IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 WP(C).No. 14742 of 2011(P) -------------------------------------- PETITIONERS: --------------------- 1. K.V.ANTONY (VACCO ANTONY), AGED 75 YEARS KOLARICKAL HOUSE, DOOR NO.46/925, VADUTHALA P.O., KOCHI-23. 2. JOHNSON, S/O.COURI, AGED 44 YEARS, KUZHIVELIL HOUSE, SOUTH CHITTOOR P.O., KOCHI-27. BY ADVS. SRI.T.V.GEORGE, SRI.JIMMY GEORGE (THADATHIL). RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. THE COMMISSIONER OF POLICE, COCHIN CITY, COCHIN-31. 3. THE SUB INSPECTOR OF POLICE, CHERANALLOOR, ERNAKULAM, PIN-682 034. 4. THE CHERANALLOOR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, PANCHAYAT OFFICE, CHERANALLOOR P.O., PIN-682 034. 5. DIVINE HOMES RESIDENTS ASSOCIATION, REPRESENTED BY ITS SECRETARY, JOBIN JACOB, DIVINE HOMES COLONY, SOUTH CHITTOOR, KOCHI-27. W.P.(C). NO.14742/2011-P: 6. SMT.JAYASREE AUSTIN, PRESIDENT, DIVINE HOMES RESIDENTS ASSOCIATION, DIVINE HOMES COLONY, SOUTH CHITTOOR, KOCHI-27. R1 TO R3 BY GOVT. PLEADER SMT. C.M. CHARISMA, R4 BY ADV. SRI.S.SHANAVAS KHAN, R5 & R6 BY ADVS. SRI.JIMMY JOHN VELLANIKARAN, SRI.SABU PULLAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14742/2011-P: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPORT FILED BY THE SUB COMMITTEE OF THE PANCHAYAT. EXT.P.1.A: COPY OF THE RECEIPT DTD. 13/09/2010 ISSUED TO EXT.P.1- REPORT. EXT.P.2: COPY OF THE RESOLUTION DTD. 05/02/2011 PASSED BY THE CHERANALLOOR GRAMA PANCHAYAT. EXT.P.2.A: COPY OF THE RECEIPT DTD. 16/02/2011 ISSUED TO EXT.P.2- RESOLUTION. EXT.P.3: COPY OF THE REPRESENTATION DTD. 01/04/2011 BEFORE THE R.4- PANCHAYAT BY THE P.1. EXT.P.4: COPY OF THE REPRESENTATION DTD. 26/04/2011 BEFORE THE R2- COMMISSIONER OF POLICE, COCHIN CITY BY THE P.1. EXT.P.5: COPY OF THE SKETCH OF THE PROPERTY. RESPONDENTS' EXHIBITS: EXT.R4.A: COPY OF THE ASSET REGISTER MAINTAINED BY THE PANCHAYAT. EXT.R4.B: COPY OF THE ORDER DTD. 29/07/2010 OF THE DISTRICT COLLECTOR, ERNAKULAM BY WHICH ADMINISTRATIVE SANCTION HAS BEEN ACCORDED FOR SPENDING THE AMOUNT. EXT.R4.C: COPY OF THE ORDER DTD 01/02/2011 OF THE DISTRICT COLLECTOR, ERNAKULAM. EXT.R5.A: COPY OF THE ROUGH SITE MAP SHOWING THE ROADS. EXT.R5.B: COPY OF THE RECEIPT DTD. 18/07/2005 FROM K.S.E.B., ERNAKULAM DIVISION SHOWING THE DEPOSIT OF RS.36160/- BY THE ASSOCIATION FOR INSTALLING STREET LIGHT. EXT.R5.C: COPY OF THE LETTER DTD. 23/11/06 FROM WATER AUTHORITY TO THE ASSOCIATION. EXT.R5.D: TRUE PHOTOGRAPHS SHOWING THE THODU AND ITS NORTHERN SIDE. W.P.(C). NO.14742/2011-P: EXT.R5.E: TRUE PHOTOGRAPHS SHOWING THE ATTEMPTED TRESPASS OF P.1. USING COCONUT POLES. EXT.R5.F: COPY OF THE COMPLAINT TO THE PANCHAYAT DTD. 03/11/2007 BY THE ASSOCIATION. EXT.R5.G: COPY OF THE ROUGH SKETCH. //TRUE COPY// P.A. TO JUDGE. Prv. R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- WPC No.14742 of 2011 ------------------------------------------- Dated this the 29th June, 2011 JUDGMENT Basant, J. The petitioners have come to this Court with this petition under Article 226 of the Constitution to issue directions to respondents 2 and 3, police officials under the first respondent State to afford protection to the petitioners to undertake the work as permitted by the fourth respondent Panchayat under Ext.P2 order against illegal obstructions raised by respondents 5 and 6. 2. Petitioner No.1 claims to be the owner of an item of property. Petitioner No.2 is said to be the person engaged by the first petitioner to undertake the work under Ext.P2. According to the petitioners, they have been permitted under Ext.P2 by the Panchayat to undertake the work of widening and tarring of the road on the southern side of the first petitioner's property. The access to that property is through a public road which is described as the 11th Cross Road by the petitioner. That 11th Cross Road, it is submitted, is a public road vested in the WPC No.14742/2011 2 Panchayat. The first petitioner is entitled to have access to his property through the said public path way from the 11th Cross Road. There is a pathway built by the side of the thodu on the south. That has been used as access to the first petitioner's property for a long period of time without any obstruction. The petitioner now wants to widen and tar that pathway so that there will be a tarred road access from the Chittoor Road on the east to the property of the first petitioner. The petitioner applied for permission to the Panchayat. The Panchayat did not undertake the work itself. They issued Ext.P2 order. Under Ext.P2 order, permission has been granted in slightly ambiguous terminology. It is stated that “if the road can be reckoned as a public path way”, the same can be repaired by the first petitioner at his expense. Objection is raised against the undertaking of the work of widening and tarring of the pathway as permitted under Ext.P2. 3. Respondents 5 and 6 are the Secretary and President of the Divine Home Residents Association. According to the petitioners, respondents 5 and 6 have no right to raise any obstruction to the proposed work sanctioned by the Panchayat under Ext.P2. It is hence that directions are claimed under Article 226 of the Constitution. WPC No.14742/2011 3 4. Respondents 5 and 6 have entered appearance through counsel. It is submitted that petitioners have no legal right to make out a new pathway or to tar the same. According to them, the road leading to the house of Mr.Shylesh is shown in Ext.R5 (g). That pathway is described by respondents 5 and 6 as the 6th Cross Road. It is not the 11th Cross Road. According to them, that road (whether called the 6th Cross Road or 11th Cross Road) has not vested in the Panchayat. It is a private pathway available for use of the residents of the Divine Homes. That is not a tarred road. According to respondents 5 and 6, the attempt of the first petitioner in collusion with the second petitioner who was a Ward Councillor earlier is to make a new pathway as access from the said private path way (6th Cross Road) to the house of the first petitioner. They want to built a new road. For this purpose, they want to illegally reclaim the public thodu which is available on the south of the 6th Cross Road. If such constructions were to be permitted, that would block the exit of rain water form the Divine Homes and would lead to flooding of the Divine Homes. The second petitioner who was the Ward Councillor of the Panchayat has collusively secured Ext.P2 order for the first petitioner. The Panchayat, it is evident from Ext.P2, does not take a definite stand. It is not the case of the Panchayat that the WPC No.14742/2011 4 pathway is a public road. Virtually, sanction has been given to the petitioners to trespass into the public thodu and make a way through that thodu as also to tar the said way. This is impermissible. The petitioners in collusion with the Panchayat has secured Ext.P2 order and are attempting to make a new pathway from the private property of the residents of the Divine Homes. In that bargain, they would block the drain which takes rain water out of the Divine Homes. At any rate, for such a misadventure, this Court may not grant police protection. If the petitioners assert any right over the property to widen and tar a pathway, they may be directed to approach the civil court, submits the learned counsel for respondents 5 and 6. 5. We have considered all the relevant inputs. The Panchayat is significantly non-committal on the question whether the road (described as the 6th Cross Road by one and 11th Cross Road by the other) is a public road vested in the Panchayat or not. No satisfactory materials are placed on that disputed question and no definite stand is taken by the Panchayat. We do prima facie find merit in the contention that the proposed extension of the 6th Cross Road to the property of the first petitioner which is sought to be widened and tarred now is part of a thodu on the south of the property of the first petitioner. We WPC No.14742/2011 5 do not intend to express any final opinion on that question. Suffice it to say that we find merit in the contention of the learned counsel for respondents 5 and 6 that this is not a fit case where our extraordinary constitutional jurisdiction under Article 226 can or ought to be invoked to resolve the complex disputed questions of fact between the parties. We feel it only appropriate to direct that the parties must approach the civil court and seek appropriate directions. 6. With the above directions, this writ petition is dismissed. sd/- R.BASANT JUDGE sd/- K.SURENDRA MOHAN JUDGE css/ true copy P.S.TO JUDGE WPC No.14742/2011 6 R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- WPC No.14742 of 2011 ------------------------------------------- Dated this the 22nd June, 2011 ORDER Basant, J. Heard in part. The learned counsel for the fifth and sixth respondents prays for time to file a further counter affidavit. Do the needful in three days. Give copy to the counsel for the WPC No.14742/2011 7 others. Call on 29.6.2011 finally for hearing and disposal. R.BASANT JUDGE K.SURENDRA MOHAN JUDGE css/ WPC No.14742/2011 8 R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- WPC No.14742 of 2011 ------------------------------------------- Dated this the 1st June, 2011 ORDER Basant, J. Heard. Admitted. Notice given and the learned Government Pleader appears for respondents 1 to 3. Issue notice to respondents 4 to 6. The learned counsel for the petitioners prays and is accordingly permitted to take out notice to respondents 4 to 6 by special messenger. Verify service and call again on 8.6.2011. R.BASANT JUDGE K.SURENDRA MOHAN JUDGE WPC No.14742/2011 9 css/