IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 WP(C).No. 13249 of 2011(E) --------------------------------------- PETITIONER: ------------------- DR.P.S.GEORGE, RESIDING AT PEEDIYECKAL HOUSE, VEROOR MURIYIL, CHETHIPPUZHA, CHANGANACHERRY, KOTTAYAM. MANAGING DIRECTOR, SAMARITAN SUPER SPECIALITY HOSPITAL & RESEARCH CENTRE LTD., CHANGANACHERRY. BY ADVS. SRI.G.SUKUMARA MENON, SMT.DEEPTHI S.MENON. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, HOME DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM- 695 001. 2. CIRCLE INSPECTOR OF POLICE, CHANGANACHERRY – 686 101. 3. BALAKRISHNA PANICKER, S/O.EZHUTTACHAN, EZHUTTUPALLICKAL VEEDU, MANJAADIKKARA, VAZHAPPALLY.P.O., CHANGANACHERRY, KOTTAYAM – 686 101. 4. SHAJI, S/O.KUNJUMON, CHAKKALAPARAMBIL, RUBY NAGAR.P.O., BYE PASS ROAD, CHANGANACHERRY, KOTTAYAM – 686 101. R1 & R2 BY GOVT. PLEADER SMT. C.M. CHARISMA, R3 & R4 BY ADV. SRI.M.P.MADHAVANKUTTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/05/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.13249/2011-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER DTD. 05/05/2011 GIVEN BY THE UNIDEC FOUNDATIONS LTD., ERNAKULAM TO THE PETITIONER. EXT.P.2: COPY OF THE COMPLAINT DTD. 05/05/2011 GIVEN BY THE PETITIONER BEFORE THE R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) No.13249 of 2011-E ***************************** Dated this the 31st day of May, 2011 JUDGMENT BASANT, J. Petitioner has come to this Court seeking issue of directions to respondents 1 and 2 to afford protection to the petitioner to enable him to conduct soil testing in his property, where he proposes to construct a hospital. Licence for construction of the hospital has not been obtained. Soil testing has to be done to decide whether the construction of the hospital can be attempted. If it is found to be suitable, the petitioner shall take necessary steps to obtain the necessary permission/permit to undertake the construction of the hospital. The grievance of the petitioner is that respondents 3 and 4 are unnecessarily raising illegal objections/obstructions against such testing of the soil. It is, in these circumstances, prayed that appropriate directions may be issued. 2. Respondents 3 and 4 have entered appearance through a counsel. The learned counsel for respondents 3 and 4 submits that respondents 3 and 4 have no objection if the activity is confined and limited to soil testing. The apprehension of W.P(C) No.13249 of 2011-E 2 respondents 3 and 4 is that permission of soil testing if granted may be misutilised by the petitioner to obstruct a pathway leading to the property in question which is being used by other neighbouring property owners also. In fact, on that dispute a suit has been filed before the Court of the Subordinate Judge, Kottayam, and the same is pending even now, submits the learned counsel for respondents 3 and 4. If the proposed activity is only soil testing without causing any obstruction or inconvenience to the users of the pathway of the neighbouring property owners, respondents 3 and 4 shall not raise any obstruction, undertakes the learned counsel on behalf of respondents 3 and 4. The learned counsel for the petitioner promptly replies that the petitioner has no intention to obstruct the pathway or to indulge in any acts causing inconvenience to the neighbouring property owners. The activity which the petitioner wants to undertake is soil testing, for which experts have been engaged. The petitioner undertakes that the work of soil testing will not in any way cause obstruction to the pathway or inconvenience to the neighbouring property owners. 3. The learned Government Pleader submits that appropriate directions may be issued, which shall be W.P(C) No.13249 of 2011-E 3 implemented by respondents 1 and 2. The learned Government Pleader informs the Court that a crime has already been registered against respondents 3 and 4 alleging commission of criminal offences, inter alia, under Section 447 I.P.C. 4. Having considered all the relevant inputs, we are satisfied that appropriate directions can be issued under Article 226 of the Constitution subject to appropriate safeguards. 5. In the result: a) This Writ petition is allowed; b) Respondent No.2 is directed to afford police protection to the petitioner to undertake the activity of soil testing in the property belonging to him without in any way obstructing the pathway leading to the property in question and without causing any inconvenience to the neighbouring property owners. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/