IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 WP(C).No. 6352 of 2009(O) --------------------------------------- OS.22/2009 of MUNSIFF COURT, PEERUMEDU .................... PETITIONER(S): PLAINTIFFS 1,2,3,5,6,7,8,9 & 12 ------------------------- 1. GEORGE M.CHERIAN AGED 63 YEARS, S/O.CHERIAN,MODAYIL HOUSE, MALLAPALLY KARA, MALLAPALLY VILLAGE, MALLAPALLY TALUK. 2. RENJITH GEORGE MATHEW AGED 42 YEARS, S/O MATHEW, PANAMTHOTTATHIL HOUSE EDAKKUNNAM KARA, EDAKKUNNAM VILLAGE, KANJIRAPALLY TALUK. 3. RAJEEV ALEXANDER,AGED 50 YEARS, S/O.ALEXANDER, KOKKADATHU PUTHENPURACKAL HOUSE MUNDAKAYAM KARA, MUNDAKAYAM VILLAGE, KANJIRAPALLY TALUK. 4. KOSHY MATHEW, AGED 55 YEARS, S/O.MATHEW, KOKKADATHU HOUSE KUTTIKKANAM KARA, PEERMADE VILLAGE,PEERMADE TALUK. 5. JOE JOSEPH, AGED 34 YEARS, S/O.JOSEPH IKARETH HOUE, BETHANY CONVENT ROAD, KALATHIPADY KARA, VIJAYAPURAM VILLAGE, KOTTAYAM TALUK. 6. NAINAN JOSEPH AGED 32 YEARS, S/O.JOSEPH, IKARETH HOUE, BETHANY CONVENT ROAD, KALATHIPADY KARA, VIJAYAPURAM VILLAGE, KOTTAYAM TALUK. 7. C.S.VARGHESE, AGED 68 YEARS, S/O.SAMUEL CHARU BHAVAN, KOCHI KARA, ELAMKULAM VILLAGE KANAYANNOOR TALUK. W.P.(C) NO.56352/2009 8. MATHEWS MATHEW AGED 54 YEARS, S/O.CHANDY MATHEW, KOKKADATHU HOUSE, MUNDAKAYAM KARA, MUNDAKAYAM VILLAGE, KANJIRAPALLY TALUK. 9. SABU MATHEW, AGED 44 YEARS, S/O.MATHEW ADACKANATHU HOUE, KUTTIKKANAM KARA, PEERMADE VILLAGE, PEERMADE TALUK. BY ADV.MR.BECHU KURIAN THOMAS RESPONDENT(S): DEFENDANTS ------------------------- 1. KERALA STATE CONSTRUCTION CORPORATION REPRESENTED BY ITS CHAIRMAN, CONSTRUCTION CORPORATION OFFICE, COCHIN. 2. THE MANAGER KERALA STATE CONSTRUCTION CORPORATION REGIONAL OFFICE,KOTTAYAM. 3. STATE OF KERALA, REP.BY DISTRICT COLLECTOR, IDUKKI. R1 & R2 BY ADV. MR.M.V.THAMBAN R3 BY GOVT. PLEADER MR.P.K.RAVIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.6352/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 22/09 ON THE FILES OF THE MUNSIFF'S COURT, PEERMADE. P2:- COPY OF THE PLAINT IN OS. 165/06 ON THE FILES OF THE MUNSIFF'S COURT, PEERMADE. P3:- COPY OF THE JUDGMENT DTD. 11.10.07 IN OS. 165/06 ON THE FILES OF MUNSIFF'S COURT, PEERMADE. P4:- COPY OF THE DECREE DTD. 11.10.07 IN OS. 165/06 ON THE FILES OF MUNSIFF'S COURT, PEERMADE. P5:- COPY OF THE MEMORANDUM OF EXECUTION PETITION IN EP. NO.11/09 BEFORE THE MUNSIFF'S COURT, PEERMADE. P6:- COPY OF THE PATTA DTD. 13.10.1982 ISSUED TO SRI. K.K.KUMARAN BEARING NO.L.A. 1/1980. P7:- COPY OF THE PATTA DT. 13.10.1982 ISSUED TO SRI.K.SASI AS LA. 2/80. P8:- COPY OF THE PATTA ISSUED TO SRI.SABU MATHEW AS NO. 59/92 DTD. 10.7.92. P8(a):- COPY OF THE PROCEEDINGS IN LA. 656/91 RELATING TO THE ASSIGNMENT TO SRI.SABU MATHEW. P9:- COPY OF THE PATTA ISSUED TO SRI.KOSHY MATHEW DTD. 10.7.92 NO.60/92. P9(a):- COPY OF THE PROCEEDINGS FOR ASSIGNMENT IN LA. 59/91 RELATING TO THE ASSIGNMENT TO SRI.KOSHY MATHEW. P10:- COPY OF THE RECEIPT DTD. 11.4.88 PAID BY SRI.K.K.KUMARAN. P10(a):- COPY OF THE TAX RECEIPT PAID BY SRI.K.SASI DTD. 11.4.88. P10(b):- COPY OF THE TAX RECEIPT DTD. 15.6.91 PAID BY JOHN GEORGE. P10(c):- COPY OF THE TAX RECEIPT DTD. 19.3.93 PAID BY KOSHY MATHEW. P10(d):- COPY OF THE TAX RECEIPT PAID BY SABU MATHEW DTD. 22.6.94. P10(e):- COPY OF THE TAX RECEIPTS DTD. 16.8.00 PAID BY GEORGE M.CHERIAN. P10(f):- COPY OF THE TAX RECEIPT PAID BY RANJITH GEORGE MATHEW DTD. 16.8.2000. P11:- COPY OF THE ROUGH SKETCH. W.P.(C) NO.6352/2009 P12:- COPY OF THE COMMISSION REPORT DTD. 9.3.09 FILED BY ADV. LIBU MATHEW E.A. 13/09 IN E.P.11/09 IN OS. 165/06. P13:- COPY OF THE COMMISSION REPORT DTD. 3.8.09 FILED BY ADV. LIBU MATHEW EA. NO.13/09 IN EP. 11/09 IN OS. 165/06. P14:- COPY OF THE COMMISSION REPORT DTD. 2.3.09 FILED BY ADV. C.S.KALA IN OS. 22/09 ON THE FILED OF THE MUNSIFF'S COURT, PEERMADE. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE GOVT. ORDER GO(MS) 154/05/REVENUE DTD. 26.5.05. R2(b):- COPY OF THE ORDER NO.B3-2121/01 DTD. 10.2.09 ISSUED BY THE TAHSILDAR. R2(c):- COPY OF THE ACKNOWLEDGEMENT DTD. 2.1.09. R2(d):- COPY OF THE SURVEY PLAN BY THE REVENUE AUTHORITY. R2(e):- COPY OF THE PLAINT IN OS. NO.22/09 BEFORE THE MUNSIFF'S COURT, PEERMADE. R2(f):- COPY OF THE OBJECTION FILED IN IA. NO.98/09 ON 19.2.09. R2(g):- COPY OF THE PHOTOGRAPH SHOWING THE CONDITION OF THE LAND, WHEN IT WAS HANDED OVER TO THE RESPONDENT. R2(h):- COPY OF THE SHOWING THE CONDITION OF THE LAND AFTER CLEARING A MOTORABLE ROAD. R2(i):- COPY OF THE SHOWING THE LEVELLING AND SURVEY WORKS. R2(j):- COPY OF THE TAKEN DURING THE PROGRESS OF CLEARING THE LEVELLING WORK. R2(k):- COPY OF THE PHOTOGRAPH SHOWING THE CONSTRUCTION ACTIVITIES. R2(l):- COPY OF THE PHOTOGRAPH OF THE STAGE OF CONSTRUCTION OF THE BUILDING DURING THE 2ND WEEK OF JUNE 2009. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.6352 OF 2009 (O) ----------------------------------- Dated this the 26th day of August, 2009 J U D G M E N T The writ petition is filed mainly seeking the following relief: i. to pass an order of injunction restraining respondents 1 and 2 or anybody acting under them from carrying out any work of construction or demolition or destruction over the plaint schedule properties belonging to the plaintiffs (Schedule A to Schedule L as described below) in O.S.No.22/2009 on the file of the Munsiff's Court, Peermade pending disposal of the writ petition. 2. Petitioners are the plaintiffs in O.S.No.22 of 2009 on the file of the Munsiff's Court, Peermede. Suit is for perpetual prohibitory injunction, and the respondents are the defendants. The writ petition was filed before this Court WPC.6352/09 2 seeking the aforementioned relief by the petitioners since the court where the above suit was instituted, that is, Munsiff's Court, Peermede, was not then having regular sitting as the Officer posted at that station was sent over for training and charge was handed over to the Judicial First Class Magistrate Court, Peermede, who apart from his court has additional charge over another court as Judicial First Class Magistrate Court, Kattappana. The grievance raised by the petitioner was that the judicial officer put in additional charge was to attend to the cases of the Munsiff Court, Peermede only a day in a week and it was practically impossible to move or seek consideration of applications for emergent reliefs. Having regard to the submissions made by the counsel for the petitioners and taking note of the facts and circumstances presented, the writ petition was received and admitted on the file of the court. 3. After hearing the counsel for the petitioners and the Standing counsel for the respondents, this Court had passed an order in the following lines in the writ petition: WPC.6352/09 3 “There will be a direction to the respondents not to demolish any buildings or to cut and remove trees or to destroy any cultivation in the properties scheduled to the plaint, O.S.No.22 of 2009, Munisff's Court, Peermede, for a period of one week.” 4. Now both sides submit that the Munsiff has assumed charge of the Munsiff's Court, Peermede, and it is functioning as usual. However, in view of the pendency of the present writ petition before this Court over the subject matter involved in O.S.No.22 of 2009, and the interim order passed in the petition as above the interlocutory application and its disposal on merits are not proceeded with by the learned Munsiff, who awaits for disposal of the writ petition. The petitioners have raised a grievance that flouting the orders passed by this Court the building situated in the suit property had been demolished and works for putting up new constructions are in progress, at the instance of the respondent. Petition has been filed in the present writ WPC.6352/09 4 petition to restrain the respondents from continuing with the construction works and also to initiate contempt proceedings for violating the orders of this Court. The learned counsel for the respondents, inviting my attention to the counter affidavit filed to the writ petition and also the other materials tendered with the petition submitted that properties involved in the suit O.S.No.22 of 2009 and the property in which constructions are proceeded by the respondents are situate in two different villages and they are totally different from one another. Further submission of the counsel is that the interim orders/directions given by this Court earlier only restricts demolition of building and cutting and removing of tress though a prayer was made in the application moved by the petitioners to restrain the respondents from proceeding with any construction as well. So much so, the present case advanced and the grievance espoused with the request made to pass interim prohibitory orders for stopping the construction, that is already in progress, according to the counsel, is not entertainable. In reply, the learned counsel for the petitioners would submit that at the time when the writ WPC.6352/09 5 petition was moved, no construction work commenced, and so much so, the interim relief was pressed only in respect of which an apprehension existed then and that alone was considered and granted by this Court by order dated 26.2.2009. According to the counsel, the construction work commenced on the closing of the courts, that is, from 8.4.2009 onwards. 5. I find disputed questions of fact involved in the writ petition have to be determined in the pending suit, and it may not be proper for this Court in its exercise of writ jurisdiction to delve deep into those questions and express any view, opinion or finding which then may have serious reflection or bearing in the decision to be arrived by the court below in the pending suit after adjudication. However, needless to point out that the interim order passed by the court after hearing both sides has to be respected in letter and spirit by the respondents. The respondents cannot take shelter or canvass a case that the interim order does not interdict them from commencing constructions in the property. If any WPC.6352/09 6 construction work done by them is found to be in the suit property, it will be at their risk and costs, and it need not be expressed in explicit terms that in that event they will also be liable to face contempt. The learned counsel for the petitioners submits that constructions for four buildings are going on and they are at different stages. A commission report obtained in the suit would indicate that in one of the four buildings, at present, erection of pillars in the second floor is in progress and in the rest construction work in the ground floor is going on. Where construction has reached considerable level, it is not proper for this Court at this stage to pass prohibitory orders restraining the respondents from continuing with such construction, but all the same, when a prohibitory order is already in force, and that too having been passed after hearing the counsel on both sides, the respondents cannot be permitted to continue with the constructions on the plea that the prohibitory order did not prevent them from carrying out any constructions in the property. The question whether the properties covered by suit and those in which constructions are continued, are different WPC.6352/09 7 can be resolved only after adjudication of the controversies raised in the suit. 6. Taking an overall view of the controversy presented, I make it clear and further order that till the I.A. moved by the plaintiff for injunction in the pending suit is heard and disposed by the learned Munsiff, Peermede, so far as the building where the constructions has proceeded for the second floor, beyond that floor, no further construction will be continued. In respect of the other constructions of the buildings where the work has commenced other than the erection of the pillars, till the disposal of the I.A. on merits by the learned Munsiff the respondents shall not carry out any other construction work. 7. The learned Munsiff, Peermede is directed to consider I.A.No.98 of 2009 in O.S.No.22 of 2009 within one month from the date of receipt of a copy of this judgment. Prohibitory order passed by this Court earlier and also the present judgment shall have operation only till the learned WPC.6352/09 8 Munsiff pass orders disposing I.A.No.98 of 2009. In disposing the interlocutory application on merits, after hearing both sides, I make it clear that none of the observations/orders passed by this Court in the writ petition shall have any bearing, influence or reflection. Needless to point out that the proceedings for contempt shall continue and that will not be in any way affected by the disposal of this writ petition. Subject to the above observations/directions/orders, the writ petition is closed. Handover a copy of the judgment to the counsel on both sides on usual terms and send a copy to the court concerned forthwith. S.S.SATHEESACHANDRAN JUDGE prp