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G. Bhagavat Singh v/s Manoj Joseph & Others


Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- H B SINGH PVT LTD [Strike Off] CIN = U29299WB1975PTC030204

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

Company & Directors' Information:- R N SINGH & COMPANY PRIVATE LIMITED [Active] CIN = U27310JH1975PTC001224

Company & Directors' Information:- MANOJ PRIVATE LIMITED [Strike Off] CIN = U74899DL1980PTC010292

Company & Directors' Information:- S. SINGH AND COMPANY PRIVATE LIMITED [Active] CIN = U51100MP2010PTC025020

Company & Directors' Information:- S. SINGH AND COMPANY PRIVATE LIMITED [Active] CIN = U70100MP2010PTC025020

Company & Directors' Information:- SINGH AND CO PVT LTD [Strike Off] CIN = U36101PB1982PTC005152

Company & Directors' Information:- J N SINGH AND CO PRIVATE LIMITED [Under Liquidation] CIN = U74999DL1908PTC000014

    WA. No. 914 of 2020

    Decided On, 21 July 2020

    At, High Court of Kerala

    By, THE HONOURABLE CHIEF JUSTICE MR. S. MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P. CHALY

    For the Appellant: G. Bhagavat Singh (Party in Person). For the Respondents: R2 to R7, V.E. Abdul Gafoor, SC, R1, Sadchith. P. Kurup, R8, Surin George Ipe, Advocates.



Judgment Text


Shaji P. Chaly, J.

1. The appeal is filed by the petitioner in W.P.(C) No. 10631 of 2017 against the judgment dated 03.02.2020 passed by the learned Single Judge, whereby liberty was granted to the appellant to approach the Tahsildar, Kanayannur Taluk, Ernakulam District to apply for survey of the property of the first respondent in the writ petition, namely Manoj Thomas, in order to ascertain whether the nature of construction of the boundary wall is within the parameters of the existing Building Rules/byelaws or whether there is an encroachment. It was further directed to take necessary action, if it is found on survey that there is encroachment. The said liberty was granted to the appellant on the basis of the submission made by the learned Standing Counsel for the Kochi Corporation i.e., the second respondent, that the ramp which was constructed by the first respondent was demolished on 08.04.2017 and as regards the construction of the road by blocking the drainage, the entire encroachment had been removed and the road has been concreted with an average width of 2.8 metres.

2. The paramount contention advanced by the appellant in the writ appeal is that the first respondent has no right or power to construct concrete ramp within the road causing obstacles to the ingress and egress of the appellant and others, and respondents 2 to 7 i.e., the Corporation of Kochi, the Secretary and other Officers of the Corporation of Kochi are legally bound to prevent such illegal acts in time. It is further contended that even though as per Ext.P8 order dated 10.05.2013, the Secretary of the Corporation has directed the predecessor-ininterest of the property of the first respondent to demolish the unauthorised construction, no action was initiated to implement the said order. It is also pointed out that this Court has, in the earlier round of litigation, directed for implementation of Ext.P8 order. However, no action was initiated, thus violating the directions issued by this Court. Even though the contempt petition filed by the appellant was disposed of, later the same was reviewed by Annexure A2 order recording the submission made by the learned Standing Counsel for the Kochi Corporation that the unauthorised constructions were removed by the first respondent though the same is disputed by the appellant, and leaving open the liberty of the appellant to take up all contentions in the writ petition in question. Anyhow, the learned Single Judge has also recorded that the ramp constructed by the first respondent was demolished on 08.04.2017 and further constructions encroaching into the road blocking the drainage was also recorded to be removed by the first respondent.

3. The contention advanced by the appellant who was appearing in person is that the submission made by the Corporation of Kochi in its statement that the unauthorised constructions were removed, is not at all true or correct. On the other hand, the learned Standing Counsel for the Corporation has taken us through the statement filed by the Corporation to the effect that unauthorised constructions were removed and further that the issue as to whether the construction of the compound wall was done by the first respondent encroaching into the public road is a matter to be decided after getting the survey report from the Taluk Surveyor, and the Corporation has already requested the Tahsildar, Kanayannur Taluk to survey the properties.

4. We have heard the appellant who appeared in person, learned Standing Counsel appearing for the Corporation of Kochi and the other Officers and the learned Senior Government Pleader, and perused the pleadings and documents on record.

5. The sole question to be considered is whether any manner of interference is warranted to the judgment of the learned Single Judge. Apparently, the learned Single Judge has granted liberty to the appellant to approach the Tahsildar, Kanayannur Taluk, since in the statement filed by the Corporation of Kochi, it was stated that in respect of the allegation made by the appellant that the compound wall was constructed encroaching into the public road, was directed to be verified through the Tahsildar, Kanayannur Taluk. Anyhow, the stand adopted by the Corporation of Kochi is that the unauthorised construction of ramp was demolished by the first respondent and the encroachment into the public road was also removed. Even though the appellant is disputing the same, it is a factual circumstance which can only be identified and sorted out by a fact finding body.

6. It is a well settled proposition in law that, in civil matters with perplexed and disputed questions of facts by and between two private parties, a writ court shall not issue directions. Here is also a case where the Corporation has submitted that the encroachment was removed. However, the appellant is disputing the same, and contends that the compound wall is constructed by the 1st respondent encroaching into the public property, which is absolutely a factual circumstance, possible only to be deciphered by a fact finding body. It was accordingly that the learned Single Judge has granted liberty to the appellant to approach the Tahasildar, especially when it was so contended by the Kochi Corporation. In this regard, a reference to a few of the judgments of the Apex Court would be worthwhile. In Swati Ferro Alloys Pvt. Ltd. v. Orissa Industrial Infrastructure Development Corporation (IDCO) [(2015) 4 SCC 204], it was held by the Apex Court that from bare pleadings of case and record, there was only disputed questions of fact about ownership of land and therefore, the High Court was justified in dismissing the same and directing parties to approach the civil court for resolving such dispute.

7. In Roshina T. v. Abdul Azeez K.T and ors. [(2019) 2 SCC 329], the Apex Court was considering a dispute in the matter of occupancy of a multi-storied apartment, wherein it was held that the question of fact could be answered one way or other only by a civil court in a properly constituted civil suit and on the basis of the evidence adduced by parties, but not in a writ petition filed under Article 226 of the Constitution of India by the High Court. That apart, it was held that it has been consistently held that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons and further that the remedy under Article 226 of the Constitution of India shall not be available, except where violation of some statutory duty on the part of statutory authority is alleged. It is also well settled that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available and a writ court is not intended to replace the ordinary remedies by way of a civil suit or application available to an aggrieved person, since the jurisdiction conferred under Article 226 of the Constitution of India being special and extraordinary, which, thus, means the jurisdiction conferred under Article 226 of the Constitution should not be exercised casually or lightly on mere asking by the litigant, as is held by the Apex Court in Mohan Pande v. Usha Rani [(1992 (4) SCC 61] and Dwaraka Prasad Agarwal v. B.D. Agarwal [(2003) 6 SCC 230].

8

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. Said so, we are of the view that a writ of mandamus can only be issued by a writ court only if the materials produced are cogent and trustworthy inspiring confidence, and the facts pleaded by the writ petitioner remains undisputed not only on the basis of the statements and the counter statements but also by supporting materials, thus enabling the writ court to exactly adjudicate the issue and issue consequential directions. 9. On appreciation of the facts, circumstances and law, we are of the considered opinion that there is no error or irregularity in the matter of exercise of the discretion by the learned Single Judge so as to interfere in an intra-court appeal filed under Section 5 of the Kerala High Court Act. Needless to say, the writ appeal fails, and it is accordingly dismissed.
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