IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 WP(C).No. 5217 of 2008(U) ------------------------------------- PETITIONERS: ------------------ 1. JOSE IDICULA S/O. IDICULLA EASO, KAZHUTHOOTTIL HOUSE, KAIRALIPURAM, MYLAPRA P.O., PATHANAMTHITTA. 2. VARGHESE THOMAS, VEKKAL HOUSE KAIRALIPURAM, MYLAPRA P.O., PATHANAMTHITTA. 3. THOMAS V.M., VADAKKETHIL HOUSE MUNDUKOTTACKAL P.O.,PATHANAMTHITTA. BY ADV. SRI.R.V.SREEJITH RESPONDENTS: ----------------------- 1. MATHAI MICHAEL, VALIYAKALYIL KODIYATHU HOUSE, VETTIPURAM MURI, PATHANAMTHITTA. 2. MICHAEL RACHEL OF DO..DO... 3. PATHANAMTHITTA MUNICIPALITY REPRESENTED BY ITS SECRETARY, PATHANAMTHITTA. BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL - R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J ----------------------------------------------------------------- W.P.(C).NO.5217/2008 ----------------------------------------------------------------- Dated this the 9th day of June, 2008 JUDGMENT The prayers sought for in this writ petition are to direct the 3rd respondent Muncipality to do all the needful, to maintain the Chittackattupadi-Poovambara Road in its present lie and position and to resort to the emergency clause of the Land Acquisition Act for the acquisition of the land for maintaining the road. A further prayer to direct the respondents 1 and 2 not to demolish the retaining wall of the aforesaid road and annex the land to their private property is also sought for. 2. It is stated that the first petitioner has purchased 16.5 cents of land by two documents executed on 20.5.2005 and 28.11.2005 and the second petitioner purchased 7.5 cents and 2.75 cents of land by the documents executed on 9.3.2006. The first respondent had filed WP(c).No.5217/2008 2 O.S.No.201/1976 before the Munsiff Court, Pathanamthitta alleging trespass into the land covered by his title deeds against certain persons in the locality. By Ext.R1(a), the suit was decreed as prayed for. Later, complaining that the decree has been violated, the Ist respondent moved for the prosecution by filing E.P.No.114/1982. In the execution proceedings the records of the respondent Municipality were produced which indicated that the road in question was laid by the Municipality, which was not a party to the proceedings that ended in Ext.R1(a) decree and judgment. There upon the E.P was dismissed. 3. Thereupon the first respondent filed O.S.No.3/1985 before the Munsiff Court, Pathanamthitta against the Municipality and praying for declaration of their title and recovery of possession of the land through which the road was laid by the Municipality. The trial court dismissed the suit against which A.S.No.46/90 was filed before the District Court, Pathanamthitta. By Ext.R1(b), the appeal was partly allowed but recovery of possession was declined on the WP(c).No.5217/2008 3 ground of limitation. Against Ext.R1(b), the first respondent filed a Second Appeal before this court as S.A.No.330/1994. The second appeal was disposed of by this court by Ext.P2 judgment dated 15th November, 2007, decreeing the suit as prayed for. A reading of Ext.P2 shows that this court granted time till 14.2.2008 to the Muncipality for surrendering the land in respect of which both the title was declared and recovery of possession was ordered in favour of the first respondent. The first respondent submits that in order to avoid surrender of the property as directed in Ext.P2 judgment rendered by this court, at the instigation of the Municipality, this writ petition was filed before this Court and an order of status quo has been obtained on 13.2.2008. The counsel submits that the writ petition has been filed suppressing the relevant facts and also for mala fide reasons. 4. In so far as the contention of the counsel for the petitioner that, since a lot of people are residing in the locality in question, if the existence of the road is WP(c).No.5217/2008 4 disturbed in any manner, that will affect all of them, is seen denied by the first respondent in the counter affidavit filed. In paragraph 13 of the counter affidavit, it is specifically averred that no person other than the first respondent and petitioners 1 and 2 are residing in the area in question. It is also averred in paragraph 8 of the counter affidavit that the property of the 3rd petitioner is situated within half a kilometer from the subject. It being a disputed question of fact, in the absence of anything contrary to dispute the plea in the counter affidavit, I am not prepared to accept the case of the petitioners. 5. From the facts as stated above, it is obvious that the title in respect of the land through which the road is passing through has already been declared in favour of the first respondent as per Ext.P2 judgment of this Court. Ext.P2 judgment also granted time till 14.2.2008 to the Muncipality to surrender vacant possession to the petitioner. If that be so, the property absolutely belongs to the first respondent and he is entitled to the fruits of the WP(c).No.5217/2008 5 said judgment and this cannot be denied. Such being the case, the petitioners cannot seek any of the reliefs sought for in this writ petition. If in execution of the judgment, the property is to be annexed as part of the private property of the respondents, nothing can prevent such an inevitable consequence. In such a background a direction to the Municipality to resort to the emergency clause under the Land Acquisition Act for acquiring the land in question, also cannot be issued to nullify the binding interparty judgments. In any event, it is essentially for the Municipality to take a decision as to whether the land should be acquired for any public purpose of not. Writ Petition fails and is dismissed. ANTONY DOMINIC JUDGE vi. WP(c).No.5217/2008 6