Point of Law: It is trite that the reasons behind the decision should be spelt out in the order/decision itself and the same cannot be supplemented in a counter affidavit filed, pursuant to a challenge.

JUDGMENT :

C. JAYACHANDRAN, J.

1. A challenge to a non-speaking order (Ext.P7) is dismissed by the judgment impugned of the learned Single Judge in W.P. (C) No. 27134/2018 dated 9.4.2021. The aggrieved petitioner is the appellant.

2. Ext.P7 order issued by the first respondent Corporation directed the appellant/petitioner to remove the unauthorized constructions, allegedly made trespassing into the public stream vested with it, within seven days from the date of receipt thereof. It is the petitioner’s case that Ext.P7 order is violative of Ext.P1 judgment of the Munsiff’s Court, Kochi in O.S. No. 478/2009, which attained finality by virtue of Ext.P2 decree of the Sub Court, Kochi in A.S. No. 4/2013. The petitioner apprehended demolition of his septic tank, which is allegedly constructed in the purambokku land, wherefore, the writ petition was filed.

3. O.S. No. 478/2009 is a suit instituted by the petitioner/appellant against four persons, who hold properties adjoining to the plaint schedule property having an extent of two cents. The first respondent Corporation and its Executive Engineer were impleaded as additional 5th and 6th defendants respectively, in the said suit. The plaintiff (petitioner herein) sought for a permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property, as also, from cutting, opening or extending any pathway through any portion of the same.

4. The said suit was decreed as per Ext.P1 judgment dated 31.10.12 in the lines indicated above. The party defendants carried an appeal from Ext.P1 judgment, which was dismissed, as evidenced from Ext.P2 decree dated 18.6.2014 of the Sub Court, Kochi.

5. In the year 2018, the first respondent Corporation issued Ext.P3 notice directing the appellant/petitioner to demolish the alleged unauthorized construction made after trespassing into the public stream. The appellant/petitioner gave Ext.P4 reply denying encroachment and specifically propounding Ext.P1 judgment in his favour. However, by virtue of Ext.P5 provisional order, the first respondent Corporation reiterated the allegation of encroachment and directed the petitioner to remove the unauthorised construction within 15 days. This was followed by Ext.P7 final order directing removal of unauthorized construction within seven days, which was the subject matter of challenge in the writ petition.

6. The first respondent Corporation filed counter affidavit contending that Ext.P1 judgment is applicable to land comprised in Survey No. 359/3 of Rameswaram Village only. As per Ext.R1(a) report, along with the sketch appended to it, it could be seen that the appellant/petitioner had trespassed into the purambokku road to the extent of 0.29 ares and made illegal constructions therein. The encroached portion is shown in Ext.R1(a) sketch. A portion of the encroachment made has already been evicted and when the Corporation was about to demolish the remaining portion of the illegal construction, the petitioner obstructed on the strength of Ext.P1 judgment. Accordingly, demolition was stopped, contended the first respondent.

7. The third respondent filed a counter affidavit contending that Ext.P1 judgment has been passed in a suit for injunction simplicitor, where the question of possession alone was considered. The same will not clothe the petitioner with any title over the disputed land. It was also contended that the first respondent Corporation wanted to construct a road through the purambokku land, for which demolition of the illegal construction made by the petitioner is essential. Thus, the fourth respondent contended that larger interests of the people of the locality is to be served by demolishing the illegal construction made by the petitioner.

8. By the impugned judgment, the learned Single Judge dismissed the writ petition finding that the factual circumstances involved in the case, can be considered only by a fact finding body and that statutory requirements in terms of Sect