IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 WP(C).No. 28454 of 2011(F) ---------------------------------------- PETITIONER(S): ---------------------- MANOJ.E.J, EDASSERIPARAMBU HOUSE, CHANGANACHERRY P.O., (FISH MARKET AREA), CHANGANACHERRY. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): ------------------------ 1. JOHNSON JOSEPH, PLANTHOTTAM HOUSE, PERUNNA EAST KARA, CHANGANACHERRY-686 101. 2. SAJAN THOMAS, KOYIPPALLY HOUSE, KAVALA, CHANGANACHERRY-686 101. 3. MARTIN JOSEPH, KOYIPPALLY HOUSE, KURISUMMOODU, CHANGANACHERRY-686 101. 4. JOJI JAMES, KODUPPUNAPLACKAL HOUSE, POTHODU, CHANGANACHERRY-686 101. 5. K.M.ANTONY, KODUPUNNA POLACKAL, PUZHAVATHU, CHANGANACHERRY-686 101. 6. SUB INSPECTOR OF POLICE, CHANGANACHERRY POLICE STATION, KOTTAYAM-686 101. tss W.P.(C) NO.28454/2011 7. CIRCLE INSPECTOR OF POLICE, CHANGANACHERRY POLICE STATION-686 101. 8. THE DISTRICT SUPERINTENDENT OF POLICE, KOTTAYAM-686 001. R1 TO R5 BY ADVS. SRI.ANIL K.NARENDRAN , SRI.SABU S.KALLARAMOOLA , SRI.S.NIDHEESH. R6 TO R8 BY SR. GOVT. PLEADER SRI.M.K.ABOOBACKER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss APPENDIX PETITIONER(S) EXHIBITS P1:- TRUE COPY OF THE JUDGEMENT DATED 16.8.2011 IN WP(C) NO.11588/2011 BEFORE THIS HON'BLE COURT. P2:- TRUE COPY OF THE ORDER BEARING NUMBER R5-218/11(A). P3:- TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 6TH RESPONDENT. P4:- TRUE COPY OF THE RECEIPT. RESPONDENTS' EXHIBITS R1(a):- COPY OF THE LAND TAX RECEIPT. R1(b):- COPY OF THE PROPERTY TAX RECEIPT. R1(c):- COPY OF THE PROPERTY TAX RECEIPT. R1(d):- COPY OF THE OBJECTION FILED BY MERCHANTS ASSOCIATION. R1(e):- COPY OF THE DECISION OF THE COUNCIL DTD. 29.8.2011. R1(f):- COPY OF THE PROCEEDINGS OF THE SECRETARY DTD. 1.4.2011. TRUE COPY P.A. TO JUDGE tss PIUS C.KURIAKOSE & K. HARILAL, JJ. ------------------------ W.P.(C).No.28454 OF 2011 ------------------------ Dated this the 9th day of November, 2011 JUDGMENT Pius C.Kuriakose, J. The petitioner, who has been granted the right to collect market fees from the Changanacherry fish market, has filed this writ petition alleging that the respondents 1 to 5, who are the functionaries of the Merchants' Association, are obstructing him from collecting the market fees in terms of Ext.P2 order under which the right to collect market fees was granted to him. The petitioner states that it was pursuant to Ext.P1 judgment in W.P. (C) No.11588/2011 filed by him that the Municipality became obliged to issue Ext.P2 order. It is pointed out that the Merchants' Association has preferred writ appeal as W.A. No. 1559/2011 challenging Ext.P1 judgment which even now pending. The petitioner alleges that respondents No.s 1 to 5 are threatening the petitioner that they will not permit him to collect toll fee and if the petitioner dares to enter into the fish WPC.No.28454/2011 2 market, he will have to face dire consequences. Following are the reliefs sought for in this writ petition; i). to issue a writ of mandamus directing the respondents 6 to 8 to provide adequate and sufficient police protection for the person and property of the petitioner from the illegal threats of the respondents 1 to 5 and their henchmen. ii). to issue a writ of mandamus directing the respondents 6 to 8 to provide adequate and sufficient police protection to the petitioner for collecting toll fee from the Changanacherry Fish Market. 2. Respondents 1 to 5 have filed a detailed counter affidavit through the 3rd respondent. Along with the counter affidavit, documents Exts.R1 (a) to R1(f) are produced. It is contended that there is no warrant at all for issuance of police protection directions as the respondents are not indulging in any illegality. There is no threat at all to the life of the petitioner or for any lawful conduct of business by the petitioner. WPC.No.28454/2011 3 3. We Heard Sri.M.P.Madhavankutty learned counsel for the petitioner and Sri.Anil K.Narendran learned counsel for the party respondents. 4. Mr.Madhavankutty would draw our attention to the judgment of this court Boban Thomas v. Kottayam Municipality (2010 (1) KLT 954) and submit that the Changanacherry fish market, in respect of which Ext.P2 order has been passed, is a public market user of which is liable for payment of fee under Section 458. The learned counsel himself would bring to our notice the interim order dated 3/11/2011 issued by this court in W.P.(C) No. 29271/2011. It was pointed out that on the terms of that interim order, which is in favour of respondents 2,3,4 and 5, the collection of market fees pursuant to Ext.P6 therein (Ext.P2 herein) from those respondents has been stayed. Mr.Madhavankutty submitted that what has been stayed is collection of market fee from those respondents if they are conducting sale of fish in the building which belong to them. It is noticed that those respondents often sell fish outside the building also that may not permitted. 5. Mr.Anil.K.Narendran learned counsel for the party WPC.No.28454/2011 4 respondents submitted that there is no justification for exercise of this court's discretionary jurisdiction in the matter of issuing police protection direction in the present case. The allegation of illegal and contumacious acts levelled against the party respondents are without any basis. The party respondents do not intend to cause any threat to the life or limbs of the petitioner. They do not intend to obstruct lawful collection of fee by the petitioner from the vendors in the market. The interim order in W.P.(C) No.29271/2011 was issued by this court after hearing the petitioner also. That interim order has to be obeyed in letter and spirit. 6. Having considered the rival submissions addressed at the Bar, we are of the view that so long as the interim order in W.P. No. 29271/2011 stands, the petitioner is not entitled for the reliefs which he has sought for in this writ petition. Relief can be granted only to a certain extent. 7. We dispose of this writ petition directing respondents 6 to 8 to render adequate police protection to the petitioner for collection of market fees from the various vendors in Changanacherry fish market other than respondents 2,3,4 and 5 WPC.No.28454/2011 5 if there is obstruction by those vendors in the matter of collection of due market fee from them. We record the submissions of Mr.Anil K.Narendran made on behalf of respondents 2,3, 4 and 5 that respondents 2,3,4 and 5 will sell fish from inside their building. If it is reported by the petitioner to respondents 6,7, and 8 that respondent 2,3,4 and 5 are selling fish outside the building in violation of what is permitted in W.P. No. 29271/2011, the respondents 6 to 8 or any one of them will conduct an enquiry and if the enquiry reveals that allegation of the petitioner is correct, the needful will be done so as to prevent respondents 2,3,4 and 5 from selling fish outside the building. PIUS C.KURIAKOSE,JUDGE K. HARILAL, JUDGE. dpk