IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5152 of 2007(L)
1. HAYARUNNISA BEEGU, W/O.A.A.SAMA,
... Petitioner
2. A.A. SAMAD, NEELAGIRI,
Vs
1. KOLLAM CORPORATION, KOLLAM,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
3. THE TAHSILDAR, KOLLAM.
4. DISTRICT SURVEY SUPERINTENDENT,
For Petitioner :SRI.T.I.ABDUL SALAM
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :28/05/2009
O R D E R
S. Siri Jagan, J.
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W. P (C) No. 5152 of 2007
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Dated this, the 28th May, 2009.
J U D G M E N T
The 1st petitioner claims to be the absolute owner of 11.150
cents of land in Chinnakada in Kollam town within the jurisdiction of
the 1st respondent-Corporation, which, according to her, she obtained
as per Ext. P1 document. By Ext. P4 notice dated 12-8-1996, she was
informed that she has made an illegal construction, encroaching into
the properties belonging to the Corporation and the same shall be
resumed within 7 days before which the petitioner was to remove the
construction thereon. The 1st petitioner challenged that notice in
O.S.No. 663/1996 before the Munsiff’s Court, Kollam, which suit was
dismissed by Ext. P6 judgment holding that the court has no
jurisdiction to entertain the suit. Thereafter, the petitioner moved the
Tribunal for local Self Government Institutions by filing Appeal No.
272/2006, in which the Tribunal passed Ext. P7 order setting aside
Ext. P4 order and directing the Secretary of the Corporation to pass
fresh orders under Section 406(3) of the Kerala Municipality Act, after
giving the 1st petitioner an opportunity of being heard. Pursuant
thereto, the Secretary of the Corporation passed Ext. P11 order
holding that the construction made by the petitioners is encroaching
into the property belonging to the Corporation and therefore the
construction shall be removed within 7 days, failing which the same
would be done by the Corporation and the expenses would be
recovered from the petitioners. The petitioners are challenging Ext.
P11 order.
2. As I have stated, the contention of the petitioners is that the
property belongs to the 1st petitioner absolutely, on which only she
has made the construction. From Ext. P11, I find that in view of the
said contention, she had been directed to produce the survey sketch
of the property from the Taluk Surveyor and she did not produce the
W.P.C. No. 5152/2007 -: 2 :-
same. As such, this is essentially a dispute on title. This Court in
proceedings under Article 226 of the Constitution of India, cannot
resolve the dispute resolution of which would necessarily involve
taking of evidence. Therefore, evidently, if the petitioner is banking
on her title to the property, her remedy lies in filing a suit for
declaration of title and injunction. Therefore, without prejudice to
that right, this writ petition is dismissed.
Sd/- S. Siri Jagan, Judge.
Tds/