IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 WP(C).No. 334 of 2010(N) ---------------------------------- PETITIONERS: -------------------- 1. EDAPPAL HOSPITALS PRIVATE LIMITED EDAPPAL P.O., PONNANI TALUK MALAPPURAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR SMT.CHITHRA GOPINATHAN. 2. SMT.CHITHRA GOPINATHAN, AGED 59 YEARS, W/O.DR.K.K.GOPINATHAN CHAIRPERSON, CIMAR COCHIN HOSPITAL, THYKKAVU, CHERANALLOOR P.O., CHERANALLOOR, KANAYANNOOR TALUK. BY ADV. SRI.NOUSHAD THOTTATHIL RESPONDENTS: ---------------------- 1. THE SUB INSPECTOR OF POLICE, CHERANALLOOR POLICE STATION CHERANALLOOR P.O., KOCHI, ERNAKULAM DISTRICT. 2. THE COMMISSIOENR OF POLICE, KOCHI, ERNAKULAM DISTRICT. 3. C.A.ABDUL SAMAD, CHENNAMPILLY HOUSE, THYKKAVU, CHERANALLOOR P.O., ERNAKULAM DISTRICT. 4. C.A.MOHAMMED KUNJU, CHENNAMPILLY HOUSE, THYKKAVU, CHERANALLOOR P.O., ERNAKULAM DISTRICT. 5. C.A.ABDUL RAHEEM, CHENNAMPILLY HOUSE, THYKKAVU, CHERANALLOOR P.O., ERNAKULAM DISTRICT. WP(C) NO.334 OF 2010 - 2 - ADDL.6. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE ASSISTAT ENGINEER, ELECTRICAL SECTION, VADUTHALA. (ADDL.6TH RESPONDENT IS SUO MOTU IMPLEADED AS PER ORDER DATED 12.1.2010 IN WP(C) 334 OF 2010) ADDL.7. CHERANELLOOR GRAMA PANCHAYAT, CHERANELLOOR P.O., ERNAKULAM, REPRESENTED BY ITS SECRETARY. (ADDL.7TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 05.03.2010 IN IA NO.421 OF 2010) R1 & R2 BY GOVERNMENT PLEADER SRI.VIPIN DAS ADV. SRI.K.JAJU BABU FOR R3-R5 SMT.M.U.VIJAYALAKSHMI FOR R3-R5 SRI.S.SHANAVAS KHAN FOR R6 SMT.ZOHRA (ADV.COMMISSIONER) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.334 OF 2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF BUILDING PERMIT NO.C4/226/06 DATED 5.10.2007 ISSUED FROM THE CHERANALLOOR GRAMA PANCHAYAT EXT.P2 TRUE COPY OF THE LOCATION SKETCH WITH CERTIFICATE DATED 18.7.2009 ISSUED BY THE VILLAGE OFFICER, CHERANALLOOR EXT.P3 TRUE COPY OF THE CONSENT ORDER NO.PCB/RO/EKM/HP/ICE-3/09 DATED 21.8.2009 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD EXT.P4 TRUE COPY OF THE COMPLETION CERTIFICATE DATED 6.4.2009 ISSUED BY THE SANKAR & ASSOCIATES EXT.P5 TRUE COPY OF ORDER NO.B3-1069/09/CE1 DATED 3.3.2009 OF THE CHIEF ELECTRICAL INSPECTORATE EXT.P6 TRUE COPY OF ORDER NO.AE1/CIMAR COCHIN/09-10/3280/18.9.2009 OF THE KERALA STATE ELECTRICITY BOARD EXT.P7 TRUE COPY OF THE PETITION PREFERRED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P8 TRUE COPY OF THE RECEIPT ISSUED FROM THE OFFICE OF THE FIRST RESPONDENT DATED 25.12.2009. RESPONDENTS' EXHIBITS: EXT.R5(A) TRUE COPY OF DOCUMENT NO.3705/1974 DATED 29.11.1974 EXT.R5(B) TRUE COPY OF OBJECTION DATED 28.12.09 EXT.R5(C) TRUE COPY OF COMPLAINT GIVEN BY THE 5TH RESPONDENT TO THE COMMISSIONER OF POLICE ON 10.1.2010 / TRUE COPY / K.M.Joseph & M.L. Joseph Francis, JJ. ------------------------------------------ W.P.(C) No.334 of 2010 ------------------------------------------ Dated this the 5th day of March, 2010 JUDGMENT K.M.Joseph, J. Petitioners have approached this Court seeking the following prayers: “i) To call for the records relating to Exhibit P-1 to Exhibit P-8 and to issue a writ of mandamus or any other appropriate writ, direction or order directing the first and second respondents to afford adequate Police Protection for completing hospital works including drawing of under ground electrical cable and to provide further protection to run the hospital smoothly without any obstructions from Respondents No.3 to 5. ii) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the first and second Respondents to afford adequate Police Protection to the life and property of the petitioners and their employees.” 2. Briefly put, the case of the petitioner is as follows: The first petitioner is a private limited company incorporated WP(C) No.334 of 2010 2 - under the Companies Act for running a hospital which is stated to be the first hospital in Kerala having facility for reproduction of Test Tube babies. The second petitioner is the Managing Director of the said hospital. The petitioners decided to start a hospital at Kochi with advanced fertility treatment facilities. They obtained all necessary permissions from the concerned statutory authorities and constructed the building and it is at the fag end of the construction, it is stated that respondents 3 to 5 claiming to be persons who relinquished property for constructing the road which leads to the hospital premises, obstructed drawing of underground electric cable to the hospital and threatened and manhandled the employees of the petitioners. 3. A counter affidavit has been filed by respondents 3 to 5. According to the said respondents, the electric line is drawn through their properties. They dispute surrender of the properties to the local authority. This Court passed an interim order on 12.1.2010 which reads as follows: WP(C) No.334 of 2010 3 - “This writ petition is one for police protection. 2. Electric line was drawn by the petitioners by adopting modern mechanism. However, there is a dispute as to whether the electric line is drawn to the hospital through the property of the party respondents or through the public property belongs to the panchayat. Panchayat is sought to be impleaded in this writ petition. We issued emergent notice in the said petition. Learned counsel for the petitioners assured to this Court that in case if it is found that the electric line is drawn through the property of the party respondents, they are prepared to dismantle the line and will restore to the original position. A Commission may be appointed to ascertain the true facts as to whether the electric line is drawn through the property of the party respondents or public property. 3. We heard both sides. 4. In the circumstances, we appoint Smt.M.A.Zohra as an Advocate Commissioner who shall visit the property, after due notice to the petitioners, respondents and the Cheranelloor Grama Panchayat. 5. It is open to the panchayat to make available any documents to prove that the property belongs to the panchayat. The respondents can also produce documents before the Commissioner to prove their WP(C) No.334 of 2010 4 - case. In case the property is required to be measured, the Commissioner shall seek assistance of the Village Officer and the Village Officer shall give necessary assistance in this regard. The Commissioner shall file her report within a period of two weeks. 6. An amount of Rs.10,000/- is initially fixed as the advocate commission fee, which shall be paid directly to the Commissioner by the petitioners. To and fro expenses shall also be paid to the Advocate Commissioner. 7. The Kerala State Electricity Board is directed not to energize the line until the matter is considered by this Court and orders passed and for that purpose, they are impleaded suo motu. A copy of this order shall be given to the counsel for the petitioners and counsel for the party respondents who shall produce the same to the Assistant Engineer, Electrical Section, Vaduthala for information and compliance.” 4. We have heard learned counsel appearing for the parties. 5. The party respondents have admittedly filed O.S.No.190 of 2010 on the file of the Second Additional WP(C) No.334 of 2010 5 - Munsiff's Court, Ernakulam. It is not disputed that the charging of the electric line has been held up. 6. The Advocate Commissioner has reported that the electric line is drawn through the public road. However, the party respondents have instituted a suit and they have also filed objection to the Commission report in this case. We would think that the matter has to be gone into by the civil court. But, at the same time, we do not think it just to hold up the charging of the electric line for the hospital. 7. In the above circumstances, we dispose of the writ petition as follows: i) It will be open to the additional 6th respondent to charge the line to the petitioners' hospital. However, we make it clear that this will be subject to the final decision of the civil court in O.S.No.190 of 2010. ii) We further make it clear that in case the party respondents succeed, the petitioners will be liable to dismantle WP(C) No.334 of 2010 6 - the electric line and restore it to the original position. iii) Learned counsel for the party respondents submits that they will not obstruct the running of the hospital. In case there is any obstruction by respondents 3 to 5, there will be a direction to the first and second respondents to provide adequate and effective protection to the petitioners from such obstruction. K.M.Joseph, Judge M.L. Joseph Francis, Judge vns