Dismissed

P.T.Ashokan v. State of Kerala

Kerala HC12 Mar 2015WA/1236/2014

Case brief

AI extract

What is this about?

Writ appeals were filed challenging the Single Judge's judgment which directed respondent authorities to act against encroachments on a public road. The appellants disputed the road's width, but the High Court dismissed the appeals, holding the matter required a factual finding beyond this Court's scope.

What did the court decide?

The writ appeals were dismissed as there was no ground to interfere with the judgment of the learned Single Judge.

P.T.Ashokan Vs State of Kerala — Landlord and Tenant | Kerala HC (2015)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THURSDAY, THE 12TH DAY OF MARCH 2015/21ST PHALGUNA, 1936

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WA.No. 1236 of 2014

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AGAINST THE JUDGMENT DATED 24-07-2014 IN WP(C) 29685/2012.

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APPELLANT/PETITIONER:

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P.T.ASHOKAN, AGED 50 YEARS, S/O.THAJAMANI, PERINGATTUKARA VEEDU, KADUKUTTY P.O., CHALAKKUDY.

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BY ADV. SRI.T.M.ABDUL LATHEEF

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RESPONDENT(S)/RESPONDENTS:

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM - 695 001.

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2. DISTRICT COLLECTOR, AYYANTHOLE, THRISSUR - 680 003.

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3. THE EXECUTIVE ENGINEER (ROADS), PUBLIC WORKS DEPARTMENT, CHEMBUKKAVU, THRISSUR - 680 001.

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*4. THE ASSISTANT ENGINEER, NATIONAL HIGHWAY 17, CHALAKUDY, THRISSUR - 680 307. (CORRECTED)

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5. TAHSILDAR, MUKUNDAPURAM TALUK, MUKUNDAPURAM, IRINJALAKUDA - 680 121.

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6. THE VILLAGE OFFICER, KIZHAKKE CHALAKUDY, RAILWAY STATION ROAD, CHALAKKUDY - 680 307.

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7. CHALAKUDY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, CHALAKUDY, THRISSUR - 680 307.

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--2--

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--2--

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WA.No. 1236 of 2014

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8. SHINY VARGHESE, W/O.VARGHESE, ALUKKA HOUSE, KUDAPPUZHA,

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CHALAKUDY - 680 307.

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9. STAFFORD, S/O.JOHNY, IMMATTIPARAMBIL HOUSE, KUDAPPUZHA, CHALAKUDY - 680 307.

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10. PREETHY, W/O.STAFFORD,

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IMMATTIPARAMBIL HOUSE, KUDAPPUZHA,

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CHALAKKUDY - 680 307.

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11. RAJU, MEKKATT HOUSE, KANAL PALAM, ALOOR, MUKUNDAPURAM, THRISSUR - 680 683.

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*ADDRESS OF R4 IS CORRECTED AS ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT (ROADS), CHALAKKUDY - 680 307. AS PER ORDER DATED 31.10.2014 IN IA.1007/2014)

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**ADDL. R12 IMPLEADED

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THE DISTRICT SURVEY SUPERINTENDENT, SURVEY DEPARTMENT, AYYANTHOL, THRISSUR - 680 003.

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ADDL. R12 IS IMPLEADED AS PER ORDER DATED 1.12.2014 IN IA.1142/2014.

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R1 TO R6 & ADDL. R12 BY SENIOR GOVT. PLEADER SRI.C.R.SYAMKUMAR R7 BY SRI.SHEEJO CHACKO, SC BY SRI.RENJITH THAMPAN (SENIOR ADVOCATE) ADV.SMT.P.R.REENA

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-03-2015 ALONG WITH WA. 1277/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WA.No. 1236 of 2014

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEXURE A1 : TRUE COPY OF THE SURVEY SKETCH PREPARED BY THE ADDITIONAL 12TH RESPONDENT.

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ANNEXURE A2 : TRUE COPY OF THE LETTER NO.C1/2006 DATED 18.10.2014 ISSUED BY THE 4TH RESPONDENT ALONG WITH ENGLSIH TRANSLATION.

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RESPONDENT'S ANNEXURES: - NIL

/TRUE COPY

P.S. TO JUDGE

mbr/

ASHOK BHUSHAN, Ag.CJ & A.M.SHAFFIQUE, J.

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*** * * * * * * * * * * * *** W.A.Nos.1236 & 1277 of 2014

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Dated this the 12^th day of March 2015

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J U D G M E N T

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Shaffique,J

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These writ appeals are filed by the petitioners in W.P.C.No.29685/2013 and W.P.C.No.20345/2012 dissatisfied by the common judgment dated 24/07/2014 of the learned Single Judge.

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Petitioners have ventilated a grievance that the respondent authorities are not taking any steps to remove the encroachment and unauthorised constructions effected on the road 'South Chalakudy - KSRTC road'. It is alleged that substantial encroachments have been made by private respondents and despite the fact that materials were available with the PWD authorities and the local authority concerned regarding the encroachment, no steps were being taken by them and therefore the petitioners filed the

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W.A.No.1236 & 1277 of 2014

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aforesaid writ petitions seeking for a direction to respondents 2, 3 and 4 to demarcate and identify the extent and width of the road, to take possession of the same by demolishing all the structures in the encroached area and for a direction to the Municipality to recall all the permits granted in favour of the encroachers and to remove the construction in the encroached area. The 2^nd respondent had filed a counter affidavit in W.P.C.No.29685/2012 stating that the survey of PWD road situated in Survey Nos.467 and 495 of East Chalakudy village was carried out with prior notice to all the concerned parties. The property of the 8^th respondent is situated in Survey No.474. The northern boundary of the said property is extended to the southern boundary of the road puramboke and therefore there is clear encroachment. The sketch showing the encroachment is handed over to the Assistant Engineer, PWD Road Section, Chalakudy. Further it is stated that approximately 200 meters of the southern part of the road is yet to be

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W.A.No.1236 & 1277 of 2014 3

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demarcated. The survey stones are seen to be moved which have to be fixed after conducting survey. It is also stated that the respondents had taken all efforts to complete the survey.

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Counter affidavit is filed by the 7^th respondent on behalf of the Municipality stating that occupancy certificate has been issued to the 8^th respondent after conducting necessary enquiry in the matter. Further the respondent denied the fact that the width of the road in the area is 15 meters. According to them, there is no basis for the same. It is contended that, on measurement by the Taluk Surveyor, only an extent of 0.08 Ares of land was found in possession of the 8^th respondent and the same is now kept as part of the road. Municipality further submits that they are ready and willing to remove any illegal construction in accordance with law.

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In W.P.C.No.20345/2012, a counter statement is filed by the 1^st respondent Municipality through the Counsel

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W.A.No.1236 & 1277 of 2014

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reiterating the very same stand. Counter affidavit is filed by the 3^rd respondent also taking similar contentions. They have also produced Ext.R3(a), a sketch showing the road portion and also the encroachments, which according to them are 0.37, 0.08, 0.46 and 0.35 Ares. A statement is filed by the 3^rd respondent indicating that petitioner's representation is not pending consideration before them.

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Counter affidavit is filed by the 6^th respondent stating that they have not encroached into any Government land, as alleged.

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During the pendency of the writ petition, an Advocate Commissioner was appointed and a report has been filed by him before this Court.

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The learned Single Judge, after considering the rival contentions, disposed of the writ petition observing that the Municipality shall ensure that the violations or omissions as mentioned by the Advocate Commissioner are cured by the respondents, as expeditiously as possible. Further it is

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W.A.No.1236 & 1277 of 2014

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observed that the official respondents should take stringent action in accordance with law after serving notice to all persons who had made encroachment into the road in question including the party respondents.

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The appellants, while impugning the judgment of the learned Single Judge, observed that there is sufficient material to indicate that the width of the road was about 21 meters. But, no action has been taken by the official respondents to evict the encroachers and widen the road as it was earlier. Sri.T.M.Abdul Latiff, learned counsel for the appellant in W.A.No.1236/2014, relies upon an additional document produced along with I.A.No.1141/2014 to indicate that the actual width of the road was 21 meters.

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Perusal of the records relating to the above cases clearly indicates that the petitioners are pointing out encroachment into road puramboke. According to them, though they have approached the authorities as well as the Municipality, no action has been taken by any of the

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W.A.No.1236 & 1277 of 2014 6

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authorities. But, it is evident from the counter affidavits filed that necessary survey has been conducted and appropriate steps had been taken in the matter. That apart, the learned Single Judge had directed the official respondents to ensure that no puramboke land is encroached by any private persons including party respondents.

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The question involved apparently is regarding the width of the road. Appellants claim that the width of the road is 21 meters whereas the official respondents have denied the said fact. Under such circumstances, we do not think that this Court can arrive at a finding regarding the width of the road in the absence of any satisfactory evidence. The documents relied upon by the appellants do not justify us to arrive at such a conclusion.

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Under such circumstances, being a disputed question of fact, it is not open for this Court to exercise power under Article 226 of the Constitution of India to

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W.A.No.1236 & 1277 of 2014

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consider such issues. That apart, there is no reason to disbelieve the official respondents. They are well conversant with the actual position regarding width of the road and therefore there is no reason to enter into a finding regarding the width of the road.

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Having said so, we are of the view that the learned Single Judge having already issued appropriate directions in the matter, there is no reason for the appellants to be dissatisfied with such directions. We do not find any ground to interfere with the judgment of the learned Single Judge and accordingly these appeals are dismissed.

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(sd/-) (ASHOK BHUSHAN, ACTING CHIEF JUSTICE) (sd/-) (A.M.SHAFFIQUE, JUDGE)

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jsr

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W.A.No.1236 & 1277 of 2014 8

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W.A.No.1236 & 1277 of 2014 9

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W.A.No.1236 & 1277 of 2014 10

P.T.Ashokan v. State of Kerala

Case brief

What is this about?

What did the court decide?

P.T.Ashokan v. State of Kerala

Case brief

What is this about?

What did the court decide?

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