IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 WP(C).No. 17250 of 2011(E) -------------------------------------- PETITIONER: ------------------- P.K.RAJAPPAN PILLAI,S/O.LATE KRISHNA PILLAI,' THUSHARA', THAIKKATTUSSERI VILLAGE, THEVARVATTOM MURI,CHERTHALA. BY ADVS. SRI.M.V.S.NAMBOOTHIRY, SRI.P.P. ABDULKAREEM. RESPONDENTS: ------------------------ 1. THE SUPERINTENDENT OF POLICE, ALAPPUZHA,PIN- 688 001. 2. THE CIRCLE INSPECTOR OF POLICE, CHERTHALA,PIN- 688 524. 3. THE SUB INSEPCTOR OF POLICE, CHERTHALA,PIN- 688 524. 4. G.SHAIJU,S/O.GOVINDAN KATTICHIRA (PERUMKUZHI),PALLIPURAM VILLAGE,CHERTHALA TALUK, PIN -688 541. 5. ARAVINDAKSHAN PILLAI,S/O.RAVUNNI PILLAI, KANJIRANGIL HOUSE,PALLIPPURAM,PIN 688 541, CHERTHALA. 6. ASHOKAN,S/O.DIVAKARAN,ABHILASH BHAVAN, PALLIPPURAM,PIN -688 541,CHERTHALA. 7. P.V.THOMAS, S/O.VARKEY,PUNNUNGAL HOUSE, PALLIPPURAM,CHERTHALA,PIN- 688 541. W.P.(C). NO.17250/2011-E: 8. VIJAYAKUMAR,S/O.CHANDRASEKHARAN PILLAI, CHAKKANATTU HOUSE,PALLIPURAM,CHERTHALA, PIN- 688 541. 9. C.V.RAMESHAN,S/O.VELAPPAN,KALARIKKAL HOUSE,PALLIPPURAM,CHERTHALA,PIN- 688 541. 10. GOPAKUMAR,S/O.SIVARAMAN NAIR, 'GOKULAM',PALLIPPURAM,CHERTHALA,PIN- 688 541. *ADDITIONAL R.11 IMPLEADED: 11. THE TALUK TAHSILDAR, CHERTHALA *IS IMPLEADED AS ADDITIONAL R.11 AS PER ORDER DATED 05/07/2011 IN I.A. 10469/2011. R1 TO R3 & ADDL. R.11 BY GOVT. PLEADER SMT. C.M. CHARISMA, R4 BY ADVS. SRI.T.JAYAKRISHNAN, SRI.NIDHI BALACHANDRAN, R5 TO R10 BY ADV. SRI.J.OM PRAKASH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.17250/2011-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SALE DEED NO.116/2008. EXT.P.2: COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER. EXT.P.3: COPY OF THE PERMIT ISSUED TO THE PRIOR OWNER OF THE PROPERTY FOR SAND MINING. EXT.P.4: COPY OF THE COMPLAINT DTD. 18/06/2011 FILED BY THE PETITIONER BEFORE THE R.3. RESPONDENTS' EXHIBITS: EXT.R5.A: COPY OF THE PLAINT IN O.S. NO. 773/2008 DTD. 21/11/2008 OF THE MUNSIFF'S COURT, CHERTHALA. EXT.R5.B: COPY OF THE COUNTER AFFIDAVIT OF THE FIRST COUNTER PETITIONER IN I.A. NO. 4131/2008 IN O.S. NO. 773/2008 DTD. 12/12/2008 OF THE MUNSIFF'S COURT, CHERTHALA. EXT.R5.C: COPY OF THE COMMISSION REPORT IN O.S. NO. 773/2008 FILED BY ADVOCATE G. ANILKUMAR DTD. 29/11/2008. EXT.R5.D: COPY OF THE COMPLAINT FILED BY RESPONDENTS 5 TO 10 BEFORE THE STATION HOUSE OFFICER, CHERTHALA. //TRUE COPY// P.S. TO JUDGE. Prv. PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ----------------------------------------------- WP(C). No. 17250 of 2011 ----------------------------------------------- Dated this the 22nd day of July, 2011 J U D G M E N T Pius C.Kuriakose, J. The petitioner has approached this Court complaining that party respondents 4 to 10 are without any justifiable reason objecting to his proposal of reclaiming a portion of his land where from sand was removed. According to the petitioner, the land which he proposed to reclaim was originally garden land and not wet land and hence, no permit is required from any authority for such reclamation. For resolving this controversy, the Tahsildar, Cherthala was impleaded as additional 11th respondent and Smt.Charisma, the learned Government Pleader on instructions from the additional 11th respondent submitted that barring 1.01 Ares of land in Sy. No.279/2A the entire land belonging to the petitioner which is proposed to be reclaimed by him is garden land and does not require any permit for WP(C).17250/11 -2- reclamation. Sri.M.V.S.Nampoothiry would submit that the intention of the petitioner is not to reclaim the above portion extending to 1.01 Ares of land in Sy. No.279/2A and the intention is only to reclaim that portion of the garden land where from sand was removed. Sri.Omprakash, learned counsel for the party respondents submitted that his clients are having a right of way over the property of the petitioner which is being questioned by the petitioner. According to him, a suit o.S. No. 773 of 2008 is pending before the Munsiff's Court, Cherthala in which the petitioner himself is the plaintiff. An Advocate Commissioner has inspected the properties and he has not mentioned the existence of the pathway. The learned Munsiff has issued a commission which is expected to identify the pathway on the basis of measurement with reference to the survey plan. According to Mr. Omprakas, the controversy between the parties is with regard to the width of the pathway. According to the WP(C).17250/11 -3- contesting respondents, the width of the pathway is 3 metres. The petitioner contends that the width is only 3 ft. If the petitioner is permitted to reclaim his property as sought for by him, there is every likelyhood that the 3 metre pathway claimed by the party respondents will be obliterated. Since the civil court is seizin of the matter, the proper remedy available to the petitioner, even if he has grievance, is to move the civil court. 2. Having anxiously considered the rival submissions addressed at the Bar we are of the view that on the facts and circumstances which attend on this case the party respondents are not justified in obstructing the reclamation of those portions of the petitioner's property where from sand has been mined out. The apprehension of the party respondents can be alleviated by incorporating appropriate riders in the directions that are being issued by us. Hence it is ordered as follows: WP(C).17250/11 -4- Respondents 2 and 3 are directed to afford necessary protection (in case there is obstruction from respondents 4 to 10 or anybody else) in the matter of the petitioner reclaiming those portions of his property where from sand was mined out. However, the petitioner is directed not to do the reclamation works in a manner as to obliterate the pathway which was noticed and reported by the Advocate Commissioner who conducted the first inspection in O.S. No. 773 of 2008. The questions as to what is the width of the pathway are all questions to be decided by the learned Munsiff in the pending suit. We also make it clear that the work to be done by the petitioner on the strength of these directions will not affect the pathway rights claimed by the party respondents over the petitioner's property. If for any reason it is seen by the learned Munsiff that the nature of the pathway has been altered or affected due to reclamation work permitted under this judgment, the learned Munsiff will WP(C).17250/11 -5- take notice of the same and mould the relief to be passed in the suit accordingly ensuring that pathway right if any, the party respondents are having is not defeated at all. We make it clear that we are not expressing any opinion on the merits of the rival contentions in the suit. (PIUS C.KURIAKOSE, JUDGE) (K.SURENDRA MOHAN, JUDGE) ksv/-