IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 WP(C).No. 6802 of 2010(A) ------------------------- PETITIONER(S): --------------- 1. M.P.BABU, S/O.M.M.PAULOSE, AGED 56 YEARS, MOOLAN HOUSE, PEECHANIKKADU. 2. A.P.ELDHO, S/O.PAULOSE, AGED 46 YEARS, ALUNKAL HOUSE, ANGAMALY VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S): --------------- 1. ANGAMALY MUNICIPALITY, REP. BY ITS SECRETARY, ANGAMALY. 2. TALUK SURVEYOR, TALUK OFFICE, ALUVA. 3. JOSE PALLIYAM, S/O.CHAKKAPPAN, (MUNICIPAL COUNCILLOR, ANGAMALY MUNICIPALITY), PALLIYAN HOUSE, PEECHANIKKADU, PULIYANAM P.O., VIA. ANGAMALY. 4. PEEPCHANIKKAD KARSHAKA SAMITHI, (REG. NO. ER NO.669/06), PEECHANIKKADU, REP. BY ITS SECRETARY P.V.JOY, S/O.VARKEY, PARECATTIL HOUSE, PEECHANIKKAD, PULIYANAM P.O., VIA. ANGAMALY. ADV. SRI.WILSON URMESE FOR R3-4 SRI.P.SANTHALINGAM, SENIOR ADVOCATE FOR R1 SRI.S.SHARAN FOR R1 GP SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 6802 of 2010 APPENDIX EXHIBITS EXT.P1- A PHOTOGRAPH SHOWING THE EXISTING THODU WITH SIDE WALLS NEARBY THE 2ND PETITIONER'S PROPERTY EXT.P2- A TRUE COPY OF THE JUDGMENT IN W.P.(C).31401/06 DATED 30.7.07 OF THE HONOURABLE COURT EXT.P3- A TRUE COPY OF THE SURVEY RECORDS OF PEECHANIKKADU NETTATHODU PASSING THROUGH SURVEY NO.76/10, 76/9 & 82/8 OF ANGAMALY VILLAGE EXT.P4- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS AND OTHERS TO THE 1ST RESPONDENT ON 1.2.10 (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ....................... W.P.(C).6802/2010 ....................... Dated this the 12th day of March, 2010 JUDGMENT The prayers sought in the writ petition are to direct respondents 1 and 2 to preserve and protect Peechanikkadu Nettathodu in its original lie and nature on the basis of survey records. The second prayer is to direct the 1st respondent not to demolish the side walls of Peechanikkadu Nettathodu already constructed. 2. According to the petitioner, under the cover of implementation of a project, at the instance of the 3rd respondent, the 1st respondent Municipality is proposing to demolish the retaining wall of the thodu in order to reduce its width, with the idea of laying a road through the middle of the paddy fields to the property of the 3rd respondent. It is stated that such proposal of the Municipality is against the directions of this Court in Ext.P2 judgment and contrary to the plan prepared by the Taluk Surveyor. W.P.(C).6802/10 2 3. Though the aforesaid submission made would, prima facie, appear to be of some substance, the facts as disclosed by the Municipality and respondents 3 and 4 would show otherwise. It has come out that the 1st petitioner has no land anywhere near the thodu in question and only the 2nd petitioner has some property in the area. It is stated that the Government had sanctioned a Scheme for improving the thodu under the IDSMT Project. Complaining of the delay in the implementation of the Project and improvement of the thodu in question, a writ petition was filed before this Court as W.P.(C).31401/2006. Respondents 3 and 4 herein were the petitioners in that writ petition. By Ext.P2 judgment, this Court disposed of the writ petition directing expeditious implementation of the Project. It was directed that steps will also be taken for removal of the encroachers. 4. Municipality submits that pursuant to Ext.P2 judgment survey was conducted and Ext.P3 plan was prepared by the W.P.(C).6802/10 3 Surveyor and that the Project is under implementation. It is stated that if the Project is implemented, encroachers will have to be evicted and to resist that eviction, encroachers had approached the Munsiff Court, Aluva and filed O.S.43/2010 and did not succeed in obtaining any interim orders. It is stated that when their attempt before the Civil Court failed, at the instance of the encroachers, this writ petition is filed, on the allegation that the Municipality is proposing to reduce the width of the thodu. It is further disclosed that if the Project is implemented, that will only result in increasing the width of the thodu, improving the irrigation facilities and adding to the benefit of farmers. It is categorically stated before me that there will not be any any reduction of the width of the thodu for anyone could have any grievance in that respect. As far as the allegation regarding laying of the road to the premises of the 3rd respondent is concerned, it is submitted that when soil is reclaimed for widening the thodu and deposited in the puramboke, naturally a bund type of formation will be created which will be converted into a road for the benefit of the general W.P.(C).6802/10 4 public and that the same is not intended to confer any exclusive benefit to the 3rd respondent as alleged in the writ petition. 5. From the facts as disclosed, it is evident that there is no possibility of reduction in the width of the thodu and there is no proposal for providing the road for the exclusive use of the 3rd respondent as alleged in the writ petition. It is also evident that the work the Municipality is to undertake is in implementation of the IDSMT Project which was directed to be expeditiously implemented in Ext.P2 judgment. In these circumstances, the allegations made in the writ petition, lack any substance. Writ petition fails and is accordingly dismissed. ANTONY DOMINIC, Judge mrcs