JUDGMENT : Muralee Krishna, J. The appellant, who is the petitioner in W.P. (C)No.22531 of 2013 and W.P.(C)No.26573 of 2013, filed these writ appeals against the common judgment dated 31.10.2018, passed by the learned Single Judge in those writ petitions. Since the issue involved in both these writ appeals are interconnected and the appellant is mainly aggrieved by the dismissal of W.P.(C)No.26573 of 2013, the parties, the facts and the documents are referred to this judgment as in W.A.No.1736 of 2019 and the corresponding W.P.(C)No.26573 of 2013, unless otherwise stated. 2. The appellant is a Trust by name 'Good Shepherd Educational and Charitable Trust ('the Trust' in short) represented by its Managing Trustee. Going by the averments in the writ petitions, the Trust is running a School by the name 'The Good Shepherd Modern English School' affiliated to the Council for the Indian School Certificate Examination, New Delhi. The appellant owns 4.2280 Hectares of land in Survey Nos.351/1, 351/3, 354/7 and 354/11 of Chungathara Village. The property of the appellant is not situated by the side of Palunda-Palundakunnu Road. The only road facility available to the property of the appellant is a private road passing through the appellant's own property. 2.1. The appellant alleges that the 1st respondent Secretary of Chungathara Grama Panchayat, started asserting right over the private road leading to the School, alleging that the same is a public road. The appellant has not been given any notice regarding the steps taken by the Panchayat for the acquisition of the road or for declaration of the said road as a public road, by following the procedure contemplated under Section 169 read with Section 178 of the Panchayat Raj Act. The appellant therefore submitted Ext.P4 objections dated 28.10.2013 to the 1st respondent. Aggrieved by the aforesaid objections, the 1st respondent rejected the application for a building permit submitted by the appellant, stating that the proposed additional constructions in the School are by the side of the public road. According to the appellant, the School Building was constructed as early as in the year 2007, as per a Plan prepared by Prof.K.K.George, an Architect. The construction of the basement of the building was completed in the year 2007. According to the appellant, the School Building was constructed as early as in the year 2007, as per a Plan prepared by Prof.K.K.George, an Architect. The construction of the basement of the building was completed in the year 2007. Prior to the construction of the ground floor, the appellant submitted an application to the Secretary of the Panchayat on 03.09.2012, praying for the regularisation of the construction of the basement and for issuing permit for construction of the first floor. The said application was rejected by the Secretary of the Panchayat by Ext.P2 order produced in W.P.(C)No.22531 of 2013 dated 14.09.2012, stating that the building is constructed without maintaining a minimum distance of three metres from the Palunda-Palundakunnu Road and the construction is illegal and not liable to be regularised. Challenging that order, the appellant filed Appeal No.859 of 2012 before the Tribunal for Local Self-Government Institutions. In that appeal, the Grama Panchayat and its Secretary contended that the construction was carried out by the appellant by the side of Palunda-Palundakunnu road unauthorisedly and violating the provisions of Kerala Panchayat Building Rules. Accordingly, they had issued a stop memo. The Tribunal for Local Self Government Institutions, by Ext.P3 order dated 25.07.2013, held that the construction so far effected by the appellant is illegal and liable to be demolished and the rejection of the permit as per Ext.P2 order is absolutely in order. Therefore, challenging Ext.P3 order produced in W.P.(C)No.22531 of 2013, the appellant filed that writ petition under Article 226 of the Constitution of India seeking the following reliefs; “i) Call for the records of this case and quash Ext.P2 and Ext.P3 orders by issuing a writ of certiorari; ii) issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to issue building permit to the petitioner for effecting construction of the first floor of the building as prayed for in Ext.P1 plan submitted by the petitioner.” 2.2. The appellant further states that on 28.10.2013, the Panchayat authorities blocked the road, preventing the appellant from using the same, thereby causing innumerable hardships in running the school. The appellant further states that on 28.10.2013, the Panchayat authorities blocked the road, preventing the appellant from using the same, thereby causing innumerable hardships in running the school. The School buses and the vehicles of the Teachers and Staff are now not in a position to enter even the premises of the School, and the students and the Staff members are forced to walk more than 1 km to reach the School, after leaving their vehicles on the highway. The Panchayat is not competent to undertake any maintenance or repair works in the private road of the appellant, and the present obstructions caused by them are only intended to harass the appellant and to make it amenable to the demands of the Panchayat as well as the land grabbers in the area. The majority of the members of the Managing Committee of the Panchayat are involved in the land grabbing in the area, and their only intention is to perpetuate the said business at the cost of the Panchayat. If the road is acquired by the Panchayat and declared as a public road, the running of the School will be prejudiced, and the lives of the students also will be put to extreme danger. With these averments, the appellant filed W.P.(C)No.26573 of 2013 seeking the following reliefs; “i. Call for the records of this case and issue a writ of prohibition restraining the respondents from undertaking any repair or maintenance work in the petitioner's private road in Block 95, Re survey Nos. 351/1, 351/3, 352, 353, 354 and 355 of Chungathara Village; ii. Issue a writ of Mandamus directing the respondent to remove the obstructions caused by them in the petitioner's private road in Block 95, Re survey Nos. 351/1, 351/3, 352, 353, 354 and 355 of Chungathara Village” 3. In W.P.(C)No.22531 of 2013, the respondents, Grama Panchayat and its Secretary, filed a counter affidavit dated 28.07.2018 opposing the relief sought in that writ petition and producing therewith Exts.R1(a) to R1(f) documents. It is contended in that counter affidavit that the appellant had filed W.P.(C)No.19220 of 2005 before this Court, claiming right over the alleged road and raising identical contentions. The respondents filed Ext.R1(a) counter affidavit dated 10.11.2005 inthat writ petition. It is contended in that counter affidavit that the appellant had filed W.P.(C)No.19220 of 2005 before this Court, claiming right over the alleged road and raising identical contentions. The respondents filed Ext.R1(a) counter affidavit dated 10.11.2005 inthat writ petition. By Ext.R1(b) judgment dated 19.10.2006, this Court disposed of that writ petition, noticing that a civil suit is pending before the Sub Court, Manjeri, and directed the learned Subordinate Judge to dispose of that suit within four months from the date of receipt of the judgment. The appellant suppressed the above facts and filed the writ petitions on an experimental basis. The appellant filed W.P.(C)No.22531 of 2013 to override the judgment in the previous writ petition, and hence the present writ petition is barred by res judicata. 3.1. It is further stated by the respondents that the writ petition filed by the appellant is silent regarding the earlier civil disputes between the appellant and the Panchayat and the other neighbours. The suit filed by the appellant as O.S.No.94 of 2006 (Old No.57 of 2005) was dismissed by the Sub Court, Manjeri, on 22.06.2007, as per Ext.R1(c) judgment and decree. The appellant willfully and deliberately suppressed the above fact and is trying to get an order in his favour. The defendants in O.S.No.94 of 2006 are not made parties in the instant writ petition. Therefore, the writ petition is bad for non-joinder of necessary parties. The appellant is estopped from taking the contentions against Exts.R1(b) and R1(c) judgments. 3.2. The respondents contend that the alleged way is not a private road and it is a public way used by the entire public for more than 48 years. The way in question, named as Palunda- Palundakunnu-Kottopadam road, is included in the register of Panchayat and its length is 1 kilometre and width is 3 metres. The above fact was communicated to the Village Officer by the respondents on 30.05.2005 itself. The respondents have produced Ext.R1(d) and R1(e) relevant pages of the Asset Register of the Panchayat to substantiate their contention that the road is included in that Register. 3.3. The respondents further plead that the appellant constructed the School in the year 2008 without submitting an application for building permit. The Secretary of the Panchayat issued stop memos and show cause notices dated 22.09.2008, 12.07.2010, 10.08.2010 and 20.07.2012 to the appellant. The appellant applied for building permit for the first time on 01.08.2012. 3.3. The respondents further plead that the appellant constructed the School in the year 2008 without submitting an application for building permit. The Secretary of the Panchayat issued stop memos and show cause notices dated 22.09.2008, 12.07.2010, 10.08.2010 and 20.07.2012 to the appellant. The appellant applied for building permit for the first time on 01.08.2012. Since the construction was carried out without leaving a 3 metre statutory distance from the public road, the application was rejected as per Ext.P2 order. The appellant is accused in seven criminal cases at Edakkara Police Station. The Grama Sabha of the ward No.7 held on 05.12.2013 passed a resolution that the Managing Trustee of the appellant is a public nuisance. This resolution disclosed the various complaints against the appellant. The Village Officer of Chungathara Village inspected the road along with the Secretary of the Panchayat on 20.01.2014 and submitted a plan and report. From that report, it is evident that 35 families are using that way. 4. In W.P.(C)No.26573 of 2013, a counter affidavit dated 28.07.2018 has been filed by the Secretary of the Panchayat, producing therewith Exts.R1(a) to R1(q) documents. The very same contentions as those taken in W.P.(C)No.22531 of 2013 are reiterated in that counter-affidavit. Apart from that, it is further contended in that counter affidavit that various persons filed suit against the appellant before the Civil Court and got a declaration against him. The appellant challenged the judgments of the Trial Court before this Court by filing a Regular Second Appeal, and the same is pending as R.S.A.No.263 of 2018. The respondents received mass petitions from the public, including the appellant, for taking over the public road. The appellant and others decided to give the way to the public as per the decision of the Committee held on 05.02.2003. The appellant also signed in that decision as Serial No.3, which is produced as Ext.R1(f) along with the counter affidavit. The appellant entered Ext.R1(g) agreement with one M.T.John in respect of the said road in the year 1997. The appellant himself admitted that the road is a public road and he contributed Rs.300/- to the road protection committee on 04.07.2004. Ext.R1(h) is the true copy of the relevant pages of the Minutes Book dated 04.07.2004, and the appellant is Serial No.10 among the signatories in that document. 4.1. The appellant himself admitted that the road is a public road and he contributed Rs.300/- to the road protection committee on 04.07.2004. Ext.R1(h) is the true copy of the relevant pages of the Minutes Book dated 04.07.2004, and the appellant is Serial No.10 among the signatories in that document. 4.1. It is further stated in that counter affidavit that in O.S.No.94 of 2006 on the file of the Sub Court, Manjeri, Ext.R1(i) Commission Report dated 04.11.2009 was filed by the Advocate Commissioner appointed in that suit, after conducting a site inspection. In that report, the Commissioner found that the road had existed even prior to 1990. The Panchayat had conducted repair works of Palunda-Palundakunnu road as per its decision No.18 marked as Ext.R1(I) dated 05.08.2013. The Panchayat allotted Rs.10,000/- in 2013-14 and Rs.35,000/- in 2014-15 for maintenance of the road, which is evident from Ext.R1(m) and Ext.R1(n) allotment letter dated 07.11.2014 and final project report for the year 2014-15, respectively. 5. The learned Single Judge considered both the writ petitions together and, by the impugned judgment dated 31.10.2018, dismissed W.P.(C)No.26573 of 2013 holding that the disputed question of facts involved in that writ petition could not be decided in a writ petition under Article 226 of the Constitution of India and such disputes can be decided only in a Civil Suit. It was further held by the learned Single Judge that the issue raised by the appellant in that writ petition is barred by principles of res judicata, and moreover, the principles of Order II Rule 2 of CPC also would apply, since all the contentions now raised were available to the appellant when he instituted the earlier writ petition as well as the suit proceedings. The learned Single Judge further held that the decree passed in O.S.No.94 of 2006 by the Sub Court, Manjeri, was suppressed in the writ petition, which amounts to material suppression on the part of the appellant with the intention of securing enabling orders from the Court. 6. The learned Single Judge further held that the decree passed in O.S.No.94 of 2006 by the Sub Court, Manjeri, was suppressed in the writ petition, which amounts to material suppression on the part of the appellant with the intention of securing enabling orders from the Court. 6. By the impugned judgment, the learned Single Judge allowed W.P.(C)No.22531 of 2013 and directed the Secretary of the Panchayat to reconsider the building permit application submitted by the appellant, observing that the Panchayat has to reconsider the issue as to whether the construction of the building was completed by the appellant in the year 2007 and before the introduction of Kerala Panchayat Raj Building Rules, 2011 or whether the Kerala Municipality Building Rules, 1999, was applicable to the Panchayat during the said period. The panchayat Secretary was further directed to specify whether regularisation is required at all, if the construction was carried out before the introduction of 2011 Rules, and if so, to take appropriate action to issue occupancy and number the building in accordance with law, bearing in mind also that the appellant has surrendered the property for the road in question. Being aggrieved by the dismissal of W.P.(C)No.26573 of 2013, the appellant filed W.A.No.1736 of 2019, and aggrieved by the observation in the last sentence of the judgment that the appellant has surrendered the property for the road in question, he filed W.A.No.979 of 2019. 7. Heard the appellant, who argued the case in person and the learned Standing Counsel for Chungathara Grama Panchayat. The appellant has filed an argument note reiterating the contentions raised by him in the appeal memorandum. 8. From the materials on record, we notice that in W.P.(C)No.26573 of 2013, this Court has appointed an Advocate Commissioner to visit the disputed road and file a report based on the commission application filed by the appellant and also the work memo filed by the respondents. After visiting the property, the Advocate Commissioner filed a report dated 31.10.2014, annexing a sketch prepared by a private surveyor showing the disputed road and nearby properties, including that of the appellant. Paragraphs 4.(iv), 5, 7 and 8 of that report is extracted hereunder; "4.(iv). I have also found that there is yet another road leading to the school with concrete bricks and in the exclusive possession of the Managing Trustee George Philip. Paragraphs 4.(iv), 5, 7 and 8 of that report is extracted hereunder; "4.(iv). I have also found that there is yet another road leading to the school with concrete bricks and in the exclusive possession of the Managing Trustee George Philip. The above private road passes along the property of George Philip, the Managing Trustee, in Sy. No.350 and which is the easy way connecting the residence of the Managing Trustee George Philip and the Good Shepherded English Medium School. The local people present at the time of inspection had no objections to the exclusive possession and enjoyment of the road by Sri.George Philip, the Managing Trustee of the school. There is also another entry to the school from the Kayyunda - Kottepadam Panchayat road which passes behind the school and leading to the main road. I have also seen a mud road starting from the Panchayat road behind the school and passing through extreme east end of the school ground and the petitioner informed me that the same is provided for the benefit of one Mr.John under an agreement. 5. In answer to the second point to be answered by me, regarding the issue, whether any of the above roads are being used by public/nearby residents and if yes under what authority. (i) As far as the issue regarding roads being used by public/nearby residents and under what authority etc it is submitted that Palunda area, especially the area in which the school is situated is not a thickly populated one. Though the petitioner has claimed that the road connecting his school to Palunda junction is a private road exclusively being used by him, I am not fully agreeable with this. The above property is having a total length of 492 métres and out of the same I found that a portion of the extent of 163 metres is being acceded by one Mr.Janardhanan that too as an alternative way. Other than this, the road is under the exclusive possession of the petitioner. (ii) The local residents wanted me to inspect the vacant plot lying in between the school compound and the Bible Bhavan to report that the road leading to the petitioner's school is having an extent to the Mulanthala - Kottepandam Panchayat road which passes behind the school. Other than this, the road is under the exclusive possession of the petitioner. (ii) The local residents wanted me to inspect the vacant plot lying in between the school compound and the Bible Bhavan to report that the road leading to the petitioner's school is having an extent to the Mulanthala - Kottepandam Panchayat road which passes behind the school. In short, the local residents wanted to establish that the disputed private road is a public road connecting Palunda with Mulanthala-Kottepadam Panchayat road. I have not seen road or link road as stated by the local residents whereas the property in between the Bible Bhavan and the petitioner's school compound is an open space where a few plants and shrubs are also seen. The local residents stated that there was a road of about 10 width linking for Mulanthala-Kottepadam Panchayat road/KER/73704 with the disputed private road and it was the petitioner who demolished the compound wall of his property as a result of which the road as stated above became unidentifiable for getting easy access to Palunda, which claim also has not been established. 6. XxxxxX XXXX XXXXX 7. As part of the inspection, 1 was in the school compound for about 71/2 hours from i.e 10.30 am till 6 pm but I have not seen any vehicular traffic along with disputed portion of the road, i.e from Mulanthala-Kottepadam Panchayat road to the Palunda junction along the disputed private road of the petitioner. Moreover, since there is no visible signs of a road in existence in the vacant portion lying in between Bible Bhavan and the petitioner's compound. I am unable to report that the petitioner's disputed private road is having an extension of the Mulanthala- Kottepadam Panchayat road. In the absence of this particular extension, I have no option other than to report that the road from Palunda to the petitioner's school is intended exclusively for the use of the petitioner and the school and it does not at all a public road. 8. The Secretary of the panchayat was present at the time of inspection. He wanted me to include his versions also regarding the nature of the road in the report. 8. The Secretary of the panchayat was present at the time of inspection. He wanted me to include his versions also regarding the nature of the road in the report. The Secretary had made available copies of certain proceedings of the Panchayat to the effect that the Engineering Department of the panchayat had directed the issue for effecting maintenance to the Palunda- Palundakunnu-Kottapadam road and an amount of Rs.10,000/- had already béen spent for effecting such maintenance. He has also shown me a copy of the road register of the Panchayat in which Plaunda-Palundakunnu road having a total length of 1 km and width of 10 ft has been included as item number 2. It has also been recorded in the register that the said road was surrendered to the panchayat in the year 2003-2004, but the survey number/KER/73704 or other details to identify the road are not seen included and hence I am not in a position to arrive at a conclusion that the Palunda-Palundkunnu road referred to in the above register of the Panchayat in the year 2003-2004 is the disputed private road or any portion thereof, In another portion of the above register, there is a reference to Kottepadam-Kayyunda Palundakunnu road and Kottepadam-Mulanthala-Palunda road as item Nos.8 and 9. As per the entries in the register, the above roads are having a distance of 1 km and 800 metres respectively and they are having 6 metres width. In this register also, the survey numbers and other identifiable details are not seen and mentioned the width of the road as recorded in the register is different from the width of the existing private road. In view of all these facts, I am not able to accept the versions of the Secretary of the Panchayat regarding the identity of the disputed private road and its connections with the other Panchayat roads referred to above. Though the Panchayat is having an engineering wing to properly establish the nature and lie of the roads with specific reference to survey records, they have not done anything to that effect and hence I am not satisfied with the version of the Secrétary of the Panchayat." 9. From the pleadings in the writ petitions and from the counter-affidavits, it is clear that the appellant Trust is running a School established in its private property. There is a road leading to the School. From the pleadings in the writ petitions and from the counter-affidavits, it is clear that the appellant Trust is running a School established in its private property. There is a road leading to the School. According to the appellant, the road is entirely passing through its private property, and the public have no right over the same, whereas, according to the respondents, the road was included in the Asset Register of the Panchayat, being agreed by the appellant also in the meeting held on 05.02.2003. It is also gatherable from the materials on record that in respect of the disputed road, the appellant has instituted a suit as O.S.No.94 of 2006 before the Sub Court, Manjeri, against the respondents. Similarly, the appellant had previously approached this Court with W.P.(C)No.19220 of 2005, wherein this Court had passed Ext.R1(b) judgment dated 19.10.2006, noting the pendency of the Civil Suit and directed the Sub Court to dispose of the suit within four months from the date of receipt of the judgment. The respondents are relying on Ext.R1(f) decision dated 05.02.2003, wherein the appellant was Serial No.3 among the signatories. However, the appellant is taking a stand that the road mentioned in Ext.R1(f) is another road and not the disputed road. In O.S.No.94 of 2006, the Advocate Commissioner filed Ext.R1(i) report before the Sub Court, Manjeri. In the report filed by the Advocate Commissioner before this Court as well as in the report filed by the Advocate Commissioner before the Sub Court, Manjeri, the existence of the road is stated differently. As far as the rival claim over the road in dispute is concerned, lot of question of facts are involved in these writ petitions, as evident from the pleadings and materials on record. The disputed issue cannot be considered as a case of mere statutory violation by the Panchayath. As rightly found by the learned Single Judge, by relying on the judgment of the Apex Court in , such disputes involving question of facts cannot be decided in a writ petition filed under Article 226 of the Constitution of India. 10. The pendency of O.S.No.94 of 2006 before the Sub Court, Manjeri, is not pleaded in both the writ petitions. What happened to the suit is neither pleaded nor proved by producing any documentary evidence by the appellant. 10. The pendency of O.S.No.94 of 2006 before the Sub Court, Manjeri, is not pleaded in both the writ petitions. What happened to the suit is neither pleaded nor proved by producing any documentary evidence by the appellant. Similarly, the filing of a previous writ petition as W.P.(C)No.19220 of 2005 by the appellant is also not pleaded in the writ petition. While going through Ext.R1(b) judgment dated 19.10.2006 passed in that writ petition, we notice that the subject matter in that writ petition was the resolution passed by the Panchayath in respect of the disputed road in the present writ petitions. Noting the fact that the Civil Court is seizin of the issue this Court disposed of that writ petition. Therefore agitating the very same issue again in the present writ petition will be definitely barred by the principles of as found by the learned single Judge. 11. Though in the writ appeal, the appellant contended that he purchased another 20 cents of property, and the total extent of property in Sy.No.351/3, through which the road is passing, is now within the title of the appellant; that is a subsequent development, which has no bearing on the decision of the appeal. Non-mentioning of the existence of a suit between the parties in respect of the very same subject matter and also a previous writ petition is suppression of material facts as found by the learned Single Judge. In such circumstances, we find no reason to interfere with the impugned judgment of the learned Single Judge dismissing W.P.(C)No.26573 of 2013. At the same time, while allowing W.P.(C)No.22531 of 2013, the observation made by the learned Single Judge that while taking a decision, the Secretary of the Panchayat shall bear-in-mind that the appellant has surrendered the property for the road in question was unnecessary and outside the purview of the judgment, since the learned Single Judge did not enter into any definite finding regarding the surrendering of the property by the appellant. In such circumstances, W.A.No.979 of 2019 is to be allowed. In the result, W.A.No.1736 of 2019 is dismissed. W.A.No.979 of 2019 is allowed, by setting aside the direction in the judgment to the extent it directs the secretary of the Panchayath, while taking a decision, to bear in mind that the appellant has surrendered the property for the road in question. All pending interlocutory applications stand closed.