IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 WP(C).No. 7209 of 2011(A) ----------------------------------- PETITIONER(S): ----------------------- 1. XAVIER M.C @ SAWRIYAR @ JOHN AGED 61 YEARS, S/O.CHADAPILLA, RESIDING AT MAPPILAPARAMBIL HOUSE, PUNNAKUNNATHUCHERRY MURI, PULINKUNNU P.O., CHAMPAKULAM VILLAGE, KUTTANADU TALUK, ALAPPUZHA DIST 2. KUNJUNJAMMA CHERIAN @ KUNJAMMA AGED 60 YEARS,W/O.XAVIER M.C,@SAWIYAR @ JOHN RESIDING AT MAPPILAPARAMBIL HOUSE, PUNNAKUNNATHUCHERRY MURI, PULINKUNNU P.O., CHAMPAKULAM VILLAGE, KUTTANADU TALUK, ALAPPUZHA DIST BY ADV. SRI.MANJU ANTONEY RESPONDENT(S): ------------------------- 1. SUB INSPECTOR OF POLICE, PULINKUNNU POLICE STATION, PULINKUNNU P.O.,ALAPPUZHA DIST-688504 2. PUNJA SPECIAL OFFICER, PUNJA SPECIAL OFFICE, ALAPPUZHA, ALAPPUZHA DIST-688001 3. VILLAGE OFFICER, VILLAGE OFFICER CHAMPAKKULAM CHAMPAKKULAM P.O.,ALAPPUZHA DIST-688001 4. DISTRICT COLLECTOR, ALAPPUZHA DIST, CIVIL STAITON, ALAPPUZHA, ALAPPUZHA DISTRICT-688001 W.P.(C) NO.7209/2011 5. CIRCLE INSPECTOR OF POLICE PULINKUNNU CIRCLE, PULINKUNNU P.O., 688504 6. PHILIP SCARIA, VALIYAVEETTIL HOUSE, PUNNAKUNNATHUSSERY P.O.,-688504 CHAMPAKKULAM, ALAPPUZHA DIST. R1 TO R5 BY GOVT. PLEADER SMT.C.M.CHARISMA ADV. SRI.JOMY GEORGE FOR R6 SRI.SEBASTIAN THOMAS FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.7209/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REPRESENTATION DT. 28.2.2011 FILED BY THE SIT PETITIONER BEFORE THE IST RESPONDENT SUB INSPECTOR FOR POLICE PROTECTION. P2:- COPY OF THE REPRESENTATION DT.D 8.2.2008 BEFORE THE 2ND RESPONDENT PUNJA SPECIAL OFFICER. P3:- COPY OF THE ORDER DTD. 21.6.2008 PASSED BY THE 2ND RESPONDENT. P4:- COPY OF THE REPORT DTD. 13.2.2008 SUBMITTED BY THE 3RD RESPONDENT VILLAGE OFFICER IN THIS REGARD BEFORE THE 2ND RESPONDENT. P5:- COPY OF THE LAND TAX RECEIPT DTD. 20.11.87 OF PETITIONERS ISSUED BY 3RD RESPONDENT. P6:- COPY OF THE LOCATION SKETCH OF PETITIONER'S PADDY FIELD DTD. 29.8.2008. P7:- COPY OF THE LETTER DTD. 9.11.2008 ISSUED BY THE PRESENT SUCCESSOR OF THE PREVIOUS OWNER OF PETITIONERS LAND. P8:- COPY OF THE REPRESENTATION EARLIER FILED BY THE IST PETITIONER DTD. 13.11.2008 BEFORE THE 4TH RESPONDENT DISTRICT COLLECTOR. P9:- COPY OF THE ORDER DTD. 13.11.2008 PASSED BY THE 2ND RESPONDENT DIRECTING THE 5TH RESPONDENT CIRCLE INSPECTOR. P10:- COPY OF THE ORDER DTD. 12.2.2009 IN PUNJA APPEAL NO.C.10. 40716/08. P11:- COPY OF THE STAY BY INTERIM ORDER DTD. 17.7.09 IN WPC. 16756/2009. P12:- COPY OF THE ORDER DTD. 19.2.2010 PASSED BY THIS HONOURABLE COURT IN IA. NO.1452/10 IN WPC. 16756/09. P13:- COPY OF THE INTERIM ORDER DTD. 9.7.08 PASSED BY ADDITIONAL MUNSIFF COURT, ALAPPUZHA IN IA. NO.2511/08 IN OS. 464/08. P14:- COPY OF THE ORDER DTD. 2.2.2011 PASSED BY ADDITIONAL MUNSIFF COURT, ALAPPUZHA IN OS. 464/08. P15:- COPY OF THE RELEVANT PAGES OF 2ND PETITIONER'S TITLE DEED DTD. 16.10.87. OF S.R.O. PULINKUNNU. P16:- COPY OF THE FIELD MAP OF PETITIONER'S PROPERTY DTD. 28.10.2008 ISSUED BY SURVEYOR OF CHAMPAKKULAM VILLAGE. P17:- COPY OF THE LATEST AVAILABLE BASIC LANDS TAX RECEIPT OF PETITIONERS DTD. 12.7.2009. W.P.(C) NO.7209/2011 RESPONDENT'S EXHIBITS R6(a):- COPY OF THE ORDER IN WPC. 16756/09 DTD. 7.7.2010 EXTENDING THE INTERIM ORDER UNTIL FURTHER ORDERS PASSED BY THE HONOURABLE HIGH COURT. R6(b):- COPY OF THE COMMISSION REPORT, DTD. 10.7.08 FILED BY THE ADVOCATE COMMISSIONER IN OS. 464/2008. TRUE COPY P.A. TO JUDGE tss R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) No.7209 of 2011-A ***************************** Dated this the 16th day of March, 2011 JUDGMENT BASANT, J. The petitioners have come to this Court with this petition for issue of directions under Article 226 of the Constitution of India to respondent No.1 to enable them to have access to their property through the property of the 6th respondent as directed in Ext.P9 order. In favour of the petitioners, Exts.P3 and P10 orders were passed by the Punja Special Officer and the District Collector. But that order is challenged before this Court and by Ext.R6(a) order passed by a Single Bench, the direction in favour of the petitioners stands stayed until further orders. The petitioners had come before the learned Single Judge for clarification and by Ext.P12 order, the petitioners were directed to obtain directions from the civil court. Ext.P12 order is dated 19.02.2010. Ext.R6(a) order is passed subsequently on 07.07.2010. W.P(C) No.7209 of 2011-A 2 2. The learned counsel for the petitioners submits that in spite of Exts.P9 and P12 order, though the police was approached, they are not implementing the orders in favour of the petitioners. According to the petitioners, the civil suit filed by the 6th respondent has been dismissed and in these circumstances, the petitioners are entitled to get police protection for the enforcement of his right of access recognised under Exts.P3 and P10 and as directed in Ext.P9 and in the light of Ext.P12 direction issued by the learned Single Judge in W.P(c) No.16756 of 2009. 3. The learned counsel for the 6th respondent on the contrary contends that in the light of Ext.R6(a) order dated 07.07.2010, the petitioners are not entitled to seek any directions for police protection. We find merit in the submission of the learned counsel for the 6th respondent that by ExtR6(a) order an earlier interim order of stay was directed to remain in force until further orders and Ext.P12 is only clarification of that earlier interim order which was later confirmed and extended by Ext.R6(a). 4. But even going by Ext.P12 order, the petitioner has to succeed now, it is contended. We extract Ext.P12 W.P(C) No.7209 of 2011-A 3 order below: “The petitioners seek for clarification of the interim order passed by this Court to the effect that the petitioners have got a right to use the pathway in question. Learned counsel for the Writ Petitioner submitted that in the light of order Ext.P5 passed by the Additional Munsiff, Alappuzha in an application for injunction the petitioners cannot claim any such relief before this Court. I have gone through the order passed by the Munsiff's Court. In the light of the injunction order passed by the Munsiff's Court, the remedy of the petitioners herein is to approach the said Court to seek any modification, etc. With liberty to do so, the application is closed.” W.P(C) No.7209 of 2011-A 4 The suit has been dismissed now, it is submitted by the counsel for the petitioner. The learned counsel for the 6th respondent promptly points out that an application for restoration is pending. 5. The learned Government Pleader submits that it is true that in the light of Ext.P9 order police protection was earlier granted. But in the light of the subsequent developments when the petitioners made an application, they were informed that such protection cannot be granted unless appropriate orders from the civil court are obtained. 6. We have considered all the relevant circumstances. The mere fact that the suit stands dismissed for default, though an application for restoration is pending, is according to us no reason to grant the petitioners police protection for the enforcement of Ext.P9 order. In the facts and circumstances of this case, we are satisfied that no directions under Article 226 of the Constitution deserve to be issued. Parties must seek specific orders of the civil court or wait for the final disposal of W.P(c) No.16756 of 2009 in which Ext.P12 W.P(C) No.7209 of 2011-A 5 interim order has been passed. 7. This Writ Petition is, in these circumstances, dismissed. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/