation on the basis of which Exts.P4 and P5 orders were issued by the Government so as to remove the obstruction. Ext.P4 is dated 28-5-1992 and Ext.P5 is dated 23-9-1994. That being the position, according to the Petitioner, the government subsequently passed Ext.P8 order on 14-2-1995 by which it is declared that the property in question can be assigned to the holder. The Petitioner approached this Court on an earlier occasion by filing OP No. 12238 of 2003 with a prayer to implement Ext.P4 and P5 which mentioned earlier. The said Writ Petition was disposed of by this Court by judgment dated 25-10-2006 in the following observation/direction; WP(C) NO. 25406 OF 2003 3 “In view of the intervening developments leading to OP No.25406 of 2003 filed by the petitioner, it is not necessary to consider this Writ Petition. It will be open to the petitioner to take all the contentions taken by her in this writ petition, in the writ petition referred to above. Subject to the above liberty, this writ petition is closed”. Hence on the basis of the above judgment the contention of the Petitioner is that while Exts.P4 and P5 were in force, the Government took a different decision and declared that property in question can be assigned and such a new decision was taken without hearing the Petitioner or the predecessor-in-interest of the Petitioner. 3. The 2nd respondent has filed counter affidavit stating that Ext.P8 has not been implemented so far as OP No. 1983 of 1995 was pending and also on the fact that the Petitioner WP(C) NO. 25406 OF 2003 4 herein preferred this present Writ Petition. It is stated that the procedure for assignment is dropped. Thus as such there is no procedure pending for assignment of the land. While disposing OP No. 12238 of 2003 this Court observed that it will be open to the Petitioner to take all contentions raised in that Writ Petition at the time of disposal of the present Writ Petition. If that be so it appears to me that without considering the merits of the contentions raised by the Petitioner as well as the contesting respondents, the matter can be remitted back to the government for fresh consideration of the entire matter after giving an opportunity to the Petitioners as well as the contesting respondents especially in the light of the stand of the government that the assignment proceedings pursuant to Ext.P8 has already dropped. In the result this Writ Petition is disposed of directing the 1st respondent to reconsider the entire matter and to take a fresh decision, untramelled by any of the decision WP(C) NO. 25406 OF 2003 5 taken vide Exts.P4,P5 and P8, after giving an opportunity of being heard to the Petitioner as well as respondents 4 to 5 including an opportunity to file objections and adduce evidence whatsoever. The decision shall be taken as early as possible at any rate within 4 months from the date of receipt of copy of this judgment, which will be produced by the Petitioner before the government. Contesting respondent can also produce copy of this judgment. There will be a direction to all the parties concerned to maintain status quo till the decision taken by the government as indicated and the same shall be subject to the final decision of the Government. V.K.MOHANAN JUDGE pkk