IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 WP(C).No. 15900 of 2006(P) -------------------------- PETITIONER(S): --------------- 1. R.RAMA IYER, PRIYA GARDENS, MEVELLUR P.O. VAIKOM, KOTTAYAM 686 609. 2. E.P.ANANTHALAKSHMI, PRIYA GARDENS, MEVELLUR P.O. VAIKOM, KOTTAYAM 686 609. BY ADV. SRI.DEVAN RAMACHANDRAN SMT.T.G.SEETHAL RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYATHS, THIRUVANANTHAPURAM. 3. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM. 4. THE SECRETARY, VELLOOR GRAMA PANCHAYATH, MEVELLOOR P.O. VAIKOM. ADV. SRI.DINESH MATHEW J.MURICKEN FOR R4 GOVT. PLEADER SMT. K.R. DEEPA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: WPC NO. 15900/2006. ------------------------------------------------------------------ EXT.P1 JUDGMENT IN O.P.NO. 14424/2000 DT. 25-9-2003. EXT.P2 COMPLAINT BEFORE R3. EXT.P3 ORDER DT. 3-3-2006. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 15900 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 17th October, 2008. J U D G M E N T The petitioners have approached this Court with a grievance that without resorting to proceedings under the Land Acquisition Act, the 4th respondent-Panchayat has encroached into a portion of the property belonging to the petitioners for constructing a road. There was an earlier proceedings before this Court in which Ext. P1 judgment was passed by this Court. Later on, the matter was taken up before the Ombudsman for Local Self Government Institutions, Thiruvananthapuram. By Ext. P. 3, the Ombudsman held thus: “During the proceedings, stand taken by the Velloor Grama Panchayat is that the said road was constructed by the initiative and co-operation of the local people and the Panchayat has not constructed the said road using its fund. Panchayat Member and President had only participated in the function arranged in connection with construction of road by the local people. No materials could be produced by the petitioners to show that it was project envisaged by the Panchayat. When new road was formed any damage was caused to the fencing of the petitioners' property, the petitioners should have proceeded against these persons who are responsible for such action. The petitioners did not do that. Instead, they presumed that Panchayat has constructed the road and did nuisance to their property. Merely on assumption no action can be taken against the Panchayat, unless there is clear and factual evidence to show that the Panchayat has trespassed into the property. Besides, the action of the complaint was taken place in 1996 and it is a stale claim which this forum cannot entertain.” Therefore, evidently, the contention of the Panchayat is that the Panchayat had nothing to do with construction of that road and that it was constructed by the people of the locality. Therefore, the Panchayat has disowned responsibility for the alleged encroachment into the petitioners' property. That being so, the question involved is a disputed question of fact, which cannot be gone into in proceedings under Article 226 of the Constitution. The remedy of the petitioners lie in filing a suit for appropriate relief. Therefore, I am not inclined to entertain this writ petition. Accordingly, the writ petition is W.P.C. No. 15900/2006. -: 2 :- dismissed without prejudice to the right of the petitioners to file a suit in respect of the cause of action. Sd/- S. Siri Jagan, Judge. Tds/