IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 WP(C).No. 36786 of 2007(D) ---------------------------------------- PETITIONERS: ----------------------- 1. UMMER CHERUVAKUTTY, S/O CHERUVAKUTTY KUNHAYANKUTTY HAJI, RESIDING AT 'IHLAAS',9/567, THALAKULATHUR DESOM, KOZHIKODE TALUK, KOZHIKODE-673317. 2. M.K.JAMEELA, W/O UMMER CHERUVAKUTTY, RESIDING AT 'IHLAAS',9/567, THALAKULATHUR DESOM, KOZHIKODE TALUK, KOZHIKODE-673317. BY ADV. SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU RESPONDENTS: ------------------------- 1. DEPUTY DIRECTOR, GRAMA PANCHAYAT, CIVIL STATION, KOZHIKODE-673020. 2. SECRETARY, THALKULATHUR GRAMA PANCHAYAT, KOZHIKODE-673020. *ADDL.R3 IS IMPLEADED: R3. SRI. IBRAHIM PUTHIYAPURAYIL, S/O. POKERKUTTY, RESIDING AT “PUTHIYAPURAYIL', THALAKULATHUR DESOM, THALAKULATHUR VILLAGE, NEAR JAMAYAT MOSQUE, KOZHIKODE TALUK, KOZHIKODE – 673 317. (*ADDL.R3 IS IMPLEADED AS PER ORDER DTD. 2/01/2008 IN I.A.NO.16900/07) ADV. SRI.P.V.KUNHIKRISHNAN FOR R2 SRI.JACOB ABRAHAM FOR ADDL.R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.36786/2007 D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SITE PLAN ISSUED BY THE 2ND RESPONDENT SECRETARY, DTD. 25/04/2001. EXT.P2: CARBON COPY OF THE SITE PLAN/SKETCH. EXT.P3: COPY OF THE SETTLEMENT AGREEMENT. EXT.P4: COPY OF THE JENM ASSIGNMENT. EXT.P5: COPIES OF THE REPRESENTATIONS DTD. 23/04/2007. EXT.P6: COPY OF THE LAWYER NOTICE. EXT.P7: COPY OF THE REPLY NOTICE DTD. 07/09/2007. EXT.P8: COPY OF THE APPLICATION DTD. 14/11/07. RESPONDENT'S EXHIBITS: EXT.R2(A): COPY OF THE LETTER ISSUED BYTHE 3RD RESPONDENT TO THE PANCHAYATH DTD.3/5/2008. EXT.R2(B): COPY OF THE LETTER NO.P3/16117/07 DTD.25/8/2007 OF THE TAHSILDAR, KOZHIKODE. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 36786 of 2007 -------------------------------------------------------- Dated: JULY 8, 2008 JUDGMENT The prayer sought for in this writ petition is to direct respondents 1 and 2 to order removal of the blockage in the drainage and to demolish the construction on the western side of the petitioners' property. 2. Petitioners submit that on the western side of his property, the additional 3rd respondent owns a plot of land and that in between these two plots, there is a drainage passing north-south. According to the petitioners, the 3rd respondent obstructed the drainage as a result of which during monsoon there is water logging in the area. In support of their contention that there exists a drainage, petitioners are relying on Exts.P1 to P4. 3. On the other hand, the 2nd respondent Panchayat has filed an affidavit enclosing a report filed by the Tahsildar and contending that there is no drainage in existence. The 3rd respondent has also taken the same plea in the counter affidavit that has filed. In so far as Exts.P1 and P2 are concerned, the WP(C )36786 of 2007 2 3rd respondent would argue that those are self-serving documents prepared by the petitioners themselves. As far as Ext.P3 document is concerned, the version of the 3rd respondent is that it covers a larger extent of land and that the drainage mentioned is not a boundary of his plot. Referring to Ext.P4 it is contended that on the western boundary indicated, is a pathway and that there is no drainage as contended by the petitioners. 4. The above being the factual position, what requires for resolution is the disputed question as to whether there exists a drainage or not. As already noticed, it is hotly contested question of fact and this court will not be justified in deciding on the existence of a drainage or otherwise purely based on the affidavits filed by the interested parties. If the petitioners wish to establish this question of fact, the appropriate remedy available to them is to file a civil suit before the civil court and therefore with that liberty and leaving open the contentions raised, this writ petition is disposed of. ANTONY DOMINIC JUDGE mt/-