IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE AG. CHIEF JUSTICE MR.P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 WA.No. 2130 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.18612/2009 Dated 07/07/2009 .................... APPELLANT: -------------- ALEYAMMA, VALLAYAVEETTIL THEKKETHIL, THEKKEKKARA, MAVELIKKARA. BY ADV. SRI.R.KRISHNA RAJ RESPONDENTS: --------------- 1. THE DISTRICT COLLECTOR, ALAPPUZHA. 2. ASSISTANT EXECUTIVE ENGINEER (ROADS), P.W.D., MAVELIKKARA. 3. SASIDHARAN PILLAI, KALEECKAL VEEDU, PONAKAM, MAVELIKKARA. (DELETED) (THE 3RD RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DT.1.10.2009 IN WRIT APPEAL.) ADDL. RESPONDENT: 3. THE SUPERINTENDING ENGINEER (ROADS AND BRIDGES), PWD, THIRUVANANTHAPURAM. (ADDL. RESPONDENT IS IMPLEADED AS PER ORDER DT.2.12.2009 IN THE WRIT APPEAL.) BY SR. G.P. SMT.K.MEERA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN, AG. C.J. & C.N.RAMACHANDRAN NAIR, J. .................................................................... Writ Appeal No.2130 of 2009 .................................................................... Dated this the 15th day of February, 2010. JUDGMENT Raman, Ag. C.J. This is an appeal filed against the judgment of the learned Single Judge in W.P.(C) No.18612/2009. Appellant is the petitioner. Her grievance is that a trench is being dug in such a manner that there is a gap of almost one metre left from the boundary of her property and if the trench is dug in such a manner and a pitching is constructed therein without leaving any gap between her property, it would lose it's lateral support. There would not be any sliding from the appellant's property to the trench which is dug by the PWD. A complaint made to the PWD was looked into by the concerned Assistant Executive Engineer and the learned Government Pleader submitted that this trench is being constructed for widening the road over a distance of 160 metres and the trench is made on the road puramboke and is not encroaching to the appellant's property. The learned Single Judge on being satisfied that Writ Petition cannot be entertained under Article 226 of the W.A. 2130/2009 2 Constitution of India as it involves adjudication of civil right, held that the proper course open to the appellant is to approach the civil court for such relief. Aggrieved thereby this appeal is filed. 2. At the time of admission and after hearing the Superintending Engineer, PWD who was available before court, he was asked to submit detailed report after conducting a local inspection by himself or through his immediate subordinate officer. Accordingly an inspection report has been filed. The inspection report shows that the Superintending Engineer had inspected the site on 12.12.2009 and it is stated that there was an existing natural drain flowing from North to South in between PWD road and appellant's property and other adjacent lands for a length of 220 metres. Among this, 110 metres length of natural drain is between appellant's property and PWD land. There is an existing pipe culvert constructed years back by the appellant for entrance to her residence. It is true that soil from PWD road is being washed out during rainy season due to natural drain. In order to prevent soil erosion from PWD land and also to widen the W.A. 2130/2009 3 road, Government sanctioned a project which involves construction of retaining wall at various portions of the road where such soil erosion from the road was noted and for widening and retarring of the road to MDR standard. The project cost comes to Rs.60 lakhs. For the construction of side protection, earth work excavation was carried out in front of the appellant's property and the adjacent land for a length of 110 metres for providing foundation to the retaining wall. The excess soil eroded from the PWD road was removed from the drain upto the level of the pipe culvert. Hence PWD has taken the excavation to the required depth only. It is also stated that the PWD has not initiated any new construction but has only reinstated the original shape of the drain in level with the pipe culvert constructed by the appellant years back and 60 cm. to 70 cm. width of Government land is still abutting the appellant's property. Hence the argument that the retaining wall was constructed in front of her land alone is found baseless. In the reply affidavit filed by the appellant, she disputes the correctness of the statement contained in the report and according to her, a Commissioner W.A. 2130/2009 4 has to be appointed for local inspection to ascertain the veracity or truth of the statements contained in the report. This itself shows that what was apprehended by the learned Single Judge has come true. The appellant is now converting this Court's jurisdiction to that of a Civil Court for issuing a commission, examining the Commissioner, taking evidence and then to find as to whether the alleged construction is in any way injuriously affecting the right of the appellant. Prima facie on going through the report and after considering the materials placed on record, it cannot be said that any relief could be granted by this court under Article 226 of the Constitution of India as rightly pointed out by the learned Single Judge. The learned Government Pleader Smt.Meera appearing on behalf of the State submits that the construction is already over. If so, if the alleged construction is in any way in violation of the civil right of the appellant or any damage is caused, it is still open to the appellant to approach the Civil Court for necessary relief. Prima facie finding which we have entered is only for the limited purpose of showing that this is not a fit case for consideration under Article 226 of W.A. 2130/2009 5 the Constitution of India. Leaving open the appellant to approach the Civil Court, this Writ Appeal is dismissed. However, in the circumstances, there is no order as to costs. P.R.RAMAN Acting Chief Justice C.N.RAMACHANDRAN NAIR Judge pms