IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 WP(C).No. 34210 of 2008(V) -------------------------- PETITIONER(S): --------------- M.M.MATHEW, AGED 69 YEARS, S/O.MATHEW, MANAPURATHU HOUSE, THIRUVAMBADI P.O., THIRUVAMBADI VILLAGE, KOZHIKODE TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, JIJI MATHEW, D/O.M.M.MATHEW, MANAPURATHU HOUSE, THIRUVAMBADI P.O., THIRUVAMBADI VILLAGE, KOZHIKODE TALUK. BY ADV. SRI.INNOCENT FRANCIS PAPALI SRI.S.SHARAN RESPONDENT(S): --------------- 1. THE SPECIAL GRADE SECRETARY, THIRUVAMBADI GRAMA PANCHAYAT, THIRUVAMBADI AMSOM DESOM, THIRUVAMBADI P.O., THIRUVAMBADI VILLAGE, KOZHIKODE DISTRICT. 2. ROSAMMA MATHEW, AGED 55 YEARS, W/O.MATHEW, KALLUKULANGARA HOUSE, THIRUVAMBADI AMSOM DESOM, THIRUVAMBADI, KOZHIKODE DISTRICT. 3. STATE OF KERALA, REPRESENTED BY SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. G.P. SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.34210 of 2008 ================== Dated this the 20th day of November, 2008 J U D G M E N T The petitioner challenges Ext.P7 order passed by the 1st respondent, whereby the petitioner's representation, Ext.P4, in respect of alleged encroachment into the petitioner's property for construction of a Panchayat road, has been rejected by the 1st respondent. The petitioner earlier approached this Court by filing W.P(C).No. 13705/2007 seeking a direction to dispose of Ext.P4 representation filed by the petitioner after affording an opportunity of being heard to the petitioner. In that writ petition I passed Ext.P5 judgment directing the 1st respondent to consider Ext.P4 and to pass a reasoned order dealing with the contentions of the petitioner. I had also directed that no further steps shall be taken in respect of the construction of the road, till orders are passed on Ext.P4. Thereafter, the petitioner again approached this Court with a grievance that without complying with the direction in Ext.P5 judgment the Panchayat is proceeding with the construction of the road through the petitioner's property. When the same came up for hearing the learned Counsel for the w.p.c.34210/08 2 Panchayat submitted that pursuant to Ext.P5 judgment, a notice for hearing was issued to the petitioner by registered post, which was not accepted by the petitioner. It is further submitted that an order passed on Ext.P4 was also forwarded to the petitioner by registered post, which was also returned unclaimed. Accepting those contentions of the counsel for the Panchayat, by Ext.P8 judgment, I directed that the petitioner's remedy lies in challenging the order passed by the Panchayat. I also directed the counsel for the Panchayat to hand over a copy of the order to the counsel for the petitioner to enable the petitioner to take further proceedings in the matter. Apparently the petitioner has subsequently received Ext.P7 order passed on Ext.P4. Now the petitioner is again challenging Ext.P7 order on the ground that the same has been passed without hearing the petitioner. I do not think that the petitioner can take such a contention in view of Ext.P8 judgment wherein I had accepted the contention of the 1st respondent that they had issued a notice of hearing the petitioner, which the petitioner did not accept and an order was passed, which was also not claimed by the petitioner. In that judgment I had also relegated the petitioner to his remedy by w.p.c.34210/08 3 way of appeal against Ext.P7 order. Apart from that, the petitioner had in fact filed a suit before the appropriate civil court alleging encroachment by the Panchayat into the petitioner's property for construction of the road, which suit is still pending. If the petitioner has a case that the Panchayat is encroaching into the petitioner's property, it is for the petitioner to move the civil court for temporary injunction in that suit or to file appeal against Ext.P7 appropriately as provided under the Kerala Panchayat Raj Act, in which the petitioner can seek interim orders also. Therefore, without prejudice to such rights, this original petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.34210/08 4