IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 WP(C).No. 28647 of 2006(I) ------------------------------------- PETITIONER: ------------------- K.P.BIMAL KUMAR, KORACKAL HOUSE, 10/913C, MANTHRA, KOCHI-1. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENTS: ----------------------- 1. THE SECRETARY, CORPORATION OF KOCHI, ERNAKULAM. 2. THE ASST. EXECUTIVE ENGINEER, CORPORATION OF KOCHI, ZONAL OFFICE, FORT KOCHI. 3. THE VILLAGE OFFICER, FORTKOCHI VILLAGE. 4. SATHYAN @ SADAN SUDARSAN, S/O.LATE M.A.SUDARSAN, HOUSE NO.CC.VI/215, KOCHERRY HOUSE, JEW TOWN, KOCHI-682 002. GOVT. PLEADER SRI. K.V. MANOJ KUMAR FOR R3, ADV. SRI.K.ANAND, SC, COCHIN CORPN. FOR R1 & R2, ADV. SRI.MAT.PAI FOR R4, ADV. SRI.K.V.SADANANDA PRABHU. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 28647 of 2006 -------------------------------------------------------- Dated: JULY 4, 2008 JUDGMENT The prayer sought in this writ petition is to direct respondents 1 to 3 to protect the Manthra Canal Road which, according to the petitioner, was formed after acquisition of properties referred in Exts.P7 and P8. There is a further prayer sought against respondents 1 to 3 to demolish construction, if any, made on the property which was acquired as stated above. 2. Petitioner contends that based on the acquisition referred to in Exts.P7 and P8, utilising the land acquired, the Manthra Canal Road was formed. In this writ petition the allegation is that the 4th respondent has trespassed into the acquired land and has constructed a compound wall. It is on that premise, based on Ext.P7 report of the Village Officer, Ext.P8 communication has been issued by the Revenue Divisional Officer to the Secretary of the Kochi Corporation enclosing a complaint made by the petitioner, for appropriate action. 3. The 4th respondent, on the other hand, would submit that he is in possession of more than 10 cents of land and that WP(C) 28647/06 2 his possession and title has been declared by the civil court in various proceedings such as OS 450/1994, 488/1995 and 205/2000. It is also his case that in none of these proceedings the Corporation could establish that they had any title over the property in his possession. 4. On the other hand, the learned Government Pleader submits that the basic document of the properties including the one under the occupation of the petitioner is Ext.P1. According to the learned Government Pleader, in Ext.P3, partition deed, itself it is evident that the property in the possession of the father of the 4th respondent, is a portion of what is included in the B schedule to the said document. It is stated that the B schedule to Ext.P3 has two items of properties, one having an extent of 12.4 cents and the other 3.370 cents. It is stated that by Ext.P4, the plot having an extent of 12.4 cents have been assigned by the deceased father of the 4th respondent, and that by virtue of Ext.P4, what remained in the possession of the father of the 4th respondent was only 3.370 cents. However, according to the learned Government Pleader, when the aforesaid remaining extent of land was settled in favour of the 4th WP(C) 28647/06 3 respondent by Ext.P5, as against the actual extent of 3.370 cents, what is included in the document is 10.300 cents. It is stated that the excess land thus settled is puramboke and does not legitimately belong to the 4th respondent. 5. A complaint was received in this behalf and the Revenue Divisional Officer got the same enquired into by the Village Officer, when the allegation of trespass into the puramboke land was confirmed in Ex.P7 report. It is also his case that it was based on the report thus received, Ext.P8 letter was issued by the Revenue Divisional Officer requesting the Secretary of the Corporation to take appropriate action. It is stated that thereafter notice has been issued to the 4th respondent proposing to take action for the cancellation of transfer of registry in their favour. It is also submitted that once compound wall constructed by the 4th respondent was demolished on the directions of the Revenue Divisional Officer. 6. When this submission was made by the learned Government Pleader, learned counsel for the 4th respondent referred to Ext.R4(c) order passed by the Munsiff's Court, Cochin in I.A.1970/2006 in O.S. 329/2006 wherein the Court had WP(C) 28647/06 4 directed that the compound wall destroyed shall be reconstructed under the supervision of an Advocate- Commissioner appointed by that Court. 7. Although the petitioner contended that the judgments rendered by the Civil Court in Exts.R4(a), R4(b) and R4(c) are vitiated by fraud, I should confess my inability to accept the said plea, mainly for the reason that there is absolutely no material placed by the petitioner to substantiate this contention, the burden of which is heavy and is entirely on him. From the facts as above, what is disclosed is that according to the Government, puramboke property is in the possession of the petitioner. If they have material in support of such an inference, certainly they are entitled to take action. It is as a result thereof that Ext.P8 has been issued. Now that Ext.P8 has been issued to the Secretary of the Corporation, it is for that authority to take action in pursuance thereof. But, however, any such action on Ext.P8 shall only be with notice to both the 4th respondent and the petitioner on whose complaint the proceedings have been initiated. 8. Therefore, the writ petition is disposed of with a WP(C) 28647/06 5 direction that any action taken in pursuance to Ext.P8 shall only be with notice to the petitioner and the 4th respondent. In the enquiry that is to be conducted by the Secretary of the Corporation, it will be open to the parties to produce evidence and rely upon the same. I clarify that if the judgments rendered by the civil court are produced, it will be the responsibility of the Secretary of the Corporation to advert to those documents as well. On the conclusion of such enquiry, the Secretary shall pass orders thereon in the manner as is directed above. ANTONY DOMINIC JUDGE mt/-