IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 WP(C).No. 31543 of 2009(K) -------------------------- PETITIONER(S): ---------------------- KUNJANNAMMA J.P., W/O. JOSEPH, PAZHAYAKADAVIL, VADAYAR VILLAGE, THALAYOLAPARAMBU P.O., THALAYOLAPARAMBU. BY ADV. SRI.T.RAVIKUMAR SMT.G.AMBILI RESPONDENT(S): ------------------------ 1. THE DISTRICT COLLECTOR, KOTTAYAM. 2. THE SUPERINTENDENT OF POLICE, KOTTAYAM. 3. THE DEPUTY SUPERINTENDENT OF POLICE, PALA 4. THE S.I. OF POLICE, VAIKOM. 5. THE PRESIDENT, THALAYOLAPARAMBU GRAMA PANCHAYATH. 6. MR. SANTHOSH M, S/O. MADHAVAN, CHANDEZHATH VEETTIL, NEAR NICE THEATRE, VADAYAR VILLAGE, THALAYOLAPARAMBU P.O. THALAYOLAPARAMBU. W.P.(C).NO.31543/2009 K 7. MR. BIJU, S/O. ASOKAN, BIJU TEXTILES, MAIN STREET, THALAYOLAPARAMBU, RESIDING AT KRISHNAVILASAM, BIJU NIVAS, VADAYAR VILLAGE, THALAYOLAPARAMBU P.O. R1 TO R4 BY GOVERNMENT PLEADER SHRI T. K. VIPINDAS. ADV. SRI.LAL GEORGE FOR R5 SRI.ALEXANDER GEORGE FOR R6 & 7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C).NO. 31543 OF 2009 K PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PHOTOGRAPH. EXT.P1(A) TRUE COPY OF THE PHOTOGRALPH. EXT.P1(B) TRUE COPY OF THE PHOTOGRAPH. EXT.P1(C) TRUE COPY OF THE PHOTOGRAPH. EXT.P2 TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE R2 ON 24.8.2009. EXT.P3 TRUE COPY OF THE RECEIPT ISSUED BY THE SUPERINTENDENT OF POLICE ON 24.8.2009. EXT.P4 TRUE COPY OF THE RECEIPT NO.017453 ISSUED BY THE DYSP OF POLICE, PALA. EXT.P5 TRUE COPY OF THE RECEIPT ISSUED BY THE COLLECTORATE, KOTTAYAM DATED 14.9.2009. EXT.P6 TRUE COPY OF THE RECEIPT ISSUED BY THALAYOLAPARAKBU GRAMA PANCHAYAT ON 25.8.2009. EXT.P7TRUE COPY OF THE PETITION DATED 30.10.2009. EXT.P15 TRUE COPY OF THE LETTER DATED 4.12.2009. RESPONDENTS' EXHIBITS: EXT.R5(A) TRUE PHOTOSTAT COPY OF THE NOTICE DATED 20.11.09. EXT.R5(B) COPY OF THE NOTICE NO.400/09 DATED 11.11.09 EXT.R5(C) COPY OF THE NOTICE NO.400/09 DATED 12.11.09. EXT.R5(D) COPY OF THE NOTICE NO.400/09 DATED 11.11.09. EXT.R5(E) TRUE PHOTOSTAT COPY OF THE NOTICE DATED 12.11.2009. EXT.R5(F) TRUE PHOTO COPY OF THE REPRESENTATION DATED 18.11.09. EXT.R5(G) TRUE PHOTOSTAT COPY OF THE MAHAZAR DATED 18.11.09. EXT.R5(H) TRUE PHOTOSTAT COPY OF THE NOTICE DATED 20.11.09. EXT.R5(I) TRUE PHOTOSTAT COPY OF THE NOTICE DATED 20.11.09. ANNEXURE A TRUE COPY OF THE WORK MEMO SUBMITTED BY PETITIONER. ANNEXURE B TRUE COPY OF THE WORK MEMO SUBMITTED BY THE FIFTH RESPONDENT. ANNEXURE C TRUE COPY OF THE WORK MEMO SUBMITTED BY RESPONDENTS 6 AND 7. ANNEXURE D TRUE COPY OF THE LETTER DATED 1.12.2009 FROM THE PETITIONER. ANNEXURE E TRUE COPY OF THE LETTER DATED 13.12.2009 FROM THE PETITIONER. ANNEXURE F TRUE COPY OF THE ENVELOP. // True Copy // PS to Judge K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. -------------------------------------------------- W.P(C). NO. 31543 OF 2009 K --------------------------------------------------- Dated this the 16th February, 2010 JUDGMENT K.M. Joseph, J. The Writ Petition is filed seeking the following reliefs: “i. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing respondents 1 to 5 to proceed against respondents 6 & 7 for preventing the petitioner from enjoying her property. ii. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing respondents 1 to 4 to grant sufficient protection to the petitioner for peaceful enjoyment of her property. iii. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the 5th respondent to demolish the construction committed by 6th and 7th respondents on the compound wall of the petitioner's property as no margin has been made available between the WPC.NO.31543/09 K 2 compound wall and the building of the respondents. iv. Direct the respondents to stop further construction that the 6th respondent has again started on 2.11.2009 which causes disturbance to the petitioner and her family members.” 2. Briefly put, the case of the petitioner is as follows: Petitioner is residing at Thalayolaparambu in 7 ½ cents of land. She had been working in United States and she purchased the property along with the residential building for residing therein. The building belonging to respondents 6 and 7 is situated on the south western side of the property belonging to the petitioner. They had constructed a building with a ground floor and first floor earlier and thereafter constructed further two more floors about two months back. It is stated that as a result, it has become difficult for the petitioner and members of her family to reach the PWD road. The water falls upon the persons who walk through this way from the gate to the residential WPC.NO.31543/09 K 3 building. Respondents being not satisfied with the damages already done, forcefully opened the ground on the western side of the pathway and has damaged the septic tank situated there. The exhaust pipes have been extended in such a condition that the dirty water falls into the well of the petitioner's property. The water from the well is being used by the petitioner. It is also stated that respondents 6 and 7 together with their henchmen started threatening the petitioner with dire consequences, if the petitioner proceed against any further. Petitioner has produced Ext.P1 series of photographs. Ext.P2 is a petition filed before respondent 1 to 5 seeking police protection. Exts.P3, P4, P4 and P6 are Receipts. Petitioner has also approached the Legal Service Authority Chairman. 3. A Counter Affidavit has been filed on behalf of the fifth respondent Panchayat, producing Ext.R5 series of Notices. Therein, it is, inter alia, stated as follows: WPC.NO.31543/09 K 4 Respondents 6 and 7 are conducting business in the shop rooms. The residential building of the petitioner is situated behind the said shop rooms occupied by respondents 6 and 7. The aforesaid shop rooms were constructed before the implementation of the Building Rules in the Panchayat, i.e. about twenty years back. It is also stated that at present, there is no boundary line separating the shop rooms occupied by respondents 6 and 7 as well as the petitioner's property. It is further stated that as per the Register maintained by the Panchayat, Shri Joseph Pazhayakadavil is having possession of a small building having two bed rooms with tiled roof. The present double storyed building having plant area of more than 2500 Sq. Ft. which is owned and occupied by the petitioner is constructed in the same place wherein the old building owned by Shri Joseph was situated. It is stated that if the petitioner or any other person representing her has not obtained any permit or licence from the Panchayat for construction of the building and WPC.NO.31543/09 K 5 accordingly, the building is not numbered. The property tax is stated to be paid at the rate of Rs.22/= in the name of the previous owner. The Panchayat also issued Ext.R5(a) notice to the petitioner. It is stated that in the absence of definite boundary line, it could not be ascertained whether there is any projection of sunshade on the back side of the shop rooms. During inspection, certain irregularities were noted. Accordingly, Exts.R5(b) and R5(c) notices were issued to the owner to cure the defects. It is also stated that in the portion occupied by the 6th respondent also, almost identical defects are noted. The drainage pipes from the bath room of the shop room is seen erected outside the wall of the building. Moreover, open space meant for exhaust fan/ventilation was also noted at a height of about four metres in the portion owned by Mr. Santhosh. Ext.R5(d) is the notice issued by the Health Inspector directing the building owner to close the open portion. It is stated that during the site inspection, the aforesaid defects are again noted and the Panchayat has already directed the 6th WPC.NO.31543/09 K 6 respondent to cure the defects including closing of the open space and to remove the drainage pipes and report compliance. Ext.R5(e) is the notice issued by the Panchayat. It is stated that respondents 6 and 7 jointly submitted a representation seeking fifteen days' time to remove the drainage pipes on the reason that experienced plumbers and workers were not available. Thereafter the Panchayat had deputed the Health Inspector to verify the above aspects. On inspection, it was found that the drainage pipes have not been removed and that waste water from the 2nd floor of the building is collected in the land owned by the petitioner. Ext.R5(g) is the Mahazar. Exts.R5(h) and R5(i) are further notices dated 20.11.2009 asking respondents 6 and 7 to cure the defects. There is another Affidavit also filed, wherein Ext.R5(k) is produced. Ext.R5(k) is the true extract of the relevant portion of the Assessment Register pertaining to the petitioner's building. Certain allegations are raised against the petitioner. It is stated that the building was constructed in violation of the Kerala Building Rules. From 1983 onwards, the WPC.NO.31543/09 K 7 Building Rules are applicable to the Panchayat. It is stated that there is no building in the name of the petitioner in the Panchayat. 4. Petitioner has filed an Affidavit dated 18.12.2009 seeking to produce Ext.P15. It is stated that the petitioner has produced documents as Exts.P10, P11, P12, P12(a) and P14. It is stated that Ext.P15 has been issued for the purpose of harassing the petitioner. 5. We heard Shri T. Ravikumar, learned counsel for the petitioner and the learned counsel appearing for the Panchayat and respondents 6 and 7, besides the Learned Government Pleader. 6. Learned counsel for the petitioner would reiterate the facts, in particular, the documents produced by the Panchayat and would point out that even now, there is problem at the hands of respondents 6 and 7 in not complying with the notices issued by the Panchayat. Learned counsel for the Panchayat also would reiterate the facts and submit that it is essentially a civil WPC.NO.31543/09 K 8 dispute, and that there were some minor defects pointed out. But, he would submit that this is a matter where the party must approach the appropriate Forum. Learned counsel for respondents 6 and 7, who did not file any Counter, would submit that there is a small gate on the south western side and if that gate is opened, respondents 6 and 7 can carry out their works and it is because of the fact that the small gate is not opened, respondents 6 and 7 are not able to carry out the works. Learned Government Pleader would submit that there is no situation warranting issuance of any direction to afford police protection in the matter. 7. After having gone through the pleadings and after having heard the learned counsel for the petitioner, we do not think that this is a case where this Court should direct police protection to be provided to the petitioner. We feel that it is appropriate that the petitioner is relegated to pursue the remedies available to her in any other Forum. It is open to the petitioner to take steps to enforce the notices which have been issued as WPC.NO.31543/09 K 9 against respondents 6 and 7 by taking appropriate steps in the appropriate Forum. The Writ Petition is disposed of as above. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge