IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 RSA.No. 263 of 2010(F) --------------------------------- [AS.NO.11/2007 OF SUB COURT, MANJERI, OS.NO.116/2005 OF MUNSIFF'S COURT, MANJERI] .................... APPELLANT/RESPONDENT/PLAINTIFF: -------------------------------------------------------- ALAVI HAJI,S/O.SRAMBIKKAL KUNHIMOIDEEN, PULPATTA AMSOM,THOTTAKKADU AMSOM,ERNAD TALUK, MALAPPURAM DISTRICT. BY ADVS. SMT.BINDU SREEKUMAR, SMT.V.AKHILA. RESPONDENT/APPELLANT/DEFENDANT: ----------------------------------------------------------- PULPATTA GRAMA PANCHAYATH, REPRESENTED BY ITS'S SECRETARY,PULPATTA GRAM PANCHAYATH,PULPATTA POST,ERNAD TALUK,MALAPPURAM DISTRICT. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- RSA No.263 of 2010-F ------------------------------------- Dated 28th May 2010 Judgment Based on anticipatory damages, a suit has been laid for injunction. 2. The Trial Court was gracious enough to grant a decree in favour of the plaintiff. But, the appellate Court reversed the same. Therefore, the plaintiff is before this Court. 3. The plaintiff owns the plaint schedule property. On the southern and eastern sides of the property, there is a panchayat road. The grievance of the appellant is that the panchayat intends to lower the depth of the road and that will cause irreparable injury and harm to the appellant. Initially, there was only a footpath there, which was later converted into a road as a result of surrender of land by persons residing on either side. The plaintiff would say that his property is situated at a higher level and further deepening of the road would result in considerable inconvenience to him. RSA 263/10 2 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimonies of PW1 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendant examined PW1 and marked B1 and B2. C1 and C2 are respectively the Commissioner's report and plan. 5. The Trial Court was greatly impressed by the case put forward by the plaintiff and accordingly granted a decree as follows: “1. The defendant is hereby restrained by way of permanent prohibitory injunction from lowering the panchayat road on southern and eastern boundary of the plaint schedule property. 2. It is made clear that defendant is empowered and at liberty to do necessary repair works in the road and reduction of elevation can be effected after consulting with the plaintiff and without causing any inconvenience to the way to the plaint schedule property.” 6. The lower Appellate Court on an evaluation of the evidence, came to the conclusion that there was no basis for the RSA 263/10 3 claim made by the plaintiff. The road belongs to the panchayat. The repairs and maintenance of the road was intended in public interest. The lower Appellate Court took the view that private interest will have to give way to public interest. It was also found that there is nothing to show that the panchayat has commenced the work or that any damage has been caused to the plaintiff. The lower Appellate Court found that the grievance voiced was purely anticipatory and imaginary in nature and had no basis as of now. 7. The learned counsel for the appellant pointed out that if the road is deepened further, it will cause irreparable injury to him and he will find it difficult to go to his plot from the road and also that he apprehends soil erosion causing damages to his property. 8. It must be said that the decree of the Trial Court is clearly unsustainable in law. The panchayat owns that road. They had decided to take necessary steps to repair and maintain the road in public interest. The inconvenience caused to the appellant does not give rise to any cause of action and it is not a ground to RSA 263/10 4 pass an injunction order restraining the panchayat from doing something in public interest. Moreover, the grievance raised by the appellant is purely imaginary and anticipatory in nature. If, after the completion of the work, any damage is caused to the property of the appellant, then he may have a cause of action. 9. It is contended by the learned counsel for the appellant that the lower Appellate Court has misconstrued the allegation in the plaint. The plaintiff took objection to further deepening the road and not maintenance and repair. May be that the Court has taken it as repair and maintenance. But the lower Appellate Court correctly understood the case put forward by the plaintiff. It is pointed out that the work that is sought to be done by the panchayat is in public interest. One fails to understand how the plaintiff can take objection to the panchayat deepening the road. Viewed from any angle, no interference is called for with the order passed by the lower Appellate Court. Accordingly, the RSA is dismissed, reserving the liberty of the appellant to move the appropriate forum in case any damage is caused to his RSA 263/10 5 property or to him personally, as a result of the act of the panchayat in relation to the road in question. P.BHAVADASAN, JUDGE sta RSA 263/10 6