IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 WP(C).No. 5297 of 2008(E) ------------------------------------ PETITIONER: ------------------ SHAJAHAN ,S/O.SULAIMAN, AGED 50 AREEKKAL POTTENMALAYIL HOUSE, KATTOOR MURI, CHERUKOLE VILLAGE RANNY TALUK, PATHANAMTHITTA. BY ADV. SRI.C.S.MANILAL RESPONDENTS: ---------------------- 1. THE DISTRICT COLLECTOR,PATHANAMTHITTA 2. THE VILLAGE OFFICER CHERUKOLE VILLAGE, PATHANAMTHITTA DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2008 ALONG WITH 7870/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 5297/2008 E APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE SALE DEED NO. 919/94 DT. 17/08/98. EXT.P2. COPY OF THE TAX RECEIPT DT. 3/10/2006. EXT.P3. COPY OF THE ENCUMBRANCE CERTIFICATE DT. 17/10/00. EXT.P4. COPY OF THE NOTICE OF AUCTION ISSUED BY R1 DT. 26/2/2007. EXT.P5. COPY OF THE JUDGMENT DT. 13/11/2006 IN WPC NO. 29843/2006. EXT.P6. COPY OF THE NOTICE FOR HEARING DT. 23/1/2007 BY R1. EXT.P7. COPY OF THE ORDER DT. 08/08/07 BY R1. EXT.P8. COPY OF THE PAPER PUBLICATION IN MADHYAMAM DAILY DT. 23/1/08. EXT.P9. COPY OF THE SKETCH AND PLAN OF THE PROPERTY OF THE PETITIONER. EXT.P10. COPY OF THE SETTLEMENT DEED NO. 720 DT. 1/08/77. EXT.P11. COPY OF THE PATTA ISSUED BY SPECIAL TAHSILDAR, PATHANAMTHITTA TO PEERUMUHAMMED. RESPONDENT'S EXHIBITS NIL. True copy tga ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = W.P.(C) Nos. 5297 & 7870 OF 2008 = = = = = = = = = = = = = = = = Dated this the 11th March, 2008 J U D G M E N T Petitioner in WP(C) No. 5297/08 claims ownership over 20 cents of land in Sy. No. 392/2/2 of Cherukole Village. The controversy in this writ petition came to be examined by this Court in W.P.(C) No. 29843 of 2006 filed by the petitioner. That case was disposed of by Ext. P5 judgment. Dealing with the claim of ownership of the petitioner over an Anjili tree which was proposed to be sold by the District Collector, Pathanamthitta this Court in that judgment ordered that the sale notified can go on and that if the tree is sold, the petitioner will get the value of the sale if he ultimately succeeds in establishing ownership over the tree. it was for that purpose, this Court directed that the petitioner's claim of ownership over the tree shall also be settled by the District Collector. The petitioner in W.P.(C) No. 5297/08 has a complaint that following Ext. P5, though hearing was scheduled by Ext. P6, that did not take place and without giving him an opportunity of W.P.(C) Nos. 5297 & 7870 OF 2008 - 2 - hearing the District Collector passed an adverse order against the petitioner and this was communicated to the petitioner by Ext. P7. It is submitted that since Ext. P7 was issued by the District Collector without hearing the petitioner the matter has to be re-considered. However, the tree in question was put for sale by Ext. P8 notice and it was at this stage W.P.(C) No. 5297/08 was filed. Referring to the survey number indicated in Ext. P8 as 392/1, petitioner contended that the survey number notified was also wrong. It was in that circumstance an interim order dated 20.2.2008 was passed directing that if the tree in question was situated in Sy. No. 392/2/2 of Cherukole Village, the auction shall not be held. While matters stood thus, W.P.(C) No. 7870/08 was filed by the petitioner therein claiming to be the successful bidder in the auction that was held pursuant to Ext. P8 and in view of the interim order in W.P.(C)No. 5297/2008, he seeks a direction to refund the amount deposited by him towards the sale consideration. 3. I have heard the counsel appearing for the petitioners in these two cases. As already noticed, the petitioner in W.P.(C) No. 5297/08 is claiming ownership over the land in Sy. No. 392/2/2 of W.P.(C) Nos. 5297 & 7870 OF 2008 - 3 - Cherukole Village. This Court in Ext. P5 judgment directed that his claim of ownership over the tree in question shall be settled by the 1st respondent and permitted the auction to go on. Therefore in case the petitioner ultimately succeeds in establishing his title, he will be entitled to get the monetary value realised. Hence, the petitioner cannot stop the sale of the tree, however, he should get the value of the timber. Now that the sale has already taken place and the petitioner in W.P.(C) No. 7870/08 is the successful bidder in view of the directions of this Court in Ext. P5 judgment, the petitioner in W.P.(C) No. 7870/08 should be allowed to remove the timber subject to compliance with the auction conditions. Since the District Collector has issued Ext.P4, without affording an opportunity of hearing to the petitioner, Ext.P7 deserves to be quashed and the matter has to be reconsidered. 4. In view of the facts as stated above, these writ petitions are disposed of with the following directions: 1. The petitioner in W.P.(C) No. 7870/08 will be permitted to remove the timber subject to compliance with the auction conditions specified by the District Collector. W.P.(C) Nos. 5297 & 7870 OF 2008 - 4 - 2. The amount realised in the auction shall be kept in a separate account. 3. Ext.P7 is quashed and the District Collector shall settle the claim of ownership of the petitioner in W.P.(C) No. 5297/08 over the Anjili tree as directed by this Court in the judgment in Ext. P5 judgment with notice and opportunity to the petitioner in W.P.(C)No. 5297/08. In case, ultimately it is found that the petitioner in W.P.(C) No.5297/08 is the rightful owner of the tree in question the District Collector shall disburse the value deposited by the petitioner in W.P. (C) No. 7870/08 to the petitioner in W.P.(C) No. 5297/08. The District Collector shall reconsider the matter as directed in Ext.P5 judgment as expeditiously as possible, at any rate within 6 weeks of production of a copy of this judgment. ANTONY DOMINIC JUDGE jan/-