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P.V.VARGHESE, S/O.VARKEY v. THE SUPERINTENDING ENGINEER - WA No. 91 of 2007  RD-KL 1831 (23 January 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWA No. 91 of 2007()
1. P.V.VARGHESE, S/O.VARKEY,
1. THE SUPERINTENDING ENGINEER,
2. THE EXECUTIVE ENGINEER,
3. THE ASSISTANT EXECUTIVE ENGINEER,
4. SMT.C.P.PATHUMMA, ASSISTANT EXECUTIVE
5. THE ASSISTANT ENGINEER,
6. P.T.THOMAS, AGED 47 YEARS,
For Petitioner :SRI.K.RAMAKUMAR
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.V.K.BALI The Hon'ble MR. Justice M.RAMACHANDRAN
O R D E R
(V.K.BALI, C.J & M.RAMACHANDRAN, J)W.A.No. 91 of 2007
Dated this the 23rd day of January, 2007
Ramachandran, J:The writ petition filed by the petitioner [W.P.(C) No.30245 of 2006] seeking to enforce the orders passed by the authorities of the Public Works Department was not entertained by a single Judge, holding that it was for him to challenge the orders of the Sub Divisional Magistrate and the Civil Court to get his exclusive rights in respect of a pathway by other appropriate means. As foundation for cause of action, petitioner had made reference to Ext.P5 letter addressed to the Circle Inspector of Police, Adimali as issued from the office of the Assistant Executive Engineer. Authority was sought to be invoked from the Kerala Highway Protection Act, 1999. It had been indicated that some unauthorised persons had dismantled the parapet of N.H.49 at Km.191/200 and constructed an approach slab to the land of a private person (Petitioner herein). The [WA No.91 of 2007] -2- petitioner had denied any involvement and had placed his view point that he in fact suffered from encroachment. Thereupon action was sought to be initiated for tracing out the miscreants and for follow up action, and he had submitted that at later stages, proceedings were discontinued.
2. The Court had found that in fact the dispute involved was not simple. A third party had got intervened to the proceedings before this Court and had highlighted that the petitioner had no right to agitate the issue, and he had approached the court without clean hands. There was no parapet as claimed and the slab was there in existence for a few years. It was a connecting link to a road, which had been vested in the Panchayat. The affidavit filed by the third party indicated that the petitioner had destroyed the slab on a previous occasion and the Sub Divisional Magistrate, taking cognizance of the matter, had ordered reinstatement of the slab. There was also a decree passed in O.S.No.241/99, which had been confirmed in appeal, which spoke about the right of third parties to put any slabs for the purpose of thoroughfare. The petitioner was a party to the suit, but had kept back any such details. In fact, the Court had come to [WA No.91 of 2007] -3- know that at the initial stage the full facts had not been presented by the petitioner. Reserving the right of the petitioner to a limited extent, the writ petition was closed.
3. The judgment as above is under challenge. On behalf of the appellant Mr.K.Ramakumar submits that when the authorities had ordered removal of the encroachment, it was inappropriate to relegate the matter once again, as had been done. The Public Works Department was taking steps to protect their property and instead of extending a helping hand the Court had acted in a manner to perpetuate the illegality. There was no right of way and when authorities had come to findings on questions of fact and thereafter directed removal of unauthorised structures, instead of supporting the petitioner, the Court had by its orders unduly helped the miscreants and the judgment therefore required to be set aside.
4. We are of the view that the petitioner's rights as admissible to him have been kept open for him to agitate over the matter. In proceedings under Article 226 of the Constitution, it would not have been possible for the Court to sit in judgment over an issue, where by independent [WA No.91 of 2007] -4- proceedings the Sub Divisional Magistrate and the Civil Court had entered findings which had attained finality. It is the case where the Public Works Department had not come to this Court as petitioner, and they had not come up with any proposals, whereby the Court was required to act upon the submissions made in the writ petition. The balance of convenience is always in favour of the cause of the respondents and as rightly pointed out, it could have been disturbed only in accordance with law, and not in any case by a writ petition.
5. Consequently, the writ appeal is dismissed. Sd/- V.K.BALI (CHIEF JUSTICE) Sd/- M.RAMACHANDRAN
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