IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 OP.No. 12383 of 1997(Y) ----------------------------------- PETITIONER(S): ------------------------ 1. VARKEY JOSEPH, SON OF VARKEY, THEKKUMCHERIYIL HOUSE, THIDANADU P.O., KONDOOR VILLAGE. (DIED) * ADDL. PETITIONER 2 TO 11 IMPLEADED ADDL. P2: GEORGE JOSEPH, S/O.JOSEPH, THEKKUMCHERIYIL HOUSE, THIDANADU P.O., KONDOOR VILLAGE, KOTTAYAM DISTRICT. ADDL. P3: JOSEPH JOSEPH, S/O.JOSEPH, THEKKUMCHERIYIL HOUSE, THIDANADU P.O., KONDOOR VILLAGE, KOTTAYAM DISTRICT. ADDL. P4: THOMAS JOSEPH, S/O. JOSEPH, THEKKUMCHERIYIL HOUSE, THIDANADU P.O., KONDOOR VILLAGE, KOTTAYAM DISTRICT. ADDL. P5: MATHEW JOSEPH, S/O.JOSEPH, THEKKUMCHERIYIL HOUSE, THIDANADU P.O., KONDOOR VILLAGE, KOTTAYAM DISTRICT. ADDL. P6: SEBASTIAN, S/O. JOSEPH, THEKKUMCHERIYIL HOUSE, THIDANADU P.O., KONDOOR VILLAGE, KOTTAYAM DISTRICT. ADDL. P7: SUNNY, S/O. JOSEPH, THEKKUMCHERIYIL HOUSE, THIDANADU P.O., KONDOOR VILLAGE, KOTTAYAM DISTRICT. ADDL. P8: MANUEL T.J., S/O. JOSEPH, THEKKUMCHERIYIL HOUSE, THIDANADU P.O., KONDOOR VILLAGE, KOTTAYAM DISTRICT. ADDL. P9: TOMY JOSEPH, S/O. JOSEPH, THEKKUMCHERIYIL HOUSE, THIDANADU P.O., KONDOOR VILLAGE, KOTTAYAM DISTRICT. ADDL. P10: T.J. BABU, S/O. JOSEPH, THEKKUMCHERIYIL HOUSE, THIDANADU P.O., KONDOOR VILLAGE, KOTTAYAM DISTRICT. O.P. NO. 12383/1997-Y ADDL. P11: XAVIER JOSEPH, S/O. JOSEPH, THEKKUMCHERIYIL HOUSE, THIDANADU P.O., KONDOOR VILLAGE, KOTTAYAM DISTRICT. * ADDL. P2 TO P11 ARE IMPLEADED, VIDE ORDER DATED 24/08/2006 IN I.A. NO.11768/2006. BY ADV. SRI.K.GOPALAKRISHNA KURUP RESPONDENT(S): -------------------------- 1. BOARD OF REVENUE (L.R.), REPRESENTED BY THE SECRETARY, BOARD OF REVENUE (L.R.), THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM. 3. K.G. PRABHAKARAN NAIR, OFFICE OF THE REVENUE DIVISIONAL OFFICER, PALAI. 4. MATHEW SEBASTIAN, PEZHUMKATTIL HOUSE, THIDANADU KARA, THIDANADU P.O., KONDOOR VILLAGE. ** ADDL. R5 IMPLEADED ADDL. R5: THE REVENUE DIVISIONAL OFFICER, PALAI. ** ADDL. R5 IS SUO MOTU IMPLEADED AS PER JUDGMENT DATED 28/05/2010 IN WPC. BY ADV. SRI.JOHNSON MANAYANI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 12383/1997-Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SKETCH. EXT.P2: COPY OF THE PAGES 1 AND 4 OF PETITIONER'S RATION CARD. EXT.P3: COPY OF THE VOTERS' LIST OF POONJAR CONSTITUENCY 1959. EXT.P4: COPY OF THE LETTER DATED 26/03/1993. EXT.P5: COPY OF THE LETTER DATED 30/07/1994. EXT.P6: COPY OF THE APPLICATION DATED 30/09/1994 SUBMITTED BY THE PETITIONER. EXT.P7: COPY OF THE NO OBJECTION LETTER ISSUED BY THE EXECUTIVE ENGINEER, PWD DATED 13/05/1995. EXT.P8: COPY OF THE LETTER DATED 19/01/1996 ISSUED BY THE DISTRICT COLLECTOR, KOTTAYAM. EXT.P9: COPY OF THE PATTAYAM DATED 05/02/1996. EXT.P10: COPY OF THE SURVEY SKETCH. EXT.P11: COPY OF THE JUDGMENT DATED 20/06/1996 IN O.P. NO. 1680/1996. EXT.P12: COPY OF THE ORDER DATED 16/08/1996, IN RP.192/1996 IN O.P. NO. 1680/1996. EXT.P13: COPY OF THE APPEAL MEMO DATED 05/03/1996. EXT.P14: COPY OF THE OBJECTIONS FILED BY THE PETITIONER, DATED 09/12/1996. EXT.P15: COPY OF THE TAX RECEIPT DATED 16/03/1996. EXT.P15(a): COPY OF THE TAX RECEIPT DATED 26/12/1996. EXT.P16: COPY OF THE PETITION DATED 06/01/1997 FILED BY THE PETITIONER. EXT.P17: COPY OF THE LIST OF DOCUMENTS DATED 21/12/1996. EXT.P18: COPY OF THE PROCEEDINGS OF REVENUE DIVISIONAL OFFICER, PALA DATED 03/12/1996. O.P. NO. 12383/1997-Y EXT.P19: COPY OF THE INSPECTION REPORT DATED 13/06/1997. EXT.P20: COPY OF THE JUDGMENT DATED 04/04/1997 INOP 581/1997. EXT.P21: COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 24/06/1997. RESPONDENT'S ANNEXURE: ANNEXURE A1: COPY OF THE NOTICE ISSUED BY THE R.D.O. PALAI TO THE PETITIONER HEREIN DATED 31/12/2005. //TRUE COPY// P.S. TO JUDGE rs. P.N.RAVINDRAN, J. ---------------------------- O.P.No.12383 of 1997 ---------------------------- Dated 28th May, 2010 JUDGMENT Ext.P18 order passed by the Revenue Divisional Officer, Palai cancelling the assignment of land in favour of the petitioner, on an appeal filed by the fourth respondent, the neighbouring land owner and Ext.P21 order passed by the Board of Revenue affirming Ext.P18 order are under challenge in this original petition. The brief facts of the case are as follows: 2. An extent of 1.250 cents of land situated in old Survey No.1728/4 was assigned in favour of the petitioner, late Varkey Joseph. The fourth respondent, the neighbouring land owner, filed an appeal challenging the said assignment. That appeal was allowed and by Ext.P18 order the Revenue Divisional Officer, Palai cancelled the assignment of land in favour of the petitioner. The petitioner thereupon filed O.P.No.581 of 1997 in this Court challenging Ext.P18 order. By Ext.P20 judgment delivered on 4.4.1997 this Court disposed of the said original petition with a direction that in the event of the petitioner filing a revision petition before the Board of Revenue within two weeks from that date, it should be disposed of within two O.P.No.12383/1997 2 months from the date of receipt of the revision petition. The petitioner accordingly filed a revision petition petition before the Board of Revenue. By Ext.P21 order passed on 24.6.1997 the revision petition was rejected. 3. The case set out by the petitioner is that 1.250 cents of land situated in old Survey No.1728/4 was assigned in his favour in exchange for an equal extent of land that was surrendered by him to the Public Works Department. Reliance is placed on Ext.P5 letter dated 30.7.1994 sent by the Secretary to Government, Public Works Department to the Chief Engineer, Roads and Bridges, Thiruvananthapuram in support of the said contention. It is also contended that before Ext.P18 order was passed, the petitioner was not put on notice or heard and that though this contention was raised before the Board of Revenue, the Board of Revenue has not properly considered whether the petitioner was put on notice before Ext.P18 order was passed. 4. Long after this original petition was filed, the petitioner who instituted the original petition passed away on 20.4.2005. Without noticing that, this original petition was heard and disposed of by judgment delivered on 19.7.2005 setting aside Exts.P18 and P21 orders and directing the Revenue Divisional O.P.No.12383/1997 3 Officer, Palai to reconsider the appeal filed by the fourth respondent. Since the original petition was disposed of without impleading the legal heirs of the petitioner who had instituted it, the fourth respondent filed I.A.No.1616 of 2006 to recall the judgment. By order passed on 29.3.2006, the judgment delivered on 19.7.2005 was recalled. In the meanwhile, the legal heirs of the petitioner who had instituted the original petition filed I.A.No.11768 of 2006. By order passed on 24.8.2006 the said application was also allowed and the legal heirs were impleaded as additional petitioners 2 to 11. The original petition has come up before me for hearing today after impleading the legal heirs. 5. I heard Sri.K.Gopalakrishna Kurup, learned counsel for the petitioner, Sri.P.N.Manoj, learned Government Pleader appearing for respondents 1, 2 and 5 and Sri.Johnson Manyani, learned counsel appearing for the fourth respondent. I have also considered the pleadings and the materials on record. As noticed earlier, the main contention raised by the petitioner in the revision petition filed by him before the Board of Revenue challenging Ext.P18 order is that the he was not heard before Ext.P18 order was passed. The revisional authority did not however consider the said question on the ground that it is not possible to verify this aspect O.P.No.12383/1997 4 from the available records. The pleadings and the materials on record do not disclose that the petitioner was heard before Ext.P18 order was passed. The main contention raised by the petitioner on the merits is that an extent of 1.250 cents of land in old Survey No.1728/4 was assigned to him in exchange for a similar extent of land which was surrendered by him to the Public Works Department. Since he had a serious contention on the merits, which contention is not adverted to either by the Revenue Divisional Officer or by the Board of Revenue in Exts.P18 and P21 orders, I am of the opinion that the failure to hear the petitioner vitiates the entire proceedings. As noticed by the learned single Judge in the judgment delivered on 19.7.2005 that was later recalled, if pursuant to the permission granted by the Government the petitioner had surrendered an equal extent of land for obtaining assignment of 1.250 cents of land, the assignment cannot be cancelled, as it will lead to gross injustice. As it has not been established that the petitioner was heard before Ext.P18 order was passed and as the said order affects the petitioner with adverse civil consequences, I am of the opinion that the Revenue Divisional Officer should reconsider the appeal filed by the fourth respondent after affording him and petitioners 2 to 11 herein a reasonable opportunity of being heard. O.P.No.12383/1997 5 I accordingly allow this original petition, quash Ext.P18 and P21 orders and direct the Revenue Divisional Officer, Palai, the additional 5th respondent, to pass fresh orders on the appeal filed by the fourth respondent after notice to and affording the petitioners and the 4th respondent a reasonable opportunity of being heard. The Revenue Divisional Officer shall pass an order giving reasons in support of his conclusions and shall after orders are passed, communicate copies thereof to all the parties. P.N.RAVINDRAN Judge TKS O.P.No.12383/1997 6 P.N.RAVINDRAN, J. ---------------------------- W.P.(C)No.12383 of 1997 ---------------------------- Dated 28th May, 2010 ORDER Heard the learned counsel on both sides. Having regard to the pleadings and the reliefs sought for in this original petition, I am of the opinion that the Revenue Divisional Officer, Palai should be on the array of parties. I accordingly suo motu implead the Revenue Divisional Officer, Palai as additional 5th respondent in the original petition. Learned Government Pleader takes notice for the additional 5th respondent. Service complete. P.N.RAVINDRAN Judge TKS