IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 WP(C).No. 13550 of 2011(P) ------------------------ PETITIONER : --------------------- G. RAMDAS, KATHALIKKAD HOUSE, VAKKOM.P.O., VIA KADAKKAVOOR, TRIVANDRUM. BY ADVS. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) RESPONDENT(S): ------------------------- 1. THE VAKKOM GRAMA PANCHAYAT, VAKKOM.P.O., TRIVANDRUM. REPRESENTED BY ITS SECRETARY – 695 308. 2. THE SUB INSPECTOR OF POLICE, KADAKKAVOOR POLICE STATION, KADAKKAVOOR, TRIVANDRUM, PIN – 695 306. 3. THE CIRCLE INSPECTOR OF POLICE, KADAKKAVOOR, ATTINGAL TRIVANDRUM, PIN – 695 308. 4. KRISHNANKUTTY MOHANAN, VADAYIL VEETTIL, S.B.BHAVAN, NEAR KATHALIKKAD, VAKKOM.P.O., KADAKKAVOOR, TRIVANDRUM, PIN - 695308. 5. LEELA, W/O. MOHANAN, VADAYIL VEETTIL, S.B. BHAVAN, NEAR KATHALIKKAD, VAKKOM.P.O., KADAKKAVOOR, TRIVANDRUM, PIN-695 308. 6. THAMPI, VADAYIL VEETTIL, VAKKOM.P.O., KADAKKAVOOR, TRIVANDRUM, PIN-695 308. 7. VALSALA, W/O. THAMPI, VADAYIL VEETTIL, VAKKOM.P.O., KADAKKAVOOR, TRIVANDRUM, PIN-695 308. ...2/- WP(C).No. 13550 of 2011(P) -2- 8. UMAKANTHAN, VADAYIL VEETTIL, VAKKOM.P.O., KADAKKAVOOR, TRIVANDRUM, PIN-695 308. 9. SOBHA, MEMBER, WARD NO.12, VAKKOM GRAMA PANAHCYAT, VAKKOM, TRIVANDRUM, PIN-695 308. R1 BY ADVS. SRI.VAKKOM N. VIJAYAN SMT.V.RENJU SRI.P.ANIYAN R2 & R3 BY GOVT. PLEADER SRI. JAIBY PAUL R5 & R9 BY ADVS. SRI. P.K. MUHAMMED SRI. S. VIJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...3/- WP(C).No. 13550 of 2011(P) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF JUDGMENT AND DECREE DT. 11.10.2007 IN SA NO. 398/1994 OF THIS HON'BLE COURT. EXT.P2 : COPY OF CONSENT LETTER EXECUTED BY RESPONDENTS 4 AND 5 IN FAVOUR OF THE PETITIONER, DT. 18-3-2009. EXT.P3 : COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER ON 16-3-2009. EXT.P4 : COPY OF THE OBJECTION DT. 18-3-2009 FILED BY THE PETITONER BEFORE THE 1ST RESPONDENT. EXT.P5 : COPY OF JUDGMENT DT. 23-5-2009 IN WP(C) NO. 12436/2009 OF THIS HON'BLE COURT. EXT.P6 : COPY OF COMPLAINT DT. 26-4-2011 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P7 : COPY OF COMPLAINT DT. 26-4-2011 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P8 : COPY OF ACKNOWLEDGEMENT CARD SHOWING ACCEPTANCE OF EXT.P6 BY THE 2ND RESPONDENT. EXT.P9 : COPY OF ACKNOWLEDGEMENT CARD SHOWING ACCEPTANCE OF EXT.P7 BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R4(a) : COPY OF THE RELEVANT EXTRACT OF JANAKEEYA ASOOTHRANAM SCHEME. //TRUE COPY// P.S. TO JUDGE Mn R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) No.13550 of 2011-P ***************************** Dated this the 2nd day of June, 2011 JUDGMENT BASANT, J. Petitioner has come to this Court with this petition for issue of directions to respondents 2 and 3 to afford protection to the petitioner against any attempt on the part of respondents 4 to 9 to use/widen a pathway through his property. 2. According to the petitioner, he is the owner of a parcel of 90 cents of land. Respondents 4 and 5 allegedly made attempts to cut out a pathway through the property of the petitioner and the petitioner, in these circumstances, approached the civil court. That proceedings finally ended with Ext.P1 judgment of this Court in the Second Appeal. Title of the petitioner over the property was declared and respondents 4 and 5 herein were prohibited from trespassing into the property. Subsequent to Ext.P1, it is submitted that respondents 4 and 5 had executed Ext.P2 consent letter in which they had relinquished their rights to use the pathway through the property of the petitioner. However, in Ext.P2 it is also stated that the said way has been used by members of the public for W.P(C) No.13550 of 2011-P 2 the past 60-70 years and it is to avoid any inconvenience to the others that respondents 4 and 5 gave up their rights to use the said pathway. Subsequently the panchayat issued Ext.P3 notice against the petitioner. It was replied to under Ext.P4. The petitioner came to this Court and by Ext.P5 order, a learned Judge of this Court directed that the petitioner must be heard before Ext.P3 proceedings are finalised. It is the case of the petitioner now that respondents 4 to 9 are attempting to cut out a pathway through the property in violation of the civil court's decree in Ext.P1. 3. All respondents have been served. Only the 9th respondent has entered appearance. The 9th respondent is the local member of the Panchayat. The 9th respondent raises a contention that there exists a pathway through the property of the petitioner. Ext.P1 decree can bind only respondents 4 and 5. Other respondents and members of the public, who are using the pathway, are not bound by the said decree. According to respondent No.9, the petitioner is attempting to make use of Ext.P1 decree to deny the rights of the members of the local public, who have been using such pathway as a matter of right. After the decree was secured, there was an attempt to block the W.P(C) No.13550 of 2011-P 3 pathway also, it is submitted. The 9th respondent further points out that the said pathway has been widened. Only because of the objection of the petitioner, it could not be widened through the property of the petitioner. In these circumstances, it is prayed that the petitioner may not be permitted to arm himself with an order of police protection, which is likely to be misutilised against the members of the public. This petition may, in these circumstances, be dismissed, it is submitted. 4. There can be no doubt that respondents 4 and 5 are bound by Ext.P1 decree. The 9th respondent points out that the 4th respondent had committed suicide long earlier and the very fact that the 4th respondent has been arrayed as a party, indicates the mischievous intentions of the petitioner. Respondents 6 to 9 or other members of the local public cannot be said to be bound by Ext.P1. That proceedings was not instituted against respondents 4 and 5 in representative capacity also, it is pointed out. 5. Having rendered our anxious consideration to all the relevant inputs, we are of the opinion that the petitioner must be relegated to the civil court to seek his remedy. In the nature of the assertions in Ext.P2 produced by the petitioner herself, there W.P(C) No.13550 of 2011-P 4 is a serious doubt left in our mind as to whether there is a pathway through the petitioner's property, which the other members of the public are entitled to use. Without and before settling that question by appropriate proceedings before the civil court, we are of the opinion that it is inexpedient to permit the petitioner to arm himself with an order of police protection. Needless to say, respondents 4 and 5 and their successors shall be bound by Ext.P1 decree and the decree can be enforced/executed against them by the civil court. 6. This Writ Petition is, in these circumstances, dismissed with the above observations. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/