IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 WP(C).No. 35670 of 2007(U) ------------------------------------ PETITIONER: -------------------- THE KOTTAYAM CONSTRUCTION COMPANY PRIVATE LTD., P.O.KOTTAYAM, REPRESENTED BY THE DIRECTOR, VAKKACHAN GEORGE. BY ADVS. MR.M.K.DAMODARAN, SENIOR ADVOCATE MR.P.J.MATHEW RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT., REVENUE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KOTTAYAM, CIVIL STATION P.O., KOTTAYAM. 3. THE REVENUE DIVISIONAL OFFICER, KOTTAYAM. 4. THE TAHASILDAR, KOTTAYAM. BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 35670 of 2007(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - PHOTOCOPY OF THE CERTIFICATE OF INCORPORATION DATED 19.10.1994. EXT.P2 - TRUE COPY OF THE SKETCH SHOWING THE LIE OF THE PROPERTY. EXT.P3 - TRUE COPY OF THE BUILDING PERMIT ISSUED BY SPECIAL GRADE SECRETARY, KUMARANALLOOR PANCHAYATH DATED 03.042007. EXT.P4 - TRUE COPY OF THE ORDER DATED 08.05.1998 ISSUED BY THE DISTRICT COLLECTOR, KOTTAYAM. EXT.P5 - TRUE COPY OF THE NOTICE ISSUED BY THE ADDITIONAL TAHASILDAR, KOTTAYAM DATED 30.05.2007. EXT.P6 - TRUE COPY OF THE PATTA NO. B7-4101/74 OF THE TAHASILDAR, KOTTAYAM DATED 19.11.1974. EXT.P8 - TRUE COPY OF THE ASSIGNMENT DEED NO. 392 OF KOTTAYAM ADDITIONAL SUB-REGISTRAR OFRFICER DATED 30.01.1981. EXT.P9 - TRUE COPY OF THE SALE DEED DATED 20.01.1992 OF KOTTAYAM SUB- REGISTRAR OFFICE. EXT.P10 - TRUE COPY OF SALE DEED DATED 22.12.1995 EXECUTED BY VINCENT J. NITHEERI. EXT.P11 - TRUE COPY OF THE BASIC TAX RECEIPT FOR THE YEAR 2006-2007 DATED 03.08.2006. EXT.P12 - TRUE COPY OF THE POSSESSION CERTIFICATE DATED 24.04.2007 ISSUED BYTHE VILLAGE OFFICER, PERUMBAIKAD. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 35670 of 2007 ................................................. Dated this the 6th day of August, 2009 J U D G M E N T The petitioner is challenging Ext.P6 stop memo issued by the 4th respondent directing the petitioner to stop the construction activities started by the petitioner in the properties mentioned therein. The same has been issued alleging violation of Rule 8(2) of the Kerala Land Assignment Rules, 1964. It is not specified in Exhibit P6 as to what exactly is the violation under Rule 8(2). The petitioner therefore seeks the following reliefs: “(i) to call for the entire records which lead to the passing of Exhibit P6 order and quash the same by the issuance of a writ in the nature of certiorari or any other appropriate writ, direction or order; (ii) to declare that Exhibit P6 order is arbitrary, unreasonable and ultravires of the Act and Rules; (iii) to issue a writ of mandamus commanding the respondents to permit the petitioner to complete the residential apartment as per the approved plan;” 2. A counter affidavit has been filed justifying the stop memo on the ground that the land was assigned to the predecessor in interest of the petitioner under the Kerala Land Assignment Rules and the Construction activities are in violation of Rule 8(2) thereof. W.P(C) No. 35670 of 2007 -2- 3. After hearing, I am of opinion that, I need not consider the validity of Ext.P6 as such for the present in so far as, it is only a stop memo. When a stop memo is issued, the same has to result in a final order either confirming the stop memo or cancelling the same. That eventuality has not taken place in this case. Further the petitioner specifically alleges that Ext.P6 order was passed without affording an opportunity of being heard to the petitioner. By order dated 17.12.2007, this court had passed the following interim order: “There will be an interim stay of Ext.P6 and if the petitioner continues the construction on the strength of the interim order it will be at the risk of the petitioner. Post in the 2nd week of January, 2008” In the above circumstances, I am satisfied that the writ petition itself can be disposed of directing the 4th respondent to take a final decision in the matter after affording an opportunity of being heard to the petitioner. Accordingly, this writ petition is disposed of with a direction to the 4th respondent to take Ext.P6 to its logical conclusion by passing a final order in the matter, as expeditiously as possible. Before passing that order, the petitioner shall be afforded an opportunity of being heard which shall include the opportunity to adduce evidence also in support W.P(C) No. 35670 of 2007 -3- of their case. The 4th respondent shall pass a speaking order dealing with all the contentions of the petitioner giving reasons as to why the contentions of the petitioner cannot be accepted in law. Till orders are thus passed the interim order passed by this court quoted above shall continue to be in force. S. SIRI JAGAN, JUDGE rhs