MATHEW v. STATE OF KERALA

BY ADVS SRI. P.K.VIJAYAMOHANAN SRI. RAJEEV JYOTHISH GEORGE, GP SRI.S.CHANDRASEKHARAN NAIR - SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 43638/23 3 JUDGMENT The petitioners say that they are the owners of the property covered by Ext.P1 - through which the ‘Puliyanmala-Kuttikanam’ road passes and that they had erected a barbed wire fencing on the perimeter, on the strength of Ext.P2 judgment, on the southern side of the road adjoining the property; but that the 6th respondent, who is a Contractor of the Public Works Department (PWD), under the control of respondents 3 to 5, destroyed the same while continuing with the construction of the PWD road.

The petitioners assert that the barbed fence was destroyed for over a distance of 300 metres due to the negligent act of the 6th respondent; and that the 7th respondent, in the meanwhile, has illegally put up a bunk shop in the PWD road adjoining the property in question. They say that therefore, they have preferred Exts.P5 and P6 before respondents 3 and 5, to remove the bunk and for rectification of the barbed wire fence, but that no action has been taken until now; thus constraining them to approach this Court through this Writ Petition. WPC 43638/23 4

Sri.P.K.Vijayamohanan – learned counsel appearing for the 6th respondent, however, submitted that a counter affidavit has been filed by his client, wherein, all allegations of the petitioners have been refuted. He submitted that the imputations made against his client by the petitioners are far-fetched and mischievous, particularly because he has no role in the placing of the alleged bunk. He added that the petitioners have approached this Court because his client had requested them to demolish a portion of their building projecting into the road margin, which was protected by barbed wire; and that though they had requested for permission to take an excavator through the foundation of the retainer wall, no such permission was granted, thus incapacitation them from constructing the barbed wire fencing. He submitted that, therefore, if this Court is inclined to direct the 3rd respondent – Assistant Executive Engineer to take up Ext.P6 as requested by the petitioners, then his client may also be allowed to be heard.

Sri. Rajeev Jyothish George – learned Government Pleader appearing for the official respondents, submitted that, if the petitioners only require Ext.P6 to be decided by the 3rd respondent, WPC 43638/23 5 he would not stand in the way of appropriate orders being issued; but prayed that this Court may not make any affirmative declarations on their entitlement to any relief and leave it to the competent Authority to take a final decision as per law.

In the afore circumstances and since the issues between the parties are in the factual realm, into which this Court cannot enter into at the first instance while acting under Article 226 of the Constitution of India, I am certain that Ext.P6 must be considered by the 3rd respondent appositely, after hearing both sides. Resultantly, I allow this Writ Petition and direct the 3rd respondent to take up Ext.P6 representation of the petitioners and to dispose of the same, after affording them, as also the respondents 6 and 7, an opportunity of being heard; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. RR Sd/- DEVAN RAMACHANDRAN JUDGE WPC 43638/23 6 APPENDIX OF WP(C) 43638/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 TRUE COPY OF THE GIFT DEED DATED 16.8.1977 EXECUTED BY SEBASTIAN IN FAVOUR OF THE 1ST PETITIONER TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 26519/2016 DATED 6.9.2016 TRUE COPY OF THE PHOTOS 3 IN NUMBERS, SHOWING THE OLD FENCE ERECTED BY THE PETITIONERS ON THE BASIS OF EXT.P2 THE PHOTOS SHOWING THE PRESENT POSITION OF THE DAMAGE CAUSED TO THE FENCING TRUE COPY OF THE LEGAL NOTICE ISSUED BY THE PETITIONERS DATED 5.10.2023 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD AND 5TH RESPONDENTS DATED 8.12.2023