IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 WP(C).No. 20132 of 2011(N) -------------------------------- PETITIONER(S): ------------------ 1. PADMINI,D/O.PARU,UPPUPARAMBAN HOUSE, PONNIAM,KATHIRUR,THALASSERY KANNUR 2. RAJEEVAN M.V,S/O.KUNJUNNI, ETTUKATTUPARAMBU, ELAMAKKARA, EDAPPALLY KOCHI 3. JEEJA, W/O.SATHYAN, KALLUMGAL HOUSE, PALLILAMKARA, KALAMASSERY,KOCHI 4. SREEJA, W/O.SIVADASAN, NEDIYAPARAMBIL HOUSE, ANJUMANA, PADIVATTOM, EDAPPALLY, KOCHI BY ADV. SRI.AUGUSTINE JOSEPH SRI.K.S.ROCKEY RESPONDENT(S): -------------------- 1. STATE OF KERALA, REP.BY THE SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARAIT, THIRUVANANTHAPURAM-695001 2. THE SUPERINTENDENT OF POLICE, KANNUR-670001. 3. THE SUB INSPECTOR OF POLICE, KATHIRUR, THALASSERY, KANNUR-670101 WP(C).No. 20132 of 2011(N) -2- 4. KRISHNAN ALIAS BELGAMKRISHNAN, MADATHIL HOUSE, PONNIAM, KATHIRUR THALSSERY, KANNUR-670101 5. KUNDAMCHERY BASKARAN, KUNDAMCHERY HOUSE, PONNIAM,KATHIRUR THALASSERY, KANNUR-670101 ADV. SRI.MILLU DANDAPANI FOR R5 SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL SRI.MILLU DANDAPANI FOR R4 GOVT. PLEADER SMT.C.M.CHARISMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2011, ALONG WITH WPC NO.20994 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20132 of 2011(N) APPENDIX PETITIONER'S EXTS EXT.P1:- TRUE COPY OF PARTITION DEED NO.2163/2001 OF SRO, KATHIROOR. EXT.P2:- TRUE COPY OF LAND TAX RECEIPT DATED 30/04/11 ISSUED BY VILLAGE OFFICER, KATHIROOR. EXT.P3:- TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONERS DATED 05/07/11 BEFORE THE 2ND RESPONDENT. //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ W. P. C. Nos.20132 & 20994 of 2011 ------------------------------------------------ Dated this the 19th day of August, 2011 JUDGMENT Pius C. Kuriakose, J These Writ Petitions have been filed by the Writ Petitioners who are owners of different items of properties seeking protection for construction of compound walls for enjoyment of the properties and for the petitioners' lives. The allegation is that the party respondents are creating all sorts of nuisance and contumacious activities with the result that fear is aroused in the mind of the petitioners and they have been prevented from enjoying their properties. The party respondents have filed counter affidavit wherein it is contended that the properties in question are properties where for about 65 years old rituals at 'Guligan Thara' and annual 'thira' are being conducted with the help of local W. P. C. Nos.20132 & 20994 of 2011 -2- public after forming a committee. It is claimed that the main 'Guligan Thara' on the property is 65 years old and the annual festivals have been going on for more than 50 years after obtaining permission from the officials including those of the police. In Writ Petition No.20132/11 this Court passed interim orders and directed the third respondent in the Writ Petition namely the Sub Inspector of Police to conduct an inspection and file a detailed statement. Accordingly, in the Writ Petition the third respondent has filed a statement on 3rd August, 2011. The entire statement is quoted below:- “In pursuance to the interim direction issued by the Hon'ble High Court in writ petition No.20132 of 2011, I inspected the disputed property on 29/07/11. The alleged property is situated in Sy. No.13/7 (Re.Sy. 22/1B) of Kathirur Village in Thalassery Taluk which was originally belongs thavazhy of one Paru. It was partitioned among the members as per the partition deed No.2163/2001 of Sub Registrar Office, Kathirur that the petitioners got the 'A' schedule property jointly. Since then they are in absolute possession of the aforesaid property. The total extent of property is 40.25 cents. W. P. C. Nos.20132 & 20994 of 2011 -3- On inspection it was found one old 'guligan thara' and four other tharas of various 'Murthis' which are not as old as guligan thara in the petitioners property. One K. P Nazar is in possession of the property lying on the north western side of the petitioners' property and one Karim is in possession of the property on the north-eastern side of the petitioners' property. There is no specific boundary wall on any side of the property. After purchasing the property Sri.Karim had laid down a one line laterate stone on the north eastern side. While Karim started to construct a boundary wall, some people trespassed in his property and destroyed plants and laterate stones which were kept for the construction of the boundary wall. Then Sri.Karim filed a complaint a Crime was registered as crime No.252/11 alleging offence punishable under S.447 & 427 of IPC. Sri.Karim has also suspected the respondent Nos 4 & 5 in the above writ petition as the persons behind the destruction. Now the case is under investigation. The police could not find out the involvement of the respondent Nos 4 & 5 so far. It is submitted that earlier Sri.Nazar has constructed a building for functioning a tailoring institute in his property which was later transferred to the Wakf Board and accordingly a Madrassa was functioning in the said building. Due to the protest of certain people the Madrassa was closed. On enquiry it is seen that the 1st petitioner and her children are not residing in the property. The 1st petitioner's brother one Uppuparamban Bhaskaran is residing in a small house situated in W. P. C. Nos.20132 & 20994 of 2011 -4- the A1 schedule property. He is doing the rituals of 'guligan thara' and is conducting annual 'thira' with the help of certain people after forming a committee. Petitioners and respondents No.4 & 5 are also used to actively participate in the annual 'thira'. Now a trust has been formed consisting 13 members wherein the 4th respondent is the chairman. However, the petitioners are not interested in the formation of trust and developing the rituals of 'guligan sankalpa'. The petitioners wanted to protect their property by constructing a boundary wall. It is true that the petitioners are the lawful owners and in absolute possession of the property. On investigation it is understood that the 4th and 5th respondents and their men have not prevented the petitioners or their workers from constructing the compound wall. If the petitioners wanted to construct the compound wall surrounding their property the police can provide adequate police protection. On enquiry it is seen that the Muslim peoples are not interfering with the 'guligan thara'. There is no situation which provokes a communal riot in that area. The old 'guligan thara' is 65 years old and the annual 'thira' performing the rituals like 'payya' were conducted by the petitioners and the respondent No.4 & 5 and their men. Once again it is submitted that the Police Authorities are ready to provide adequate Police protection to the petitioners for the construction of the boundary wall as and when required.” 2. Today when this Writ Petition came up for W. P. C. Nos.20132 & 20994 of 2011 -5- consideration Sri.Augustine Joseph, the learned counsel for the petitioners submitted that the party respondents are guilty of playing fraud on the court. The submission was that after entering appearance in these Writ Petitions and after seeking adjournments for the purpose of filing counter affidavits, they have caused filing of a civil suit before the Thalassery Munsiff's Court as O.S. No.283/11 and have obtained interim orders restraining construction of the compound wall and also restraining obstruction to entry of the devotees for the purpose of poojas in the 'Guligan Thara' and also for conduct of the annual festival. Sri.K.Mohanakannan, the learned counsel for the petitioner in W.P.C.20994/11 submitted that there is no claim for the party respondents that there is a 'Guligan Thara' on the property of his client. The only fault of his party is that his properties are situated adjacent to the property of the petitioners in W.P.C. No.20132/11 where 'Guligan Thara' is W. P. C. Nos.20132 & 20994 of 2011 -6- claimed to have been in existence for 65 years. 3. We have heard the submissions of Sri.Augustine Joseph, Sri.Mohanakannan, Sri.Mathew Kuriakose, the learned counsel for the petitioners in the two Writ Petitions and for the party respondents who addressed us in detail. Smt.C.M.Charisma, the learned Government Pleader also made submissions mainly based on the statements filed by the third respondent in W.P.C. No.20132/11. As already stated in these Writ Petitions various reliefs are sought for including the relief for protection for lives and reliefs in the matter of preservation of the properties in question and for permission for construction of compound walls for the purpose of protecting the properties from trespass. 4. Having anxiously considered the submissions addressed at the Bar in the light of the materials which are placed on record, we are of the view that it may not be proper on our part to issue directions permitting W. P. C. Nos.20132 & 20994 of 2011 -7- construction of the compound wall or for that matter protecting right of the petitioners in the Writ Petition to have peaceful enjoyment of the properties uninterrupted by the party respondents or anybody who is assigned with the conduct of 'Thira' festival, as a competent civil court which is already in seizin of the matter. We take into account in this context the statements filed by the 3rd respondent in W.P.C.20132/11. At the same time, as we find that the petitioners in the Writ Petitions are prima facie having at least proprietary title to the properties claimed by them, we feel that protection should be afforded to their lives from others including the party respondents. Hence, we dispose of both the Writ Petitions issuing the following directions:- 5. First respondent in W.P.C.20994/11 (3rd respondent in W.P.C.20132/11) and the Superintendent of Police, Kannur, (the second respondent in W.P.C.20132/11) will ensure that no danger is caused to the lives of the petitioners in both the W. P. C. Nos.20132 & 20994 of 2011 -8- Writ Petitions on account of any threat, violence or contumacious conduct from the part of the party respondents in these Writ Petitions or anybody who is associated with the conduct of 'Thira' festival or any other festival in the properties involved in these cases. If complaints are received from the Writ Petitioners voicing apprehensions of any such threat or violence prompt action will be taken by them. 6. Coming to the other reliefs sought for, we direct the Munsiff Court, Thalassery which is presently in seizin of O.S.283/11 to pass early orders on any applications for interim reliefs filed by the plaintiffs or by the defendants in that suit in accordance with law without delay. At any rate there will be a general direction to the second respondent and police officers under him to keep constant vigil over the properties involved in both the Writ Petitions and ensure that the lives of the petitioners are safe and that no W. P. C. Nos.20132 & 20994 of 2011 -9- activities amounting to public nuisance or illegality is perpetrated by anybody on those properties. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-