IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 OP(C).No. 330 of 2011(O) ---------------------------------- OS.835/2009 of I ADDL.SUB COURT, THRISSUR .................... PETITIONER ------------------- ASOK KUMAR,AGED 50 YEARS, S/O.VATTAMPARAMBIL RAGHAVAN,PENAKAM DESOM, MULLASSERY VILLAGE,CHAVAKKAD TALUK. BY ADV. SMT.K.NANDINI RESPONDENT(S): ------------------------- 1. BHARATHEEYA VIDYANIKETHAN, "KESAVAMANDHIR",KALLEKKAD,PALAKKAD-678015,REP.BY SHINE.P.G,SECRETARY,"SREE GURUDEVA VIDYANIKETHAN", PENAKAM,PERUVALLOOR,THRISSUR DISTRICT-680001. 2. SHANMUGHANARAYANAN,S/O.KAZHUNKIL APPUKKUTTY,KANNOTH DESOM,VENKITANGU VILLAGE, CHAVAKKAD TALUK,PIN-680506. 3. BALAKRISHNAN,S/O.PILLATTIL VELAYUDHAN, POOVVATHOOR DESOM,ELAVALLY VILLAGE, CHAVAKKAD TALUK-680506. 4. URMILA,W/O.PILLATTIL VELAYUDHAN, POOVVATHOOR DESOM,ELAVALLY VILLAGE, CHAVAKKAD TALUK,PIN-680506. 5. MUNSAR,S/O.AMBATHVETTIL KAREEM, POOVVATHOOR DESOM,ELAVALLY VILLAGE, CHAVAKKAD TALUK,PIN-680506. R1 BY ADVS. SRI.N.NAGARESH, SRI.SHAJI THOMAS PORKKATTIL, SRI.BINU PAUL, SRI.T.V.VINU . R3 & R4 BY SRI.K.A.SATHEESA BABU SRI.K.MOHANAKANNAN,SC,MALABAR DEVASWOM THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.330/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT IN W.P.(C) NO.33702/05 PASSED BY THIS HONOURABLE COURT DTD. 27.3.2006. P2:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DT.D 28.11.2006 IN W.P. (C) NO.29643/2006. P3:- COPY OF THE PROCEEDINGS DTD. 20.4.2009 ISSUED BY THE GEOLOGIST. P4:- COPY OF THE COMMUNICATION FROM THE VILLAGE OFFICER, MULLASSERY, TRICHUR DISTRICT DTD. 12.12.2007 TO THE SECRETARY , GRAMA PANCHAYATH, MULLASSERY. P5:- COPY OF THE ORDER OF THE IST ADDITIONAL SUB COURT, TRICHUR IN IA. 4660/2010 IN OS. 835/2009. P6:- COPY OF THE JUDGMENT AND DECREE DTD. 6.4.2010 IN OS. 310/1963. P7:- COPY OF THE PROCEEDINGS OF DEVAPRASNAM DTD. 16.1.2002. P8:- COPY OF THE TEMPLE PLAN OBTAINED BY THE RENOVATION COMMITTEE FROM SRI.KANIPAYYOOR NAMBOODIRIPAD.. P9:- COPY OF THE REPRESENTATION FROM THE PETITIONER AND ANOTHER TO THE DISTRICT COLLECTOR, TRICHUR DTD. 21.12.2005. P10:- COPY OF THE REPRESENTATION FROM THE PETITIONER AND ANOTHER TO THE SUPERINTENDENT OF POLICE, TRICHUR DTD. 29.5.2007. P11:- COPY OF THE REPRESENTATION FROM THE PETITIONER AND ANOTHER TO THE DISTRICT COLLECTOR DTD. 13.8.2007. P12:- COPY OF THE PLAINT IN OS. 432/2003. P13:- COPY OF THE REPORT OF ADVOCATE COMMISSIONER DTD. 1.7.2003. P14:- COPY OF THE CRIMINAL COMPLAINT FIELD BY THE PETITIONER BEFORE THE J.F.M.C. CHAVAKKAD. P15:- COPY OF THE PAPER PUBLICATION IN CONNECTION WITH THE OS. 1228/2007. 16:- COPY OF THE ADVOCATE COMMISSION REPORT IA. 1413/2003 DTD. 21.5.2003. P17:- COPY OF THE ADVOCATE COMMISSION REPORT IN WPC. 33720/2005 DTD. 20.3.2006. tss OP(C) NO.330/2011 P18:- COPY OF THE IA. 3497/05 IN OS.423/2003 DTD. 2.11.2005. P19:- COPY OF THE IA. 785/06 IN OS.423/2003. P20:- COPY OF THE IA.4389/86 IN OS.423/2003. P21:- COPY OF THE IA. DTD. 1.4.2009 IN OS.423/03. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE OWNERSHIP CERTIFICATE DTD. 21.3.2009 ISSUED BY SECRETARY, MULLASSERY GRAMA PANCHAYAT TO THE IST RESPONDENT. R1(b):- COPY OF THE TAX RECEIPT NO.544997 DTD. 6.4.2010 ISSUED TO THE IST RESPONDENT. R1(c):- COPY OF THE POSSESSION CERTIFICATE NO.675/2009 DTD. 27.2.2009, ISSUED BY VILLAGE OFFICER, MULLASSERY. R1(d):- COPY OF THE PLAINT IN OS. NO.423/2003 DTD. 9.4.2003 OF MUNSIFF COURT, CHAVAKKAD. R1(e):- COPY OF THE OS. NO.546/2003 DTD. 30.4.2003 FILED IN MUNSIFF COURT, CHAVAKKAD. R1(f):- COPY OF THE ORDER IN IA. NO.1412/2003 IN OS. 423/2003 DTD 10.4.2003 OF THE MUNSIFF COURT, CHAVAKKAD. R1(g):- COPY OF THE ORDER NO.C2/13/2010 D.DIS. DTD. 4.2.2010 OF THE DEPUTY TOWN PLANNER. R1(h):- COPY OF THE ORDER NO.C1-1565/10 DTD. 5.3.2010 OF THE SECRETARY (SPECIAL GRADE), MULLASSERY GRAMA PANCHAYAT. R1(i):- COPY OF THE IA. NO.4660/2010 DT.D 7.5.2010 FILED BY THE IST RESPONDENT. TRUE COPY P.A. TO JUDGE tss P. BHAVADASAN, J. ........................................... O.P.(C).NO.330 OF 2011 ............................................. Dated this the 22nd day of March, 2011. JUDGMENT In this writ petition filed under Article 227 of the Constitution of India, the petitioner assails Ext.P5 order dated 13.1.2011 whereby the petitioner (1st respondent herein) before the court below was permitted to put up structures in the property said to be in their possession. 2. The petitioner would say that O.S.No.835/2009 has been instituted by him in the 1st Additional Sub Court, Trissur. Initially the said suit was before the Munsiff Court, Chavakkad and later transferred to the Sub Court. The said suit was filed seeking permanent prohibitory injunction against the 1st respondent from removing soil and red stone from the plaint schedule property and also against destruction of the lateral support of the land and property and also not to disturb the day to day affairs of the temple and temple worship. 3. The first respondent before this Court is said to O.P.(C).NO.330 OF 2011 : 2 : have impleaded in the suit and they moved I.A.No.4660/2010 seeking permission of the court to put up structures in the property which they alleged to have obtained on lease from the third respondent. 4. The court below after considering the rival contentions, passed the impugned order whereby the first respondent herein was permitted to carry on the construction subject to certain conditions protecting the rights of the plaintiff. That is the order under challenge. 5. The learned counsel appearing for the petitioner assails the interim order passed by the court below pointing out that the present order would be counter to the various orders passed by this Court. It is pointed out that there is abundant evidence to show that the temple is situated in the said property and that the activities that are said to be carried out by the respondents are in violation of the various orders. Thus the learned counsel contends that the order is unsustainable both on facts and in law. 6. The learned counsel appearing for the first respondent before this Court contends that the property O.P.(C).NO.330 OF 2011 : 3 : was taken on lease by the first respondent from the third respondent and no portion of the property belonging to the temple or which is involved in the suit is in their possession and they do not intend to construct any structures in the property belonging to the temple. It is pointed out that no where in the plaint there is a contention that they have trespassed into the property belonging to the temple. Learned counsel pointed out that in fact it was not necessary to get themselves impleaded in the suit and seek permission to put up structures. By way of abundant caution, they sought permission of the court. The learned counsel also pointed out that taking note of the rival contentions, the court below had made adequate safeguards to protect the interest of the plaintiffs in the suit, in case they succeed. 7. This Court is given to understand that petition in violation of the orders passed by the court below and various other matters affecting the property belonging to the temple have not been disposed of. A reference to the plaint in the suit filed by the petitioner become inevitable. O.P.(C).NO.330 OF 2011 : 4 : In this suit the main relief sought for is to restrain the defendants in the suit from removing the soil and red stone from the plaint schedule property and also against destruction of the lateral support of the land and property and also not to disturb the day to day affairs of the temple and the temple worship. The learned counsel appearing for the petitioner referring to various exhibits produced points out that in fact the constructions are in the property belonging to the temple. If, as a matter of fact, there was any trespass subsequent to the order of injunction, one would have expected the petitioner to bring that fact to the notice of the court below, which passed the impugned order. From the plaint that produced before this Court by the petitioner, there is no prayer for recovery of possession. This Court was not shown any survey plan or any other files or sketch identifying the respective properties so as to come to the conclusion that any portion of the property belonging to the temple is in fact trespassed upon. 8. It is in this context one has to note the prayer made by the first respondent before the court below. They O.P.(C).NO.330 OF 2011 : 5 : have a case that the school which was put up in 2008 does not have proper facilities. It is necessary that they have to put up permanent structures to get affiliation. They assert that the entire constructions are going in the property taken by them on lease from the third respondent. They also stated before the lower court that in case it is found that the structures are in the property belonging to the temple, they are prepared to remove the structures and they are ready to surrender the property. 9. Viewed from any angle, for balance of convenience, certainly goes in favour of the first respondent. As of now, there is no allegation in the suit filed by the petitioner that any portion of the temple property is in the possession of the third respondent and that a portion of that property has been given on lease to the first respondent. In the absence of such an allegation and also in the absence of any relief in that regard one has to conclude that the property in which the school is being run is different. It has to be noticed that no rights of the petitioner is affected since if it is ultimately found that the structures are in the property O.P.(C).NO.330 OF 2011 : 6 : belonging to the temple, the court below has observed that the first respondent will have to remove the structures unconditionally and surrender the property to the temple. Moreover, by disallowing the constructions now, if it is ultimately found that the property does not belong to the temple, the injury suffered by the first respondent cannot be compensated by monetary wise or any other way. On the other hand, if it is found that the property belonging to the temple, the first respondent has undertaken before the court below that they will unconditionally remove the structures without claiming any right what so ever and surrender the property. This Court feels that those conditions would safeguard the interest of the petitioner. In the result, affirming the order of the court below, this original petition is dismissed. P. BHAVADASAN, JUDGE. cl