IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 13904 of 2009(O) --------------------------------------- (OS.NO.190/2002 OF MUNSIFF'S COURT,ALUVA) .................... PETITIONER: ------------------- K.C.BALAGOPAL,S/O.K.A.CHANDRASEKHARA MENON, C GARDENS,THOTTAKATTUKARA,N.H ROAD, ALUVA-683 108,NOW RESIDING AT NARAYANI VILAS, NEAR IRB PETROL PUMP,KMK JUNCTION, NORTH PARAVUR-683 513. BY ADVS. MR.DINESH R.SHENOY, MR.V.V.UNNIKRISHNAN, MR.A.JOSEPH GEORGE, MR.G.HARIKRISHNAN (TRIPUNITHURA). RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REP.BY THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE SPECIAL TAHSILDAR (LA), NATIONAL HIGHWAY, NATIONAL HIGHWAY NO.3, VYTTILA. 3. THE ASSISTANT EXECUTIVE ENGINEER, KERALA PUBLIC WORKS DEPARTMENT (NATIONAL HIGHWAY), NATIONAL HIGHWAY SUB DIVISIONAL OFFICE,ALUVA. 4. NATIONAL HIGHWAY AUTHORITY OF INDIA, REP.BY THE PROJECT DIRECTOR, NATIONAL HIGHWAY AUTHORITY OF INDIA, SIVA TEMPLE ROAD,ALUVA. W.P.(C). NO.13904/2009-O: 5. M/S.TECHNI BHARATI,REP.BY ITS SITE IN CHARGE AND PRINCIPAL OFFICER, SHRI.JOSEPH ANTONY,TECHNI BHARATI, O/O.NATIONAL HIGHWAY AUTHORITY OF INDIA, SIVA TEMPLE ROAD,ALUVA. R1 TO R3 BY GOVT. PLEADER, R4 BY MR.THOMAS ANTONY, S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2010, THE COURT ON 23/03/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.13904/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE AMENDED PLAINT IN O.S. NO. 190/2002. EXT.P.2: COPY OF THE ORDER DTD.08/04/2002 IN I.A. NO. 733/2002 IN O.S. NO. 190/2002, MUNSIFF COURT, ALUVA. EXT.P.3: COPY OF THE REPORT DTD. 04/06/2002 SUBMITTED BY M.T. SUDHEELA, ADVOCATE COMMISSIONER. EXT.P.4: COPY OF THE ORDER DTD. 05/06/2002 IN I.A. NO. 733/2002 IN O.S. NO. 190/2002. EXT.P.5: COPY OF THE JUDGMENT DTD. 13/11/2003 IN O.P. NO. 16770/2001. EXT.P.6: COPY OF THE ORDER DTD. 13/11/2003 PASSED IN R.P. NO. 291/2002. EXT.P.7: COPY OF THE ORDER DTD. 13/11/2003 IN I.A. NO. 14567/2003 IN R.P. NO. 291/2002 IN O.P. NO. 16770/2001. EXT.P.8: COPY OF THE REPORT DTD. 20/11/2003 SUBMITTED BY ADVOCATE COMMISSIONER SMT. M.T. SUDHEELA. EXT.P.8.A: COPY OF THE REPORT OF ADVOCATE COMMISSIONER SUDHEELA DTD. 03/12/2003. EXT.P.9: COPY OF THE MEMO DTD. 15/11/2003 FILED BY ADVOCATE M. REMA MENON IN O.S. NO. 190/2002. EXT.P.10: COPY OF THE JUDGMENT DTD. 19/06/2007 IN W.P.(C).NO.7525/2004 TOGETHER WITH COURT ENDORSEMENT. EXT.P.11: COPY OF THE I.A. NO. 2366/2008 FILED IN O.S. NO. 190/2002, MUNSIFF COURT, ALUVA. EXT.P.11.A: COPY OF THE LIST OF DOCUMENTS TO BE SUMMONED FILED BY THE PETITIONER DTD. 28/10/2008. EXT.P.12: COPY OF THE OBJECTION DTD. 11/12/2008. EXT.P.12.A: COPY OF THE OBJECTION DTD. 28/11/2008 FILED BY THE 4TH DEFENDANT IN EXT.P.11. EXT.P.13: COPY OF THE I.A. NO. 2367/2008 IN O.S. NO. 190/2002, MUNSIFF COURT, ALUVA. EXT.P.14: COPY OF THE OBJECTION FILED BY THE 4TH DEFENDANT IN I.A. NO. 2367/2008 IN O.S. NO. 190/2002. W.P.(C). NO.13904/2009-O: EXT.P.15: COPY OF THE ORDER DTD. 27/01/2004 IN I.A. NO. 2367/2008 IN O.S. NO. 190/2002. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 13904 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2010. JUDGMENT In this writ petition under Article 227 of the Constitution of India, the petitioner challenges Ext.P15 order passed by the Munsiff's Court, Aluva in I.A. 2367 of 2008 in O.S. 190 of 2002 filed by the petitioner. 2. The petitioner instituted O.S. 190 of 2002 seeking a decree for permanent prohibitory injunction against the respondents. The plaint schedule property has an extent of 68.65 Ares and lies as a contiguous plot. It has a compound wall on all sides. The petitioner has bought the property from Pappukuttiamma in 1979. It is claimed that the predecessors in interest of the petitioner have been in possession of the property for over 40 years. It abuts the National Highway lying in its eastern boundary. The petitioner complains that a small strip of land on the eastern boundary of his property was measured out by some officers of the respondents for WPC. 13904/2009. 2 the purpose of National Highway Project. Petitioner says that no notification was issued in this regard and no notice was issued to him also. To his surprise, a notice was published in an evening paper stating that an auction was proposed to be conducted for demolition and removal of the petitioner's eastern compound wall. He then moved this court by filing O.P. 16770 of 2001 challenging the auction notice. The said Original petition was taken on file and interim stay was granted. While the stay order was in force, the third respondent issued a letter to the father of the petitioner stating that he had enclosed a portion of the puramboke land. The respondents were informed about the pendency of the petition before this court. According to the petitioner, the claim of the respondent that his father had enclosed a portion of the puramboke land is without any basis. 3. Along with the plaint an interlocutory application as I.A. 733 of 2002 was moved seeking interim injunction. An interim injunction was granted on 8.4.2002. WPC. 13904/2009. 3 A commissioner was appointed to prepare a plan and report. Ext.P3 is the said report. Petitioner points out that the said document will show that the property lies within well defined boundaries and it is enclosed by a compound wall on all sides. Various other details of the steps taken during the pendency of the suit are mentioned. They are not very relevant for the present purpose. 4. The petitioner would say that O.P. 16770 of 2001 was disposed of directing the third respondent to take a decision on the petitioner's complaint. When it was pointed out to this court that the third respondent was the person against whom relief was sought, this court observed that since the matter is pending before the civil court, no further orders need to be passed. The petitioner would claim that subsequently he moved the Munsiff's court and obtained an order of status quo. Details of the various steps, which according to the petitioner are illegally taken by the respondents need not be referred to in the present context. WPC. 13904/2009. 4 5. It is stated by the petitioner that his amendment application was dismissed by the court below and he had moved this court against the said order. That was disposed of by Ext.P10 order. The amendment was allowed. When the suit later came up in the list, since the petitioner was indisposed, he filed an application for removing the case from the list. He had also filed I.A. 2366 of 2008 seeking issuance of summons to a few witnesses and calling upon them to produce certain documents. Copy of the petition and the list of documents are marked as Exts.P11 and P11(a). The third respondent alone opposed the petitions. Copy of his objection is produced as Ext.P12. Thereafter the fourth respondent also filed objection, which is produced as Ext.P12(a). Two other applications were filed by the petitioner. All these three applications were disposed of by a common order dated 27.1.2004 rejecting the petitions. The said order is assailed in this petition. 6. The petitioner points out that the court below was not justified in refusing to issue summons to the WPC. 13904/2009. 5 witnesses calling upon them to produce the documents. According to the learned counsel, the definite stand of respondents 3 and 4 was that the petitioner was in possession of puramboke land and necessarily he had to summon the documents made mention of in the petition. The observation of the court below that there was no prayer for measurement is incorrect. So also the observation that the petitioner has produced no documents to show his title to the suit property. 7. Learned counsel appearing for the fourth respondent pointed out that the National Highway Authority of India has nothing to do with the matter and the issue is between the petitioner and the State authorities. 8. On going through the records, the observation of the court below that the averments in the petitions were vague does not appear to be correct. The issue involved is whether, as claimed by the defendants in the suit, the plaintiff is in possession of puramboke land. The plaintiff has specifically pointed out that a portion of his property WPC. 13904/2009. 6 was utilised for the NH project. Even assuming that the petitioner has not produced his document of title along with the suit, that does not preclude the petitioner from producing the document at a later stage. Equally fallacious is the observation that since the resurvey number is not shown, the petition cannot be allowed. It would appear that the court below has not addressed itself to the issues that had come up for consideration in the suit. 9. True, the fourth respondent has pointed out that it has no office at Kodungallur in Thrissur District and there is no Project Officer by name Muraleedharan. They have also pointed out that the settlement register, puramboke register and the details of the land acquisition are all with the Revenue Department of the Government of Kerala and the National Highway Authority has nothing to do with the documents. 10. In the light of the above sand taken by the fourth respondent, the proceedings against them may serve no purpose. But that is not with the case of the State WPC. 13904/2009. 7 authorities. There is a definite allegation that the petitioner's property has been utilized for National Highway. If the petitioner needs certain details and documents to prove his case, there is no reason why it should be rejected. The reasons given by the court below does not appear to be very convincing and it is felt that a proper adjudication of the claims of the petitioner has not been done. In the result, this petition is allowed and the impugned order is set aside and the matter is remanded to the trial court for fresh consideration taking into consideration the stand of the fourth respondent before this court. P. BHAVADASAN, JUDGE sb.