IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 OP(C).No. 1635 of 2011(O) OS.384/2010 OF PRINCIPAL MUNSIFF'S COURT,KOZHIKODE-II PETITIONERS ---------------------- 1. NAFEESA, AGED 61, W/O. MUNDOLI ABDU RAHIMAN HAJI, MANANTHANA CHALIL HOUSE, NALLALAM AMSOM AND DESOM, NALLALAM P.O., KOZHIKODE TALUK, PIN-673 027. 2. UMMAYYA, AGED 41, D/O. MUNDOLI ABDU RAHIMAN HAJI, MANANTHANA CHALIL HOUSE, NALLALAM AMSOM AND DESOM, NALLALAM P.O., KOZHIKODE TALUK, PIN-673 027. 3. KUNHIMUHAMMED, AGED 41, S/O. MUNDOLI ABDU RAHIMAN HAJI, MANANTHANA CHALIL HOUSE, NALLALAM AMSOM AND DESOM, NALLALAM P.O., KOZHIKODE TALUK, PIN-673 027. 4. AFSAL, AGED 37, S/O. MUNDOLI ABDU RAHIMAN HAJI, MANANTHANA CHALIL HOUSE, NALLALAM AMSOM AND DESOM, NALLALAM P.O., KOZHIKODE TALUK, PIN-673 027. BY ADV. SRI.E.NARAYANAN RESPONDENT: --------------- THE KOZHIKODE DISTRICT PANCHAYATH, REPRESENTED BY ITS SECRETARY, DISTRICT PANCHAYATH OFFICE, CIVIL STATION P.O., NEDUNGOTTOOR AMSOM AND DESOM OF KOZHIKODE TALUK, PIN-673 006. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT DATED 10.4.2010 IN O.S.NO.384 OF 2010 ON THE FILE OF THEMUNSIFF COURT II (P), KOZHIKODE. EXT.P2 TRUE COPY OF THE RECEIPT ISSUED FOR PAYMENT OF RENEWING D AND O LICENSES DATED 7.3.2011 ISSUED FROM THE PANCHAYAT TO M/S.ROYAL PLOYMERS. EXT.P3 TRUE COPY OF THE RECEIPT DATED 24.2.2011 ISSUED FOR PAYMENT OF THE PROFESSIONAL TAX WITH RESPECT TO ROYAL POLYMERS. EXT.P4 TRUE COPY OF THE CERTIFICATE DATED 18.2.2011 ISSUED FROM THE POLLUTION CONTROL BOARD TO ROYAL POLYMERS. EXT.P5 THE CERTIFICATE OF REGISTRATION DATED 3.5.1977 ISSUED BY THE DEPUTY DEVELOPMENT COMMISSIONER (SSI) TO M/S.HILL WOOD INDUSTRIES. EXT.P6 TRUE COPY OF THE CHALAN DATED 1.3.2011 ISSUED FOR THE PAYMENT OF FEE FOR RENEWAL OF EXT.P5 LICENCE. EXT.P7 A SITE MAP OF THE ACQUIRED AREA AS APPROVED BY THE VILLAGE OFFICER, NALLALAM. EXT.P8 TRUE COPY OF THE JUDGMENT DATED 29.6.2005 IN O.S.NO.775/2000 ON THE FILE OF THE MUNSIFF'S COURT, KOZHIKODE. EXT.P9 TRUE COPY OF THE JUDGMENT DATED 8.4.2010 IN RSA.63/10 ON THE FILE OF THE HIGH COURT OF KERALA, ERNAKULAM. EXT.P10 TRUE COPY OF THE WRITTEN STATEMENT DATED 2.7.2010 IN O.S.NO.384 OF 2010 ON THE FILE OF THE MUNSIFF'S COURT II (P), KOZHIKODE. EXT.P11 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A.NO.2012/10 IN O.S.NO.384/10 ON THE FILE OF THE MUNSIFF'S COURT II (P), KOZHIKODE. EXT.P12 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 22.7.2010 IN I.A.NO.2012/10 IN O.S.NO.384/10 ON THE FILE OF THE MUNSIFF'S COURT II (P), KOZHIKODE. EXT.P13 TRUE COPY OF THE COMMISSIONER'S REPORT AND SKETCH DATED 29.5.2010 FILED IN O.S.NO.384/10 ON THE FILE OF THE MUNSIFF'S COURT II(P), KOZHIKODE. EXT.P14 PHOTOGRAPHS SHOWING THE HIGHHANDED ACT OF THE PANCHAYATH. EXT.P15 PHOTOGRAPH SHOWING THE ORIGINAL POSITION OF THE PLAINT B SCHEDULE LAND BEFORE THE ILLEGAL ACT COMMITTED BY THE RESPONDENT. EXT.P16 TRUE COPY OF THE APPROVED PLAN SUBMITTED FOR INSTALLING A 5 HP AIR HAMMER GRAIDER IN THE HILL WOOD FACTORY. EXT.P17 THE ORIGINAL OF EXT.P14 PHOTOGRAPHS. EXT.P18 THE ORIGINAL OF EXT.P15 PHOTOGRAPH. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 1635 OF 2011 O ------------------------------------------------------ Dated this the 10th day of June, 2011 JUDGMENT The petitioners are the plaintiffs in O.S.No.384 of 2010, Munsiff's Court II, Kozhikode. The suit was filed in the vacation court in May, 2010. The relief sought for in the suit is for a declaration that the plaintiffs have prescribed right of easement to use the plaint 'B' schedule road to take vehicles to the plaint 'A' schedule property. There is also a prayer for consequential injunction. It is stated that in the plaint 'A' schedule property industrial units are there. The plaintiffs filed I.A.No.2012 of 2010 for temporary injunction restraining the respondent from obstructing the user of the plaint 'B' schedule road. It is stated that only notice was ordered in the temporary injunction application. The respondent/defendant appeared. They filed objections in I.A.No.2012 of 2010. However, no final orders were passed in the application. 2. A Commissioner was appointed by the trial court, who reported that there are industrial establishments in the plaint 'A' O.P.(C) NO.1635 OF 2011 :: 2 :: schedule property and 22 employees are working in the said establishments. 3. The allegation made in this Original Petition is that during the summer vacation of 2011, the respondent/defendant (the Kozhikode District Panchayat) blocked the plaint 'B' schedule pathway and thereby prevented entry of vehicles to the plaint 'A' schedule property. 4. The reliefs prayed for in the Original Petition are the following: “(i) To issue necessary directions to the respondent to remove the obstruction now caused to plaint B schedule property and to further direct them not to obstruct the plaint B schedule property till the disposal of O.S.No.384/10 on the file of the Munsiff Court II(P), Kozhikode. (ii) To direct the respondent to pay costs of this legal proceedings to the petitioners and (iii) To grant such other reliefs which the petitioner may pray for and this Honourable Court deems fit to pass under the circumstances.” O.P.(C) NO.1635 OF 2011 :: 3 :: 5. Though notice was served on the respondent by special messenger, there is no appearance. The case was adjourned on several occasions to provide an opportunity to the respondent to appear. However, there is no appearance for the respondent even now. The application for temporary injunction, namely, I.A.No.2012 of 2010, is not disposed of. The allegation of the petitioners is that the acts of the respondent were highhanded and the status quo in respect of the property was altered without taking the Court into confidence and without getting permission of the Court. The learned senior counsel appearing for the petitioners submitted that the Court is entitled to take into account the subsequent events also while disposing of the application for temporary injunction. The counsel also submitted that there is no bar to invoke the jurisdiction under Article 227 of the Constitution of India, in the facts and circumstances of the case. 6. The application for temporary injunction is pending before the trial court for the last more than one year. The same is not disposed of so far. It is necessary to dispose of that application. The petitioners would be entitled to put forward all the contentions O.P.(C) NO.1635 OF 2011 :: 4 :: which they have put forward in this Original Petition, at the time of hearing in I.A.No.2012 of 2010. The petitioners also would be entitled to put forward these aspects in the form of an additional affidavit. In the interest of justice, it is highly necessary to dispose of I.A.No.2012 of 2010 expeditiously. I do not think it proper to exercise the jurisdiction under Article 227 of the Constitution of India at this stage. Accordingly, the Original Petition is disposed of directing the Munsiff's Court II, Kozhikode to consider and dispose of I.A.No.2012 of 2010 in O.S.No.384 of 2010 as expeditiously as possible and, at any rate, within a period of one month from today. (K.T.SANKARAN) Judge ahz/