IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 WP(C).No. 26785 of 2007(L) -------------------------- PETITIONER: ------------ RAJAN N.C., NOCHIYIL HOUSE, MANNAMPETTA DESOM, AMBALLUR DESOM, VARAKKARA P.O., THRISSUR DISTRICT. PIN 680 325. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENTS: ------------- 1. ALAGAPPANAGAR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, P.O.ALAGAPPANAGAR, PIN 680 302. 2. PUDUKKAD GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, P.O.PUDUKKAD, PIN 680 301. 3. KODAKARA BLOCK PANCHAYAT, REPRESENTED BY ITS SECRETARY, P.O. PUDUKKAD, PIN 680 301. 4. PRESIDENT, ALAGAPPANAGAR GRAMA PANCHAYAT P.O., ALAGAPPANAGAR, PIN 680302. BY ADV. SRI.RENJITH THAMPAN SMT.P.A.ANITHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE, J. ------------------------- W.P.(C) No. 26785 of 2007 --------------------------------- Dated, this the 11th day of February, 2008 J U D G M E N T The case of the petitioner is that he is the owner in possession of 54.75 cents of land and a residential building thereon situated in Survey Nos.1391/1 and 1432/1 of Amballur Village. According to him he has ownership and possession of 39½ cents of land in Survey No.1432/1 and 5¾ cents of land in Survey No.1432/1 and also an extent of 6½ cents of land in Survey No.1391/2 of the same village. These properties, according to him, are lying contiguously. He has filed this writ petition alleging that the two Panchayats, which are respondents 1 & 2, have taken a decision to construct a new road through his properties and in this writ petition he seeks a writ of mandamus for a direction restraining the respondent Panchayats and their officers from forcibly entering into his properties and restraining the respondents from constructing any road through the petitioner’s properties. 2. He refers to O.S.1260/00, a suit filed by one Rosa and another before the Munsiff Court, Irinjalakuda against him and the 1st respondent Panchayat alleging encroachment. According to him, in that suit, he has filed a counter claim along with written WP(C) No. 26785/2007 -2- statement. Ext.P2 is a copy of the written statement raising counter claim. The petitioner points out that the learned Munsiff has passed Ext.P3 interim order directing the parties to maintain status quo regarding the properties in question, which according to him maintains in his properties. He points out that he has subsequently filed O.S.No.1142/2002 for fixation of the boundaries and for a direction to the Panchayat to restore the ‘thodu’ mentioned in the schedule attached to the plaint (‘thodu’ is the subject matter of the counter claim) and also for recovery of possession. According to him, though O.S.No.1260/00, filed by Rosa, has been dismissed by the Court below, the counter claim filed by the petitioner is pending. He has produced a copy of Commission report in O.S.No.1260/00 as Ext.P8 and he submits that Ext.P8 Commission report very clearly reports that no portion of his properties comes within Purambokku and there is no pathway or road through any portion of his properties. 3. Panchayat has filed a detailed counter affidavit. In the counter affidavit, it is pointed out that both the suits referred to by the petitioner have been dismissed. Exts.R1(b) and R1(c) judgments are relied on in this context. It is contended that the WP(C) No. 26785/2007 -3- petitioner approached this Court on a previous occasion and under Ext.R1(e) judgment, this Court directed him to have recourse to remedies from the Sub Court and declined to issue directions to the Tahsildar of Mukundapuram Taluk to survey the properties. The Panchayat has significantly stated in paragraph 8 of the counter affidavit as follows :- “It is humbly submitted that the 1st respondent Panchayat is not attempting to trespass into any portion of the land possessed by the writ petitioner. Only such land as is lying as a Panchayat road and the road margin are being used for the purpose of construction of the road.” 4. Petitioner has submitted a reply affidavit reiterating his contentions refuting the contentions raised by the Panchayat. After hearing the learned counsel for some time, I directed the Panchayat to produce photographs regarding the site in question. Accordingly, Ext.R1(f) photograph has been produced. 5. I have heard Shri.P.Chandrasekhar, learned counsel for the petitioner, Shri.Ranjith Thampan, learned counsel for the respondent Panchayats. 6. Shri.P.Chandrasekhar, learned counsel for the petitioner submitted that though it is true that the suits have been dismissed WP(C) No. 26785/2007 -4- for default, applications for restoration have been readily filed and therefore it should be presumed that the order passed by the Court for maintenance of status quo is currently in force. Relying on the Commissioner’s report, learned counsel for the petitioner submitted that the Panchayat has no business to construct any road through the petitioner's properties, which are subject matter of the suit before the Civil Court. Shri.Ranjith Thampan, per contra would submit that the intention of the Panchayat is only to construct a road on that portion of the property, which is actually lying as road, and there is no intention at all for the Panchayat to construct any new road through any private properties belonging to the petitioner and thereby interfere with the jurisdiction of the civil court. 7. Having considered the rival submissions addressed and in the light of various materials placed on record, I am of the view that it will suffice that the undertaking given by the Panchayat through its counter affidavit be recorded. Accordingly, I record the undertaking contained in paragraph 8 of the counter affidavit submitted by the Panchayat and direct the Panchayat to construct the road without, in any way, violating that undertaking. In order to ensure that the undertaking is not violated and no properties of WP(C) No. 26785/2007 -5- the petitioner are trespassed upon, there will be a direction to the Panchayat to have the road margins fixed by the Amballur Village Officer before proceeding with the construction of road or tarring of existing road to the extent the same passes by the side of petitioner’s properties. The fixation of the margin of the road in question to the extent shall be done in the presence of the petitioner also. It is further made clear that fixation of road margin and any construction of road and tarring of road on the basis of this judgment will be subject to the outcome of the civil litigations. This writ petition is disposed of as above. (PIUS C.KURIAKOSE, JUDGE) jg