IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933 WA.No. 1111 of 2011() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.17450/2011 Dated 28/07/2011 .................... APPELLANT(S)/PETITIONER :- ------------------------------------------- U.SUGATHAN, RESIDING AT SUGATH, KOVALAM BEACH, KOVALAM P.O., VIZHINJAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM - 695035. BY ADV. SRI.VADAKARA V.V.N.MENON RESPONDENT(S)/RESPONDENTS :- ------------------------------------------------ 1. STATE OF KERALA REP.BY THE THIRUVANANTHAPURAM DISTRICT COLLECTOR, COLLECTORATE, KADAPPANAKUNNU, KADAPPANAKUNNU P.O., THIRUVANANRTHAPURAM-695 043. 2. THE PROJECT DIRECTOR, KERALA STATE ROAD TRANSPORT PROJECT (KSTP), KAWDIAR, KAWDIAR.P.O., THIRUVANANTHAPURAM - 695003. 3. THE SECRETARY, PUBLIC WORKS DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM - 695001. GOVERNMENT PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt W.A.No.1111 OF 2011 APPENDIX Petitioner's Exhibits :- Annexure I :- Eight photographs taken on 23.7.2011 from the disputed site, showing the lie of the disputed property two roads therein and the unsuccessful attempt of encroachment and incomplete drain left purposely for an area of about 5 meters. Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ------------------------------------------------ W.A. No.1111 of 2011 ------------------------------- Dated this the 3rd day of August 2011 J U D G M E N T Ramachandran Nair, J. Appellant's allegation is that the respondents trespassed into his land on the road side for construction of drainage canal. According to the appellant, he has got 1.2 Ares of land on the road side as shown in the sketch and photograph produced in this Court, which is being encroached upon by the respondents for development purpose. Government Pleader submitted that the appellant only is trying to encroach government land, and the road development with construction of canal is done on government property. Learned Single Judge declined interference stating that the dispute involves factual and legal issues with regard to the title and identification of land and so much so declined to interfere in the matter. 2. After hearing both sides, we do not find any justification to take a view different from what is expressed by W.A. No.1111 of 2011 -: 2 :- the Single Judge. The appellant has sought for an injunction against respondents from proceeding with the work for a short time so that the appellant can file a civil suit after expiry of the statutory notice issued under Sec.80 C.P.C which is already served by the appellant. We are not inclined to allow the prayer because if the land claimed by the appellant is government property, government is free to construct a canal and widen the road. The civil court also cannot block development work for the road. However, if the appellant is found to be the owner in possession and enjoyment of the land, in which government has made construction, civil court is absolutely free to order compensation and that compensation is payable under the norms of L.A.Act. We close the matter leaving it open to the appellant to approach civil court for establishing title and if so to get compensation, if government encroached upon appellant's property. 3. Before parting the matter, we feel if civil court involvement can be avoided, it should be done at all costs. We therefore, direct the appellant to make an application before the Tahasildar for marking the puramboke boundary with appellant's W.A. No.1111 of 2011 -: 3 :- property and earmark appellant's property with reference to documents and in relation to the puramboke land if necessary with assistance of the Taluk Surveyor. The appellant will make an application before the Tahasildar and deposit required fees in accordance with norms and if such application is submitted, the Tahasildar is directed to conduct inspection and measure the property with notice to PWD and as far as possible settle the dispute failing which, the appellant is free to pursue remedy in civil court, wherein the civil court can also consider the correctness of the measurement and earmarking done by the Tahasildar. C.N.RAMACHANDRAN NAIR, JUDGE. P.S.GOPINATHAN, J UDGE. Jvt