PONNAMMA W/O LATE PURUSHOTHAMAN Vs. STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, GOVT SECRETARIAT, THIRUVANANTHAPURAM

JUDGEMENT

(1.) The issue involved in the writ petitions being intrinsically connected, they were heard together. W.P.(C) No.22904 of 2016 is filed challenging Ext.P5 order issued by the second respondent, by which permission is granted to the Udayanapuram Grama Panchayat for drawing pipeline through the pathway starting from the Koottummal Kadavu - Health Centre Road and passing through the properties of the petitioners and the seventh respondent. The averments in the writ petition are as follows:

(2.) The third respondent filed a counter affidavit contending that the writ petition is not maintainable and that the pathway in question, portion of which alone passes through the property of the petitioners, has been in existence for more than 50 years as a public pathway. It is contended that there is no drinking water facility to the families residing on either side of the pathway and that the Udayanapuram Grama Panchayat had taken a decision to provide drinking water to the residents on either side of the pathway, by drawing pipeline through the existing pathway and that there was no attempt from either the 7th respondent or any other person to cut open a new pathway through the property of the petitioners. It is contended that the petitioners have no right to prevent the Panchayat from providing basic amenity to the residents by supplying drinking water through a pipeline to be drawn through an existing public pathway.

(3.) A detailed counter affidavit has been filed by the 7th respondent refuting the allegations in the writ petition and contending that he had purchased 5 cents of land from Kusumakumary, who is none other than the sister of Purushothaman, as per Ext.R2 Sale Deed No.1272/2013 of Vaikom SRO. The 7th respondent, acceding to the request of the residents on either side of the pathway starting from Koottummal Kadavu - Heath Centre Road, had surrendered the 5 cents belonging to him to the Udayanapuram Grama Panchayat for the purpose of drawing of pipeline and construction of road. After filing the counter affidavit, the 7th respondent produced Ext.R3, evidencing allotment of funds by the Kerala Water Authority for drawing of 143 metres pipeline through the pathway. Ext.R4 is the judgment in O.S.No.222 of 2013 filed by the petitioners along with Darvin. By Ext.R4 judgment, the Munsiff's Court, Vaikom dismissed the suit filed by the petitioners finding that the plaintiffs have no consistency with respect to the apprehension and cause of action alleged in the plaint and that the evidence adduced does not tally with the plaint averments with respect to the cause of action. It is hence contended by the 7th respondent that the factual disputes attempted to be canvassed in the writ petition having been considered and rejected by the competent civil court, the writ petition is liable to be dismissed.