WP(C) No. 26579 of 2012 · Kerala High Court
Case at a glance
- Bench
- K SURENDRA MOHAN, P A K SURENDRA MOHAN
Outcome
Allowed
The operativeportion of the said order reads as follows:“In the result, the Appeal is allowed
Provisions considered
- Kerala Municipality Act s. 406
- Kerala Municipality Act, 1994 s. 406(1)
Key paragraphs
- Para 44. Senior Advocate N.Nandakumara Menon appears for the 1st respondent. According to the learned Senior Counsel, Ext.P9 would be duly considered before any orders are passed by the 1st respondent. A hearing would have to be afforded not only to the petitioner but also to…
Judgment
WP(C).No. 26579 of 2012 (V)A P P E N D I XPETITIONER'S EXHIBITSEXHIBIT-P1: COPY OF THE PARTITION DEED DATED 10.05.2000.EXHIBIT-P2: COPY OF THE PROVISIONAL ORDER DATED 14.07.2006.EXHIBIT-P3: COPY OF THE ORDER DATED 18.08.2006 IN APPEAL NO.292/2006 OFTHE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.EXHIBIT-P4: COPY OF THE ORDER DATED 9.7.2008 IN AS NO.134/2008 OF LOCALSELF GOVERNMENT INSTITUTIONS.EXHIBIT-P5: COPY OF THE NOTICE DATED 27.8.2012 ISSUED BY THE FIRSTRESPONDENT.EXHIBIT-P6: COPY OF THE JUDGENT DATED 13.09.2012 IN WPC 16828/2012.EXHIBIT-P7: COPY OF THE APPLICTION DATED 25.10.2012.EXHIBIT-P8: COPY OF THE ORDER DATED 22.10.2012.EXHIBIT-P9: COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER ON5.11.2012./TRUE COPY/P.A TO JUDGE K.SURENDRA MOHAN, J.-----------------------------------------------------W.P(c) No.26579 of 2012-V----------------------------------------------------Dated this the 12th November, 2012 J U D G M E N TThe dispute in this case is with respect to the use of aprivate pathway that is used by two brothers, the petitioner and the 2nd respondent. The pathway has been set apart as per the provisions of Ext.P1 partition deed. There are allegations that the petitioner is not permitting the 2nd respondent to use the pathway. The 2nd respondent alleges that the petitioner has also caused obstruction to the pathway by making illegal constructions. However, for the purpose of disposing of this WritPetition, it is not necessary for me to consider the said dispute in any detail.
Operative part
An earlier order passed by the 1st respondent had been the subject matter of Appeal No.292 of 2006 before the Tribunal for Local Self Government Institutions, Thiruvananthapuram. The said order was set aside by Ext.P3judgment. The Secretary was directed to pass final orders after hearing the parties. Accordingly, a final order was passed. Thepetitioner challenged the same in Appeal No.134 of 2008 before W.P(c) No.26579 of 2012-V2the Tribunal for Local Self Government Institutions. As perExt.P4 judgment, the said order was set aside. The operative portion of the said order reads as follows:
In the result, the Appeal is allowed. Theimpugned order bearing No.T P 7/21791/06 dated25.1.2008 of the Secretary, Corporation of Thiruvananthapuram is set aside. The Respondent isdirected to initiate fresh proper proceedings as indicated in paragraph 8 above, under Section 406of the Kerala Municipality Act, without any unnecessary delay if there are any reasons for doing so.
Ext.P4 is dated 09.07.2008. According to the petitioner, there was no action in the matter thereafter for a pretty long time. Much later, he was served with Ext.P5 notice dated 27.08.2012informing him that the respective boundaries of the petitioner and the 2nd respondent could not be identified on actual inspection and therefore it was necessary to get the boundary fixed on a proper measurement by the Taluk Surveyor. Ext.P5was followed by Ext.P8, which is a provisional order under Section 406(1) of the Kerala Municipality Act, 1994 (`the Act' for W.P(c) No.26579 of 2012-V3short). The petitioner immediately submitted his explanation, Ext.P9. No further orders have been passed in the matter thereafter.
The only relief sought for by the petitioner at presentis a direction to the 1st respondent to complete the proceedings initiated as per Ext.P8 by passing final orders in the matter, after fixing the boundaries as notified by Ext.P8 and after giving an opportunity of being heard to the petitioner.
Senior Advocate N.Nandakumara Menon appears for the 1st respondent. According to the learned Senior Counsel, Ext.P9 would be duly considered before any orders are passed by the 1st respondent. A hearing would have to be afforded not only to the petitioner but also to the 2nd respondent, it is pointed out. The learned Senior Counsel assures that necessary orders would be passed in the matter, without further delay. In the above circumstances, this Writ Petition is disposed of directing the 1st respondent to complete the proceedings initiated by Ext.P5 by the conduct of a measurement and fixation of the respective boundaries, and thereafter, to pass final orders pursuant to Ext.P8 provisional order, after affording an opportunity of being heard to the petitioner as well as the 2nd W.P(c) No.26579 of 2012-V4respondent. The above proceedings shall be completed, as expeditiously as possible and at any rate within a period of two months of the date of receipt of a copy of this judgment. The 1strespondent is further directed to consider the application forregularisation submitted by the petitioner also while finalising the proceedings on Exts.P8 and P9, if the same is still pending. (K.SURENDRA MOHAN, JUDGE)rtr/
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: The operativeportion of the said order reads as follows:“In the result, the Appeal is allowed
Which statutory provisions did this judgment involve?
Kerala Municipality Act — s. 406; Kerala Municipality Act, 1994 — s. 406(1).
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.