Kerala High Court
Good Shepherd Educational And ... vs Secretary on 8 October, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
WA NOs.979 & 1736 OF 2019 1 2025:KER:73704
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
WEDNESDAY, THE 8TH DAY OF OCTOBER 2025 / 16TH ASWINA, 1947
WA NO. 979 OF 2019
AGAINST THE JUDGMENT DATED 31.10.2018 IN WP(C) NO.22531 OF
2013 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
GOOD SHEPHERD EDUCATIONAL
CHUNGATHARA POST, MALAPPURAM DISTRICT-679 334,
REPRESENTED BY MANAGING TRUSTEE GEORGE PHILIP.K.,
SRI.GEORGE PHILIP PARTY IN PERSON
RESPONDENTS/RESPONDENTS:
1 CHUNGATHARA GRAMA PANCHAYAT,
CHUNGATHARA GRAMA PANCHAYAT, CHUNGATHARA P.O., PIN-
679 334, REPRESENTED BY ITS SECRETARY.
2 SECRETARY,
CHUNGATHARA GRAMA PANCHAYAT, CHUNGATHARA P.O.,
PIN-679 334.
3 TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY
BY ADV. SRI.U.K.DEVIDAS, SC, CHUNGATHARA GRAMA PANCHAYAT
BY SMT.NISHA BOSE, SENIOR GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2025,
ALONG WITH WA.1736/2019, THE COURT ON 08.10.2025 DELIVERED THE
FOLLOWING:
WA NOs.979 & 1736 OF 2019 2 2025:KER:73704
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
WEDNESDAY, THE 8TH DAY OF OCTOBER 2025 / 16TH ASWINA, 1947
WA NO. 1736 OF 2019
AGAINST THE JUDGMENT DATED 31.10.2018 IN WP(C) NO.26573 OF
2013 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
GOOD SHEPHERD EDUCATIONAL AND CHARITABLE TRUST,
CHUNGATHARA POST, MALAPPURAM DISTRICT-679 334,
REPRESENTED BY MANAGING TRUSTEE GEORGE PHILIP.K
SRI.GEORGE PHILIP PARTY IN PERSON
RESPONDENTS/RESPONDENTS:
1 SECRETARY,
CHUNGATHARA GRAMA PANCHAYAT, CHUNGATHARA-679 334,
MALAPPURAM.
2 CHUNGATHARA GRAMA PANCHAYAT,
CHUNGATHARA.P.O., PIN-679 334, REPRESENTED BY ITS
SECRETARY.
3 SUPERINTENDENT OF POLICE,
MALAPPURAM, PIN-677 505.
4 SUB INSPECTOR OF POLICE,
EDAKKARA POLICE STATION, EDAKKARA P.O., PIN-679 331.
WA NOs.979 & 1736 OF 2019 3 2025:KER:73704
BY ADV. SRI.U.K.DEVIDAS, SC, CHUNGATHARA GRAMA PANCHAYAT
BY SMT.NISHA BOSE, SENIOR GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2025,
ALONG WITH WA.979/2019, THE COURT ON 08.10.2025 DELIVERED THE
FOLLOWING:
WA NOs.979 & 1736 OF 2019 4 2025:KER:73704
JUDGMENT
Muralee Krishna, J.
The appellant, who is the petitioner in W.P.(C)No.22531 of
2013 and W.P.(C)No.26573 of 2013, filed these writ appeals
against the common judgment dated 31.10.2018, passed by the
learned Single Judge in those writ petitions. Since the issue
involved in both these writ appeals are interconnected and the
appellant is mainly aggrieved by the dismissal of W.P.(C)No.26573
of 2013, the parties, the facts and the documents are referred to
this judgment as in W.A.No.1736 of 2019 and the corresponding
W.P.(C)No.26573 of 2013, unless otherwise stated.
2. The appellant is a Trust by name 'Good Shepherd
Educational and Charitable Trust ('the Trust' in short) represented
by its Managing Trustee. Going by the averments in the writ
petitions, the Trust is running a School by the name 'The Good
Shepherd Modern English School' affiliated to the Council for the
Indian School Certificate Examination, New Delhi. The appellant
owns 4.2280 Hectares of land in Survey Nos.351/1, 351/3, 354/7
and 354/11 of Chungathara Village. The property of the appellant
is not situated by the side of Palunda-Palundakunnu Road. The
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only road facility available to the property of the appellant is a
private road passing through the appellant's own property.
2.1. The appellant alleges that the 1st respondent Secretary
of Chungathara Grama Panchayat, started asserting right over the
private road leading to the School, alleging that the same is a
public road. The appellant has not been given any notice regarding
the steps taken by the Panchayat for the acquisition of the road
or for declaration of the said road as a public road, by following
the procedure contemplated under Section 169 read with Section
178 of the Panchayat Raj Act. The appellant therefore submitted
Ext.P4 objections dated 28.10.2013 to the 1st respondent.
Aggrieved by the aforesaid objections, the 1st respondent rejected
the application for a building permit submitted by the appellant,
stating that the proposed additional constructions in the School
are by the side of the public road. According to the appellant, the
School Building was constructed as early as in the year 2007, as
per a Plan prepared by Prof.K.K.George, an Architect. The
construction of the basement of the building was completed in the
year 2007. Prior to the construction of the ground floor, the
appellant submitted an application to the Secretary of the
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Panchayat on 03.09.2012, praying for the regularisation of the
construction of the basement and for issuing permit for
construction of the first floor. The said application was rejected by
the Secretary of the Panchayat by Ext.P2 order produced in
W.P.(C)No.22531 of 2013 dated 14.09.2012, stating that the
building is constructed without maintaining a minimum distance
of three metres from the Palunda-Palundakunnu Road and the
construction is illegal and not liable to be regularised. Challenging
that order, the appellant filed Appeal No.859 of 2012 before the
Tribunal for Local Self-Government Institutions. In that appeal,
the Grama Panchayat and its Secretary contended that the
construction was carried out by the appellant by the side of
Palunda-Palundakunnu road unauthorisedly and violating the
provisions of Kerala Panchayat Building Rules. Accordingly, they
had issued a stop memo. The Tribunal for Local Self Government
Institutions, by Ext.P3 order dated 25.07.2013, held that the
construction so far effected by the appellant is illegal and liable to
be demolished and the rejection of the permit as per Ext.P2 order
is absolutely in order. Therefore, challenging Ext.P3 order
produced in W.P.(C)No.22531 of 2013, the appellant filed that writ
WA NOs.979 & 1736 OF 2019 7 2025:KER:73704
petition under Article 226 of the Constitution of India seeking the
following reliefs;
"i) Call for the records of this case and quash Ext.P2 and
Ext.P3 orders by issuing a writ of certiorari;
ii) issue a writ of mandamus or any other appropriate writ,
order or direction directing the 2nd respondent to issue
building permit to the petitioner for effecting construction of
the first floor of the building as prayed for in Ext.P1 plan
submitted by the petitioner."
2.2. The appellant further states that on 28.10.2013, the
Panchayat authorities blocked the road, preventing the appellant
from using the same, thereby causing innumerable hardships in
running the school. The School buses and the vehicles of the
Teachers and Staff are now not in a position to enter even the
premises of the School, and the students and the Staff members
are forced to walk more than 1 km to reach the School, after
leaving their vehicles on the highway. The Panchayat is not
competent to undertake any maintenance or repair works in the
private road of the appellant, and the present obstructions caused
by them are only intended to harass the appellant and to make it
amenable to the demands of the Panchayat as well as the land
grabbers in the area. The majority of the members of the
Managing Committee of the Panchayat are involved in the land
WA NOs.979 & 1736 OF 2019 8 2025:KER:73704
grabbing in the area, and their only intention is to perpetuate the
said business at the cost of the Panchayat. If the road is acquired
by the Panchayat and declared as a public road, the running of the
School will be prejudiced, and the lives of the students also will be
put to extreme danger. With these averments, the appellant filed
W.P.(C)No.26573 of 2013 seeking the following reliefs;
"i. Call for the records of this case and issue a writ of prohibition
restraining the respondents from undertaking any repair or
maintenance work in the petitioner's private road in Block 95, Re
survey Nos. 351/1, 351/3, 352, 353, 354 and 355 of
Chungathara Village;
ii. Issue a writ of Mandamus directing the respondent to remove
the obstructions caused by them in the petitioner's private road
in Block 95, Re survey Nos. 351/1, 351/3, 352, 353, 354 and 355
of Chungathara Village"
3. In W.P.(C)No.22531 of 2013, the respondents, Grama
Panchayat and its Secretary, filed a counter affidavit dated
28.07.2018 opposing the relief sought in that writ petition and
producing therewith Exts.R1(a) to R1(f) documents. It is
contended in that counter affidavit that the appellant had filed
W.P.(C)No.19220 of 2005 before this Court, claiming right over
the alleged road and raising identical contentions. The
respondents filed Ext.R1(a) counter affidavit dated 10.11.2005 in
WA NOs.979 & 1736 OF 2019 9 2025:KER:73704
that writ petition. By Ext.R1(b) judgment dated 19.10.2006, this
Court disposed of that writ petition, noticing that a civil suit is
pending before the Sub Court, Manjeri, and directed the learned
Subordinate Judge to dispose of that suit within four months from
the date of receipt of the judgment. The appellant suppressed the
above facts and filed the writ petitions on an experimental basis.
The appellant filed W.P.(C)No.22531 of 2013 to override the
judgment in the previous writ petition, and hence the present writ
petition is barred by res judicata.
3.1. It is further stated by the respondents that the writ
petition filed by the appellant is silent regarding the earlier civil
disputes between the appellant and the Panchayat and the other
neighbours. The suit filed by the appellant as O.S.No.94 of 2006
(Old No.57 of 2005) was dismissed by the Sub Court, Manjeri, on
22.06.2007, as per Ext.R1(c) judgment and decree. The appellant
willfully and deliberately suppressed the above fact and is trying
to get an order in his favour. The defendants in O.S.No.94 of 2006
are not made parties in the instant writ petition. Therefore, the
writ petition is bad for non-joinder of necessary parties. The
WA NOs.979 & 1736 OF 2019 10 2025:KER:73704
appellant is estopped from taking the contentions against
Exts.R1(b) and R1(c) judgments.
3.2. The respondents contend that the alleged way is not a
private road and it is a public way used by the entire public for
more than 48 years. The way in question, named as Palunda-
Palundakunnu-Kottopadam road, is included in the register of
Panchayat and its length is 1 kilometre and width is 3 metres. The
above fact was communicated to the Village Officer by the
respondents on 30.05.2005 itself. The respondents have produced
Ext.R1(d) and R1(e) relevant pages of the Asset Register of the
Panchayat to substantiate their contention that the road is
included in that Register.
3.3. The respondents further plead that the appellant
constructed the School in the year 2008 without submitting an
application for building permit. The Secretary of the Panchayat
issued stop memos and show cause notices dated 22.09.2008,
12.07.2010, 10.08.2010 and 20.07.2012 to the appellant. The
appellant applied for building permit for the first time on
01.08.2012. Since the construction was carried out without
leaving a 3 metre statutory distance from the public road, the
WA NOs.979 & 1736 OF 2019 11 2025:KER:73704
application was rejected as per Ext.P2 order. The appellant is
accused in seven criminal cases at Edakkara Police Station. The
Grama Sabha of the ward No.7 held on 05.12.2013 passed a
resolution that the Managing Trustee of the appellant is a public
nuisance. This resolution disclosed the various complaints against
the appellant. The Village Officer of Chungathara Village inspected
the road along with the Secretary of the Panchayat on 20.01.2014
and submitted a plan and report. From that report, it is evident
that 35 families are using that way.
4. In W.P.(C)No.26573 of 2013, a counter affidavit dated
28.07.2018 has been filed by the Secretary of the Panchayat,
producing therewith Exts.R1(a) to R1(q) documents. The very
same contentions as those taken in W.P.(C)No.22531 of 2013 are
reiterated in that counter-affidavit. Apart from that, it is further
contended in that counter affidavit that various persons filed suit
against the appellant before the Civil Court and got a declaration
against him. The appellant challenged the judgments of the Trial
Court before this Court by filing a Regular Second Appeal, and the
same is pending as R.S.A.No.263 of 2018. The respondents
received mass petitions from the public, including the appellant,
WA NOs.979 & 1736 OF 2019 12 2025:KER:73704
for taking over the public road. The appellant and others decided
to give the way to the public as per the decision of the Committee
held on 05.02.2003. The appellant also signed in that decision as
Serial No.3, which is produced as Ext.R1(f) along with the counter
affidavit. The appellant entered Ext.R1(g) agreement with one
M.T.John in respect of the said road in the year 1997. The
appellant himself admitted that the road is a public road and he
contributed Rs.300/- to the road protection committee on
04.07.2004. Ext.R1(h) is the true copy of the relevant pages of
the Minutes Book dated 04.07.2004, and the appellant is Serial
No.10 among the signatories in that document.
4.1. It is further stated in that counter affidavit that in
O.S.No.94 of 2006 on the file of the Sub Court, Manjeri, Ext.R1(i)
Commission Report dated 04.11.2009 was filed by the Advocate
Commissioner appointed in that suit, after conducting a site
inspection. In that report, the Commissioner found that the road
had existed even prior to 1990. The Panchayat had conducted
repair works of Palunda-Palundakunnu road as per its decision
No.18 marked as Ext.R1(l) dated 05.08.2013. The Panchayat
allotted Rs.10,000/- in 2013-14 and Rs.35,000/- in 2014-15 for
WA NOs.979 & 1736 OF 2019 13 2025:KER:73704
maintenance of the road, which is evident from Ext.R1(m) and
Ext.R1(n) allotment letter dated 07.11.2014 and final project
report for the year 2014-15, respectively.
5. The learned Single Judge considered both the writ
petitions together and, by the impugned judgment dated
31.10.2018, dismissed W.P.(C)No.26573 of 2013 holding that the
disputed question of facts involved in that writ petition could not
be decided in a writ petition under Article 226 of the Constitution
of India and such disputes can be decided only in a Civil Suit. It
was further held by the learned Single Judge that the issue raised
by the appellant in that writ petition is barred by principles of res
judicata, and moreover, the principles of Order II Rule 2 of CPC
also would apply, since all the contentions now raised were
available to the appellant when he instituted the earlier writ
petition as well as the suit proceedings. The learned Single Judge
further held that the decree passed in O.S.No.94 of 2006 by the
Sub Court, Manjeri, was suppressed in the writ petition, which
amounts to material suppression on the part of the appellant with
the intention of securing enabling orders from the Court.
WA NOs.979 & 1736 OF 2019 14 2025:KER:73704
6. By the impugned judgment, the learned Single Judge
allowed W.P.(C)No.22531 of 2013 and directed the Secretary of
the Panchayat to reconsider the building permit application
submitted by the appellant, observing that the Panchayat has to
reconsider the issue as to whether the construction of the building
was completed by the appellant in the year 2007 and before the
introduction of Kerala Panchayat Raj Building Rules, 2011 or
whether the Kerala Municipality Building Rules, 1999, was
applicable to the Panchayat during the said period. The panchayat
Secretary was further directed to specify whether regularisation is
required at all, if the construction was carried out before the
introduction of 2011 Rules, and if so, to take appropriate action to
issue occupancy and number the building in accordance with law,
bearing in mind also that the appellant has surrendered the
property for the road in question. Being aggrieved by the dismissal
of W.P.(C)No.26573 of 2013, the appellant filed W.A.No.1736 of
2019, and aggrieved by the observation in the last sentence of the
judgment that the appellant has surrendered the property for the
road in question, he filed W.A.No.979 of 2019.
WA NOs.979 & 1736 OF 2019 15 2025:KER:73704
7. Heard the appellant, who argued the case in person
and the learned Standing Counsel for Chungathara Grama
Panchayat. The appellant has filed an argument note reiterating
the contentions raised by him in the appeal memorandum.
8. From the materials on record, we notice that in
W.P.(C)No.26573 of 2013, this Court has appointed an Advocate
Commissioner to visit the disputed road and file a report based on
the commission application filed by the appellant and also the
work memo filed by the respondents. After visiting the property,
the Advocate Commissioner filed a report dated 31.10.2014,
annexing a sketch prepared by a private surveyor showing the
disputed road and nearby properties, including that of the
appellant. Paragraphs 4.(iv), 5, 7 and 8 of that report is extracted
hereunder;
"4.(iv). I have also found that there is yet another road leading to
the school with concrete bricks and in the exclusive possession of
the Managing Trustee George Philip. The above private road
passes along the property of George Philip, the Managing Trustee,
in Sy. No.350 and which is the easy way connecting the residence
of the Managing Trustee George Philip and the Good Shepherded
English Medium School. The local péople present at the time of
inspection had no objections to the exclusive possession and
enjoyment of the road by Sri.George Philip, the Managing Trustee
of the school. There is also another entry to the school from the
WA NOs.979 & 1736 OF 2019 16 2025:KER:73704
Kayyunda - Kottepadam Panchayat road which passes behind the
school and leading to the main road. I have also seen a mud road
starting from the Panchayat road behind the school and passing
through extreme east end of the school ground and the petitioner
informed me that the same is provided for the benefit of one
Mr.John under an agreement.
5. In answer to the second point to be answered by me, regarding
the issue, whether any of the above roads are being used by
public/nearby residents and if yes under what authority.
(i) As far as the issue regarding roads being used by public/nearby
residents and under what authority etc it is submitted that
Palunda area, especially the area in which the school is situated
is not a thickly populated one. Though the petitioner has claimed
that the road connecting his school to Palunda junction is a private
road exclusively being used by him, I am not fully agreeable with
this. The above property is having a total length of 492 métres
and out of the same I found that a portion of the extent of 163
metres is being acceded by one Mr.Janardhanan that too as an
alternative way. Other than this, the road is under the exclusive
possession of the petitioner.
(ii) The local residents wanted me to inspect the vacant plot lying
in between the school compound and the Bible Bhavan to report
that the road leading to the petitioner's school is having an extent
to the Mulanthala - Kottepandam Panchayat road which passes
behind the school. In short, the local residents wanted to establish
that the disputed private road is a public road connecting Palunda
with Mulanthala-Kottepadam Panchayat road. I have not seen
road or link road as stated by the local residents whereas the
property in between the Bible Bhavan and the petitioner's school
compound is an open space where a few plants and shrubs are
also seen. The local residents stated that there was a road of
about 10 width linking for Mulanthala-Kottepadam Panchayat road
WA NOs.979 & 1736 OF 2019 17 2025:KER:73704
with the disputed private road and it was the petitioner who
demolished the compound wall of his property as a result of which
the road as stated above became unidentifiable for getting easy
access to Palunda, which claim also has not been established.
6. Xxxxx xxxx xxxxx
7. As part of the inspection, 1 was in the school compound for
about 7½ hours from i.e 10.30 am till 6 pm but I have not seen
any vehicular traffic along with disputed portion of the road, i.e
from Mulanthala-Kottepadam Panchayat road to the Palunda
junction along the disputed private road of the petitioner.
Moreover, since there is no visible signs of a road in existence in
the vacant portion lying in between Bible Bhavan and the
petitioner's compound. I am unable to report that the petitioner's
disputed private road is having an extension of the Mulanthala-
Kottepadam Panchayat road. In the absence of this particular
extension, I have no option other than to report that the road
from Palunda to the petitioner's school is intended exclusively for
the use of the petitioner and the school and it does not at all a
public road.
8. The Secretary of the panchayat was present at the time of
inspection. He wanted me to include his versions also regarding
the nature of the road in the report. The Secretary had made
available copies of certain proceedings of the Panchayat to the
effect that the Engineering Department of the panchayat had
directed the issue for effecting maintenance to the Palunda-
Palundakunnu-Kottapadam road and an amount of Rs.10,000/-
had already béen spent for effecting such maintenance. He has
also shown me a copy of the road register of the Panchayat in
which Plaunda-Palundakunnu road having a total length of 1 km
and width of 10 ft has been included as item number 2. It has also
been recorded in the register that the said road was surrendered
to the panchayat in the year 2003-2004, but the survey number
WA NOs.979 & 1736 OF 2019 18 2025:KER:73704
or other details to identify the road are not seen included and
hence I am not in a position to arrive at a conclusion that the
Palunda-Palundkunnu road referred to in the above register of the
Panchayat in the year 2003-2004 is the disputed private road or
any portion thereof, In another portion of the above register,
there is a reference to Kottepadam-Kayyunda Palundakunnu road
and Kottepadam-Mulanthala-Palunda road as item Nos.8 and 9.
As per the entries in the register, the above roads are having a
distance of 1 km and 800 metres respectively and they are having
6 metres width. In this register also, the survey numbers and
other identifiable details are not seen and mentioned the width of
the road as recorded in the register is different from the width of
the existing private road. In view of all these facts, I am not able
to accept the versions of the Secretary of the Panchayat regarding
the identity of the disputed private road and its connections with
the other Panchayat roads referred to above. Though the
Panchayat is having an engineering wing to properly establish the
nature and lie of the roads with specific reference to survey
records, they have not done anything to that effect and hence I
am not satisfied with the version of the Secrétary of the
Panchayat."
9. From the pleadings in the writ petitions and from the
counter-affidavits, it is clear that the appellant Trust is running a
School established in its private property. There is a road leading
to the School. According to the appellant, the road is entirely
passing through its private property, and the public have no right
over the same, whereas, according to the respondents, the road
was included in the Asset Register of the Panchayat, being agreed
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by the appellant also in the meeting held on 05.02.2003. It is also
gatherable from the materials on record that in respect of the
disputed road, the appellant has instituted a suit as O.S.No.94 of
2006 before the Sub Court, Manjeri, against the respondents.
Similarly, the appellant had previously approached this Court with
W.P.(C)No.19220 of 2005, wherein this Court had passed
Ext.R1(b) judgment dated 19.10.2006, noting the pendency of the
Civil Suit and directed the Sub Court to dispose of the suit within
four months from the date of receipt of the judgment. The
respondents are relying on Ext.R1(f) decision dated 05.02.2003,
wherein the appellant was Serial No.3 among the signatories.
However, the appellant is taking a stand that the road mentioned
in Ext.R1(f) is another road and not the disputed road. In
O.S.No.94 of 2006, the Advocate Commissioner filed Ext.R1(i)
report before the Sub Court, Manjeri. In the report filed by the
Advocate Commissioner before this Court as well as in the report
filed by the Advocate Commissioner before the Sub Court, Manjeri,
the existence of the road is stated differently. As far as the rival
claim over the road in dispute is concerned, lot of question of facts
are involved in these writ petitions, as evident from the pleadings
WA NOs.979 & 1736 OF 2019 20 2025:KER:73704
and materials on record. The disputed issue cannot be considered
as a case of mere statutory violation by the Panchayath. As rightly
found by the learned Single Judge, by relying on the judgment of
the Apex Court in Swati Ferro Alloys Pvt. Ltd. v. Orissa
Industrial Infrastructure Development Corporation
[(2015) 4 SCC 204], such disputes involving question of facts
cannot be decided in a writ petition filed under Article 226 of the
Constitution of India.
10. The pendency of O.S.No.94 of 2006 before the Sub
Court, Manjeri, is not pleaded in both the writ petitions. What
happened to the suit is neither pleaded nor proved by producing
any documentary evidence by the appellant. Similarly, the filing
of a previous writ petition as W.P.(C)No.19220 of 2005 by the
appellant is also not pleaded in the writ petition. While going
through Ext.R1(b) judgment dated 19.10.2006 passed in that writ
petition, we notice that the subject matter in that writ petition was
the resolution passed by the Panchayath in respect of the disputed
road in the present writ petitions. Noting the fact that the Civil
Court is seizin of the issue this Court disposed of that writ petition.
Therefore agitating the very same issue again in the present writ
WA NOs.979 & 1736 OF 2019 21 2025:KER:73704
petition will be definitely barred by the principles of Resjudicata as
found by the learned single Judge.
11. Though in the writ appeal, the appellant contended that
he purchased another 20 cents of property, and the total extent
of property in Sy.No.351/3, through which the road is passing, is
now within the title of the appellant; that is a subsequent
development, which has no bearing on the decision of the appeal.
Non-mentioning of the existence of a suit between the parties in
respect of the very same subject matter and also a previous writ
petition is suppression of material facts as found by the learned
Single Judge. In such circumstances, we find no reason to
interfere with the impugned judgment of the learned Single Judge
dismissing W.P.(C)No.26573 of 2013. At the same time, while
allowing W.P.(C)No.22531 of 2013, the observation made by the
learned Single Judge that while taking a decision, the Secretary of
the Panchayat shall bear-in-mind that the appellant has
surrendered the property for the road in question was unnecessary
and outside the purview of the judgment, since the learned Single
Judge did not enter into any definite finding regarding the
WA NOs.979 & 1736 OF 2019 22 2025:KER:73704
surrendering of the property by the appellant. In such
circumstances, W.A.No.979 of 2019 is to be allowed.
In the result, W.A.No.1736 of 2019 is dismissed. W.A.No.979
of 2019 is allowed, by setting aside the direction in the judgment
to the extent it directs the secretary of the Panchayath, while
taking a decision, to bear in mind that the appellant has
surrendered the property for the road in question.
All pending interlocutory applications stand closed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
DSV/-
