Kerala High Court
Koshy Mathai vs State Of Kerala on 1 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
WP(C).No.23742 OF 2020(P)
PETITIONER:
KOSHY MATHAI
AGED 70 YEARS
S/O. POTHEN MATHAI, PARACKADAVIL HOUSE,
KAVIYOOR VILLAGE, KAVIYOOR TALUK,
PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.P.HARIDAS
SRI.BIJU HARIHARAN
SRI.RENJI GEORGE CHERIAN
SRI.R.B.BALACHANDRAN
SRI.P.C.SHIJIN
SRI.RISHIKESH HARIDAS
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE,
STATE SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001
2 DISTRICT COLLECTOR,
COLLECTORATE, PATHANAMTHITTA DISTRICT, PIN-689 645
3 THE REVENUE DIVISIONAL OFFICER/ SUB COLLECTOR,
OFFICE OF THE REVENUE DIVISIONAL OFFICER/SUB
COLLECTOR, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN-
689 645
4 THE ASSISTANT EXECUTIVE ENGINEER,
PWD (ROADS),OFFICE OF THE ASSISTANT EXECUTIVE
ENGINEER, THIRUVALLA, PATHANAMTHITTA DISTRICT,
PIN-689101
5 THE TAHSILDHAR (LR),
TALUK OFFICE, THIRUVALLA,
PATHANAMTHITTA DISTRICT, PIN-689101
6 THE VILLAGE OFFICER,
KAVIYOOR, VILLAGE OFFICE, KAVIYOOR, THIRUVALLA,
PATHANAMTHITTA DISTRICT, PIN-689 582
WP(C).No.23742 OF 2020(P)
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7 THE KAVIYOOR GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY,
KAVIYOOR,THIRUVALLA, PATHANAMTHITTA DISTRICT,
PIN-689 582
8 JAINAMMA,
AGED ABOUT 50 YEARS, RESIDING AT MELEKAKUDIYIL
HOUSE,NJALBHAGAM MURIYIL, KAVIYOOR VILLAGE,
THIRUVALLA TALUK, KAVIYOOR P.O, PATHANAMTHITTA
DISTRICT, PIN-689 582
9 SUNIL,
AGED ABOUT 30 YEARS, S/O. JAINAMMA,
RESIDING AT MELEKAKUDIYIL HOUSE,
NJALBHAGAM MURIYIL, KAVIYOOR VILLAGE,
THIRUVALLA TALUK, KAVIYOOR P.O,
PATHANAMTHITTA DISTRICT, PIN-689 582
R7 BY SHRI.VARGHESE M.EASOW,SC,KAVIYOOR GRAMA
PANCHAYATH
R8 BY ADV. SRI.B.KRISHNA KUMAR
R8 BY ADV. SRI.A.CHANDRA BABU
R8 BY ADV. SRI.P.G.PRESANNAKUMAR
R1 TO R6 BY SMT VIDHYA A.C. - GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No.23742 OF 2020(P)
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JUDGMENT
The petitioner, who is having a residential property on the side
of Kaviyoor - Nadakkal PWD road, has filed this writ petition under
Article 226 of the Constitution of India, seeking a writ of mandamus
commanding respondents 4 to 6 to remove the illegal construction
and encroachment by respondents 8 and 9 on the road margin in
front of his property, within a time limit to be fixed by this Court.
2. On 05.11.2020, when this writ petition came up for
admission, this Court issued notice before admission to the
respondents. The learned Government Pleader took notice for
respondents 1 to 6. Adv.Varghese M.Easow, the learned Standing
Counsel, took notice for the 7th respondent. Urgent notice by speed
post was ordered to respondents 8 and 9.
3. On 09.12.2020, when this writ petition came up for
consideration, the learned Government Pleader, on instructions,
submitted that steps are being taken to enforce Ext.P13 notice
dated 22.10.2020 issued by the 4 th respondent Assistant Executive
Engineer, PWD Roads Division, whereby respondents 8 and 9 are
required to vacate the road puramboke. Due to the LSGI elections,
the matter has been delayed. The learned counsel for the 8 th
respondent sought time to file counter affidavit.
WP(C).No.23742 OF 2020(P)
4. On 03.01.2021, the 8th respondent has filed counter
affidavit, opposing the reliefs sought for in this writ petition. On
22.01.2021, the petitioner has filed reply affidavit to the counter
affidavit of the 8th respondent. The 7th respondent Grama Panchayat
has also filed counter affidavit.
5. On 20.01.2021, the learned counsel for the 8 th
respondent submitted that the Assistant Engineer attached to the
office of the 4th respondent has already removed the mobile kiosk of
the 8th respondent. The learned counsel for the petitioner and also
the learned Government Pleader sought time to get instructions.
6. On 20.01.2021, the petitioner has filed an interlocutory
application seeking an order to correct the address of respondents 8
and 9 appropriately, which is yet to be numbered by the Registry.
7. Heard the learned counsel for the petitioner, the learned
Government Pleader appearing for respondents 1 to 6, the learned
Standing Counsel for the 7th respondent and also the learned
counsel for the 8th respondent.
8. The learned counsel for the 8 th respondent would submit
that during the pendency of this writ petition, the Assistant
Engineer attached to the office of the 4 th respondent forcefully
WP(C).No.23742 OF 2020(P)
removed the mobile kiosk of the 8 th respondent from the road
puramboke in front of the petitioner's property. Presently she is
conducting mobile kiosk in another area and she has no intention to
conduct mobile kiosk in the road pruamboke in front of the
petitioner's property.
9. The learned counsel for the petitioner would submit that
at present the 8th respondent is conducting mobile kiosk away from
the petitioner's property and as such, the petitioner is not having
any subsisting grievance. Therefore, this writ petition may be
closed, without prejudice to the right of the petitioner to approach
the appropriate authorities again, in case there is any
encroachment of road puramboke in front of the petitioner's
residential property by the 8th respondent for conducting mobile
kiosk.
In such circumstances, recording the aforesaid submissions
made by the learned counsel for the petitioner and also the learned
counsel for the 8th respondent, this writ petition is closed, without
prejudice to the aforesaid right of the petitioner.
Sd/-
ANIL K.NARENDRAN
JV JUDGE
WP(C).No.23742 OF 2020(P)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT DATED
20.08.2019.
EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED
26.11.2018.
EXHIBIT P3 TRUE COPY OF THE APPLICATION BEFORE THE
ASSISTANT EXECUTIVE ENGINEER,PWD
MALLAPPALLY DATED 26.11.2018
EXHIBIT P4 TRUE COPY OF THE APPLICATION SUBMITTED BY
THE PETITIONER BEFORE THE ASSISTANT
EXECUTIVE ENGINEER, PWD MALLAPPALLY DATED
15.7.2019.
EXHIBIT P5 TRUE COPY OF THE APPLICATION BEFORE THE
PWD UNDER RIGHT TO INFORAMATION ACT DATED
1.2.2020.
EXHIBIT P6 TRUE COPY OF THE NOTICE ISSUED BY THE
ASSISTANT EXECUTIVE ENGINEER UNDER 13A
KERALA LAND CONSERVANCY RULES DATED
3.8.2019.
EXHIBIT P7 TRUE COPY OF THE REPLY DATED 25.2.2020.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED
18.2.2020.
EXHIBIT P9 TRUE COPY OF THE LETTER OF THE SUB
COLLECTOR, THIRUVALLA DATED 27.2.2020.
EXHIBIT P10 TRUE COPY OF THE LETTER OF THE ASSISTANT
EXECUTIVE ENGINEER, PWD TO SUB COLLECTOR,
THIRUVALLA DATED 10.03.2020.
EXHIBIT P11 TRUE COPY OF THE LETTER ISSUED BY THE 3RD
WP(C).No.23742 OF 2020(P)
RESPONDENT DATED 23.06.2020.
EXHIBIT P12 TRUE COPY OF THE LETTER OF THE 5TH
RESPONDENT DATED 25.09.2020.
EXHIBIT P13 TRUE COPY OF THE NOTICE OF THE RESPONDENT
DATED 22.10.2020.
EXHIBIT P14 TRUE COPY OF THE PHOTOGRAPHS TAKEN AT
10.35 AM ON 20.12.2020
RESPONDENT'S/S EXHIBITS:
EXHIBIT R8(A) THE TRUE COPY OF THE RECEIPT ISSUED TO
THE 8TH RESPONDENT VIDE NO.279 DATED
30.10.2020, REG.NO.P.423/2002 BY CDS OF
GRAMA PANCHAYAT, KAVIYOOR.
EXHIBIT R8(B) THE TRUE COPY OF FIVE PHOTOGRAPHS
DISCLOSES THE EXISTING GROUND REALITY OF
THE VENUE WHERE THE PORTABLE FOUR-WHEEL
KIOSK SITUATED AND ENTRANCE/GATE OF THE
PETITIONER.
EXHIBIT R8(C) TRUE COPY OF THE REGISTRATION CERTIFICATE
AS REGISTER NUMBER 21320151000778 DATED
29.12.20 AND VALID UPTO 28.12.2022 ISSUED
BY THE COMMISSIONERATE OF FOOD SAFETY,
FOOD SAFETY AND STANDARDS AUTHORITY OF
INDIA UNDER FSS ACT, 2006.
