IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 WA.No. 2668 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.4194/2009 .................... APPELLANT(S): PETITIONERS 1 TO 4 & 6:- ---------------------------------------------------------- 1. ST.DON BOSCO GIRLS HIGH SCHOOL, KODAKARA P.O., THRISSUR, REP. BY ITS MANAGER-IN-CHARGE, ST.STELLA. 2. M.T.THOMAS, S/O.THOMAS, MADATHANI HOUSE, HOUSE NO.1/219, KODAKARA, THRISSUR DT. 3. C.P.ANTONY, S/O.PORINCHUNNI, CHETHALAN HOUSE, HOUSE NO.1/224, KODAKARA, THRISSUR DT. 4. FEBY JOSEPH, S/O.C.P.OUSEPH, CHITTATTUKARA HOUSE, HOUSE NO.1/221 KODAKARA, THRISSUR DT. 5. BINOJ MATHEW, S/O.C.P.MATHEW, CHITTATTUKARA HOUSE, HOUSE NO.1/222, KODAKARA, THRISSUR DT. BY ADV. SRI.V.M.KRISHNAKUMAR SMT.P.A.ANITHA RESPONDENT(S): RESPONDENTS & 5TH PETITIONER:- --------------------------------------------------------------------------- 1. SECRETARY, KODAKARA GRAMA PANCHAYATH, KODAKARA GRAMA PANCHAYATH, OFFICE, KODAKARA P.O., TRISSUR. 2. KODAKARA GRAMA PANCHAYATH, KODAKARA GRAMA PANCHAYATH, OFFICE, KODAKARA P.O., TRISSUR. REP. BY ITS SECRETARY. (.................2) -: 2 :- 3. REVENUE DIVISIONAL OFFICER, O/O THE R.D.O., CIVIL STATION, AYYANTHOLE, THRISSUR. 4. VILLAGE OFFICER, KODAKARA VILLAGE OFFICE, KODAKARA VILLAGE, THRISSUR DISTRICT. 5. JOSE KALLARAKKAL, S/O.KALLARAKKAL RAPHEL, KOLLARAKKAL HOIUSE, (OLD) POLICE STATION ROAD, KODAKARA P.O., THRISSUR DISTRICT. 6. SHOY GEORGE, S/O.C.P.GEORGE, CHITTATTUKARA HOUSE, HOUSE NO.1/222, KODAKARA, THRISSUR DISTRICT. ADV. SRI.T.N.MANOJ FOR R1 & 2 SR.GOVT. PLEADER SRI.R.LAKSHMINARAYANAN, FOR R3,4 SMT.M.M.DEEPA FOR R5 SRI.P.VIJAYA BHANU FOR R5 SMT.P.R.REENA FOR R-6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/08/2010, THE COURT ON 06/08/2010 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = Writ Appeal No.2668 of 2009. = = = = = = = = = = = = = = Dated this the 6th day of August, 2010. J U D G M E N T Gopinathan, J. The appellants are petitioners 1 to 4 and 6 in WP(C) No.4194/2009. Appellants along with the 5th petitioner, who is now arrayed as the 6th respondent filed the above writ petition against respondents 1 to 5 seeking a writ of mandamus to direct the first respondent to dispose Ext.P3 petition as well as to direct respondents 1 and 4 to prepare a report regarding the encroachment made by the 5th respondent to the old police station road in Kodakara Grama Panchayat and also to direct the 1st respondent to initiate action against the 5th respondent to evict the so called encroachment with an allegation that on the midnight of 4-5-2008, the 5th respondent encroached the WA.No.2668/2009. -: 2 :- Pachayat road having a width of four metres as borne out by Ext.P1 and constructed a compound wall. Ext.P3 representation was made before the 2nd respondent Panchayat seeking eviction and other appropriate remedies. 2. The learned single Judge by the impugned judgment dated 17-9-2009 dismissed the writ petition by holding that statutory remedies are available to the petitioners and this Court cannot be reduced to a mere whip boy to slash of as and when a petition was filed and pending in some jurisdiction. 3. Respondents 1 and 2 in their counter-affidavit denied the encroachment and contended that the width of the Panchayat road could not be determined with reference to Ext.P1 register maintained in the Panchayat long back and which was not updated. It was also stated that there was no encroachment made by the 5th respondent during the night on 4-5-2008 or on any other day and that the 5th respondent, even without obtaining permission, constructed the WA.No.2668/2009. -: 3 :- compound wall over a foundation which was existing and that the writ petitioners had moved before the 3rd respondent and proceedings are pending and therefore no action was taken on Ext.P3. It is in that circumstance the learned single Judge dismissed the writ petition by the impugned judgment. The alleged trespass being a disputed question of fact, it is not possible to determine the same in a writ proceeding. It is also pertinent to note that the 6th respondent who was a signatory to Ext.P3 had later withdrawn by Ext.R1(a). Whether there is trespass or not is a matter to be decided on evidence. The further contention of respondents 1 and 2 is that against the same cause, the appellant had moved the Revenue Divisional Officer (3rd respondent). It is in that circumstance the 2nd respondent had not taken any action on Ext.P3 petition. Such being the materials on record, the learned single Judge was perfectly right in dismissing the writ petition. We find no merit in the writ appeal. Accordingly, the writ appeal is dismissed without prejudice to the right of WA.No.2668/2009. -: 4 :- the appellants to pursue other remedies in the event there is actual trespass. No order as to costs. C.N.RAMACHANDRAN NAIR, (Judge) P.S.GOPINATHAN, (Judge) Kvs/-