Kerala High Court
Irfadhudheen vs State Of Kerala on 7 January, 2025
Author: C.S.Dias
Bench: C.S.Dias
2025:KER:859
WP(C) NO. 127 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946
WP(C) NO. 127 OF 2025
PETITIONER:
IRFADHUDHEEN
AGED 30 YEARS
S/O UBAID, PERINCHERI VALAPPIL HOUSE, TRIPRANGODE
AMSOM, KUTTAMMAKKAL DESOM, P.O MANGALAM, TIRUR,
PIN - 676561
BY ADVS.
K.SUJAI SATHIAN
PREETHI. P.V.
MARY LIYA SABU
NEERAJ KRISHNA KUMAR
ARAVIND K.
RESPONDENT:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMNENT OF REVENUE, GOVERNMENT SECRETARIATE,
THIRUVANANTHAPURAM, PIN - 695001
2 SUB COLLECTOR
REVENUE DIVISION OFFICE, OFFICE OF THE SUB
COLLECTOR, MINI CIVIL STATION, TIRUR, PIN -
676101
3 VILLAGE OFFICER
TRIPRANGODE VILLAGE OFFICE, ALATHIYOOR, TIRUR,
MALAPPURAM, PIN - 676108
4 TRIPRANGODE GRAMAPANCHAYTH
REPRESENTED BY ITS SECRETARY,TRIPRANGODE, TIRUR,
MALAPPURAM -, PIN - 676108
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WP(C) NO. 127 OF 2025
2
5 MUHAMMAD MUSTHAFA
S/O MUHAMMAD KUTTY, VALLOR (H), WARD 17, P.O
MANGALAM, TIRUR, PIN - 676561
6 KADEEJA
AGED 57 YEARS, W/O PERICHERI VALAPPIL HOUSE
UBAID, PERINCHERI VALAPPIL HOUSE, TRIPRANGODE
AMSOM, KUTTAMMAKKAL DESOM, P.O MANGALAM, TIRUR,
PIN - 676561
7 IRSHAD
AGED 35 YEARS, S/O PERICHERI VALAPPIL HOUSE
UBAID, PERINCHERI VALAPPIL HOUSE, TRIPRANGODE
AMSOM, KUTTAMMAKKAL DESOM, P.O MANGALAM, TIRUR,
PIN - 676561
8 HAJARA
AGED 38 YEARS, W/O IBRAHIM, ERINHIKUNNATH HOUSE,
PERUVAZHIYAMABALAM, P.O POOKAYIL, TIRUR, PIN -
676107
OTHER PRESENT:
GP SMT.VIDYA KURIAKOSE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 07.01.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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WP(C) NO. 127 OF 2025
3
C.S.DIAS, J.
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WP(C) No. 127 of 2025
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Dated this the 7th day of January, 2025
JUDGMENT
The petitioner, his mother and brothers have
inherited 41.22 cents of property from the petitioner's
father. The petitioner has filed O.S.No.359/2024 before
the Court of Munsiff, Tirur, for the partition of the
property and Ext.P2 ad-interim order of injunction has
been passed. The petitioner's neighbours have filed
Ext.P.3 complaint before the 2nd respondent alleging
that there is a public way passing through the suit
property, and the petitioner and his family are
attempting to close the pathway. The 2 respondent had nd
passed Ext.P4 condition order under Section 133 of the
Code of Criminal Procedure (Code), directing the 6 th
respondent (petitioner's mother) to remove the
obstruction within fifteen days. Even though the
petitioner's mother filed her objections to the
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WP(C) NO. 127 OF 2025
complaint, the 2 nd
respondent passed the impugned
Ext.P6 order under Section 156 of the Bharathiya
Nagarik Suraksha Sanhita ('BNSS', in short) by making
Ext.P3 conditional order absolute. The 2nd respondent
has failed to follow the mandatory procedure under the
BNSS. The 2 nd
respondent failed to comply with the
provisions under Section 137 of the Code, and in Ext.P7
Advocate Commissioner's report, there is an absence of
any public way in the suit property. Although the
petitioner is a co-owner, he was not served with any
notice and was denied an opportunity to contest the
proceedings on its merits. The petitioner would have
placed the Commission report before the 2nd respondent
to prove the absence of a public way. The 3 rd respondent
and his henchman are attempting to make a new
pathway through the petitioner's property. Ext.P6
order is illegal and arbitrary. Hence, the writ petition.
2. Heard; the learned counsel for the petitioner
and the learned Government Pleader appearing for the
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WP(C) NO. 127 OF 2025
respondents 1 to 3.
3. The petitioner's principal contention is that he
was not served with any notice in the proceedings
leading to Ext.P6 and was denied an opportunity to
contest the proceedings on merits.
4. The petitioner's mother and siblings, who are co-
owners of the property, were parties to the proceedings.
They are also parties to the suit. Admittedly, the
petitioner's mother had filed Ext.P5 objection in the
proceedings. Therefore, it was up to them to have
raised all contentions in the proceedings. It is difficult
to comprehend that the petitioner was unaware of
Ext.P3 conditional order passed by the 2 respondent. If
nd
the petitioner was desirous of contesting the
proceedings on merits, he ought to have got himself
impleaded in the proceedings and raised his objections
before the 2 nd
respondent instead of adopting a wait-
and-watch approach. In any case, there was substantial
representation in the proceedings. Be that as it may,
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WP(C) NO. 127 OF 2025
both the Code and BNSS are self-contained Codes with
an in-built mechanism for challenging orders passed
like Ext.P.6. In view of the alternative statutory remedy
provided under the BNSS, I am not inclined to entertain
this writ petition.
Resultantly, reserving the right of the petitioner
to challenge Ext.P6 order in accordance with law, I
dismiss this writ petition.
Sd/-
C.S.DIAS, JUDGE
rkc/07.01.25
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WP(C) NO. 127 OF 2025
APPENDIX OF WP(C) 127/2025
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE LAND TAX RECEIPT
FOR THE PROPERTY DATED 22/8/2024
Exhibit P2 A TRUE COPY OF THE ORDER IN IA 2/2024
DATED 06/11/2024 OF THE MUNSIFF COURT,
TIRUR
Exhibit P3 THE TRUE COPY OF THE JOINT PETITION
SUBMITTED BY THE 3RD RESPONDENT AND
OTHERS DATED 08/12/2023
Exhibit P4 THE TRUE COPY ORDER OF THE 2ND
RESPONDENT DATED 24/6/2024
Exhibit P5 A TRUE COPY OF THE STATEMENT SUBMITTED
BY 6TH RESPONDENT DATED 04/07/2024
Exhibit P6 A TRUE COPY OF THE ORDER DATED
21/12/2024 PASSED BY THE 2ND RESPONDENT
Exhibit P7 A TRUE COPY OF THE ROUGH SKETCH AND
COMMISSION REPORT SUBMITTED BY
Exhibit P8 A TRUE COPY OF THE NOTICE ISSUED BY THE
2ND RESPONDENT TO THE TALUK SURVEYOR AND
TAHASILDAR DATED 06/08/2024
