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 29TH JUNE 2010 / 8TH ASHADHA 1932 WP(C).No. 13441 of 2010(E) ------------------------------------- PETITIONER(S): --------------------- 1. JAMES, AGED 37 YEARS, S/O.ALOSIUS, ANNYA NIVAS, KAIKULANGARA, KOLLAM WEST, KOLLAM. 2. JOY, AGED 40 YEARS, S/O.ALOSIUS, ANNYA NIVAS, KAIKULANGARA, KOLLAM WEST, KOLLAM. 3. PRASANTHI, AGED 27 YEARS, W/O.JOY, ANNYA NIVAS, KAIKULANGARA, KOLLAM WEST, KOLLAM. BY ADV. SRI.DILEEP P.PILLAI RESPONDENT(S): ------------------------ 1. S.I OF POLICE, KOLLAM WEST POLICE STATION. 2. C.I OF POLICE, KOLLAM WEST. 3. DISTRICT SUPERINTENDENT OF POLICE, KOLLAM. 4. ANIMON, MUNDAZHIKOM PURAYIDOM, KAIKULANGARA, KOLLAM WEST, KOLLAM. 5. ROBERT, MUNDAZHIKOM PURAYIDOM, KAIKULANGARA, KOLLAM WEST, KOLLAM. 6. KUNJUMON, MUNDAZHIKOM PURAYIDOM, KAIKULANGARA, KOLLAM WEST, KOLLAM. R1 TO R3 BY GOVERNMENT PLEADER SRI.T.K.VIPINDAS. ADV. SRI.B.MOHANLAL FOR R4,5, 6. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.13441 OF 2010-E PETITIONER'S EXHIBITS: EXT.P1.TRUE COPY OF THE BUILDING PERMISSION ISSUED BY THE KOLLAM CORPORATION TO THE IST PETITIONER DATED 12.1.2010. EXT.P2.TRUE COPY OF THE BUILDING PERMISSION ISSUED BY THE KOLLAM CORPORATION TO THE 2ND PETITOINER DATED 12.1.2010. EXT.P3..TRUE COPY OF THE BUILDING PERMISSION ISSUED BY THE KOLLAM CORPORATION TO THE 3RD PETITOINER DATED 12.1.2010. EXT.P4. TRUE COPY OF THE PLAINT IN OS.NO.102/2010 DATED 8.2.2010 FILED BY THE PETITIONERS BEFORE THE MUNSIFF COURT, KOLLAM. EXT.P5.TRUE COPY OF THE COMPLAINT DATED 1.3.2010 FILED BY THE PETITIONERS BEFORE THE IST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R4A.TRUE COPY OF THE ORDER NO.G.1146/2010 DATED 9.2.2010 PASSED BY THE SUB DIVISIONAL MAGISTRATE, KOLLAM UNDER 133-A(A) OF THE CRPC. EXT.R4B. TRUE COPY OF THE ORDER NO.PW8/6287/10 DATED 20.2.2010 ISSUED BY THE TOWN PLANNING OFFICER, KOLLAM CORPORATION. EXT.R4C. TRUE COPY OF THE ORDER NO.PW8/6287/2010 DATED 20.2.2010 ISSUED BY THE SECRETARY, KOLLAM CORPORATION TO THE PETITIONERS. K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ W.P.(C) No.13441 of 2010-E ---------------------------------------------- Dated, this the 29th day of June, 2010 J U D G M E N T K.M.Joseph, J. Petitioners have approached this Court seeking the following relief: “to issue a writ of mandamus or such other appropriate writ order or direction directing respondents 1 to 3 to provide adequate and effective protection to the life and belongings of the petitioners.” 2. Briefly put, the case of the petitioners is as follows: Petitioners 1 and 2 are brothers and the 3rd petitioner is the wife of the 2nd petitioner. They purchased three properties. Respondents 4 to 6 have got a path way to their property through the southern side of the property of the petitioners. It is stated that petitioners have obtained Exts.P1 to P3 permission for construction of compound wall on the southern side of their property. Respondents 4 to 6 had obstructed the work of construction of compound wall culminating in Ext.P4. Ext.P4 is a suit filed by the WPC 13441 of 2010 -2- petitioners. 3. A counter affidavit is filed by respondents 4 to 6. It is inter alia stated as follows: The allegations that respondents had started forceful attempt to widen the breadth of the pathway through the southern side of the properties of the petitioners and also that petitioners were obstructed when they came to commence the work of construction of compound wall are denied. It is stated that there is a public pathway on the southern side of the property which is used by the respondents and more than 90 family members of the public at large for the last 70 years. Petitioners obstructed the public pathway of the respondents and others continuously loading stones, bricks, timber etc. It is stated that there is no separate or specific boundary to the property possessed by the petitioners to the pathway. Petitioners continuously obstructed the public pathway. A mass petition was filed before the Sub Divisional Magistrate, Kollam. After enquiry he passed Ext.R4(a) order directing the petitioners to maintain status quo as regards the pathway and also to remove the obstructions and to show cause why the order should not be WPC 13441 of 2010 -3- made absolute. Pursuant to Ext.R4(a) order the Town Planning Officer, Kollam Corporation issued an order to the Sub Inspector of Police to take action to stop the construction of the wall by the petitioners in their property till the disposal of the case pending before the Sub Divisional Magistrate, Kollam vide Ext.R4(b) order. The Secretary, Kollam Corporation issued notice to the petitioners to stop construction. It is stated that Ext.R4(c) was issued in respect of Ext.P1 and P2 permit. It is stated that suppressing the material facts and immediately after receiving Ext.R4(a) order the petitioners obtained exparte order. Learned counsel for the petitioners would point out that it is not correct to say that the petitioners had suppressed facts. He points out that petition before the Sub Divisional Magistrate was filed only on 9.2.2010 and the suit itself is filed on 8.2.2010. 4. After having perused the pleadings and hearing the learned counsel for the parties we may not be justified in granting the relief sought. There is an order by the Sub Divisional Magistrate. There is a case of public pathway and that the petitioners are obstructing the use of the public WPC 13441 of 2010 -4- pathway. Any way the matter is pending before the civil Court also. In such circumstances, it may not be appropriate for us to interfere and grant protection as prayed for. Learned counsel for the petitioners point out that there is threat to life. Learned counsel for the party respondents would submit that there will be no threat to the lives of the petitioners. We record the said submission and dispose of the writ petition and relegate the parties to approach competent forum and obtain appropriate orders. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS