IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 WP(C).No. 32124 of 2008(Y) -------------------------- PETITIONER: ------------- BIJU R., S/O RAVEENDRAN AGED 25 YEARS, BINDU BHAVAN, PAYYANALLOOR VILLAGE, PAYYANALLOOR P.O., MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.K.MADHUSOODHANAN NAIR SRI.C.B.SREEKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, THIRUVANANTHAPURAM, 2. THE DISTRICT COLLECTOR,ALAPPUZHA 3. THE REVENUE DIVISIONAL OFFICER,CHENGANUR. 4. THE CIRCLE INSPECTOR OF POLICE,MAVELIKKARA. 5. M.K. VISWANATHAN, MEMEBER OF PALAMEL GRAMA PANCHAYATH, KANJIRAVILAYIL PAYYANALLOOR VILLAGE, PAYYANALLOR P.O., MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. 6. KOCHUKUNJU,KANJIRAVILAYIL PAYYANALLOOR VILLAGE, PAYYANALLOR P.O., MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. 7. RAVEENDRAN,KANJIRAVILAYIL PAYYANALLOOR VILLAGE, PAYYANALLOR P.O., MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. BY SR.GOVT.PLEADER SHRI BENJAMIN PAUL FOR R1 TO R4 ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP & SMT.SURYA SASI FOR R6 & R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.32124/08 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE CONDITIONAL ORDER ISSUED BY THE 3RD RESPONDENT DATED 6.3.2008. EXT.P2: TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 25.9.08. EXT.P3: TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 24.10.08. EXT.P4: TRUE COPY OF THE PERMIT DATED 28.10.08 ISSUED BY THE 3RD RESPONDENT. EXT.P5: TRUE COPY OF THE REPRESENTATION DATED 29.10.08 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. RESPONDENTS' EXTS: EXT.R6(A): TRUE COPY OF PARTITION DEED NO.936 OF 1971 OF NOORANADU SUB REGISTRY. EXT.R6(B): TRUE COPY OF COMPLAINT SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 3RD RESPONDENT. EXT.R6(C): TRUE COPY OF ORDER ISSUED BY THE VILLAGE OFFICER. EXT.R6(D): TRUE COPY OF ORDER DATED 28.2.08 ON I.A.No.532/08 IN O.S.No.83/08 ON THE FILE OF THE MUNSIFF'S COURT, MAVELIKKARA. EXT.R6(E): TRUE COPY OF DISCHARGE CARD ISSUED TO THE 6TH RESPONDENT. EXT.R6(F): TRUE COPY OF THE COMPLAINT DATED 9.2.08 BEFORE THE S.I.OF POLICE, NOORANADU. EXT.R6(G): TRUE COPY OF COMPLAINT DATED 10.8.08 BEFORE THE SUB INSPECTOR OF POLICE, NOORANADU. EXT.R6(H): TRUE COPY OF COMPLAINT DATED 27.9.08 SUBMITTED BEFORE THE PALAMEL GRAMA PANCHAYAT. EXT.R6(I): TRUE COPY OF FIR NO.436/07 DATED 2.12.07 OF JFCM, MAVELIKKARA. EXT.R6(J): TRUE COPY OF FIR NO.574/08 DATED 12.11.08 OF JFCM, MAVELIKKARA. TRUE COPY K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------------------- W.P.(C)No.32124 OF 2008 Y ----------------------------------------------------- DATED THIS THE 17th DAY OF NOVEMBER, 2008 J U D G M E N T Balakrishnan Nair, J. The petitioner is the owner of 3.60 ares of land comprised in survey No.705/11 of Palamel Village. He is proposing to construct a house there, demolishing the existing old house. He claims that he obtained building permit from the local Grama Panchayat for construction of the building. For construction of the building, he proposes to remove some ordinary earth from the plot. For that he has obtained Exhibit P1 permit from the Revenue Divisional Officer. Its period was further extended by Exhibit P2 by the RDO. Later, when the RDO declined to extend the period, the petitioner moved the District Collector and obtained Exhibit P3 direction from the Collector to the RDO to grant permission to the petitioner. Pursuant to that, Exhibit P4 sanction was given, it is submitted. But, because of the obstruction of respondents 5 to 7, he cannot remove the soil, it is submitted. So, he moved the police seeking necessary W.P.(C)No.32124/08 -2- protection. Since, the police did not take any action, this Writ Petition is filed, seeking appropriate reliefs. 2. Respondents 6 and 7 have filed a counter affidavit. The property of respondents 6 and 7 is on the western side of the property of the petitioner. The party respondents and the petitioner belong to the same family. They are the descendants of a common ancestor. If the petitioner removes the soil, the lateral support of the property of respondents 6 and 7 will be lost. Water retention will also be affected, which in turn will affect cultivation in their property. They also submit that a pathway used by them is also likely to be affected by the removal of soil. They have already moved the civil court and obtained Exhibit R6(d) interim injunction order in which the petitioner herein is also a party. The civil court has, inter alia, injuncted against obstructing the pathway. Against the proposed removal of soil, the said respondents have moved the statutory authorities and also the concerned police officers. They further submit that they have been manhandled by the petitioner and two crimes have been registered against the petitioner. They W.P.(C)No.32124/08 -3- submit, the claim of the petitioner that he has obtained building permit from the Panchayat is not correct. The Panchayat issues building permit, only after the site is approved by the Secretary. If he has obtained permit, he cannot modify the approved site by removing soil. If he is proposing to construct a building after the removal of soil, then he has to get the site again approved and also get fresh building permit. Therefore, the party respondents pray for dismissal of the Writ Petition. 3. The petitioner has filed a reply affidavit dealing with the averments in the counter affidavit filed by respondents 6 and 7. The petitioner would point out that the civil suit has nothing to do with the present dispute raised in this Writ Petition. 4. The learned Government Pleader upon instructions submitted that there is a dispute between the petitioner and the party respondents concerning a pathway. The party respondents insisted that the right over the pathway should be assigned to them by the petitioner. 5. Whether the removal of soil from the petitioner's property will affect the rights of respondents 6 and 7 is a civil W.P.(C)No.32124/08 -4- dispute which cannot be decided by the police. If the allegations of respondents 6 and 7 are correct, then the petitioner is not entitled to remove soil affecting the rights of the said respondents. But, in these proceedings, we cannot decide such disputes as we are concerned only with the breach of duty from the part of the police. In the result, the Writ Petition fails and it is dismissed, without prejudice to the contentions of the petitioner and his right to move the competent civil court for appropriate reliefs. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. dsn