IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 4800 of 2005(U)
1. B.PANKAJAKSHY PILLAI,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. BHAGAVATHI PILLAI DEVAKI AMMA,
For Petitioner :SRI.VPK.PANICKER
For Respondent :SRI.G.SUDHEER
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :17/07/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) No. 4800 OF 2005
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Dated this the 17th day of July, 2007
JUDGMENT
Under challenge in this writ petition under Article 227 is Ext.P5
communication issued to the petitioner who was the revision petitioner
before the Board of Revenue in Ext.P2 Revision Petition filed under
Rule 21(8) of the Land Assignment Rules. Ext.P5 is to the effect that
Ext.P2 revision cannot be entertained since condonation of delay which
has been caused in the matter of filing Ext.P2 will not be justified.
2. Heard Sri.V.P.K. Panicker, counsel for the petitioner and
Sri.G.Sudheer, counsel for the respondent and also the learned
Government Pleader. Drawing my attention to Rule 21(8) of the Kerala
Land Assignment Rules, 1964 the learned counsel for the petitioner
submitted that since the petitioner was not a party to the impugned
patta, period of limitation started running against him only from the date
of his knowledge regarding the patta. Construing the matter in that way,
it will have to be seen that there was no delay at all. It was only by way
of abundant caution that the application was filed for condonation of
delay. The Board of Revenue is not justified in taking the view that the
condonation of delay will not be justified.
3. The learned Government Pleader would submit that since the
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Board of Revenue was exercising statutory power, the order is justified
since the statute in question does not confer power to condone delay if
the revision petition is filed after two years.
4. At the very outset, endorsing the submission of the
Government Pleader, Mr.G.Sudheer submitted that upsetting Ext.P4
judgment dismissing the suit for partition filed by the petitioner will not be
proper for three reasons:
i. A regular appeal has already been preferred by the petitioner
and the same is pending.
ii. It is not on the ground of the impugned patta, Ext.P1 alone,
that the suit was dismissed.
iii. The respondent has executed sale deeds in respect of the
property in favour of children, who are defendants 2 and 3 who have
now put up substantial buildings on the property. Upsetting Ext.P4 will
cause prejudice to them.
5. It will be stated at once that I do not propose to go into the
issue which is seen decided under Ext.P4. After all, regular appeal is
pending against Ext.P4 and court of appeal will decide those issues. In
this Writ Petition, I am concerned only with the legality and correctness
of Ext.P5 communication. Ext.P5 communication which visits the
petitioner with civil consequences is not preceded by a hearing. I would
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have been inclined to quash Ext.P5 on that reason alone. But having
examined the statutory scheme, I feel that petitioner’s remedy even if
she is having genuine grievance that the patta and assignment order are
bad was to prefer an appeal to the RDO. I relegate the petitioner to the
remedy by way of appeal. Lest Ext.P5 should stand in the way of an
appeal being entertained, I quash Ext.P5 also. It is made clear that I
have not stated anything affecting the merits of the issues which were
decided under Ext.P4. If so advised, the petitioner will file an appeal
within one month from today. If the petitioner comes to prefer the
appeal and an application for condonation of delay, orders should be
passed on both the appeal and the application only after inviting
objections from the respondent and after hearing them.
PIUS C. KURIAKOSE, JUDGE
btt
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