(2015) 394 KLW 382

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

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

MONDAY, THE 9TH DAY OF FEBRUARY 2015/20TH MAGHA, 1936 

WA.No. 640 of 2014

AGAINST THE ORDER/JUDGMENT IN WP(C) 7093/2013 of HIGH COURT OF KERALA DATED 11-04-2014 

APPELLANT(S)/RESPONDENTS IN WPC

1. DISTRICT COLLECTOR IDUKKI 

2. THE TAHSILDAR, THODUPUZHA 

3. THE VILLAGE OFFICER, THODUPUZHA 

4. THE ASSISTANT EXECUTIVE ENGINEER, PUBLIC WORKD DEPARTMENT, BUILDINGSECTION, THODUPUZHA 

BY ADV. GOVERNMENT PLEADER 

RESPONDENT(S)/PETITIONER IN WPC

1. M.D.DILEEP MANAGING PARTNER, MADONNA TEXTILES, THODUPUZHA 685584 2. M.K. DAMODARAN, METHANATH HOUSE, OLAMATTAM, THODUPUZHA 685584. (DIED). ADDL.

3. ANANDAVALLY, METHANATH HOUSE, THODUPUZHA, IDUKKI DISTRICT. ADDL.

4. M.D.DHANESH, METHANATH HOUSE, K.MURALI ROAD, ERNAKULAM, COCHIN-20. THE HEIRS OF SECOND RESPONDENT IS BROUGHT ON RECORDS AS ADDITIONAL RESPONDENTS 3 AND 4 AS PER ORDER DATED 14.1.2015 IN I.A.NO.36/2015. 

BY ADV. SRI.GEORGE POONTHOTTAM ADDL R3 BY ADV. SMT.DAISY A.PHILIPOSE ADDL R3 BY ADV. SRI.JAI GEORGE 

JUDGMENT 

Ashok Bhushan, Ag.CJ. 

The District Collector, Idukki and three other State officials are in appeal against the judgment dated 11.4.2014 passed by the learned Single Judge in W.P(C). No.7093 of 2013 filed by respondents 1 and 2, who were the writ petitioners in the Writ Petition. The learned Single Judge, while disposing of the Writ Petition although held that it shall be open for the petitioners to approach the competent Civil Court to establish their special right claimed in the Writ Petition, however, the learned Single Judge further directed the State respondent to make an opening in the new compound wall of the Mini Civil Station existing on the western side of the petitioners' building to permit the petitioners a right of way and further directed the State Government to pay compensation of 1,00,000/-. 

2. The facts of the case, which are necessary to be noted for deciding the issues raised in the Writ Appeal are: In Thodupuzha Taluk, Idukki District, a Mini Civil Station, consisting of 22 Government offices, including Family Court and Treasury, is situated in Sy.No.194/13 having an extent of 0.72.44 hectares of property. To east of the Mini Civil Station there is Sy.No.194/12/1 housing a building, 'Madonna Textiles'. On the south of both the survey numbers there is the Thodupuzha-Muvattupuzha Road having a width of more than 15 metres. The petitioners claimed to have purchased the property situated in Sy.No.194/12/1 by ten sale deeds in the year 1985-1986. On the eastern side of the Mini Civil Station an old compound wall of more than 60 years was in existence. Notice dated 9.9.1991 was issued to the petitioners by the Tahsildar for stopping the construction of staircase on the western side of the petitioners' property, i.e., on the eastern side of the Taluk Office compound. Another notice was issued on 12.2.1999 on the petitioners under Act 8 of 1958, the Kerala Land Conservancy Act, 1957 stating that the petitioners have unauthorisedly trespassed into the Government puramboke land in Sy.No.194/13 to the extent of 64 sq.mts. After receipt of the said notice, the petitioners gave Exhibit P10 notice to the respondents under Section 80 of the Code of Civil Procedure for instituting a suit before the competent Civil Court. In the notice under Section 80 CPC it was stated that even assuming that the petitioners and their predecessors-in-interest are in possession of some Government land lying beyond the eastern compound wall of the Taluk Office property, the petitioners have become the absolute owners thereof, in view of the long open continued uninterrupted possession for more than half a century. In the notice the petitioners stated that they will institute a suit for declaration that they had become absolute owners in possession of entire properties lying to the east of the compound wall and retaining wall of the Taluk Office compound. However, no suit was filed by the petitioners, but they submitted Exhibit P13 joint statement on 6.4.1999 stating that they are not in possession of any Government land and even though there is any Government land beyond the compound wall, the petitioners and their predecessors being in continuous possession, the right of the Government, if any, has been lost by adverse possession and limitation and the petitioners have become owners of the land. Notice dated 8.6.2007 was issued to the petitioners to appear along with the receipt of payment of pattam as claimed in Sy.No.194/13 and show the records regarding possession of the petitioners. Another notice dated 21.4.2012 Exhibit P15 was issued regarding lease No.K.P.1/1977 to the extent of 0.225 cents. The petitioners sent Exhibit P16 reply to Exhibit P15 notice praying for renewal of lease K.P.1/1977. It was also stated in the reply that as per the condition of the lease agreement, a portion of the compound wall is to be demolished and a gate has to be fixed. Prayer for renewal of the lease was also made. The State Government by Government order dated 31.3.2013 granted administrative sanction for construction of a compound wall and renovation work in the Mini Civil Station by allotting an amount of 2.30 crores. On 12.3.2013, the appellants removed the debris of the compound wall and constructed a new compound wall. The appellants claimed to have resumed 32 sq.mts. of Government land while constructing the new compound wall. There was a shuttered room on the western side of the 'Madonna Textiles' building having an opening towards the Mini Civil Station. By construction of new compound wall, the ingress and egress of the shuttered room towards the Mini Civil Station in the old compound wall was closed. The petitioners objected demolition of the compound wall on the western side of the 'Madonna Textiles', but the demolition of the wall was carried out and construction of the new wall was started. At this juncture, the petitioners filed W.P(C).No.7093 of 2013 before this Court praying for the following four reliefs: 

3. This Court directed that the petitioners may not be prevented access to the disputed portion of shuttered room for taking out their registers, documents kept inside the room. Under the order of the Court dated 21.3.2013, the petitioners took out their registers from the shuttered room. An interim order was passed in the Writ Petition on 11.4.2013 directing the respondents to demolish the boundary wall constructed across the shuttered room. W.A.No.645 of 2013 was filed by the appellant against the interim order dated 11.4.2013. The interim order dated 11.4.2013 was set aside by the Appellate Court and the matter was remanded for consideration of the Writ Petition.

4. In the Writ Petition an order was passed on 10.9.2013 appointing an Advocate-Commissioner. The Advocate-Commissioner visited the spot on 18.9.2013 and submitted a report dated 24.9.2013. It was stated in the report by the Advocate-Commissioner that there is no way to reach the shuttered room except from the Government land and by construction of the boundary wall on the Government land the entry to the room is blocked. The appellants filed objection to the Commissioner's report.

5. Counter affidavit and additional counter affidavit were filed in the Writ Petition by the Tahsildar. The petitioners also filed an application to amend the Writ Petition, which was allowed. Counter affidavit on behalf of respondents 1 to 4 dated 20.3.2013 was also filed in the Writ Petition, as per the direction of the Court. The petitioners in their reply affidavit filed various photographs of the spot showing the compound wall of the Mini Civil Station, 'Madonna Textiles' building and the shuttered room. The learned Single Judge wide his judgment dated 11.9.2014 disposed of the Writ Petition by issuing the following directions: 

The Writ Appeal has been filed against the judgment of the learned Single Judge.

6. Sri.C.S.Manilal, Senior Government Pleader has appeared for the State, Advocate Sri.George Poonthottam has appeared for the writ petitioners and Advocate Smt.Daisy Philipose has appeared for the intervener.

7. Learned Government Pleader appearing for the appellants, in support of the Writ Appeal, submitted that the Writ Petition filed by the petitioners is not maintainable, since it raises disputed questions of fact and the substantial prayer predominantly relating to the alleged right of the petitioners in relation to the land and the alleged right of way over it, the remedy of the petitioners was to get their right adjudicated before the competent Civil Court. The learned Single Judge having also found that the rights of the petitioners need to be adjudicated by competent Civil Court and having directed the petitioners to approach the Civil Court for adjudication of right, the order of the learned Single Judge directing for providing a gate in the compound wall of the Mini Civil Station was uncalled for and further the rights of the parties being yet to be adjudicated direction for paying the compensation could not have been granted. It is submitted that the petitioners were in occupation of a portion of the Government land situated between the eastern compound wall of the Taluk Office and the 'Madonna Textiles' building measuring 64 sq. mts. The petitioners were given notices in the years 1991, 1999 and 2007 to show their right and failing which were directed to vacate from the encroached portion of land. The petitioners themselves have given notice under Section 80 CPC claiming that the petitioners and their predecessors being in possession of the said property for last more than 50 years the right of the Government has been lost by adverse possession and limitation. It is submitted that the petitioners' case that there was lease granted in favour of the petitioners being K.P.1/1977 was wholly false and incorrect. The said leasehold right (Kuthakappattom) was granted for one year only in 1977 in favour of one V.T.Abraham, Vettukattil, which comprises of 225 sq.links in Sy.No.194/13. The said right for one year expired in 1978 and was neither renewed nor the lease amount remitted any further, hence the petitioners' claim on the lease K.P.1/1997 was not proved. The lease document was also not brought on record by the petitioners. The petitioners had no right of way from the Government land towards his shuttered room situated on the western side of the 'Madonna Textiles' building, nor any permission was granted to the petitioners to open a gate on the eastern compound wall of the Taluk Office. The respondents have not committed any error in constructing a fresh compound wall, since old compound wall was dilapidated. The rights claimed by the petitioners in the Writ Petition are yet to be established and without establishment of any right in appropriate proceedings, the direction issued by the learned Single Judge directing opening of gate in the compound wall of the Mini Civil Station was not justified and further in the circumstances, imposition of compensation was uncalled for. It is submitted that when the learned Single Judge was disposing of the Writ Petition directing the petitioners to institute a suit, no kind of interim order could have been granted and the petitioners ought to have been relegated to obtain interim relief from the competent Civil Court.

8. Sri.George Poonthottam, learned counsel for the writ petitioners, refuting the submission of learned counsel for the appellants, submitted that the State has no authority or jurisdiction to construct the compound wall by blocking the ingress and egress of the shuttered room belonging to the second petitioner. It is submitted that it was incumbent on the respondent State to draw appropriate proceedings, on the allegation that the petitioners have encroached 64 sq.mts of land situated on the east to the old compound wall of the Taluk Office. It is submitted that although notices were issued earlier to the petitioners, alleging encroachment on 64 sq.mts, the proceedings were never brought to its logical end and action of the respondent State to demolish the old wall and construct new compound wall by blocking the ingress and egress of the petitioners is wholly unauthorised and illegal. It is submitted that the Advocate-Commissioner found that the ingress and egress of the shuttered room is completely blocked, the new compound wall has been shifted close to 'Madonna Textiles' building and now there is no possibility to approach the shuttered room which opens in west towards the Government land. It is submitted that the learned Single Judge did not commit any error in directing for opening of a gate in the compound wall of the Mini Civil Station, since the right of ingress and egress of the petitioners has to be protected. He further submitted that permission was granted in the year 1977 itself by document K.P.1/1977 which permitted opening of a gate on the compound wall of the Taluk Office for ingress and egress of the shuttered room. It is submitted that the Advocate-Commissioner has found that there is no other way to reach the shuttered room, except through the Government land situated on the west of the shuttered room. Learned counsel for the petitioners submits that various photographs are on record which indicate that the new compound wall has been constructed close to the western shuttered room completely blocking the ingress and egress.

9. Smt.Daisy Philipose, who has been permitted to intervene, submitted that the petitioners have encroached 64 sq.mts. of Government land for which notice was issued on 22.10.1991. It is submitted that survey was conducted by the Deputy Tahsildar and a report dated 23.1.1999 was submitted showing that encroachments were made by different persons on the Government land and L.C.No.5/1999 was registered against the petitioners under Section 12 of the Land Conservancy Act, 1957 regarding the encroachment of 64 sq.mts. of Government land. It is further stated that the second petitioner, with regard to whom the right of way was claimed in the Writ Petition, having died on 26.2.2014, i.e., before the date of judgment in the Writ Petition, the claim of ingress and egress of the second petitioner has become infructuous. Details of certain other litigations have been referred to by learned counsel for the intervener regarding encroachment of the Government land.

10. We have considered the submissions of learned counsel for the parties and perused the records. Learned counsel for the parties have placed reliance on various judgments of this Court and the Apex Court, which shall be referred to while considering the submissions of learned counsel for the parties in detail.

11. From the materials on record it is clear that Sy.Nos.194/13, where Taluk Office/Mini Civil Station, Thodupuzha is situated and 194/12/1, where 'Madonna Textiles' building is situated, are adjoining to each other facing, 15 metre road on south. There was more than 60 years old compound wall of the Taluk Office running south to north. The case of the respondent State is that towards east to the Taluk Office compound wall there was a land owned by the Government in which encroachment was made by the petitioners to the extent of 64 sq.mts. It is on record that notices were issued in the year 1999 under the 

Kerala Land Conservancy Act, 1957 

specifically mentioning the encroachment as 64 sq.mts. from which the petitioners were asked to vacate. 

The petitioners had also at that juncture had given notice under Section 80 CPC for filing a suit for declaration. The notice given under Section 80 CPC has been annexed by the petitioners. 

It is useful to extract the relevant portion of the notice, which is to the following effect: 

12. It is relevant to note that although notice was issued under Section 80 CPC, no suit was filed by the petitioners for declaration as claimed by them. The petitioners rather filed a joint statement before the Tahsildar dated 6.4.1999, which is produced as Exhibit P13. English translation of the joint statement is on record, where although it was stated by the petitioners that no portion of puramboke Government land has become part of their property and even if it is surmised that there is any land beyond the compound wall, the petitioners and their predecessors having in continuous possession of the land lying on the eastern side of the compound wall, whatever right the Government had was lost by adverse possession and limitation. Thus, there was clear allegation of encroachment of Government land by the petitioners, notices for which were issued on several earlier occasions.

13. The issue between the parties is with regard to ingress and egress to the shuttered room situated on the west of 'Madonna Textiles'. The petitioners' case was that the second petitioner is running an office in the said room and has been using a gate in the compound wall of the Taluk Office, which was permitted by the then Collector in the year 1977. Although the petitioners' claim that they have got permission from the Collector for opening a gate on the compound wall of the Taluk Office for ingress and egress, no such permission was produced. The lease document K.P.1/1977 was also not produced by the petitioners and there is a specific pleading by the respondent State that the said lease document (Kuthakapattam) was executed to the extent of 225 sq.links in favour of V.T.Abraham for a period of one year in the year 1977, which was never extended, nor the lease rent paid. The said lease cannot be held to be in favour of the petitioners, nor the petitioners can claim any right on the basis of the said document. The petitioners have no leasehold right in the Government property being Sy.No.194/13 and they cannot claim any right of way through the Government land. It was also specifically pleaded that the petitioners were never granted any permission to open a gate in the compound wall of the Taluk Office for ingress and egress of the shuttered room.

14. From the pleadings on record it does appear that there was dispute between the petitioners and the Government on both the issues, i.e., (a) allegation of unauthorised encroaching of 64 sq.mts. of Government land situated on the eastern side of the Taluk Office compound wall by the petitioners; and (b) the right of the petitioners for ingress and egress through the Government land, i.e., through the compound wall to the western shuttered room of the building. 

15. The learned Single Judge in the Writ Petition noted the pleas of both the parties with regard to the right of the petitioners of assignment under Kuthakappattam. It was observed by the learned Single Judge that this Court cannot make any pronouncement on the same, as it is purely a disputed question of fact and not necessary to go into those questions at present. It is useful to quote paragraph 18 of the judgment, which is to the following effect: 

16. The learned Single Judge, however, referring to the Advocate-Commissioner's report, came to the conclusion that the only exit from the shuttered room is to the western side and there is no other way. The following observations have been made in paragraph 22 of the judgment: 

17. As noted above, when the learned Single Judge observed that the right of the petitioners of assignment under the Kuthakapattam Rules is the disputed question of fact, which is not necessary to be gone into, we are of the view that the observation in paragraph 22 of the judgment that the petitioners were using the opening of the western side for ingress and egress under a right was uncalled for. 

The right to use another's property for a way of ingress and egress can be: 

The petitioners can claim right of way through the Government property through compound wall of Taluk Office only when they establishes any of above right. The learned Single Judge having observed that the question regarding determination of right being a disputed question of fact, which cannot be gone into the Writ Petition, the learned Single Judge ought not to have proceeded to accept the right of the petitioners for ingress and egress and issued direction for opening of a gate in the western compound wall of the Taluk Office. The above directions, thus, were not sustainable.

18. It is true that there was issue of encroachment by the petitioners on the Government land for which notice was issued by the respondent State earlier. However, it appears that the proceedings were not finalised regarding the alleged encroachment. However, it would have been better if the appellants had given notice to the petitioners regarding the construction of new compound wall blocking their ingress and egress. But, the new compound wall having already been completed reclaiming 32 sq.mts. of land on the eastern side, for appropriate relief and for establishing the rights by the petitioners, the Civil Court was only the competent forum, where all the issues could have been thrashed out, issues of fact determined including the question of right of assignment.

19. Further, the learned Single Judge having issued direction to the petitioners to approach the competent Civil Court to establish their special right claimed in the Writ Petition, the question of compensation, if any also ought to have been left for Civil Court for determination.

20. In the facts of the present case, we are of the view that without determination of the rights of the parties, the compensation should not have been directed to be paid by the respondent State and the said issue also ought to have been left to be adjudicated by the competent Civil Court in a suit to be filed by the petitioners.

21. Learned counsel for the appellants have placed reliance on the judgment of the Apex Court in 

State of Oissa v. Madan Gopal (AIR 1952 SC 12)

The Apex Court in the said case has observed that Article 226 of the Constitution cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do. It was further held that when High Court declined to decide the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such suit, issue directions in the nature of temporary injunctions under Article 226 of the Constitution. 

The following was laid down by the Apex Court in paragraph 6 of the judgment: 

The above case fully supports the submissions of the learned Government Pleader appearing for the appellants.

22. Another judgment relied on by learned Government Pleader is L.T.Corporation v. State of Madras (AIR 1954 SC 549). The following was laid down in paragraphs 10 and 13 of the judgment: 

23. A Division Bench of this Court in 

Kumaravelu Chettiar Subramonian Chettiar v. State (1957 KLT 198) 

has held that application under Article 226 of the Constitution is not an alternative remedy to the usual remedy by way of suit. It was further held that there is no justification for the High Court to invoke its extraordinary jurisdiction under Article 226 for granting relief, particularly when the right claimed is itself in dispute. 

The following was laid down in paragraphs 5, 7 and 8 of the judgment: 

24. A judgment of the Apex Court in 

State of Rajasthan v. Bhawani Singh and others [(1993) Supp. (1) SCC 306] 

has also been relied on by the learned Government Pleader. 

In the said judgment the Apex Court has laid down that the Writ Petition in effect seeking a declaration of the petitioner's title to a plot ought not to have been adjudicated under Article 226 of the Constitution. 

The following was laid down in paragraph 7 of the judgment: 

25. Further, in 

Dwarka Prasad Agarwal v. B.D.Agarwal [(2003)6 SCC 230] 

it was laid down by the Apex Court that the remedy under Article 226 of the Constitution of India cannot be utilised for resolution of a property or a title dispute. 

Following was laid down in paragraph 28 of the judgment: 

To the same effect, the learned Government Pleader has relied on another judgment in 

Sanjay Sitaram Khemka v. State of Maharashtra and others [(2006)5 SCC 255].

26. Learned counsel for the petitioners has placed reliance on the judgment of a Division Bench of this Court in 

Autumn Wood Resorts v. State of Kerala (2014(3) KHC 305 (DB)). 

In the said case the Writ Petition was filed challenging the resumption order passed by the District Collector. The petitioner also claimed compensation. In the said case the District Collector had ordered resumption and dispossession of land and demolished structures in land. Subsequently, the appellate authority has set aside the order and remanded the matter. In the aforesaid facts, the Division Bench had directed for resumption of property. In the said case the resumption order of the District Collector has been set aside and 11 buildings belonging to the petitioner were demolished. The said judgment was on its own facts and does not help the petitioners in the present case.

27. It is relevant to note that it is the State which has filed the present Writ appeal challenging the judgment of the learned Single Judge. The learned Single Judge has made observations in paragraph 18 that the disputed question of fact cannot be gone into in the writ proceedings and had granted liberty to the petitioners to approach the Civil Court. The writ petitioners are not aggrieved by the findings and directions to the above effect of the learned Single Judge.

28. Taking into consideration over all facts and circumstances, we are of the view that when the learned Single Judge was relegating the petitioners to approach the Civil Court to establish their special rights, it ought to have left to the petitioners to obtain interim order from the Civil Court, if any. When the Writ Petition was not being entertained for adjudication of rights of the petitioners, the same being a disputed question of fact, the direction for opening of a gate in the new compound wall opposite to the rolling shutter, for providing a free ingress and egress as well as a wicket gate with lock and key to the petitioners ought not to have been issued. The direction for payment of compensation also ought not to have been given and the issue of compensation was also to be left to the Civil Court.

29. We, thus, are of the view that the aforesaid directions issued by the learned Single Judge while giving liberty to the petitioners to get their right settled by the Civil Court, were uncalled for. The petitioners ought to have been relegated to the Civil Court for getting all the reliefs as claimed in the Writ Petition. In the result, the Writ Appeal is partly allowed. The judgment of the learned Single Judge is modified affirming only the following directions: 

The rest of the directions in the judgment of the learned Single Judge are set aside. The parties shall bear their costs.