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Article 226 in The Constitution Of India 1949

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Kerala High Court
Kannanthodika Moosakoya vs State Of Kerala on 20 February, 2008




WP(C) No. 26103 of 2007(G)

                      ...  Petitioner


                       ...       Respondent





                For Petitioner  :SRI.R.RAJESH KORMATH

                For Respondent  :SRI.T.K.SAIDALIKUTTY

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :20/02/2008

 O R D E R
                              ANTONY DOMINIC, J.


           W.P.(C) 26103, 26155,  26136 & 26174  of  2007


                          Dated: February 20, 2008


The prayers in these writ petitions are for declaring that the boundaries indicated in the plans produced in Ext.P12 in W.P.(C) 26103, 26155 and 26136 of 2007 and Ext.P11 in WP(C) 26174 of 2007 and the boundaries of the properties involved in those cases.

According to the petitioners these plans were prepared on the basis of a joint survey and therefore the boundaries indicated therein should be accepted as boundaries demarcating the property with the adjacent reserve forest.

2. It is seen that in all these cases, civil suits have been filed by the respective petitioners before the Munsiff's Court, Manjeri for a declaration of their northern boundary. The forest department contested the suits by filing written statements. According to them the boundary claimed by the petitioners was not correct. They had also contended that the property to which the petitioners lay claim is part of forest notified as reserve forest and according to them the suits were not maintainable.

WP(C) 26103, 26155, 26136 & 26174 of 2007 Page numbers

3. Accepting the contention of the forest department and holding that the suits are not maintainable, the suits were dismissed by the Munsiff's Court. Against the judgment of the Munsiff's Court, appeals have been filed and these appeals are now pending before the District Court, Manjeri.

4. In the meanwhile petitioners would contend that a joint survey was conducted and on conclusion thereof, the plan was prepared. It is also contended that certified copy of the plan was issued to these petitioners in settlement of the boundary dispute. It is on that basis that during the pendency of the appeals before the District Court, these writ petitions were filed praying for a declaration that what is indicated in the plan is the boundary demarcating the petitioners' property with the reserve forest.

5. In the statement which has been filed by the respondents, the authenticity of this plan has been seriously disputed, and according to them this plan was not finalised and it does not indicate the boundary at all and that they are not bound by the boundary indicated in the plan. It is also stated by the respondents that they have already invited tenders for working down the timber WP(C) 26103, 26155, 26136 & 26174 of 2007 Page numbers available in the land which is the subject matter of the litigation and the idea of the petitioners is to appropriate the timber belonging to the State.

6. The relief sought for is essentially one for declaration of boundary and in the nature of the factual disputes that are raised by the respondents in these writ petitions, it is not possible for this court to grant such a relief in a proceedings under Art.226 of the Constitution of India. The petitioners have approached the civil court and the matter is now pending consideration of the appellate court and it is for the civil court to adjudicate the issue and to render a finding on the disputed questions of fact. However, petitioners contend that pending disposal of the appeals, if the work in pursuance to the tender that is already awarded is continued, the subject matter of the suit itself will be lost and therefore some interlocutory order should be passed to preserve the timber that is available until the civil court decides the issue.

7. Having heard the counsel, I think it is a matter for the civil court to pass interlocutory orders. In order to enable the petitioners to approach the District Court, Manjeri and seek orders WP(C) 26103, 26155, 26136 & 26174 of 2007 Page numbers in this behalf, I direct that further proceedings in pursuance to the tender that is already awarded shall be deferred for a period of two weeks from today and it is for the petitioners to obtain effective orders from the civil court in the meanwhile.

8. It is pointed out by the 5th respondent, the contractor who has been awarded the tender by the Government for working down the timber, that out of the total extent of 17.12 hectares, the disputed area is only 8 acres and therefore excluding the disputed area, he should be permitted to proceed with the work. This request is not objected and therefore the interim order will be confined to 8 acres which is the subject matter of these writ petitions.

9. Needless to say that if an application for interim order is filed by the petitioners, the District Court shall consider the same and pass orders thereon untrammelled by any of the observations made in this judgment.

Writ petitions are disposed of as above.