IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 WP(C).No. 5611 of 2010(O) -------------------------------------- OS.630/2008 of II ADDL.SUB COURT,THRISSUR .................... PETITIONER(S): ------------------------ V.C. ELIAS, AGED 72 YEARS, S/O. CHACKO, VARAPPATH KUZHIYIL HOUSE, KILLIMANGALAM P.O., CHELAKKARA, THRISSUR. BY ADVS. MR.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): -------------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, THRISSUR. 2. THE ASSISTANT EXECUTIVE ENGINEER, WADAKKANCHERY. 3. TAHSILDAR, THALAPPILLY, WADAKKANCHERY. BY GOVT. PLEADER MR.T.K.SAJEEV THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.5611/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. NO.630/08 BEFORE THE IIND ADDL. SUB COURT, THRISSUR. P2:- COPY OF THE WRITTEN STATEMENT IN OS. 8838/08. P3:- COPY OF THE ADVOCATE COMMISSIONER'S REPORT DTD. 15.7.08. P4:- COPY OF THE IA. NO.1178/2010. P5:- COPY OF THE IA. 1179/2010. P6:- COPY OF THE IA. NO.1180/10. P7:- COPY OF THE ORDER DTD. 3.2.2010 IN IA. 1178/10. P8:- COPY OF THE IA. 1179/10 AND IA. NO.1180/10 WERE DISMISSED BY A COMMON ORDER DTD. 3.2.2010. TRUE COPY P.S. TO JUDGE tss P. BHAVADASAN, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 5611 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 5th day of March, 2010 JUDGMENT In this petition filed under Article 227 of the Constitution of India the petitioner challenges Exts.P7 and P8 orders passed by the Second Addl. Sub Court, Thrissur. The petitioner instituted O.S. No.630 of 2008 before the Second Addl. Sub Court, Thrissur, seeking a mandatory injunction to the respondents to construct the slab described in the plaint schedule in place of the demolished slab or in the alternative to realize an amount of Rs.7 lakhs as damages on account of the illegal demolition of the slab. 2. The petitioner claims that he owns 37 cents of land in Kumaranelloor Village and a building therein. The property is situated much lower than the road on the west. A drain runs near the building of the petitioner. The petitioner states that he approached the 2nd respondent for sanction to construct a retaining wall on both sides of the drain and put a slab across the drain, so as to enable him to use it for W.P.(C) No. 5611/2010 2 vehicular traffic and also to enter his building. Sanction was granted and work was carried out. The petitioner has incurred huge amount for the same. 3. It is alleged that the 2nd respondent issued notice dated 25-6-2007 directing removal of the said construction. The petitioner approached this Court by filing W.P. (C) No. 16233 of 2007 challenging the action taken by the 2nd respondent. During the pendency of the writ petition and after receiving notice therein, it is alleged, the 2nd respondent demolished the construction. However, the writ petition was disposed of reserving the right of the petitioner to approach the civil court for appropriate relief. Then the suit was filed. 4. The respondents pointed out that they had not demolished any construction for which sanction was given. The case was listed for trial on 19-1-2010. The petitioner examined PW1 and produced Exts.A1 to A6. Commission report was also marked as Ext.C1. The 2nd respondent was examined as DW1. He took a contention that the construction, which was demolished, is not the one W.P.(C) No. 5611/2010 3 mentioned in the plaint schedule property. He has also deposed in contradiction with the sanction order dated 20-7- 1996. 5. The petitioner, therefore, filed I.A. No.1178 of 2010 to appoint a Commissioner to ascertain whether the construction made by the petitioner in the property is the same for which sanction was granted and whether it was demolished by the respondents. A copy of the application is produced as Ext.P4. He also filed I.A. No.1179 of 2010 for summoning the entire file with respect to the sanction order and also the minutes of the meeting of the Taluk Development Committee held on 2-6-2007. The court below dismissed both the applications. 6. The learned counsel for the petitioner submits that in the light of the deposition given by DW1, it became necessary to take out an Advocate Commissioner and seek a report. The learned counsel also submits that the production of documents summoned are highly necessary in the nature of the contradictory stand taken by the respondents. Fort this purpose the court below ought to have allowed the W.P.(C) No. 5611/2010 4 applications. 7. The order passed by the court below do not reflect application of mind to the purpose for which applications were filed. They were mechanically dismissed. 8. The petitioner had specifically pointed out that applications became necessary in the light of deposition of DW1 of matters which were not covered by pleadings. He also had stated his purpose, for which applications were filed. 9. There is no justification in dismissing the applications. There is nothing to show that applications lack bona fies. Hence, the orders are unsustainable. 10. The impugned orders are set aside and I.A. Nos.1178, 1179 and 1180 of 2010 are allowed. Necessary steps may be taken by the court below. This writ petition is allowed as above. P.BHAVADASAN, JUDGE. mn.