POOTHAPARA SHADULI MASJID DARUL ULOOM MADRASSA COMMITTEE Vs. ASSISTANT ENGINEER ROADS SECTION, KERALA PUBLIC WORKS (ROADS SECTION) AND OTHERS

JUDGEMENT

(1.) Petitioner is the owner in possession and enjoyment of 47.25 cents of land comprised in R.S. No.509/11 & 12 of Azhikode amsom and desom, Kannur taluk and the said property was registered with the Wakf Board vide No.267/RA, according to the petitioner. On the eastern side of the said property, a PWD road is situated. The aforesaid property and PWD road under the control of the 1st respondent are well separated by distinguishable physical boundaries as well as survey boundary lines. Abutting that boundary line of separation, a well aged about one century belonging to the petitioner, is situated and the said well is being used as a wakf property from time memorial. While so, the 1st respondent issued Ext.P8 notice alleging that the said well and land appurtenant to it in the boundary line falls in the public road and the petitioner has encroached the public road and put up a fencing so as to encompass a major portion of the well. Pursuant to Ext.P8 notice, the 4th respondent has issued Ext.P9 notice to the 1st respondent directing him to take coercive steps to evict the petitioner from the possession of aforesaid disputed property. The grievance of the petitioner is that no opportunity has been granted to the petitioner to establish its title to and possession over the said property, before proceeding under Exts.P8 and P9 against the petitioner. If the respondents proceed with Exts.P8 and P9, the petitioner would be put to irreparable injury and great hardship.

(2.) The 4th respondent filed a statement contending that the petitioner is an encroacher of public property and the well situated therein. In the intelligence report filed by the competent authority, it is stated that the encroachment of the said public well by the petitioner has created protest among the local people and political parties. The report also cautioned to take appropriate action to prevent the issue, being a serious problem. The true copy of the report filed by the Deputy Superintendent of Police, Special Branch, is produced as Annexure-R4(a). According to them, the 4th respondent has not done any act against law and procedure. No hearing or enquiry at the district authority level was made in the absence of any objection from the part of the petitioner regarding the subject matter. But the petitioner was well alerted about the matter during the survey process itself and even at that point of time, no objection was raised before the 4th respondent.

(3.) Heard the learned counsel for the petitioner and the learned counsel for the respondents.