IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 WP(C).No. 25390 of 2010(W) -------------------------------------- PETITIONER(S): --------------------- 1. C.P.MOHAMMED RAFEEQ,S/O.C.P.MOHAMMED ALI PENTHOTTATHIL HOUSE, P.O., KIZHUPARAMBA, ERNAD TALUK, MALAPPURAM DISTRICT. 2. KUNJUMOIDEEN KUTTY, S/O. KOMU, KANDANGARI HOUSE P.O. PUTHOOR PALLIKKAL, MALAPPURAM DISTRICT. BY ADV. SRI.AVM.SALAHUDIN RESPONDENT(S): ------------------------ 1. DEPUTY SUPERINTENDENT OF POLICE, MALAPPURAM-676505. 2. CIRCLE INSPECTOR OF POLCIE MANJERI-676121. 3. SUB INSEPCTOR OF POLICE, AREKKODE POLICE STATION, MALAPPURAM DISTRICT-673639. 4. GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, CIVIL STATION, MANJERI, MALAPPURAM DISTRICT-676121. 5. UNNIKRISHNAN S/O. KRISHNAN NAMBOOTHIRI, AGED 39 YEARS, CHERUVAKKAD VEEDU P.O. PANNIKKODE, KOZHIKODE DISTRICT-673602. 6. BHASKARAN VAPPARIAN, S/O. CHELLI, MALIKATHADAI VEEDU, PAZHAMPARABU, KEEZHUPARAMBU .P.O., MALAPPURAM DISTRICT-673104. 7. BAIJU, S/O. KUNJAN, AGED 27 YEARS, MALIKATHADAI VEEDU, PAZHAMPARAMBU, KEEZHUPARAMBU P.O. MALAPPURAM DISTRICT-673104. 8. BABURAJAN S/O. MUNDANKUTTY, MALIKATHADI VEEDU, PAZHAMPARAMBU KEEZHUPARAMBU P.O. MALAPPURAM DIST-673104. WPC 25390/2010 -2- 9. GOPALAN,S/O. ERANADAN PALAN, PAZHAMPARAMBU KEEZHUPARAMBU P.O. MALAPPURAM DISTRICT-673104. 10. VIJAYAN C., S/O. KUTTAN, AGED 46 YEARS, CHEENATHUNKANDIYIL, THRIKKALAYOOR, VALILLAPUZHA P.O., MALAPPURAM DISTRICT-673639. 11. MOHANDAS N.V.S/O. AYYAPPAN, VELUTHEDATH VEEDU, THRIKKALAYOOR, VALILLAPUZHA P.O., MALAPPURAM DISTRICT-673639. 12. SOMAN @ JAYAKRISHNAN, FATHER'S NAME NOT KNOWN THACHAMBALATH VEEDU, THRIKKALAYOOR, VALILLAPUZHA P.O. MALAPPURAM DISTRICT-673639. 13. ANIL C., S/O.DAMODHARAN, AGED 38 YEARS, CHERUVEETTIRI VEEDU, THRIKKALAYOOR, VALILLAPUZHA P.O., MALAPPURAM DISTRICT-673639. 14. SIVADASAN, FATHER'S NAME NOT KNOWN, AGED 59 YEARS, KUNOOR VEEDU, THRIKKALAYOOR, VALILLAPUZHA P.O. MALAPPURAM DISTRICT-673639. 15. SIVADASAN S/O. PUTHIYAANDI, AGED 27, KARALIPARAMBIL VEEDU, KEEZHUPARAMBA P.O.-673104 ADDL. 16.CHERIAKKAN MASTER, FIT PERSON OF the THRIKKALAYOOR DEVASWOM, RESIDING AT THONNATH HOUSE, P.O.KEEZHPARAMBU, AREEKKODE VIA, MALAPPURAM DISTRICT. ADDL. 17.MALABAR DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY/ COMMISSIONER, HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE. (Additional respondents 16 and 17were impleaded as per order on I.A.No.14373/2010 dated 26.11.2010) R1 TO R4 BY GOVERNMENT PLEADER SRI.T.K.VIPINDAS. ADV. SRI.N.NAGARESH FOR R5-9 SRI.N.NAGARESH FOR R11-15 SRI.T.V.VINU FOR R5-9 & R-11-15 SRI.K.MOHANAKANNAN,SC,MALABAR DEVASWOM FOR R 17 SMT.PRABHA R.MENON FOR R16 SRI.M.KRISHNAKUMAR FOR R16 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.25390 OF 2010: PETITIONER'S EXHIBITS: EXT.P1.TRUE COPY OF THE SALE DEED NO.5725/2008 DATED 7.10.2008. EXT.P2.TRUE COPY OF THE POSSESSION CERTIFICATE DATED 20.2.2010. EXT.P3.TRUE COPY OF THE CASH MEMORANDUM DATED 7.4.2010. EXT.P4.TRUE COPY OF THE PETITION DATED 19.3.2010. EXT.P5.TRUE COPY OF THE STOP MEMO DATED 24.3.2010. EXT.P6.TRUE COPY OF THE ORDER PASSED BY VILLAGE OFFICER DATED 5.5.2010. EXT.P7.TRUE COPY OF THE SAID JUDGEMENT DATED 14.7.2010 IN WPC 11066/2010. EXT.P8. TRUE COPY OF THE REPRSENTATION DATED 23.7.2010. EXT.P9.TRUE COPY OF THE PURCHASE CERTIFICATE FROM THE LAND TRIBUNAL AS PER PATTA NO.12224/1975. EXT.P10.TRUE COPY OF THE PLAINT IN OS.NO.84/96. K.M.JOSEPH & M.C.HARI RANI, JJ. ------------------------------------------------------ W.P.(C) No.25390 of 2010-W ---------------------------------------------- Dated, this the 13th day of December, 2010 J U D G M E N T K.M.Joseph, J. Petitioners have approached this Court seeking the following reliefs: “i) to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 3 to provide adequate police protection to the petitioners and their workers for performing works in Ext.P1 property in connection with the construction of proposed building of the first petitioner including extraction of laterite stones from Ext.P1 property. ii) to direct the respondents 1 to 3 to consider Ext.P8 and grant necessary police protection for the life and property of the first petitioner and his family members from the criminal activities of respondents 5 to 15 and their men.” 2. Briefly put, the case of the petitioners is as follows : The Ist petitioner owns an extent of 28.6 cents of property in Sy.No.213/1, Block No.20 in Keezhuparamba amsom and desom of Ernad Taluk. It was purchased on 7.10.2008 vide Ext.P1. Ext.P2 is the possession certificate. As per Exts.P1 and P2 the Ist petitioner is the absolute owner and is in possession of the property and nobody has any right WPC No.25390 of 2010 -2- over the said property other than the petitioner. The Ist petitioner proposes to construct a building in Ext.P1 property and for which as a preliminary work he has to level the property to a certain extent. For the purpose of leveling the land and extracting some laterite stones from Ext.P1 property, the Ist petitioner entered into an agreement with the 2nd respondent (must be the 2nd petitioner) for cutting and removing the laterite stones. The 2nd respondent (must be the 2nd petitioner) approached the 4th respondent and obtained permission to extract laterite stone from Ext.P1 property. Ext.P3 is the cash memorandum. When the petitioners started to extract laterite stones, respondents 5 to 15 came and threatened that if any work is done in Ext.P1 property they will assault and kill the Ist petitioner and his family members. They also threatened that if the work is continued, they will inflict injuries on the 2nd petitioner and his workers. The Ist petitioner filed Ext.P4 petition before the 3rd respondent police officer. While so, a stop memo is issued by the Village Officer, Keezhparamba vide Ext.P5. The Ist petitioner filed W.P.(C) No.11066/2010 before this Court. WPC No.25390 of 2010 -3- Petitioner was asked to file detailed objection before the Village Officer and the Village Officer passed Ext.P6 order. Petitioner challenged Ext.P6 order by amending the writ petition. Petitioner also made additional 16th respondent in this case as a party and Ext.P7 is the judgment pronounced after hearing all the parties setting aside the stop memo and the order passed by the Village Officer. When the petitioners started the work after Ext.P7, there is obstruction by the respondents. Hence after filing complaint petitioners are before this Court. 3. When the matter came up, the learned counsel for respondents 5 to 9 and 11 to 15 Sri. Nagaresh submitted that respondents 5 to 9 and 11 to 15 are not obstructing the petitioners and that the property actually belonged to the additional 16th respondent and it is subsequently that the additional respondents 16 and 17 were impleaded. 4. The additional 16th respondent has filed a counter affidavit. In the counter affidavit it is inter alia stated as under: “4. In 1990, this Honourable Court passed a general WPC No.25390 of 2010 -4- direction vide judgment dated 10.12.1990 in CRP 1561/90 that in cases where Devaswom properties are claimed vide Land Tribunal proceedings, the concerned Tribunals should examine the claims in detail. Directions were issued to initiate proceedings to set aside such pattas which were granted to unsustainable claimants. Acting on these instructions, the Government of Kerala through the HR & CE Department, had issued a circular No.H.R.5/397/97 on 4/2/1997 wherein all Devaswoms were directed to ensure that such pattas obtained clandestinely should be proceeded against. 5. The Sree Thrikkaliyoor Temple owns the entire extent of property mentioned in exhibit P1 document. It is part of the D schedule property scheduled to O.S.84/96 filed by the Devaswom, before the Sub Court Manjeri, for injunction against the defendants from interfering with the peaceful possession of the Devaswom of its properties. In exhibit P1 only the name of the lessee under the Devaswom is mentioned. The name of the ultimate jenmi is conspicuously absent in exhibit P1 title deed claimed by the petitioner. Exhibit P1 is also seen executed during the pendency of the Suit O.S.84/96 suppressing the name of the ultimate jenmi. 6. It is submitted that any alienation in respect of property belonging to a religious institution is null and void. Exhibit P1 has been created fraudulently and illegally and the property is liable to be recovered. The Devaswom has already filed its written statement in O.S.84/96 pending before the Sub Court, Manjeri. In WPC No.25390 of 2010 -5- such circumstances when a civil dispute is pending with regard to the exhibit P1 property claimed by the petitioner, the petitioner is bound to prove his independent title before the civil court first, before seeking police protection to put up constructions in the property.” 5. We heard the learned counsel for the parties. Learned counsel for the petitioners reiterates his case. He points out Ext.P7 judgment and submitted that the Court had set aside the stop memo and the order of the Village Officer and took the view that if the additional 16th respondent herein has any case that the petitioner is not entitled to hold the property it is for them to approach the civil court. It is submitted that the respondent has not filed civil suit. Learned counsel for the 16th respondent would point out that the predecessor-in-interest of the petitioners are defendants in the suit. She also points out terms of the purchase certificate and she would submit that actually if any order of police protection is granted that will prejudice the cause in the suit and because of the same the Devaswom would be adversely affected. Sri.Mohanakannan, learned counsel for the 17th respondent submits the 16th respondent has to protect the WPC No.25390 of 2010 -6- property of the temple and any order of police protection will adversely affect the interest of the temple. 6. We do not think that the petitioners have made out a case for issuing a writ directing police protection as claimed by the petitioners. It is open to the petitioners if they are inclined to seek the relief before the civil Court itself as we feel that otherwise we may be essentially deciding the matter which are in the region of dispute. We record the submission of the learned counsel for the party respondents 5 to 9 and 11 to 15 that the respondents 5 to 9 and 11 to 15 will not physically obstruct the activities of the petitioners. The writ petition is disposed of leaving it open the petitioners to approach the civil Court and seek appropriate remedies. (K.M.JOSEPH) JUDGE. (M.C.HARI RANI) JUDGE. MS