IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 WP(C).No. 30351 of 2010(T) ---------------------------------------------- PETITIONER(S): --------------------- STELLA ANTONY, W/O.LATE ANTONY, MINI VILASOM, KARIKUZHY, PADAPPAKKARA, KUNDARA, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENT(S): ---------------------- 1. THE SUPERINTENDENT OF POLICE, POLICE HEADQUARTERS, KOLLAM. PIN:691 001. 2. THE SUB INSPECTOR OF POLICE, KUNDARA POLICE STATION, KUNDARA P.O., KOLLAM DISTRICT. PIN:691 501. 3. THE ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, P.H.SUB DIVISION, KOTTARAKKARA P.O., KOLLAM. PIN:691 506. 4. THE ASSISTANT ENGINEER, KERALA WATER AUTHORITY, P.H.DIVISION, HOSPITAL JUNCTION, KUNDARA P.O., KOLLAM. PIN:691 501. 5. SRI.RAJU, S/O.METILDA, JITHIN BHAVAN, SINKARAPPALLY, KODUVILA P.O., KIZHAKKE KALLADA, KOLLAM. PIN: 691 502. WP(C).NO.30351 OF 2010 T 6. SRI.HERMAN MIRAND, AJI BHAVANAM, KUMBALAM P.O., KUNDARA, KOLLAM. PIN:691 503. R1 & R2 BY GOVERNMENT PLEADER SMT. CHARISHMA. ADV. SRI.M.DINESH, SC, KWA FOR R3 & 4 SRI.S.RUSSEL FOR R6 SRI.V.R.ARUN FOR R6 SRI.C.R.SIVAKUMAR FOR R5 SRI.SAJU DAVID FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C).NO.30351 OF 2010 T PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE WORK ORDER NO.41/10-11 DATED 06.05.2010 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P2 TRUE COPY OF THE PLAINT IN OS.NO.779/2009 OF THE MUNSIFF COURT, KOLLAM. EXT.P3 TRUE COPY OF THE INTERIM INJUNCTION ORDER IN I.A.NO.5378/2010 OF THE MUNSIFF COURT, KOLLAM. EXT.P4 TRUE COPY OF THE COMPLAINT DATED 21.05.2010 FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR, KOLLAM. EXT.P5 TRJE COPY OF THE REPORT SUBMITTED BY THE 4TH RESPONDENT TO THE DISTRICT COLLECTOR, KOLLAM. RESPONDENTS' EXHIBITS: EXT.R6(A) TRUE PHOTOSTAT COPY OF THE APPLICATION UNDER THE RIGHT TO INFORMATION ACT DATED 12/8/2008. EXT.R6(B) TRUE PHOTOSTAT COPY OF THE REPLY UNDER THE RIGHT TO INFORMATION ACT DATED 5/9/2008. EXT.R6(C) TRUE PHOTOSTAT COPY OF THE PLAINT DATED 16/6/2006 IN O.S.NO.422/2006 OF THE HONOURABLE MUNSIFF'S COURT, KOLLAM. EXT.R6(D) TRUE PHOTOSTAT COPY OF THE JUDGMENT OF THE HONOURABLE MUNSIFF'S COURT, KOLLAM IN O.S.NO.422/2006 DATED 7/10/2008. EXT.R6(E) TRUE PHOTOSTAT COPY OF THE SETTLEMENT DEED NO.2334/2007 DATED 17/5/2007. EXT.R6(F) TRUE PHOTOSTAT COPY OF THE LAND TAX RECEIPT NO.1232407 DATED 27/6/2007. //True copy// PS to Judge K.M. JOSEPH & M. C. HARI RANI, JJ. ----------------------------------------- W.P.(C).NO. 30351 OF 2010 T ------------------------------------------ Dated this the 10th November, 2010. JUDGMENT K.M. Joseph, J. Petitioner has approached this Court seeking the following reliefs: “i) Issue a writ of mandamus or other appropriate writ, order or direction commanding respondents 1 and 2 to afford adequate and effective police protection to the life and property of the petitioner and the workers of respondents 3 and 4 to execute Ext.P1 Work Order to provide Water Connection to the petitioner's premises in House No.VII/254, situated in Sy.Nos.339/7/2, 339/21, 339/21-2-2 of Mulavana Village covered in Ext.P1 Work Order without any obstruction or hindrance from respondents 5 and 6 and their henchmen or anybody. ii. Declare that the petitioner and the workers of respondents 3 and 4 are entitled to get adequate and WP(C).NO.30351/2010 T 2 effective police protection from respondents 1 and 2 to execute Ext.P1 Work Order to provide Water Connection to the petitioner's premises in House No:VII/254, situated in Sy.Nos.339/7/2, 339/21, 339/21-2-2 of Mulavana Village covered in Ext.P1 Work Order without any obstruction or hindrance from respondents 5 and 6 and their henchmen or anybody.” 2. Briefly put, the case of the petitioner is as follows: Petitioner is a widow and handicapped lady. She is in enjoyment of forty cents of property. Petitioner and her family members are residing in the family house and the said property and house is situated within a distance of ten metres away from the western side of Kumbalam – Padappakkara Panchayath Road, with access to a public pathway having four metres width situated on the north – south direction, which is used by more than twenty families including the petitioner and respondents 5 and 6. The property of respondents 5 and 6 is situated access to the north and south direction of the above pathway and on the western side of WP(C).NO.30351/2010 T 3 Kumbalam – Padappakkara Panchayat Road. On the eastern side of the petitioner's property with access to the above pathway belongs to Smt. Mini and she obtained telephone connection through the said pathway. Petitioner filed application for getting water connection. Ext.P1 is the Work Order. Pursuant to Ext.P1, respondents 3 and 4 took steps to provide water connection to the petitioner's premises. But, respondents 5 and 6 obstructed the works and threatened the workers under the pretext that they filed OS.No.779/2009. Ext.P2 is the plaint. Ext.P3 is the injunction order passed in the said case. Petitioner filed Ext.P4 complaint before the District Collector requesting to give police protection and the District Collector forwarded Ext.P4 to the fourth respondent for a Report. Fourth respondent filed a report stating that due to pendency of the civil suit, he could not execute Ext.P1 work order. Ext.P5 is the report. Petitioner is before us. 3. A Counter Affidavit is filed by the sixth respondent producing Exts.R6(A) to R6(F). Therein, it is, inter alia, stated as WP(C).NO.30351/2010 T 4 follows: There is no pathway having a width of four metres as alleged. The sixth respondent's son had filed an application vide Ext.R6(A) before the Public Information Officer, Perayam Grama Panchayat regarding the existence of the road alleged by the petitioner. In the reply, it is stated that in none of the documents with the Panchayat, the said road is mentioned. Therefore, it is clear that there is no public pathway as alleged by the petitioner. It is stated that Smt. Mini Antony who is the daughter of the petitioner, filed a Suit as OS.No.422/2006 before the Munsiff Court, Kollam against the wife and children of the sixth respondent. That Suit was filed for permanent prohibitory injunction restraining the defendants from encroaching into or altering the B Schedule pathway and from trespass into the B Schedule pathway. The Suit was dismissed for default and Rs.10,000/= (Rupees Ten Thousand) was decreed to be realised from the defendants on the ground of loss caused due to the destruction of the compound wall by the daughter of the WP(C).NO.30351/2010 T 5 petitioner. Ext.R6(D) is the Judgment. It is stated that the fifth respondent filed a Suit for permanent prohibitory injunction restraining the defendants from encroaching into the plaint schedule property and Ext.P3 is the temporary injunction order passed in the said Suit. It is stated further that the petitioner is having alternative way to her house, through which, she can draw a water connection. Without also prejudice to the contention, it is stated that the property through which the petitioner alleges existence of a pathway, is transferred to the daughter of the sixth respondent by Ext.R6(E) Settlement Deed. Mutation is effected as per Ext.R6(F). 4. The fifth respondent also has filed a Counter Affidavit. Petitioner filed a Reply Affidavit to the Counter Affidavit filed by the sixth respondent. It is, inter alia, stated that Ext.R6(D) Judgment has nothing to do with the pathway used by the public by time immemorial and since the petitioner is not a party to the Judgment, it will not bind the petitioner and the petitioner need not WP(C).NO.30351/2010 T 6 approach the civil court for modification of Ext.P3. On the guise of water connection, the petitioner is claiming her right to enjoy the public utility service and amenities through the public pathway. The existence of the pathway, whether it is private or public, has to be decided by the civil court in accordance with law. Petitioner and the public at large, more than twenty persons were using the public pathway which is the only access to the petitioner's house and is still in existence as evident from Ext.P5. The sixth respondent as a name lender has transferred the property in favour of his daughter. 5. We heard the learned counsel for the petitioner, learned counsel for respondents 5 and 6, the learned Government Pleader as also the learned standing counsel appearing for the Water Authority. 6. This is a Writ Petition seeking a writ of mandamus commanding the police authorities to give protection to the petitioner to execute Ext.P1 order so that the petitioner can enjoy WP(C).NO.30351/2010 T 7 water connection. Learned counsel for the petitioner would point out that water is a public utility service, that the petitioner is a widow and she is handicapped, and that there is a way. It is being enjoyed by twenty families, it is submitted. It is pointed out that telephone connection lines have been drawn across the pathway. It is further submitted that the prayer in the suit by the fifth respondent is not to widen the pathway and Ext.P3 will not stand in the way of the connection being drawn through the pathway. It is further submitted that reliance cannot be placed on Ext.R6(a) to establish that it is not a public pathway. At any rate, for the purpose of drawing connection through the pathway, it is not necessary for this Court to decide the issue as to whether it is public or private pathway and it is certainly for the civil court and other statutory authority to decide. The pendency of the suit will not stand in the way of this Court ordering police protection by the police, he submits. 7. Per contra, learned counsel appearing for the fifth WP(C).NO.30351/2010 T 8 respondent would rely on the decision in Suseela v. State of Kerala (2008 (4) KLT 561) and would point out that police protection cannot be ordered in such a case. He would point out that it is not a public pathway as contended by the petitioner. He would submit that the Suit is pending. 8. Learned counsel for the sixth respondent would reiterate the contentions and he would further point out that the daughter of the sixth respondent has also filed a Suit and an order of injunction has been obtained. According to him, there is no pathway. In particular, he relied on Ext.R6(D) in this regard. 9. Learned Government Pleader would submit that the matter is pending in civil suits and there is already an injunction order and the police will not interfere in the matter. Learned standing counsel for the Water Authority would submit that the Water Authority is prepared to give connection as per Ext.P1, provided the petitioner produces the consent from the persons and he would submit that according to him, it is a private pathway. WP(C).NO.30351/2010 T 9 10. The question before us is whether we should issue a writ of mandamus commanding the police to use force of the State so as to take the connection through the alleged public way as contended by the petitioner. The fact of the matter is that as to whether it is a public way or a private way is itself not decided by any competent authority. In fact, there is a contention for the sixth respondent that there is no way at all. Whatever that be, it is certainly not open to the writ court to interpose in a matter of this nature and force the police force to interfere in the matter as it would be over-riding the objections of the party respondents about which we cannot say that there is no merit at the same time. Matter is pending in the civil court also. It is certainly open to the petitioner to get appropriate orders from the civil court as against the respondents and if the civil court passes an interim order with notice to the parties, it is well settled that it is also open to the civil court to order police protection. In such circumstances, we are not inclined to interfere in the matter. The Writ Petition is dismissed without prejudice to WP(C).NO.30351/2010 T 10 the remedy available to the petitioner before the appropriate civil court/forum and seek reliefs as are available in law. When the matter comes up before the civil court/forum in any lis between the parties, the civil court/forum shall proceed to decide the matter untrammeled by anything contained in this Judgment. We see no reason why we should give specific directions to the civil court. Certainly, an application for interim relief is sought by the petitioner, the civil court must necessarily consider it without any undue delay in the matter. Sd/= K.M. JOSEPH, JUDGE Sd/= M.C. HARI RANI, JUDGE kbk. //True copy// PS to Judge WP(C).NO.30351/2010 T 11