IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 WP(C).No. 22382 of 2007(M) -------------------------- PETITIONER(S): --------------- 1. M.V. SAROJINI, D/O. LATE K.V.GOPALAN, POOVALAMKAI, PEROLE VILLAGE, HOSDURG TALUK, P.O. PUTHARIYADUKKAM. 2. M.V. MURALIDHARAN, S/O. LATE K.V.GOPALAN POOVALAMKAI, PEROLE VILLAGE, HOSDURG TALUK, P.O. PUTHARIYADUKKAM, KASARGOD. 3. K.V. GANESHAN, S/O. LATE K.V.GOPALAN, POOVALAMKAI, PEROLE VILLAGE, HOSDURG TALUK, P.O. PUTHARIYADUKKAM, KASARGOD. 4. M.V.MADHAVI, W/O. LATE K.V.GOPALAN, -DO- -DO-. BY ADV. SRI.M.SASINDRAN SRI.T.R.JAGADEESH RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE SECRETARIAT, THIRUVANANTHAPURAM. 2. REVENUE DIVISIONAL OFFICER, KASARAGOD. 3. THE TAHSILDAR (LA) HOSDURG, KASARAGOD. 4. A. LAKSHMI, D/O. V.AMBU, KAIVELIKKAL HOUSE, THATTACHERRY, NILESHWAR VILLAGE HOSDURG TALUK, KASARAGOD. GOVERNMENT PLEADER SMT.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.22382 of 2007 ================== Dated this the 13th day of July, 2009 J U D G M E N T The petitioners claim to be the persons in possession of 40 cents of Government land in Sy. No.328/1-A3, which, the petitioners claim was originally occupied by their father about seven decades ago. The petitioners' father had made valuable improvements in the property and had constructed a house in the year 1983, thereon. According to the petitioners, without any proper notification, without any inspection of the land and without hearing any of the affected parties including the petitioners, the Government assigned the said land to the 4th respondent, by Ext.P1 order dated 16.2.1985. The petitioners submit that they were unaware of the said order of assignment and the 4th respondent also did not take any steps to take possession of the land as per the said assignment. In 2004, the 4th respondent filed a suit for recovery of possession of the property against the 2nd petitioner. It is at that time, the petitioners came to know that the land was assigned in favour of the 4th respondent, as per Ext.P1. Immediately they filed Ext.P2 appeal before the 2nd respondent along with a petition to condone delay in filing the same. The petition to condone delay was dismissed. Consequently the appeal was refused to be taken on file and was rejected by Ext.P4 order. The petitioners are challenging w.p.c.22382/07 2 Ext.P4 in this writ petition. 2. The petitioners' contention is that Ext.P4 does not consider the application to condone delay on its merits. Simply by quoting the date of Ext.P1 and the date of filing the appeal, the application has been rejected stating that there is a delay of 22 years and that the explanation of delay is not found satisfactory. According to the petitioners, they had satisfactorily explained the delay in the affidavit accompanying Ext.P3 petition. They would submit that till the 4th respondent filed the suit, they were totally unaware of the same. They also point out that in that suit a Commission was appointed and the Commissioner measured the property, when only they came to understand that this particular property is being claimed as the assigned land as per Ext.P1. 3. A counter affidavit has been filed by the 2nd respondent, in which, it is contended that Ext.P1 was issued after completing all legal formalities including issue of public notice and therefore, the contention of the petitioners that the petitioner did not know about the assignment cannot be accepted on its face value. 4. I have considered the rival contentions in detail. 5. At the outset, I am constrained to say that Ext.P4 order is totally unsatisfactory. It is not a speaking order and none of the contentions in Ext.P3 has been considered. It is a very relevant factor w.p.c.22382/07 3 that after Ext.P1 in 1985, the 4th respondent took steps to get possession of the land only in 2004, by filing O.S.No.195/2004. That is certainly a circumstance which would support the contention of the petitioners that the petitioners were unaware of Ext.P1. Simply because a notice is published as contemplated under law, that does not necessarily mean that all the persons affected by the same would come to know about the same. In the above circumstances, I am of opinion that dismissal of the application to condone delay is clearly unsustainable. I also note the Supreme Court decision in Collector Land Acquisition, Anantnag v. Katiji (AIR 1987 SC 1353), which held that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred and such substantial justice should not be on technical considerations of delay. In this case, the petitioners are sought to be deprived of properties which were in their and their father's possession for several decades. In such circumstances, I am of opinion that justice demands that their claim be considered on merits. I am also of opinion that the petitioners have explained the delay satisfactorily. In the above circumstances, Ext.P4 is quashed. The 2nd respondent is directed to consider Ext.P4 appeal on its merits and pass appropriate orders thereon as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment, w.p.c.22382/07 4 after affording an opportunity of being heard to the petitioners as well as the 4th respondent. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge