IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 WP(C).No. 33473 of 2010(H) ------------------------------------- PETITIONER(S): ---------------------- AYUR HERITAGE HEALTH CENTRE PVT.LTD, PONGA.P.O,NEDUMUDY,ALAPPUZHA-688512,REPRESENTED BY ITS MANAGING DIRECTOR,SATISH C.DUTT. BY ADV. SRI.N.J.MATHEWS SRI.P.RAVEENDRAN PILLAI SMT.INDIRA RAVEENDRAN RESPONDENT(S): ------------------------ 1. THE DISTRICT COLLECTOR,ALAPPUZHA-PIN-688501. 2. THE SUPERINTENDENT OF POLICE, ALAPPUZHA-PIN-688501. 3. THE SUB INSPECTOR OF POLICE, NEDUMUDY-688 512,ALAPPUZHA. 4. SRI.PRAHLADAN,RESIDING AT PRAHLADALAYAM, PONGA,NEDUMUDY-688 512,ALAPPUZHA DISTRICT. 5. SRI.BALAKRISHNAN,RESIDING AT MUPPATHINCHIRA,PONGA.P.O,NEDUMUDY-688 512, ALAPPUZHA DISTRICT. 6. SRI.JERIN,RESIDING AT JESTIN BHAVAN, PONGA.P.O,NEDUMUDY-688 512, ALAPPUZHA DISTRICT. 7. SRI.BIJU JOSEPH,RESIDING AT KALOOR PARAMBU,PONGA.P.O,NEDUMUDY-688512, ALAPPUZHA DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER SMT.KARISHMA. R4 TO R7 BY ADV. SRI.SAJITH KUMAR V. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.33473 OF 2010 PETITIONER'S EXHIBITS: EXT.P1.TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE CHAMBAKKULAM GRAMA PANCHAYAT TO THE PETITIONER. EXT.P2.TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P3.TRUE COPY OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT ACKNOWLEDGING RECEIPT OF EXT.P2. RESPONDENT'S EXHIBITS: EXT.R4A. TRUE COPY OF THE AGREEMENT DATED 10.7.2010 BETWEEN THE RESPONDENTS AND BUILDER OF THE PETITIONER. EXT.R4B. TRUE COPY OF THE PETITION DATED 6.11.2010 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE ASSISTANT LABOUR OFFICER. K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ W.P.(C) No.33473 of 2010-H ---------------------------------------------- Dated, this the 15th day of November, 2010 J U D G M E N T K.M.Joseph, J. Petitioner has approached this Court seeking the following reliefs: “i. to issue a writ, order or direction in the nature of mandamus commanding respondents 1, 2 and 3 to ensure that respondents 4 to 7 and their associates and other unsocial elements are not interfering and/or causing any obstruction, hitch or hindrance in the building construction activities of the petitioner in Sy.No.K-7/4 and K-7/5 in Chambakkulam Village, Kuttanad Taluk, Alappuzha District and to ensure the safety of the life of the persons and workers engaged by the petitioner company and its builder at the building work site. ii. to issue a writ order or direction in the nature of mandamus to the respondents 4 to 7 to forebear from interfering in any way with the activities of the building construction of the petitioner at the site in Sy.No. K-7/4 and K-7/5 in Chambakkulam Village, Kuttanad Taluk, Alappuzha District.” WPC 33473 OF 2010 -2- 2. Briefly put, the case of the petitioner is as follows: Petitioner is a private limited company. Petitioner company resolved to put up its facilitation centre in Chambakkulam village. It obtained Ext.P1 permit to put up building from the panchayat. The averments in para 3 of the writ petition being very material, we extract the same as under. “3. On the strength of Ext.P1 permit, the petitioner company started construction of the building. The construction of the building was entrusted with M/s.Relcon Foundations Pvt. Ltd. The said company commenced the construction of the building towards the close of 2008 and the construction was going on smoothly ever since then. The construction of the basement floor was completed as per the construction schedule and the work progressed and reached a stage, whereby ceiling for concreting above the ground floor has been completed. The builder was employing skilled as well as non-skilled workers of its choice for the construction work. The petitioner company was not having any say or concern retarding the choice of persons selected by the builder for its work.” 3. It is further stated that, while so, a few persons in the locality belonging to different trade unions led WPC 33473 OF 2010 -3- by respondents 4 to 7 forcibly entered the work site and threatened the workers engaged at the work site and intercepted the work forcibly. This was conveyed to the 3rd respondent immediately. The 3rd respondent instructed the petitioner to stop the construction work. The work was stopped. It has not been resumed. Petitioner company incurred daily loss of Rs.1.5 lakhs. Even after stoppage of work of the building, the petitioner was proceeding with the construction of garden, landscape etc. But, after the failure of the compromise talk on 29.10.2010 a few local persons under the leadership of respondents 4 to 7 forced the stoppage of the said work also. Petitioner submitted Exts.P2 petition. 4. A counter affidavit is filed by respondents 4 to 7. It is stated in the counter affidavit inter alia that the builder of the petitioner had entered into an agreement with the private respondents and few others with regard to the construction of health resort. As per the agreement entire concrete works have to be given to the local workers/respondents. It was agreed that the local workers will follow the specifications required as per the plan and WPC 33473 OF 2010 -4- design. Ext.R4(a) purports to be the agreement dated 10.7.2010. It is stated that party respondents and other workers sought slight increase in the rate fixed for effecting concrete over the Ist floor. They also sought erection of lift kept unused in the site. The management took a stubborn attitude and attempted to exclude local workers. On 29.10.2010 the matter was informed to the Sub Inspector of police by the petitioner and the matter was placed before the Assistant Labour Officer. Ext.R4(b) is the petition filed by the 4th respondent before the Assistant Labour Officer. It is stated that the said agreement is not mentioned in the writ petition. The allegation of assault is denied. The petitioner has filed a reply affidavit. There is an additional counter affidavit filed by respondents 4 to 7. 5. We heard Sri.N.J.Mathews, learned counsel for the petitioner, Sri.SAjith Kumar, learned counsel for the party respondents and also the learned Government Pleader. Learned counsel for the petitioner reiterates his contentions. He would, in particular, point out that no reliance can be placed on Ext.R4(a) agreement. He points out that there are WPC 33473 OF 2010 -5- interpolations contained in the agreement. He further submits that it is not even mentioned in Ext.R4(a) that it is entered into between M/s.Relcon Foundations Pvt.Ltd and the party respondents. He would further submit that there is no pleading to show that the party respondents actually worked at the site. He would submit that there is a case for the party respondents that construction is carried out in violation of the permit and that is not a matter which should engage the attention of this Court and it is a matter to be considered by the concerned statutory authority. He would further submit that at any rate petitioner has a right to carry on landscaping and respondents 4 to 7 have no right to obstruct the same. 6. Per contra, learned counsel for the party respondents would submit that there was indeed an agreement as Ext.R4(a) and though it is not attended with formalism that usually accompanies an agreement the Court must consider the nature of parties involved. At any rate he points out that a perusal of the second page of Ext.R4(a) would show that three persons have signed on behalf of the company. It is further pointed out that the absence of builder WPC 33473 OF 2010 -6- in the party array is fatal to the petition. The agreement is entered into between the builder and the unions and it is not impeladed by the petitioner. Learned counsel further draws our attention to Ext.P2 petition to contend that the case of the petitioner is false as reference is made to agreement with the local workers. He would submit that the matter is pending consideration before the labour officer. 7. Learned Government Pleader would submit that the matter is engaging the attention of the Labour Officer. 8. We have already extracted the averments in para 3 of the writ petition. As far as the construction of building is concerned we can take it as the case of the petitioner that the petitioner has entrusted the work to M/s.Relcon Foundations Pvt.Ltd . The builder is not before us. The averments in the writ petition would show that it is the builder who is carrying out the construction. Para 3 of the writ petition would show that it is the case of the petitioner that petitioner has nothing to do with the choice of workers by the builder. 9. On the one hand petitioner disputes Ext.R4(a) WPC 33473 OF 2010 -7- as not a genuine document. Learned counsel for the party respondents join issue and would contend that it is indeed a genuine document. This Court in writ proceedings cannot pronounce upon the genuineness of the document. At any rate, it would clearly be in the region of highly disputed question of fact. Therefore, we refuse to pronounce the question as to whether Ext.R4(a) agreement between the builder of the petitioner and the party respondents is genuine or not. Petitioner is not able to show that there is no agreement and party respondents have set up an agreement. It may not be open to us to direct the police to give protection for carrying out the work of construction of the building for which no doubt the petitioner has obtained permission as any such direction would be without finally adjudicating upon the question as to whether there exists an agreement. The matter is yet to engage the attention of the statutory authorities also. We further notice that it is not the builder who has approached this Court. The builder is not even made a party in this writ petition. Hence we decline to grant the relief of protection for the construction of building sought by WPC 33473 OF 2010 -8- the petitioner. Further, petitioner has a case that petitioner company is carrying on garden, landscaping etc. In this regard the learned counsel for respondents 4 to 7 would submit that they will not interfere in the matter of construction of garden and landscaping by the petitioner company. We record the said submission and close the writ petition. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS