IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 WP(C).No. 36769 of 2009(M) --------------------------------------- PETITIONER(S): ---------------------- MOOSA, AGED 49 YEARS, S/O. VAVA, PULLANTHIKUZHUMPIL,RANDERKARA, MUVATTUPUZHA. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR SRI.P.P.BIJU. RESPONDENT(S): ------------------------ 1. THE SUB INSPECOTOR OF POLICE MUVATTUPUZHA. 2. KUTTAPPAN, AGED 59 YEARS, S/O. AMARAKKIL, KOTTAKKAKATH PURAYIDATHIL MUVATTUPUZHA. 3. M/S. INDIA TELECOM INFRA LTD., 2ND FLOOR, CHACKACHERIL TOWER, SEA PORT AIR PORT ROAD, KAKKANAD, COCHIN 682030, REP. BY ITS MANAGER, ACQUISITION, VINOD PULAKKATT. R1 BY GOVERNMENT PLEADER SRI.P.N.SUKUMARAN. R2 BY ADV. SRI.P.FAZIL SRI.A.C.THOMAS ADHIKARAM R3 BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ W.P.(C) No.36769 of 2009-M ---------------------------------------------- Dated, this the 3rd day of February, 2010 J U D G M E N T K.M.Joseph, J. Petitioner has approached this Court seeking the following relief:-- “to issue a writ of mandamus or such other writ, order or direction commanding the Ist respondent not to grant any protection to the respondents 2 and 3 to make any construction in the property covered by the interim order passed by the Munsiff Court, Muvattupuzha in O.S.No.473/2009”. 2. Briefly put, the case of the petitioner is as follows:--Petitioner is a poor cooli. The 2nd respondent is the adjoining owner residing on the northern side. It is stated that there is civil dispute and the boundary has to be fixed. It is stated that when the disputes were going on, the 2nd respondent permitted the 3rd respondent to erect a mobile phone tower in the disputed property. It is the further case of the petitioner that the 3rd respondent filed W.P.(C) No.27618/2009 before this Court seeking police protection for construction of the tower. The petitioner was the 2nd WPC 36769/2009 -2- respondent in the said writ petition. Ext.P1 is the judgment pronounced by this Court in the said writ petition along with other writ petitions. It is the further case of the petitioner that protection was given only if there is no interdiction for the construction from any competent forum. Petitioner filed a civil suit against the 2nd respondent seeking declaration of his right over plaint B-schedule property, that is, the property now possessed by the 2nd respondent and permitted the 3rd respondent for construction of tower. Recovery of possession is prayed. The learned Munsiff has granted interim order (Ext.P2). Ext.P3 is the sketch prepared by the Advocate Commissioner. 3. A counter affidavit has been filed on behalf of the 2nd respondent. Therein, inter alia it is stated that the suit is filed only after Ext.P1 judgment. It is also contended that there is no merit in the case of the petitioner. In this context, the respondent has produced the report of the Advocate Commissioner as Ext.R2(b) and the report of the Village Officer, Muvattupuzha as Ext. R2(c). The Village Officer, according to the 2nd respondent has categorically stated that the construction of the mobile tower is in 15 cents of property belonging to the 2nd respondent. WPC 36769/2009 -3- 4. We heard the learned counsel for the petitioner, learned counsel for respondents 2 and 3 besides learned Government Pleader. The learned counsel for the petitioner essentially relies on Ext.P2 order. The learned counsel for the 3rd respondent would point out that the 3rd respondent is not even made a party in that proceedings. The 2nd respondent would point out the fact that Ext.P1 judgment is not even mentioned in the plaint (Ext.R2(a). 5. A perusal of Ext.P1 judgment would show that, this Court, while granting protection had made it clear that parties can approach civil Court and other forum. In this context, the learned counsel for the 2nd respondent submits that having regard to the prayers in the suit, construction of the tower by the 3rd respondent cannot be interdicted even in terms of Ext.P1 judgment. The fact remains that the Civil Court has passed an order inter alia directing the parties to maintain status quo regarding B-schedule property as noted by the Advocate Commissioner. Ext.P2 is an order passed exparte. In the nature of the order passed we would think that while Ext.P2 order is pending it may not be appropriate at the same time to permit construction to go on in violation of the order. As to whether the order will be violated by WPC 36769/2009 -4- permitting construction on the basis of police protection ordered as per Ext.P1 it is a matter which should be decided by the Civil Court. No doubt, apparently Ext.P1 judgment was not brought to the notice of the Civil Court by the petitioner in the plaint. 6. The writ petition is disposed of directing the Ist respondent not to grant protection to respondents 2 and 3 to make any construction without getting Ext.P2 order clarified or modified. This order will be conditional upon fulfilling the following conditions. The petitioner will implead the 3rd respondent in the civil suit O.S.473/2009 & I.A.No.2836/2009) within one week from today. If steps are not taken to implead the 3rd respondent by the petitioner within one week from today, the direction given by us will automatically stand recalled. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS