IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

           THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

  WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941

                           WP(C).No.24088 OF 2019(I)


PETITIONER/S:

                KAUSALLYA GOPI
                AGED 66 YEARS
                W/O.GOPI, SASTHANGAL HOUSE, ELANJI P.O., ERNAKULAM-
                686 665.

                BY ADVS.
                SRI.JAMES ABRAHAM (VILAYAKATTU)
                SRI.P.BALAN (VYTTILA)

RESPONDENT/S:

      1         ELANJI GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY
                ELANJI P.O., ERNAKULAM DISTRICT, PIN-686 665.

      2         THE SECRETARY, ELANJI GRAMA PANCHAYAT,
                ELANJI P.O., ERNAKULAM DISTRICT, PIN-686 665.

      3         THE THAHSILDAR, MUVATTUPUZHA TALUK,
                TALUK OFFICE, MINI CIVIL STATION, MUDAVOOR P.O.,
                MUVATTUPUZHA-686 669.

      4         SREEDHARAN.C.R.,
                SASTHANGAL HOUSE, ELANJI P.O., ERNAKULAM DISTRICT-686
                665.

                R4   BY   ADV.   SRI.KALEESWARAM RAJ
                R4   BY   ADV.   SRI.VARUN C.VIJAY
                R4   BY   ADV.   KUM.A.ARUNA
                R4   BY   ADV.   SMT.RIYA RAYMOL IYPE
                R4   BY   ADV.   SMT.MAITREYI SACHIDANANDA HEGDE

OTHER PRESENT:

                SRI.JESTIN MATHEW, GOVT.PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.24088 OF 2019(I)                 2




                         ALEXANDER THOMAS, J.
                      -----------------------------------------
                        W.P.(C.) No. 24088 of 2019
                      -----------------------------------------
                  Dated this the 26th day of February, 2020


                                 JUDGMENT

The case set up in the above W.P.(C.) is as follows :

That the petitioner is owner and in possession of 4 cents of property in survey no.32/4B/1 within the 1st respondent panchayat. The petitioner's husband had inherited 21 cents of property and the property possessed by the petitioner is the part of the 21 cents. The petitioner had constructed a residential building within the property possessed by the petitioner in years back and her family is residing there. There is drinking water well also within the property for drinking and other purposes and this is only water course for the petitioner's family.

The 4th respondent is the owner of 2 cents of property in the same survey number, lying contiguously, wherein the 4 th respondent started construction of two storey building in violation of prevailing building Rules. Against the illegal construction of building by the 4 th respondent the petitioner made several complaints before the 2 nd respondent from 2018 onwards, but till date neither any action nor any decision has been taken by the 2nd respondent on the complaint. Now the 4 th respondent started WP(C).No.24088 OF 2019(I) 3 construction of septic tank and waste water disposal pit near to the drinking water well of the petitioner in clear violation of Rule 85 of Kerala Panchayat Building Rules, 2011. As per provisions under Kerala Panchayat Building Rules, 2011 and Water (Prevention and Control of Pollution) Act, 1974 the 2nd respondent are duty bound to prevent contamination of water and violation of building Rules.

It is in the light of these averments and contentions that the petitioner has filed the instant W.P.(C.) with the following prayers :

(i) "Issue a writ of mandamus or appropriate order or direction directing the 2 nd respondent not to issue occupancy certificate to building constructed by the 4 th respondent in the property having survey no.320/4B/1 of Elanji Village.

(ii) Issue a writ of mandamus or appropriate order or direction directing the respondent 2 to demolish the illegal construction of building by the 4 th respondent in the property having survey No.320/4B/1 of Elanji Village.

(iii) Issue a writ of mandamus or appropriate order or direction directing the 3 rd respondent to measure and demarcate the boundary of the property of the petitioner.

(iv) Grant such other orders as this Hon'ble Court may deem fit and proper considering the facts and circumstances of the case and

(v) Grant the costs of this writ petition."

2. Heard Sri.James Abraham (Vilayakattu), learned counsel appearing for the petitioner, Sri.Jestin Mathew, learned Government Pleader appearing for R3 and Sri.Kaleeswaram Raj, learned counsel appearing for R4. Though notices have been duly served on R1 and R2, Grama Panchayat, the same will stand dispensed with.

3. After hearing both sides, this Court is of the considered view that the main matters raised by the petitioner in this case would predominantly fall within the domain of the private law. It is for the WP(C).No.24088 OF 2019(I) 4 petitioner to approach the civil court for ventilating for the redressal of the grievances in this regard. The cases of this nature are increasingly being filed by resort to writ proceedings and entertaining of such matters which predominantly would fall within the zone of the private law, would not be conducive to the interest of administration of justice as the writ proceedings are essentially for the purpose of adjudication of the matters which would call for the intervention through public law remedies.

4. The counsel for the petitioner would point out that the petitioner would approach the civil court for venitilating of the main grievances and that the limited direction sought for by the petitioner in this case is to ensure that the 3rd respondent Tahsildar and the Taluk Surveyor concerned takes necessary action on Ext.P5 application filed by the petitioner for survey and measurement of the subject property to ensure that the boundary of the petitioner's property and that of the 5 th respondent are duly demarcated and also to ascertain as to whether the 4 th respondent has encroached into the property of the petitioner etc.

5. Per contra, Sri.Kaleeswaram Raj, learned counsel appearing for the 4th respondent would point out that the 4th respondent has not made any encroachment into the petitioner's property and the construction has been made strictly in terms of the provisions contained in the Kerala Panchayat Building Rules concerned and that if a proper survey and measurement is conducted, it can be easily established that the abovesaid WP(C).No.24088 OF 2019(I) 5 allegation of the petitioner that the 4 th respondent has encroached into the property of the petitioner for making the instant construction etc. is absolutely false and misconceived etc.

6. Sri.Jestin Mathew, learned Government Pleader would submit on the basis of instructions that the 3rd respondent Tahsildar has acted upon Ext.P5 application dated 26.8.2019 and has sought the aid and assistance of the Taluk Surveyor concerned for conduct of the survey and measurement. Accordingly, in respect of the said limited aspect, it is ordered that the 3rd respondent Tahsildar will ensure that the aid and assistance of the Taluk Surveyor is obtained to ensure that the survey and measurement of the subject property is conducted, so as to ascertain and demarcate the boundaries between the properties of the petitioner and the 4th respondent and also to ascertain the correctness of the petitioner's allegation that the 4th respondent has encroached into petitioner's property for making the construction in question. The 3 rd respondent Tahsildar will ensure that the Taluk Surveyor concerned conducts the survey and measurement of the subject property with due prior notice to the petitioner and the 3rd respondent and after examining the prior title deeds of both the parties as well as the old survey records and re-survey records etc. and also ensure that the boundary of the petitioner and that of the 4 th respondent's properties are duly demarcated and identified in accordance with the provisions contained in the Boundary and Survey Act and the Rules WP(C).No.24088 OF 2019(I) 6 framed thereunder. Such survey and measurement shall be conducted by the Taluk Surveyor with due prior notice to the petitioner and the 4 th respondent and the Taluk Surveyor will ensure that survey report and survey sketch is also prepared accordingly and in the survey sketch, it is clearly shown as to whether the 4th respondent has made any encroachment into the petitioner's property. The copies of the said survey report and the survey sketch shall be given in advance to the petitioner and the 4 th respondent and thereafter, the 3rd respondent Tahsildar will hear the petitioner and the 4th respondent and then may pass appropriate proceedings for finalising the request made in Ext.P5 in terms of the provisions contained in the Boundary and Survey Act and the Rules framed thereunder. The steps in this regard should be duly completed by the 3rd respondent Tahsildar and the Taluk Surveyor within 1 month from the date of production of a certified copy of this judgment.

7. Thereafter, in case any of the parties concerned have any grievances in relation to the said survey and measurement process, then it is for them to work out the remedies in accordance with the law. The liberty is accorded to the petitioner to approach the civil court for ventilating her grievances relating to the other issues raised in this petition. This court has passed an interim order on 20.9.2019, wherein it has been directed that the 2nd respondent Panchayat to ensure that no construction is carried out by the 4th respondent overlooking the provisions of the Kerala Panchayat WP(C).No.24088 OF 2019(I) 7 Building Rules. The said interim order dated 20.9.2019 issued by this Court in this W.P.(C.) shall continued to be in force for a period of 6 weeks and this order has been passed only for the purpose of ensuring that the subject matter of the lis is preserved. It is for the petitioner to file a civil suit along with appropriate interlocutory application before the civil court concerned. It is made clear that the abovesaid order shall not be construed in any manner as an expression on the part of this Court regarding the merits of the controversy, which is to be considered by the civil court concerned.

With these observations and directions, the above W.P.(C.) will stand disposed of.

sd/-

ALEXANDER THOMAS, JUDGE SKS WP(C).No.24088 OF 2019(I) 8 APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1                  A TRUE COPY OF THE REVENUE TAX RECEIPT
                            DATED 01.07.2019 WITH RESPECT TO THE
                            PETITIONER'S PROPERTY.

EXHIBIT P2                  A TRUE COPY OF THE COMPLAINT DATED
                            12.04.2018 ALONG WITH RECEIPT ISSUED BY THE
                            1ST RESPONDENT PANCHAYAT.

EXHIBIT P3                  A TRUE COPY OF THE PETITION DATED
                            05.09.2018 SUBMITTED BY THE PETITIONER
                            BEFORE THE 1ST RESPONDENT.

EXHIBIT P4                  A TRUE COPY OF THE APPLICATION DATED
                            29.08.2019 ALONG WITH RECEIPT ISSUED BY THE
                            1ST RESPONDENT PANCHAYATH.

EXHIBIT P5                  A TRUE COPY OF THE APPLICATION DATED
                            26.08.2019 FOR MEASURING THE PROPERTY OF
                            PETITIONER.

EXHIBIT P6                  PHOTOGRAPHS SHOWING THE ILLEGAL
                            CONSTRUCTION OF THE BUILDING BY THE 4TH
                            RESPONDENT.

EXHIBIT P7                  A TRUE COPY OF THE PETITION DATED
                            19.08.2019 ALONG WITH RECEIPT ISSUED BY THE
                            1ST RESPONDENT PANCHAYAT.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R4(A)               TRUE COPY OF THE BUILDING PERMIT NO.A2-BA
                            (59574)/2018 DATED 15.3.2018 TOGETHER WITH
                            BUILDING PLAN, SITE PLAN AND LOCATION
                            SKETCH.