IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 WP(C).No. 26336 of 2011(N) ------------------------------- PETITIONER(S): ----------------- 1. THANDAMMA JOSEPH,WIFE OF JOSEPH, AGED 72 YEARS,THENGAPURACKAL HOUSE, KALLIDAYITHADAM, NEAR T.V STATION, KAKKANAD, COCHIN 682 037. 2. DICY LOPEZ,AGED 37 YEARS, WIFE OF JOSEPH LOPEZ, THAIPARAMBIL HOUSE, KALLIDAYITHADAM,NEAR T.V STATION, KAKKANAD, COCHIN 682 037. 3. JOHN JOSEPH, KALLIDAYITHADAM, NEAR T.V STATION, KAKKANAD, COCHIN 682 037. BY ADV. SRI.M.JITHESH MENON RESPONDENT(S): -------------------- 1. THE SUB INSPECTOR OF POLICE, THRIKKAKARA POLICE STATION, KAKKANAD, COCHIN -30. 2. THE ASSISTANT COMMISSIONER OF POLICE THRIKKAKARA POLICE STATION, KAKKANAD, COCHIN 682 030. 3. THE TALUK SURVEYOR, KANAYANNUR TALUK SURVEYOR OFFICE, ERNAKULAM 682 011. WP(C).No. 26336 of 2011(N) -2- 4. THE ADDITIONAL TAHSILDAR, KANAYANNUR TALUK OFFICE, KANAYANNUR, ERNAKULAM 682 011. 5. THRIKKARA MUNICIPALITY, KAKKANAD P.O, COCHIN 30 REPRESENTED BY ITS SECRETARY. 6. KOCHUKANNAN THEVAN, KALLIDATITHADAM,NEAR T.V STATION, KAKKANAD CSEZ P.O, KOCHI-37. 7. AMBIKA,D/O.SRI.KOCHUKANNAN THEVAN, KALLIDATITHADAM,NEAR T.V STATION, KAKKANAD CSEZ P.O, KOCHI-37. * ADDL. R8 SUPERINTENDENT OF SURVEY AND LAND RECORDS, KAKKANAD, ERNAKULAM. *[ADDL. R8 IS SUO MOTU IMPLEADED AS ADDITIONAL RESPONDENT NO.8 AS PER JUDGMENT OF THIS COURT ON 09/11/11] ADV. SRI.S.SHANAVAS KHAN FOR R5 SRI.C.N.SAMEER FOR R6-7 SR. GOVT. PLEADER SRI.M.K.ABOOBACKER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26336 of 2011(N) APPENDIX PETITIONERS' EXTS EXT.P1:- TRUE COPY OF THE SKETCH ATTACHED WITH ASSIGNMENT DEED DATED 01/01/85 EXT.P2:- TRUE COPY OF THE SKETCH ATTACHED TO THE ASSIGNMENT DEED OF the PROPERTY OF THE 6TH RESPONDENT. EXT.P3:- TRUE COPY OF THE PETITION DATED 18/04/11 FILED BEFORE THE TAHSILDAR, KANAYANNUR. EXT.P4:- TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, KAKKANAD DATED 27/04/11. EXT.P5:- TRUE COPY OF THE LETTER DATED 25/05/11 ISSUED BY THE 5TH RESPONDENTS TO THE 3RD RESPONDENT. EXT.P6:- TRUE COPY OF THE NOTICE DATED 19/05/11. EXT.P7:- TRUE COPY OF THE PETITION AND THE ORDER OF THE RDO NO.1058/11 DATED 13/06/11. EXT.P8:- TRUE COPY OF THE PETITION DATED 30/06/11 REQUESTING FOR ADEQUATE POLICE PROTECTION FOR CONDUCTING THE SURVEY. EXT.P9:- TRUE COPY OF THE JUDGMENT IN WPC 18032/11 DATED 07/07/11. EXT.P10:- TRUE COPY OF THE CONTEMPT NOTICE DATED 04/08/11 ISSUED ON BEHALF OF THE PETITIONERS. EXT.P11:- TRUE COPY OF THE REPORT DATED 07/09/11 ISSUED BY THE 3RD RESPONDENT. EXT.P12:- TRUE COPY OF THE REPRESENTATION FILED BEFORE THE 5TH RESPONDENT. EXT.P13:- TRUE COPY OF THE PETITION FILED BEFORE THE 1ST RESPONDENT RESPONDENTS EXTS EXT.R7(a):- TRUE COPY OF PATTA ISSUED BY THE TAHSILDAR, KANAYYANNUR TALUK TO THE 6TH RESPONDENT DATED 27/01/97. EXT.R7(b):-TRUE COPY OF GIFT DEED DATED 22/11/99 EXECUTED BY THE 6TH RESPONDENT IN FAVOUR OF THE 7TH RESPONDENT. EXT.R7(c):-TRUE COPY OF THE TAX RECEIPT DATED 20/07/10 ISSUED BY THE VILLAGE OFFICER, KAKKANAD. WP(C).No. 26336 of 2011(N) EXT.R7(d):-TRUE COPY OF APPEAL DATED 20/10/11 FILED BY THE RESPONDENTS 6 AND 7 BEFORE THE SUPERINTENDENT, LAND SURVEY AND RECORDS. EXT.R7(e):-TURE COPY OF THE REQUEST DATED 20/10/11 SENT BY THE RESPONDENTS 6 AND 7 TO THE 5TH RESPONDENT. //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & K. HARILAL, JJ. ------------------------------------------------ W. P. C. No.26336 of 2011 ------------------------------------------------ Dated this the 9th day of November, 2011 JUDGMENT Pius C. Kuriakose, J The petitioners have filed this Writ Petition seeking police protection for concreting a road belonging to the 5th respondent, Thrikkakara Municipality. According to them, the Municipality has already taken a decision to concrete the road. However, when the Municipality attempted to concrete that road, respondents 6 and 7 obstructed. Therefore, the proposal was dropped half way by the Municipality (the erstwhile Thrikkakara Panchayath). The petitioners are ready and willing to concrete the Municipality road at their own expense. They will not claim any charges from the Municipality and they will not claim any special right over the road for having concreted the same. Respondents 6 and 7 are raising unnecessary obstruction. A survey of the properties has been conducted pursuant to directions issued W. P. C. No.26336 of 2011 -2- by this Court. The boundaries fixed by the above surveyor will be honoured while concreting work is done. 2. The party respondents 6 and 7 have filed a detailed counter affidavit. A reading of the counter affidavit shows that there is civil dispute between the petitioner and the party respondents 6 and 7 in respect of a portion of the Municipal road which is proposed by the petitioner to be concreted. The above portion is the portion which lies beyond the residential house of respondents 6 and 7. According to respondents 6 and 7, the intention of the petitioners is to annex a portion of their property on the road and thereby encroach into their property under the cover of conducting concrete works. This may not be permitted. The survey claimed by the petitioner has not attained finality. Ext.R7(d) appeal has been preferred by respondents 6 and 7 before the Superintendent of Survey and Land Records against the survey done by the Kanayannur Taluk Surveyor. 3. Sri.S.Shanavas Khan, Standing Counsel for the Thrikkakara Municipality submitted that it is a fact that W. P. C. No.26336 of 2011 -3- respondents 6 and 7 have raised some claims over a portion of the road which is proposed to be concreted by the petitioners. 4. Having anxiously considered the submissions addressed at the Bar, we are of the view that in the present jurisdiction we will not be justified in issuing the police protection direction straight away. In view of the subsisting civil dispute, we direct the petitioners to approach a competent civil court. It is open to the petitioners to seek appropriate interim relief from the above civil court in the proposed suit so that the said court may be in a position to facilitate concrete work without prejudice to the rights which respondent Nos.6 and 7 have raised in respect of a portion of the pathway. If need be the Civil Court can appoint a Commissioner and depute a competent Surveyor to ensure that concreting is done only on the boundaries fixed in a proper survey. 5. Coming to R7(d) which is now pending before the Superintendent of Survey and Land Records at the instance W. P. C. No.26336 of 2011 -4- of respondents 6 and 7, we direct the Superintendent of Survey and Land Records, Kakkanad, Ernakulam to take up Ext.R7(d) and dispose it of in accordance with law after hearing both sides at the earliest and at any rate within one month of receiving a copy of this judgment. In order to enable compliance of the direction which we have issued regarding Ext.R7(d), we implead the Superintendent of Survey and Land Records, Kakkanad, Ernakulam suo motu as Additional Respondent No.8. Registry will carry out corrections in the cause title. The Government Pleader will communicate this decision to the Additional 8th respondent immediately. PIUS C. KURIAKOSE JUDGE K. HARILAL JUDGE kns/- W. P. C. No.26336 of 2011 -5-