IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 WP(C).No. 3708 of 2006(N) ----------------------- PETITIONER : --------------------- MATHEWS, AGED 66 YEARS, S/O.PAULOSE, THATTAYATH HOUSE, PAYIPRA KARA, MULAVOOR VILLAGE, MUVATTUPUZHA. BY ADV. SRI. PEEYUS A. KOTTAM RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, ERNAKULAM. 3. REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA. 4. SECRETARY, DISTRICT PANCHAYAT, ERNAKULAM. 5. BLOCK DEVELOPMENT OFFICER, MUVATTUPUZHA. 6. PAYIPRA GRAMA PANCHAYAT, REP.BY ITS SECRETARY. 7. TAHSILDAR, MUVATTUPUZHA. R1 TO R3, R5 & R7 BY GOVT. PLEADER SRI. NOBLE MATHEW R4 BY ADV. SRI.C.M.SURESH BABU R6 BY ADVS. SRI.MURALI PURUSHOTHAMAN SRI.P.M.BENZIR SRI.DEEPU LAL MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2011, ALONG WITH WPC NO. 12104 OF 2006 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 3708 of 2006(N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ORDER IN M.C. NO. 33/96 DATED 4.6.1998. EXT.P1(a) : COPY OF THE REPRESENTATION DATED 31.1.2006 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT. EXT.P1(b) : COPY OF THE REPRESENTATION DATED 30.1.2006 SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT. EXT.P1(C) : COPY OF THE REPRESENTATION DATED 30.1.2006 SUBMITTED BY THE PETITIONER TO THE 6TH RESPONDENT. EXT.P2 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO. 8912/97-J. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.S. TO JUDGE Mn S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) Nos.3708 & 12104 of 2006 ---------------------------------------------- Dated this the 28th day of October, 2011 JUDGMENT These writ petitions are filed by the same petitioner in respect of certain properties through which, the petitioner alleges, the Panchayat authorities have constructed a road. The petitioner submits that in view of findings in Ext.P4 report (in W.P.(C)No.12104/06) of the Village Officer and Ext.P1 report (in W.P.(C)No.3708/06) of the Revenue Divisional Officer, the construction of the road is encroaching into the properties of the petitioner and therefore, this Court has to interdict the construction of the road. 2. The 6th respondent Payipra Grama Panchayat (in W.P. (C) No.3708/2006) would contend that they have not constructed any road and it is the Block Panchayat, who have constructed the road. The Block Panchayat is not a party to these writ petitions. 3. In W.P.(C)No.12104/06, the 3rd respondent has filed a statement, wherein the contention taken is that there is no W.P.(C)No.3708/06 & con.case 2 encroachment into the petitioner's property in the construction of the road. 4. The question as to whether there is encroachment or not is a question of fact. The same has to be proved by adducing evidence. The same cannot be decided on the basis of affidavits, especially in view of the fact that the respondents deny the alleged encroachment. In fact, in the two documents relied on by the petitioner, there is no categoric finding that the road was actually constructed encroaching into the petitioner's property, although there are some observations, which may be favourable to the petitioner. But, I am of opinion that those observations are not sufficient to come to a definite finding as to the question whether there was in fact encroachment into the petitioner's property in the construction of the road. Further the veracity of those reports have to be ascertained by examining the authors of the reports on oath. Therefore, I am of opinion that the petitioner has to be relegated to the remedy by way of civil suit in respect thereof. 5. Accordingly, these writ petitions are dismissed, W.P.(C)No.3708/06 & con.case 3 without prejudice to the right of the petitioner to seek his remedies before a civil court where the petitioner can adduce evidence to substantiate his contentions. The learned counsel for the petitioner submits that the petitioner has filed another writ petition seeking a direction to the survey authorities to measure the petitioner's land and to fix the boundaries thereof. I make it clear that dismissal of these writ petitions is without prejudice to the right of the petitioner to prosecute that writ petition. S. SIRI JAGAN, JUDGE acd W.P.(C)No.3708/06 & con.case 4 W.P.(C)No.3708/06 & con.case 5