IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 WP(C).No. 17450 of 2011(E) -------------------------- PETITIONER(S): ---------------------- U.SUGATHAN, S/O.LATE UPENDRA PANICKER, RESIDING AT 'SUGATH', KOVALAM BEACH, KOVALAM P.O., VIZHINJAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT, PIN-695035. BY ADV. SRI.VADAKARA V.V.N.MENON RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY THE THIRUVANANTHAPURAM DISTRICT COLLECTOR, COLLECTORATE, KUDAPPANAKKUNNU, KUDAPPANAKKUNNU P.O., THIRUVANANTHAPURAM, PIN-695043. 2. THE PROJECT DIRECTOR, KERALA STATE ROAD TRANSPORT PROJECT (KSTP), KAWDIAR, KAWDIAR P.O., THIRUVANANTHAPURAM, PIN-695003. 3. THE SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. GOVERNMENT PLEADER SMT.RAJASREE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.17450/11 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE PHOTOCOPY OF PROPERTY TAX RECEIPT DT 24.5.11 ISSUED TO THE PETITIONER. EXT.P2: TRUE PHOTCOPY OF LOCATION CERTIFICATE NO.4260/11 DATED 31.5.11 ISSUED TO THE PETITIONER. EXT.P3: TRUE PHOTOCOPY OF LOCATION SKETCH NO.4260/11 DATED 31.5.11 ISSUED TO THE PETITIONER. EXT.P4: TRUE PHOTOCOPY OF POSSESSION CERTIFICATE NO.4082/4 DATED 25.5.11 ISSUED TO THE PETITIONER. EXT.P5: TRUE PHOTOCOPY OF FIELD MAP OF FIELD NO.342 BLOCK NO.30 DATED 26.5.11 ISSUED TO THE PETITIONER. EXT.P6: LAND ACQUISITION NOTICE DT 30.11.2002 IN LAA NO.274/2001 ISSUED TO THE PETITIONER. EXT.P7: TRUE PHOTOCOPY OF NOTICE OF AWARD U/S 12(2) LAND ACQUISITION ACT ISSUED TO THE PETITIONER. EXT.P8: TRUE PHOTOCOPY OF SECTION 80 C.P.C. NOTICE DATED 8.6.11 ISSUED TO THE RESPONDENTS. EXT.P9: TRUE PHOTOCOPY OF THE 3 POSTAL RECEITPS ISSUED TO THE PETITIONER EVIDENCING THE POSTING OF SECTION 80 C.P.C.NOTICE. EXT.P10: TRUE PHOTOCOPY OF TWO ACKNOWLEDGMENT CARDS EVIDENCING THE RECEIPT OF THE SAID NOTICE. EXT.P11: TRUE PHOTOCOPY OF ORDER DATED 18.8.89 OF THIS HON'BLE COURT IN CMP NO.18028/1989. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 17450 OF 2011 ===================== Dated this the 28th day of July, 2011 J U D G M E N T Petitioner claims to be the owner of 1.6 ares of property in R.S.No.342/5 and 342/6, Block No.30 of Venganoor Village, which is obtained by a partition deed No. 1535 of 1983 of Venganoor Sub Registry. It is stated that a portion of the property was acquired in 2002 as per Exts.P5 to P7 and that the remaining property extending to about 3 cents is in his exclusive possession. It is stated that while so, in order to tresspass into the unacquired portion of the property of the petitioner and damaging its western and southern boundary walls, an attempt was made by the officers of the 2nd respondent on 7/6/2011. It is stated that thereupon the petitioner issued a notice under Section 80 of C.P.C to the respondents requiring them to desist from their aforesaid sinister actions. Despite that, petitioner apprehends repetition of such incidents and therefore this writ petition has been filed with the following main prayer:- “(i) issue a writ of prohibition or other appropriate writ, order or direction, restraining and prohibiting the respondents and their associates or employees working under them, from trespassing into the property in Resurvey Nos.342/5 and 342/6 (Block WPC No. 17450/11 :2 : No.30) of Venganoor Village which is in his possession and enjoyment on from committing any acts of waste therein or effecting any construction therein under the guise of road development and maintenance or from disturbing in any manner his peaceful possession and enjoyment of the same except the land acquired as per Exts.P6 and P7 which is clearly separated from the remaining property”. 2. The statement filed on behalf of respondents 2 and 3 indicates that, according to them, the attempt of the petitioner is to encroach into the road puramboke on the western side of his property by putting rubble wall. The relevant averments in the statement are in paras 6 and 7, which reads as under:- “6. It is submitted that, meanwhile the petitioner has constructed rubble boundary wall with excavated drain inside the boundary wall on 14th and 15th of May, 2011 seen as projected into the road, which invited public protest that the construction of drain outlet is obstructed and Government land is left to private party. The Department has initiated to mark the boundary delineating the land owned by the petitioner in Survey No.342/5 and 342/6 of Venganoor Village. The Taluk Surveyor surveyed and demarcated the road boundary and seen that the petitioner has encroached 0.55 Ares of land. This area as per Annexure R2(b) comes in Survey No.287/12, which is exclusively road Puramboke, adjoining petitioner's property. The encroachment sketch prepared by the Taluk Surveyor, Thiruvananthapuram is produced herewith and marked as Annexure R2(c). Due to the public protest and Malaria disease in the locality the drain work was proceeded on 23.5.2011 without entering the petitioner's land and removing the accident causing rubble barrier put in the road obstructing drain work. 7. It is submitted that the KSTP officials have WPC No. 17450/11 :3 : executed the work only on road Puramboke. The attempt of the petitioner to encroach 0.55 Ares of land from road Puramboke on the western side by putting rubble wall barrier is removed and the Government land is protected and used for public purpose. The construction of drain and culvert will facilitate reduction in accidents and water logging in the junction”. 3. Thus, what emerges from the pleadings of the parties is that while the petitioner is accusing the respondents of having attempted to tresspass into his property, respondents on the other side, are accusing the petitioner of the same. Essentially therefore, the disputed factual question that arises for consideration is whether there has been attempt of tresspass by either of the parties. This requires adjudication of factual issues, including appreciation of evidence, both oral and documentary. Such an exercise is impermissible in a proceedings under Article 226 of the Constitution of India. Writ petition is dismissed. ANTONY DOMINIC, JUDGE Rp