IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 WP(C).No. 33350 of 2008(T) -------------------------- PETITIONERS: --------------- 1. K.K.VIJAYAN KIZHAKKE VEEDU, KKUREEPUZHA P.O.,KOLLAM. 2. SOMALATHA W/O. K.K.VIJAYAN KIZHAKKE VEEDU, KUREEPUZHA P.O.,KOLLAM. BY ADV. SRI.BENOY K.KADAVAN RESPONDENTS: --------------- 1. SUB-INSPECTOR OF POLICE, EAST POLICE STATION, KOLLAM. 2. CIRCLE INSPECTOR OF POLICE KOLLAM EAST POLICE STATION, KOLLAM. 3. DEPUTY SUPERINTENDENT OF POLICE KOLLAM. 4. KRISHNAKUMAR KULATHIL PURAYIDATHIL, VADAKKUM BHAGAM KOLLAM. 5. ANIL KUMAR ALIAS UNNI KULATHIL PURAYIDATHIL, VADAKKUM BHAGAM, KOLLAM. 6. SUNIL KULATHIL PURAYIDATHIL, VADAKKUM BHAGAM, KOLLAM. 7. RAJAMMA KULATHIL PURAYIDATHIL, VADAKKUM BHAGAM, KOLLAM. ADV. SRI.P.SANTHALINGAM (SR.) FOR R4 TO 7 SRI.S.SHARAN FOR R4 TO 7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX: PETITIONERS' EXTS: EXT.P1: TRUE COPY OF THE BUILDING PERMISSION GRANTED BY THE CORPORATION OF KOLAM. EXT.P2: TRUE COPY OF COMCPLAINT FILED BEFORE RESPONDENT NO.3 EXT.P3: TRUE COPY OF ORDER PASSPED BY ADDITIONAL DISTRICT MAGISTRATE DATED 6-9-2008 EXT.P4: TRUE COPY OF UNDERTAKING GIVEN BY THE PETITIONERS DATED 30-8- 2008. EXT.P5: TRUE COPY OF COMPLAINT FILED BY 1ST PETIITONER BEFORE RESPONDENT NO.2 EXT.P6: COMPLAIINT FILED BY 1ST PETITIONER BEFORE RESPONDENT NO.3 EXT.P7: FIR REGISTERED AT KOLLAM EAST POLICE STATION. EXT.P8: TRUE COPY OF THE FIR REGISTERED UNDER KOLLAM EAST POLICE STATION DATED 12-11-2008. EXT.P9: TRUE COPY OF THE PAPER REPORT EXT.P10: TRUE COPY OF THE BUILDING PLAN UNDER APPROVED BY THE CORPORATION OF KOLAM. RESPONDENTS' EXTS: EXT..R5(A): TRUE COPY OF THE PHOTOGRAPHS OF THE HOUSE. TRUE COPY P.S. TO JUDGE K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== W.P.(C)NO.33350 OF 2008 ============================ DATED THIS THE 27TH DAY OF NOVEMBER 2008 JUDGMENT Balakrishnan Nair,J. The petitioners are owners of 12 cents of land in Kollam East Village. They are constructing a commercial complex there in accordance with Ext.P1 permit granted by the Kollam Municipal Corporation. Respondents 4 to 7 are the neighbouring property owners. The petitioners allege, respondents 4 to 6 are goondas and the 7th respondent is their mother. They are demanding money to permit the petitioners to continue with the construction. The said respondents allege that their buildings may be affected by the piling work in the petitioners' site. The 7th respondent moved the District Collector pointing out the alleged threat to her building by the piling work of the petitioners. Proceedings initiated by the District Collector pursuant to the said representation ended in Ext.P3 report. The WPC.33350/2008 -2- said report would reveal that apparently no damage is seen caused to the buildings. But it was ordered by the Additional District Magistrate that in case, if any, damage is caused in future, the petitioners should be made to agree to compensate the affected persons. Pursuant to the said direction, the petitioners have executed Ext.P4 agreement before the Municipal Corporation undertaking that if any damage is caused by the piling work in the petitioners' site to the buildings of the neighbouring property owners, they will be repaired at the cost of the petitioners. Even thereafter, respondents 4 to 7 are threatening the workmen in the site and they are being physically attacked and manhandled. Based on the information lodged by the workmen, a crime has been registered against the 5th respondent and five others as per Ext.P7 F.I.R. The first petitioner has also filed Ext.P5 representation before the police seeking necessary protection to the workmen. Alleging that the police did not take any effective action, this writ petition is filed, seeking the following relief: “(i) a writ of mandamus or other appropriate writ or order directing respondents 1 and 3 to grant WPC.33350/2008 -3- adequate protection to the petitioners and their men, as against respondents 4 to 7 and their men, for carrying out the construction work, at the work site of the petitioners in 12 cents of land lying within the survey Nos.37, 37/3/2/1, 37/3/3/1, in block No.2 of Kollam East Village.” 2. Respondents 4 to 7 have filed a counter affidavit stating that they are residing in the two neighbouring buildings for the last 50 years. They have no other property. The piling work has caused damages to their buildings. Both the buildings are now in a dilapidated condition. In support of their contentions, they have produced Ext.R5(a). They also disputed the correctness of Ext.P3 order. 3. The petitioners have filed an additional affidavit and they have also produced Ext.P8 F.I.R. and Ext.P9 newspaper report. The petitioners submit, the first petitioner has been attacked by respondents 4 to 6 and he was injured. On the basis of the information lodged by him, Ext.P8 crime has been registered. The said incident has been reported by the newspapers as per Ext.P9. The petitioners have also filed a reply affidavit dealing WPC.33350/2008 -4- with the averments of the party respondents in their counter affidavit. 4. We heard the learned Government Pleader for the respondents,who upon instructions, submitted whenever information was lodged, crime has been registered by the police. 5. The petitioners should be conceded freedom to construct a commercial building in their plot. For that they are entitled to do the piling work also. But, they have to do it without damaging the neighbouring buildings. Respondents 4 to 7 are not bound by Ext.P4 agreement. If their buildings collapse on their heads and injure them, Ext.P4 will not safeguard their interest. So, If the piling work is causing damages to the neighbouring buildings, the owners of them should be conceded freedom to object to the piling work. Whether the piling work is causing damages to the building is a disputed question. The said disputed question cannot be decided by the police and based on their finding, they have no power to decide either to grant protection or not to grant protection. It is a matter which can be adjudicated by the civil court. If no damage is caused by the piling work and even then the party respondents are causing obstruction, the petitioners WPC.33350/2008 -5- can move the competent civil court and obtain appropriate orders. If its orders are violated, the said court can address the police also to assist the petitioners to enforce its orders. Going by the photographs produced by the respondents, we are not inclined to hold that the claim of the party respondents regarding damages is fanciful or remote. Any way, we are not expressing any final opinion on that, as the police have no authority or jurisdiction to decide the same. In this jurisdiction, we are concerned only with the breach of duty from the part of the police and our powers to issue directions are co-terminus with the duty of the police. In the result, the writ petition is dismissed without prejudice to the contentions of the petitioners and their right to move the competent civil court for appropriate orders. Sd/- K. BALAKRISHNAN NAIR, JUDGE Sd/- M.C. HARI RANI, JUDGE ks. WPC.33350/2008 -6- ks.