IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 WP(C).No. 21713 of 2011(L) -------------------------------- PETITIONER(S): ------------------ 1. VALSA PAULOSE, W/O.LATE C.K.PAULOSE, AGED 62 YEARS, CHAKIATH HOUSE, CHERANALLOOR, KOCHI-682 034. 2. PAULSON PAULOSE, S/O.LATE C.K.PAULOSE, AGED 35 YEARS, CHAKIATH HOUSE, CHERANALLOOR, KOCHI-682 034. 3. PETSON PAULOSE, S/O.LATE C.K.PAULOSE, AGED 32 YEARS, CHAKIATH HOUSE, CHERANALLOOR, KOCHI-682 034. BY ADV. SRI.SHAJI P.CHALY SRI.R.SANJITH SMT.LIJITTA G.MATHEW RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY HOME, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. THE COMMISSIONER OF POLICE, ERNAKULAM CITY, ERNAKULAM DISTRICT, PIN-682 011. 3. ASSISTANT COMMISSIONER OF POLICE, LAW AND ORDER, KOCHI CITY POLICE, ERNAKULAM, PIN-682 011. 4. THE CIRCLE INSPECTOR OF POLICE, TOWN NORTH POLICE STATION, ERNAKULAM, PIN-682 018. WP(C).No. 21713 of 2011(L) -2- 5. THE SUB INSPECTOR OF POLICE, CHERANELLOOR POLICE STATION, KOCHI-682 034. 6. RAJU, AGED 47 YEARS, S/O.KUMARAN, CHAKKERITHARA HOUSE, CHERANALLOOR P.O., KOCHI-682 034. 7. VIJAYAKUMAR, AGED ABOUT 35 YEARS, S/O.KUMARAN, CHAKKERITHARA HOUSE, CHERANALLOOR P.O., KOCHI-682 034. 8. KUMARAN @ KUNJAN BAVA, FATHER'S NAME NOT KNOWN TO THE PETITIONERS, AGED ABOUT 78 YEARS, CHAKARITHARA HOUSE, CHERANELLOOR P.O., KOCHI-682 034. ADV. SRI.P.B.SAHASRANAMAN FOR R6,7,8 SRI.T.S.HARIKUMAR FOR R6,7,8 SRI.K.JAGADEESH FOR R6,7,8 SR. GOVT. PLEADER SRI.HANIL KUMAR R1 TO R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21713 of 2011(L) -3- APPENDIX PETITIONERS' EXTS EXT.P1:- TRUE COPY OF THE BUILDING PERMIT BEARING NO.C4-3724/09 DATED 16/12/09 ISSUED BY THE SECRETARY, CHERANALLOOR GRAMA PANCHAYATH. EXT.P2:- TRUE COPY OF THE JUDGMENT IN WPC 12418/11. EXT.P3:- TRUE COPY OF THE PROCEEDINGS NO.K.D IS 6620/10/81 EXT.P4:- TRUE COPY OF THE PROCEEDINGS NO.K DIS. 25155/10/81. EXT.P5:- TRUE COPY OF THE ORDER PASSED BY THE SECRETARY, CHERANALLOOR GRAMA PANCHAYATH. EXT.P6:- TRUE COPY OF THE ORDER PASSED IN I.A. NO.707/11 BY THE ELARNED TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS - KERALA, THIRUVANANTHAPURAM. EXT.P7:- TRUE COPY OF THE PLAINT IN O.S. NO.422/10 ON THE FILES OF THE LEARNED MUNSIFF'S COURT, ERNAKULAM. EXT.P8:- TRUE COPY OF TH COMPLAINT DATED 21/07/11. EXT.P9:- TRUE COPY OF THE COMPLAINT DATED 25/07/2011. EXT.P10:- TRUE COPY OF THE RECEIPT DATED 25/07/11. EXT.P11:- TRUE COPY OF THE FIR NO.1229 OF CHERANALLOOR POLICE STATION. EXT.P12:- TRUE COPY OF THE PETITION DATED 02/08/11. EXT.P13:- TRUE COPY OF THE RECEIPT DATED 03/08/11. EXT.P14:- TRUE COPY OF THE NOTICE BEARING NO.S1-8401/2011 ISSUED BY THE TALUK SURVEYOR RESPONDENTS EXTS EXT.R6(a):- SOME PHOTOGRAPHS SHOWING THE NATURE AND LIE OF PUBLIC THODUS PASSING THROUGH THE PETITIONERS' PROPERTY. EXT.R6(b):-TRUE PHOTOSTAT COPY OF THE WRITTEN STATEMENT IN O.S. NO.412/10 OF THE MUNSIFF COURT, ERNAKULAM, DATED 02/08/10. EXT.R6(c):-TRUE PHOTOSTAT COPY OF THE COMMISSION REPORT IN O.S. NO.412/10 OF THE MUNSIFF'S COURT, ERNAKULAM, DATED 20/05/10. EXT.R6(d):-TRUE PHOTOSTAT COPY OF THE ORDER OF THE RDO, FORT KOCHI, DATED 24/05/11. WP(C).No. 21713 of 2011(L) -4- EXT.R6(e):-TRUE PHOTOSTAT COPY OF THE ORDER OF THE RDO, FORT KOCHI, DATED 25/05/11. EXT.R6(f):-TRUE PHOTOSTAT COPY OF THE JUDGMENT IN WPC 20679/11 DATED 02/08/11. EXT.R6(g):-TRUE PHOTOSTAT COPY OF THE REPORT AND SKETCH OF THE ASSISTANT ENGINEER, DATED 26/05/11. EXT.R6(h):-TRUE PHOTOSTAT COPY OF THE REQUEST OF THE CHERANELLOOR GRAMA PANCHAYAT TO THE DISTRICT COLLECTOR ERNAKULAM DATED 03/03/11. EXT.R6(i):-TRUE PHOTOSTAT COPY OF THE REMAINDER SEND TO THE DISTRICT COLLECTOR, DATED 06/01/11. //true copy// PA. TO JUDGE PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ W. P. C. No.21713 of 2011 ------------------------------------------------ Dated this the 6th day of September, 2011 JUDGMENT Abdul Rehim, J The 1st petitioner is the mother of the petitioners 2 and 3. The petitioners are co-owners of a property having an extent of 3.49 Acres situated in Cheranalloor village. In this Writ Petition, the petitioners are seeking police protection against the action of respondents 6 and 7 and their men and agents in interfering with the construction of compound wall in the said property. It is stated that the compound wall is being constructed on the strength of a Building Permit obtained from the Cheranalloor Grama Panchayath. The petitioners inter alia seek for a direction to afford protection to the survey and demarcation of boundary by the Taluk Surveyor, to be conducted on the basis of an application submitted by the petitioners under the provisions of the Kerala Survey and Boundary Rules. W. P. C. No.21713 of 2011 -2- 2. It is conceded that on an earlier occasion the petitioners have approached this Court seeking police protection in W.P.(C) No.12418/11. In that case, direction was sought against 2 other persons who were allegedly causing obstructions to the construction of the compound wall. This Court granted an interim order directing protection for the construction. Subsequently the 6th respondent herein got impleaded in that Writ Petition and contended that, under the guise of order of police protection, the petitioners are trying to obstruct a public water channel (Puramboke Thodu) situated in the property. However, the said Writ Petition was dismissed as withdrawn, as evident from Ext.P2 judgment on vacating the interim order. 3. It is alleged in this Writ Petition that after dismissal of the earlier writ petition, the 6th respondent herein had submitted many frivolous petitions before the Revenue Divisional Officer alleging that the petitioners had obstructed the public channel/ Puramboke Thodu. It is also stated that the 6th respondent has filed a contempt of court W. P. C. No.21713 of 2011 -3- case alleging that the petitioners have filled up the Puramboke Thodu in violation of the undertakings given in an earlier Writ Petition. It is contended by the petitioners that the Cheranallur Grama Panchayat had suspended the Building Permit granted for construction of the compound wall, as per Ext.P5 proceedings, which the petitioners had challenged in appeal before the Tribunal for Local Self Government Institutions and obtained an interim order of stay against its operation. It is also revealed that the petitioners had filed a suit before the Munsiff's Court Ernakulam as O.S.422/10 against the 6th respondent seeking permanent prohibitory injunction from trespassing into petitioners' property and from causing any disturbance thereon. 4. According to the petitioners while things stands like this on 24/07/11, during night time, there was an attempt made to demolish the compound wall in question, which could not be materialised because the second and 3rd petitioners had reached the property in time. It was identified that respondents 6 and 7 have made such W. P. C. No.21713 of 2011 -4- attempts by trespassing into the petitioners' property, along with three other identifiable persons armed with deadly weapons. It has realised that a portion of the compound wall on the southern corner was demolished causing damage to the petitioners to the tune of about ` 9,000/-. Eventhough the petitioner submitted complaints against the above said actions as per Exts.P8 to P10, no steps were taken by the polcie authorities. Hence, this Writ Petition is filed. 5. A detailed counter affidavit has been filed by respondents 6 to 8. We heard Sri.P.B.Sahasranaman, learned counsel appearing for the said respondents. It is contended that the petitioners are approaching this Court suppressing material facts and that the attempt is only to see that the public water channel running through the property is reclaimed in an illegal manner. It is stated that various proceedings are pending before competent authorities with respect to the objections raised against such illegal attempts. It is pointed out that the Revenue Divisional Officer has issued prohibitory orders restraining W. P. C. No.21713 of 2011 -5- the petitioners from reclaiming the water channel. It is also contended that the petitioners are not entitled to construct any compound wall obstructing the public water channel, with respect to which the Grama Panchayat had already taken action. All the contentions of the respondents were refuted by the petitioners, through a reply affidavit filed, contending that there is no public water channel as alleged and that neither the Grama Panchayath nor the contesting respondents have got any right over the water channel situated within the private property of the petitioners. 6. When the Writ Petition came up for consideration this Court impleaded the Taluk Surveyor suo motu, as additional 9th respondent. The Taluk Surveyor was directed to conduct the measurement for fixation of the boundary and if there is any obstruction it was directed to seek assistance of the police authorities. It is conceded by both sides that pursuant to the directions issued by this Court, the survey and demarcation has been completed. We notice that with respect to the construction of the compound wall as well as the alleged attempt of creating obstruction to the public W. P. C. No.21713 of 2011 -6- water channel, there exists disputes between the contesting parties. The issue is now pending adjudication in civil suit as well as in proceedings initiated before the Revenue Divisional Officer. It is also revealed that the Panchayath had taken steps in the matter. Under such circumstances, we feel that issuance of any directions to afford police protection for construction of the compound wall will cause prejudice to the contentions of the parties in those proceedings. However, we notice that the survey and measurement of the property by the Taluk Surveyor has already been completed. The parties are at liberty to pursue the matter before the competent civil court as well as before the statutory authorities. 7. It is conceded by respondents 6 to 8 that they are not causing any threat to the lives of the petitioners or to their family members. It is brought to our notice that the police had already registered a criminal case on the basis of complaint submitted by the petitioners against two of the respondents with respect to the alleged demolition of the compound wall. It is left open to the police authorities to W. P. C. No.21713 of 2011 -7- investigate the case and to take appropriate action in accordance with law. However, the respondents 4 and 5 should keep a vigil over the situation to see that the dispute between the parties is not leading to any law and order situation or breach of peace. Needless to say that if any intimation is received regarding threat to the lives of the petitioners, the respondents 4 and 5 should take effective stops to avert such threats and to protect their life. The Writ Petition is disposed of with the above directions and observations. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-