IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 WP(C).No. 884 of 2009(E) ------------------------ PETITIONER: -------------- A.O.VARGHESE ,S/O.LATE OUSEPH AGE 65 YEARS, AIKKERIATH HOUSE KUZHUR PO, MALA, TRICHUR. BY ADV. SRI.SAIBY JOSE KIDANGOOR RESPONDENTS: ---------------- 1. STATE OF KERALA, REP BY ITS SECRETARY DEPARTMENT OF LOCAL ADMINISTRATION. 2. KUZHUR GRAMA PANCHAYATH REP. BY ITS SECRETARY, KUZHUR GRAMA PANCHAYATH. 3. THE TALUK SURVEYOR MUKUNDAPURAM TALUK OFFICE, MUKUNDAPURAM. ADDL. 4. KUTTAPPAN GOPI, VELLATTUPARAMBIL HOUSE, KUZHUR P.O. ADDL. 5. KRISHNAKURUP ARAVINDAKSHAN, PUNJAPARAMBIL HOUSE, KUZHUR P.O. (ADDL.R4 & R5 IMPLEADED AS PER ORDER DATED 24.2.09 IN IA 2521/09). R1 TO R3 BY GOERNMENT PLEADER, SMT.SMITHA SUKUMAR ADDL.R4 & R5 BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 884/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE JUDGMENT IN WPC : 109/08 DATED 2.1.08. EXT.P2 : TRUE COPY OF THE NOTICE NO.A-123/08 DATED 1.2.08. EXT.P3 : TRUE COPY OF THE COMMUNICATION DATED 15.2.08. EXT.P4 : TRUE COPY OF THE REPRESENTATION DATED 15.10.08. RESPONDENT'S EXHIBIT: EXT.R4(A) : TRUE COPY OF THE CERTIFICATE GIVEN BY THE KUZHUR GRAMA PANCHAYAT. /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 884 OF 2009 ------------------------------------------------- Dated this the 19th day of June, 2009 JUDGMENT The petitioner is a resident of the Kuzhur Grama Panchayat, the 2nd respondent herein. He alleges that there is a Panchayat road passing through the properties of additional respondents 4 and 5, which is in a bad state of disrepair. Petitioner approached the Panchayat for maintenance of that road. Since the Panchayat did not respond favourably, the petitioner filed WP(C) No. 109/08 in which by Ext.P1 judgment, this Court directed the Panchayat to take a decision on the representation of the petitioner. Pursuant thereto, Ext.P3 order has been passed, whereby the Panchayat took the stand that, that pathway is not a public pathway and it does not vest with the Panchayat. But in Ext.P3 a promise was held out to the petitioner that, if there is actually a puramboke land in the properties of the additional respondents 4 and 5, appropriate steps would be taken to get the same measured by the Taluk Surveyor to delineate and make available the same to the Panchayat. The petitioner filed Ext.P4 representation seeking measurement and delineation of the said pathway. Since nothing positive came out of the same, the WPC :884/09 -:2:- petitioner has filed this writ petition seeking the following reliefs: “i. issue a writ of mandamus or appropriate orders and directions directing the respondent Panchayat to measure the land by the Taluk Surveyor covered by the pathway mentioned in Exhibit P4 to demarcate the same and to complete the maintenance work of the said road. ii. Issue a writ of mandamus or appropriate orders and directions directing the respondent Panchayat to consider and take appropriate action on Exhibit P4 in accordance with law.” 2. A counter affidavit has been filed by the 4th respondent, wherein the existence of the pathway is admitted, but according to the petitioner, that pathway is not a public pathway, but is a pathway used by members of the family of the additional respondents 4 and 5 for access to the family temple on the southern portion of the 4th respondent’s property. According to respondents 4 and 5, nobody else is using the pathway. But in the counter affidavit there is no specific averment to the effect that the property comprised of the pathway belongs to the 4th respondent. Counsel for respondents 4 and 5 submits that the property does not belong to the 5th respondent but only to his wife. 3. I have considered the rival contentions in detail. Insofar as respondents 4 and 5 do not have a categorical case that the property comprised of the pathway belongs to them as of right, I do not think WPC :884/09 -:3:- that if the same is actually a puramboke land, they can have any objection in the Panchayat setting the property measured, the pathway delineated and made available to the Panchayat for maintaining the same properly for the use of the public. In fact, such a promise has been held out to the petitioner by the Panchayat in Ext.P3. In the above circumstance the writ petition is disposed of with the following directions: Respondents 2 and 3 shall take appropriate steps to get the properties of respondents 4 and 5 measured and to find out whether the pathway admittedly in existence comprises of puramboke land. If the same is found to be puramboke land, respondents 2 and 3 shall delineate the same and the 2nd respondent shall take appropriate steps to maintain the same, keep it in good repair for the use of the public. That exercise shall be taken up and completed as expeditiously as possible, at any ate, within four months from the date of receipt of a copy of this judgment. The measurement and delineation shall be only after notice to the petitioner and respondents 4 and 5. S. SIRI JAGAN, JUDGE ttb WPC :884/09 -:4:-