IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 WP(C).No. 30489 of 2009(E) ---------------------------------------- PETITIONER(S): ------------------------- E.R. GEORGE, ELANTHATTIL HOUSE, NANTHANATH KOCHACKO ROAD, THAMMANAM P.O., KOCHI 682 032. BY ADV. SRI.SAIBY JOSE KIDANGOOR RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF HOME, THIRUVANANTHAPURAM. 2. ASSISTANT POLICE COMMISSIONER, CENTRAL STATION, ERNAKULAM. 3. SUB INSPECTOR OF POLICE, PALARIVATTOM POLICE STATION. 4. JOSEPH PETER, PALLATH HOUSE, NANTHANATH KOCHACKO ROAD, THAMMANAM P.O., KOCHI - 682 032, NOW RESIDING AT GALAXY MANOR, THAMMANAM. R1 TO R3 BY GOVERNMENT PLEADER SRI. T.K.VIPINDAS R4 BY ADVS. SRI.N.SUBRAMANIAM, SRI.M.S.NARAYANAN. SRI.A.S.P.KURUP,ADVOCATE COMMISSIONER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/03/2011 ALONG WITH WPC NO. 33517 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.30489/2009 E APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PHOTOGRAPHS. P2: COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER TO THE 3RD RESPONDENT ON 8/07/09. P3: COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER TO THE 2ND RESPONDENT ON 16/10/09. RESPONDENT'S EXHIBITS: R4(): COPY OF A ROUGH SKETCH DTD. NIL R4(B): COPY OF PLAN APPROVED BY THE CORPORATION OF KOCHI DTD.21/5/1992. R4(C): COPY OF PLAN BUILDING PERMIT ISSUED BY THE CORPORATION OF KOCHI DTD. 28/02/2008. R4(D): COPY OF THE JUDGMENT IN WP(C) NOS.7654/2009 AND 37734/2009 DTD. 17/03/2009. R4(E): COPY OF THE JUDGMENT IN WP(C)NO.23314/2009 DTD. 14/08/2009. R4(F): COPY OF THE INTERIM ORDER PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS DTD. 30/09/2009. R4(G): COPY OF THE JUDGMENT IN W.A.NO.1918/2009 DTD. 15/10/2009. R4(H): COPY OF THE LAWYER NOTICE CAUSED TO BE ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT. /TRUE COPY/ P.A.TO JUDGE Kss R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) Nos.30489 & 33517 of 2009 ***************************** Dated this the 14th day of March, 2011 JUDGMENT BASANT, J. These petitions are both for police protection and are filed by the rival contestants. 2. W.P(c) No.30489 of 2009 , the earlier petition filed, is by the holder of kudikidappu who had obtained the property from the other contestant, namely, the 4th respondent. Parties are being referred to in this common judgment as they are ranked in W.P(c) No.30489 of 2009. 3. The petitioner claimed to have obtained about 10 cents of land as kudikidappu. According to him, on the east and northern sides of his property is the property of the 4th respondent. The petitioner asserts that between the property of the 4th respondent on the east and his property, there is a pathway running north-south. The 4th respondent stoutly denies this assertion. According to the petitioner that pathway has been in existence for a long period of time. He alleges that there is an attempt on the part of the 4th respondent to interfere with this pathway on the east of his property. The 4th respondent has W.P(C) Nos.30489 & 33517 of 2009 obtained permit from the Corporation for constructing a residential building in the property to the north of the petitioner's property. That permit was once cancelled by the local authority, but it is now valid. While the petitioner claims police protection against any attempt to interfere with the pathway, the 4th respondent claims police protection against any attempt by the petitioner to trespass into his property and attempt to construct a residential building in the property lying on the north of the petitioner's property. 4. Thus to sum up, the bone of contention between the petitioner and the 4th respondent is the existence or otherwise of a pathway on the east of the petitioner's property running north- south. The petitioner asserts that there is a pathway. The 4th respondent asserts that there is no such pathway. According to the 4th respondent, when the kudikidappu was given to the petitioner's father, there was a pathway on the west of the 10 cents of the property. Subsequently the petitioner and his brother had partitioned the kudikidappu property and has taken about 5 cents each. It is thereafter, according to the 4th respondent, that the petitioner has been asserting that there is a pathway on the eastern side of his property. No such pathway, W.P(C) Nos.30489 & 33517 of 2009 according to the 4th respondent, ever existed. The pathway on the west of the kudikidappu property is now being used by the brother of the petitioner, asserts the 4th respondent. During the pendency of the proceedings, there has been an attempt to alter such pathway, alleges the 4th respondent further. 5. The 4th respondent has already gone to the civil Court and O.S.No.713 of 2009 is now pending before the Munsiff Court, Ernakulam. In that suit, the 4th respondent had claimed an interim order of injunction restraining the petitioner from interfering with his possession over the property to the east of the petitioner's property. The court had deputed a Commissioner. No interim orders have been passed. There is no dispute that the Commissioner had found a pathway on the east of the petitioner's property. That pathway, according to the 4th respondent, has been brought into existence after the filing of the suit and before the Commissioner inspected the property. 6. Be that as it may, it is now conceded that a pathway exists on the eastern side of the property though it is contended that it was brought into existence by the petitioner subsequent to the filing of the suit. The 4th respondent, though he has filed a civil suit, has not obtained any order from the civil court in his W.P(C) Nos.30489 & 33517 of 2009 favour. The petitioner herein, though he is aware of the pendency of the suit filed by the 4th respondent, has not admittedly made any counter claim in that suit; nor has he approached the civil court for the resolution of the controversy regarding the pathway. 7. During the pendency of this proceedings, interim orders were passed by this Court. When W.P(c) No.30489 of 2009 came up for admission, the following order was passed by the Bench which dealt with the matter on 27.10.2009. “There will also be a direction to the police to ensure that law and order is maintained and if required the police shall render protection to the life of the petitioner.” During the pendency of the proceedings, the 4th respondent appears to have claimed an interim order and the Bench which dealt with the matter on 18.11.09 passed the following order in favour of the 4th respondent. “Counsel for petitioner submits that petitioner has no intention whatsoever to interfere with the construction by the fourth respondent. In the unlikely event of any obstruction by the petitioner or anybody else, it will be open to the fourth respondent to approach the third respondent in which case the third respondent shall take prompt action.” W.P(C) Nos.30489 & 33517 of 2009 8. Later the Bench felt that an attempt can be made to settle the dispute. Parties were referred for mediation initially. But the mediation centre reported that the attempt for mediation did not succeed. At that juncture, an Advocate was appointed as Commissioner/Conciliator to attempt a settlement between the parties. That appointment was on 02.12.2009. But so far the matter has not been settled. 3 reports have been submitted by the Advocate Commissioner/Conciliator. Still a harmonious settlement does not appear to be near. We take it that the matter is not settled and cannot be settled before this Court. 9. Another development to which we have not adverted to is the filing of W.P(c) No.33517 by the 4th respondent during the pendency of this petition. After the 4th respondent secured the interim order dated 18.11.09 extracted above, he promptly filed W.P(c) No.33517 of 2009 on 20.11.2009. When that matter came up for admission on 23.11.09, the Bench which dealt with the mater passed the following order. “In view of the order dated 18.11.2009 in W.P(c) No.30489 of 2009, there will be an interim order as prayed for. Post along with W.P(c) No.30489/09 on 02.12.2009” That order remains in force even now. W.P(C) Nos.30489 & 33517 of 2009 10. The learned counsel for the 4th respondent submits that if after measurement of all the properties involved, it would be found that there is no pathway on the western side of the 10 cents kudikidappu property assigned to the father of the petitioner, the 4th respondent is willing to and shall provide a pathway on the eastern side of the petitioner's property. 11. The matter has been pending from 27.10.2009/20.11.2009. Though the Bench which dealt with the matter earlier very anxiously attempted a settlement of the dispute between the parties, no settlement has been reached. It is evident to us that no effective settlement can be reached in this Writ Petition now considering the nature of the dispute between the parties. On the western side of the 10 cents of kudikidappu property, is the property of another person who is not party to this proceedings. No settlement appears to be possible without him on the party array if his property or disputes regarding his property were also to be taken into consideration and resolved. Suffice it to say that we do not find the settlement possible. It would be totally unnecessary to wait any longer awaiting such settlement which has been attempted for the past more than one year. W.P(C) Nos.30489 & 33517 of 2009 12. The short question that remains to be considered is whether any order of police protection deserves to be granted to either the petitioner or the 4th respondent. The parties are before the civil court. The bone of contention is the pathway on the eastern side of the property of the petitioner. It is relevant to note that existence of the pathway now is not disputed, though it is asserted that the pathway had come into existence after the filing of the suit by the 4th respondent, ie. O.S.No.713 of 2009 pending before the Munsiff Court, Ernakulam. 13. Having rendered our anxious consideration to all the relevant aspects, we are certainly of the opinion that the parties must be relegated to seek appropriate orders from the civil court. It is not necessary for this Court now to consider the nature of the controversies and attempt to resolve them invoking its extraordinary constitutional jurisdiction under Article 226 and issue any specific directions. Both parties agree that the interim orders passed by this Court which have remained in force from 27.10.2009, 18.11.2009 and 23.11.09 extracted above can be permitted to remain until the civil court passes appropriate orders. We are, in these circumstances, satisfied that the said interim orders can be made absolute and the W.P(C) Nos.30489 & 33517 of 2009 proceedings in these two Writ Petitions can be closed. To the limited extent of making the said interim orders absolute, these petitions can be allowed. 14. In the result: a) These Writ Petitions are allowed in part; b) The three interim orders extracted above are made absolute; c) It is held that no further directions under Article 226 of the Constitution is necessary and the parties must seek appropriate orders from the civil court for the resolution of the controversy between them about the pathway on the eastern side of the property of the petitioner; 15. The learned counsel for the petitioner submits that he has very serious objections to raise against the third report dated 11.03.2011 filed by the Advocate Commissioner/Conciliator. We do not think it necessary to keep the case pending any longer to enable the petitioner to file his objections to that. We do not accept the said report dated W.P(C) Nos.30489 & 33517 of 2009 11.03.2011. It shall be open to the parties to raise their objections before the concerned authority if attempt is made to rely on such report before any authority. 16. The 4th respondent raises a contention that the property on the west also belongs to him though another person has staked a claim over that property now. We make it clear that we have not intended to express any opinion on that controversy also. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/