IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 WA.No. 1466 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.32835/2006 Dated 01/03/2007 .................... APPELLANT(S): RESPONDENTS 1 AND 2 ------------------------------------------------------- 1. CHANDRAN, KINATHUKARAYIL, PATHIYOOR MURI, PATHIYOOR, KEERIKADU P.O., KARTHIKAPPALLY. 2. CHANDRIKA, W/O.CHANDRAN, KINATHUKARAYIL, PATHIYOOR MURI, PATHIYOOR, KEERIKADU P.O., KARTHIKAPPALLY. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN RESPONDENT(S): WRIT PETITIONERS & RESPONDENTS 3 TO 7: --------------------------------------------------------------------------------------------- 1. ANIL KUMAR P.K., OTTATHENGIL VEEDU, PATHIYOOR, KIRIKADU P.O., KAYAMKULAM. 2. BIJU.K.G., KIZHAKALUM MUTTIL, PATHIYOOR, KIRIKADU P.O., KAYAMKULAM. 3. RDO, CHENGANNUR, ALAPPUZHA. 4. TAHSILDAR, KARTHIKAPALLY, ALAPPUZHA. 5. THE VILLAGE OFFICER, PATHIYOOR, ALAPPUZHA. 6. THE BLOCK DEVELOPMENT OFFICER, BLOCK PANCHAYATH, MUTHUKULAM, ALAPPUZHA. 7. THE SECRETARY, GRAMA PANCHAYATH, MUTHUKULAM, ALAPPUZHA. SR.GOVERNMENT PLEADER SMT.K.MEERA FOR R3-7 SI.BIJU M JOHN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.A. NO. 1466 OF 2007 =================== Dated this the 3rd day of June, 2011 J U D G M E N T Antony Dominic, J. Heard the learned counsel for the appellants and the learned Government Pleader appearing for respondents 3 to 7. None appears for respondents 1 and 2. 2. Respondents 1 and 2 filed writ petition with the following prayers: i) issue writ of mandamus or any other writ or direction to call for the location sketch, which kept by the 4th and 5th respondents especially the place where the public well situated, the place named Kavil Colony in the 5th ward of the Pathiyoor Panchayath and also direct the 6th and 7th respondents to produce all the records with regard to the payment of grant amount for purchasing 3 cents of land and for constructing a house under the scheme of Indira Awaz Yogan. ii) issue writ of mandamus or any other writ or direction to prevent or restrain the 1st and 2nd respondent from constructing the house in the place of public well, which they demolished and also direct 3rd to 8th respondents to take appropriate legal action against the 1st and 2nd respondents on the basis of Ext.P1 to P3 or on the basis of any other complaint submitted against the 1st and 2nd respondents or on the basis their direct enquiry. 3. The main allegation in the writ petition was that the appellants constructed certain structures encroaching into WA No.1466/07 : 2 : puramboke land. It was further alleged that in the process they also destroyed a public well. Being respondents 1 and 2, the appellants filed counter affidavit specifically denying the allegation that they had encroached upon any public property. The allegation that they destoryed a public well was also denied. Further, they made a specific allegation that the complaints made by respondents 1 and 2 originate out of ill will and hatred. According to them, the 1st respondent assumed that the first appellant had informed the excise officials regarding the illicit sale of arrack by the 1st respondent. 4. The official respondents did not file any counter affidavit in the writ petition. However, from the judgment we notice that when the writ petition came up for hearing, on instructions, the learned Government Pleader appears to have made a submission that constructions have been made by the appellants encroaching into the area which is shown as public well as per the basic register. 5. Acting upon the said submission, the writ petition was disposed of with the following directions:- WA No.1466/07 : 3 : Accordingly, this writ petition will stand disposed of directing respondents 3 to 7 to take appropriate action for abating the encroachment i.e. by evicting respondents 1 and 2 not only from the land encroached upon but also by removing the constructions put up by them. The action as directed above will be taken only in accordance with law i.e. after issuing notice to respondents 1 and 2 and after hearing them. Necessary action as directed above will be completed by the concerned respondents at their earliest and at any rate within three months of receiving a copy of this judgment. 6. In our view, on the pleadings and the materials available, the learned Single Judge was not justified in entering into a positive finding of encroachment on the part of the appellants. First of all, the allegation of encroachment was a disputed question of fact which could not have been decided in a writ petition and that too on the materials available. Secondly, if at all there is any such encroachment, it is for the official respondents to adjudicate the said issue with notice to the parties concerned and thereafter take appropriate action in accordance with law. Nothing of this has been done in this behalf. In such circumstances, a positive finding arrived at by the learned Single Judge is unsustainable and for that reason, in our view, the judgment is unsustainable. WA No.1466/07 : 4 : 7. Therefore, we set aside the judgment and dismiss the writ petition. Writ appeal is allowed. J.CHELAMESWAR CHIEF JUSTICE. ANTONY DOMINIC JUDGE. Rp