IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 WP(C).No. 26014 of 2009(V) -------------------------- PETITIONER(S): --------------- SREE KANDAN SASTHA TEMPLE TRUST, VADAKODE, P.O., PERUMPAZHUTHOOR, VIA NEYYATTINKARA, THIRUVANANTHAPURAM, REP BY ITS SECRETARY, SRI.S.K.VENUDHARA PANICKER BY ADV. SRI.S.EASWARAN SMT.A.K.MAYAKRISHNAN RESPONDENT(S): --------------- NEYYATTINKARA MUNICIPALITY, NEYYATTINKARA, REP. BY ITS SECRETARY. ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26014 of 2009 APPENDIX EXHIBITS EXT.P1- COPY OF ENCUMBRANCE CERTIFICATE DATED 30.5.08 ISSUED BY THE SUB REGISTRAR, NEYYATTINKARA EXT.P2- COPY OF TAX RECEIPT DATED 28.5.08 EVIDENCING PAYMENT OF PROPERTY TAX IN RESPECT OF THE PROPERTY OF THE PETITIONER FOR THE YEAR 2008-09 EXT.P3- COPY OF POSSESSION CERTIFICATE DATED 28.5.08 ISSUED BY THE VILLAGE OFFICER, PERUMPAZHUTHUR EXT.P4- RELEVANT EXTRACT OF REPORT PREPARED BY THE PERUMPAZHUTHUR GRAMA PANCHAYAT (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- W.P.(C).26014/2009 -------------------- Dated this the 13th day of January, 2010 JUDGMENT 1. Petitioner is a Trust, administering affairs of Sree Kandan Sastha Temple, Perumpazhuthoor, Neyyattinkara. 2. Petitioner claims that the Temple originally owned an extent of 1 hectare 82 Ares and 40 Sq.links in Survey No.297/18 and 06.10 Ares in Survey No.297/16 of Perumpazhuthoor Village, which were acquired by the Temple in 1923 by document No.4312. According to the petitioner, in 1964, an extent of 10 cents out of the aforesaid property was surrendered in favour of erstwhile Perumpazhuthoor Panchayat which was subsequently merged into the respondent Municipality. It is stated that the Panchayat had constructed a building in the property surrendered and that the respondent Municipality demolished the building and has started construction activity not only in the 10 cents surrendered but also trespassing into another 5 cents of land belonging to the Temple. It is also stated that this was by reducing into their possession 15 cents of land by constructing a compound wall. The allegations are denied by the Municipality. W.P.(C).26014/09 2 3. According to the Municipality, the entire property belongs to the Municipality itself. As against the submission of the petitioner that the property was surrendered in the year 1964, Municipality says that the entire property in its possession was surrendered to the Panchayat in 1960 itself and demolished building was constructed in 1960. Municipality further says that they have presently undertaken the construction utilizing the funds for the year 2009-10 and that if the work is not completed before the end of this financial year, funds will lapse. 4. From the nature of the dispute raised by both sides, what is required to be resolved is whether Municipality had trespassed into any property belonging to the petitioner Trust or the Temple. Resolution of this controversy is possible only by appreciating the evidence adduced by both sides which cannot be done in a proceedings under Article 226 of the Constitution of India. Therefore, if the petitioner has a case that there has been a trespass by the Municipality, petitioner will have to approach the Civil Court by filing a Suit seeking appropriate reliefs. With that liberty this writ petition is closed. W.P.(C).26014/09 3 5. The learned counsel for the petitioner pressed for an order interdicting the Municipality from continuing construction of the building. However, having regard to the submissions made by the learned counsel for the Municipality, I do not think it appropriate for this Court to pass such an order. Therefore, I leave it open to the petitioner to seek such interim order also in the Suit itself. 6. It is clarified that all contentions of both sides are left open. ANTONY DOMINIC, Judge mrcs