IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 WP(C).No. 26871 of 2008(Y) -------------------------- PETITIONER: --------------- TREESA LAURANCE, THITTAYIL VEEDU, VADAKARA ARAYATHURUTHI, CHIRAYINKIL DESOM, SARKARA VILLAGE. BY ADV. SRI.M.VIJAYAKUMAR RESPONDENTS: --------------- 1. CIRCLE INSPECTOR OF POLICE, ATTINGAL. 2. SUB INSPECTOR OF POLICE, CHIRAYINKEEZH. 3. SUSHEELAN, S/O. NARAYANAN, KIZHAKKETHITTA VEETTIL HOUSE, SARKARA VILLAGE, CHIRAYINKEEZH. 4. SHIVANANDAN VIJAYAKUMAR, R/AT -DO- 5. JYOTHI, D/O. SADASIVAN, PUTHUVAL VEEDU, SARKARA VILLAGE, CHIRAYANKEEZH DESOM. 6. MATHEW, S/O. ANTO, GRACE COTTAGE, NORTH ARAYANTHURUTHIL, -DO- 7. SHIBU, S/O. SHIVANANDAN, DRIVER, KIZHAKKETHITTAYIL HOUSE, NORTH ARAYANTHURUTHI SARKARA VILLAGE, CHIRAYINKEEZH DESOM, TRIVANDRUM. ADV. SRI.J.JAYAKUMAR FOR R6 SRI.S.M.PREM FOR R3 - R5 & 7 SMT.K.P.SANTHI FOR R3,5 & 7 SRI.P.RAMACHANDRAN (PALAKKAD) FOR R3,5 & 7 SRI.P.K.NIJOY FOR R3,5 & 7 SRI.S.M.PREM FOR R4 GOVT.PLEADER, SRI.BENJAMIN PAUL FOR R2. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.26871/2008 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE ORDER ISSUED BY THE MUNSIFF, ATTINGAL DT.AUGUST, 2008. EXT.P2: COPY OF THE ORDER ISSUED BY THE MUNSIFF COURT, ATTINGAL DT.4.8.2008. EXT.P3: COPY OF THE PETITION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DT.26.8.2008. EXT.P4: COPY OF THE PETITION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DT.24.8.2008. EXT.P5: COPY OF REPORT OF THE ADVOCATE COMMISSIONER DT.28.7.08. EXT.P6: COPY OF THE COMMISSION REPORT AND PLAN DT.30.8.08. EXT.P7: COPY OF BUILDING PERMIT FOR THE CONSTRUCTION OF COMPOUND WALL IN R.S.NO.615/B.2.4, 637, 638 IN SARKARA VILLAGE, CHIRAYINKEEZHU TALUK DT.17.3.06. EXT.P8: COPY OF CERTIFICATE SHOWING THAT THE PANCHAYAT HAD NOT CONSTRUCTED ANY ROAD IN R.S615, 641,. 642, 643 IN SARKARA VILLAGE, CHIRAYINKEEZHU GRAMA PANCHAYAT DT.18.2.1998. RESPONDENT'S EXTS: EXT.R4(a): COPY OF THE REPORT DT.19.8.2008 FURNISHED BY THE SECRETARY, CHIRAYINKEEZHU GRAMA PANCHAYAT. EXT.R4(b): COPY OF THE RELEVANT PAGE OF THE DEVELOPMENT PLAN OF CHIRAYINKEEZHU GRAMA PANCHAYAT IN WHICH T.S.CANAL- KANNATTUKADAVU ROAD IS INCLUDED. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & V.K.MOHANAN, JJ. ---------------------------------------- W.P.(C) No.26871 OF 2008 ---------------------------------------- Dated this the 4th day of December, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The petitioner claims ownership and possession over about one acre of property comprised in Re-survey No.615 and 642/A13 of Sarkara village in Chirayinkeezh Taluk. When certain persons tried to trespass into that property, she moved the Munsiff's court, Attingal, by filing O.S.No.411/1996, which was decreed restraining the defendants from trespassing into the property or obstructing her enjoyment over the property. The petitioner submits, she constructed a compound wall on the basis of the orders of the learned Munsiff in Execution Application No.82/2004 in E.P.No.35/2004 in O.S.No.411/1990. It was constructed in the presence of an Advocate Commissioner with necessary police assistance. Again, some other persons, who are the party respondents herein, tried to trespass into that property and cause damage to the compound wall. Then the petitioner moved the civil court and obtained Ext.P2 interim order. When the said order was in force, the W.P.(C) No.26871/2008 2 petitioner submits, the party respondents herein and others trespassed into the property on 25.8.2008 and demolished a portion of the compound wall . Now, the petitioner wanted to reconstruct it. So, she filed Exts.P3 and P4 representations before the police and thereafter this writ petition is filed, seeking the following reliefs: “i) issue a writ of mandamus directing the 1st and 2nd respondents to give adequate and sufficient protection to the petitioner's life and property in RS 615 and RS 642/A13 of Sarkara Village in Chirayinkeezh Desom, Trivandrum District. ii) Issue a writ of mandamus directing the respondents 1 and 2 to grant police protection to the petitioner construct a compound wall in RS 615 and RS 642/A13 of Sarkara Village in Chirayinkeezh Desom, Trivandrum District.” 2. The respondents 3 to 5 and 7 have filed a counter affidavit, alleging that the petitioner has constructed a compound wall encroaching the T.S.Canal - Kannattukadavu Road. On the motion made by the affected parties, an enquiry is being conducted into the above encroachment, by the competent W.P.(C) No.26871/2008 3 authorities. They submit, police protection is sought by the petitioner to construct compound wall encroaching into the aforementioned road. 3. The learned Government Pleader, upon instructions, submitted that on the basis of the information lodged by the petitioner, a crime has been registered for the demolition of the compound wall. 4. The compound wall has been constructed on the basis of the orders of the civil court in the presence of an Advocate Commissioner appointed by the court. The civil court also ordered necessary police protection. If it is demolished, we think the remedy of the petitioner is to again move the civil court. If the demolition is in violation of the interim order passed by the civil court, the said court can take coercive action against party respondents and, if necessary, direct the police to render assistance to the petitioner. Instead of doing that, the petitioner has directly gone to the police station. We feel that the petitioner's remedy lies before the civil court and not before the W.P.(C) No.26871/2008 4 police. Further, this Court cannot direct the police to grant protection for construction of a compound wall, in view of the Division Bench decisions of this Court in Ajayakumar v. State of Kerala [2008(1) KLT 901] and Devadasan v. State of Kerala [2005(3) KLT 739]. The threat to the life of the petitioner is only when she goes to the disputed property and try to construct the compound wall. If she goes around attending her normal business, there is no threat to her life. Therefore, the prayers in the writ petition cannot be granted invoking the jurisdiction of this Court under Article 226 of the Constitution of India. Accordingly, this writ petition is dismissed without prejudice to the contentions of the petitioner and her right to move the competent civil court for appropriate reliefs. (K.BALAKRISHNAN NAIR, JUDGE) (V.K.MOHANAN, JUDGE) ps