IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 19TH APRIL 2011 / 29TH CHAITHRA 1933 WP(C).No. 11607 of 2011(A) -------------------------- PETITIONER(S): --------------- 1. T.MOIDU, AGED 65 YEARS, S/O.MUHAMMED HAJI, THARAVATTATHU HOUSE, CHERAPURAM,VELLAM, VADAKARA,A KOZHIKODE, NOW RESIDING AT SWADESHI HOTEL 40/1595,CANNON SHED ROAD, KOCHI-682011. 2. T.M.MOHAMMAD, AGED 32 YEARS, S/O. T.M.MOIDU,THARAVATTATHU HOUSE,CHERPURAM, VELLAM VADAKARA, KOZHIKODE, NOW RESIDING AT SWADESHI HOTEL 40/1595, CANNON SHED ROAD, KOCHI-682011. 3. BEVATHU, W/O. T.M.MOIDU, AGED 55 YEARS, S/O. MUHAMMED HAJI, THARVATTATHU HOUSE, CHERAPURAM, VELLAM,VADAKARA, KOZHIKODE. 4. T.M.ABDUL AZIZ, AGED 60 YEARS, S/O. MUHAMMED HAJI, RESIDING AT AYISHA MANZIL, PALLIPATTU LANE, LISSY ROAD,KOCHI-682018. 5. T.M.HABEEB, AGED 54 YEARS, S/O. MUHAMMAD HAJI, AYISHA MANZIL, PALLIPATTU LANE LISSY ROAD, KOCHI-682018. BY ADV. SRI.SANTHOSH G. PRABHU SRI.S.KANNAN SRI.S.KRISHNA MOORTHY(ERNAKULAM) RESPONDENT(S): --------------- 1. DEPUTY COMMISSIONER OF POLICE, CAMP OFFICE OF THE DEPUTY COMMISSIONER OF POLICE, L & O, T, CITY POLICE OFFICE, KOCHI CITY ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, CENTRAL POLICE STATION, KOMBARA, ERNAKULAM. 3. STATION HOUSE OFFICER, CENTRAL POLICE STATION, KOMBARA, ERNAKULAM. 4. FAIZL, S/O. IBRAHIM, THARAVATTATH HOUSE, TAGORE LANE, S.R.M.ROAD, ERNAKULAM. ADV. SRI.K.R.VINOD FOR R4 GOVT. PLEADER SHRI.T.K.VIPINDAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 11607/11 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE CERTIFICATE OF LICENCE. P2. COPY OF THE RECEIPT NO.7087 DTD.21.2.11. P3. COPY OF THE MEMBERSHIP CERTIFICATE. P4. COPY OF THE RECEIPT DTD.6.10.10. P5. COPY OF THE COMPLAINT DTD.5.4.11. P6. COPY OF THE RECEIPT DTD.6.4.11. RESPONDENT(S)' EXHIBITS: R4A. COPY OF THE ENCUMBRANCE CERTIFICATE. R4B. COPY OF THE ORDER OF S.D.M, FORT KOCHI. R4C. COPY OF THE ORDER OF SESSIONS COURT DTD.19.8.10. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN & M.L.JOSEPH FRANCIS, JJ. ================== W.P.(C).No. 11607 of 2011 ================== Dated this the 19th day of April, 2011 J U D G M E N T Petitioners 1, 4 and 5 are brothers and the 3rd petitioner is the wife of the 1st petitioner. The 2nd petitioner is the elder son of petitioners 1 and 3. Petitioners 1 and 2 are running a restaurant in the double stored building under the name and style of “Hotel Swadeshi” in survey No.816 of Ernakulam Village, in Kanayannur Taluk. The petitioners allege that the 4th respondent is obstructing the running of the restaurant. The petitioners, therefore, filed this writ petition seeking the following reliefs: “i. to issue a writ in the nature of mandamus directing respondents 1, 2 and 3 to grant adequate and effective police protection to the petitioners and workers of petitioners 1 and 2 to run “Hotel Swadeshi' in the double stored building in Survey No.816 of Ernakulam Village, Kanayannur Taluk and to carry out the business as permitted by Ext.P2 license without any threat or obstruction from 4th respondent or any others under him ii. to issue a writ in the nature of mandamus directing the 1st respondent to take appropriate action on Ext.P5 within a time limit to be specified by this Hon'ble Court.” 2. A counter affidavit has been filed by the 4th respondent. He submits that he is the co-owner of the property, wherein the subject building is situated, in respect of which, a licence has been granted to w.p.c.11607/11 2 petitioners 1 and 2 to run the restaurant. According to the 4th respondent, he has not done anything to obstruct the running of the restaurant. But in respect of the first floor, there is some dispute. As per Ext.R4(b), the Sub Divisional Magistrate has ordered demolition of the first floor of the building, since it is in a dilapidated condition. The Sessions Judge Ernakulam has stayed that order by Ext.R4(c). While the matter stood so, the petitioners tried to make material alterations to the first floor of the building, which was only sought to be prevented by the 4th respondent. The counsel for the petitioners submit that they undertake not to make any material alteration to the first floor of the building. 3. Having heard both sides, we dispose of this writ petition with the following directions: The undertaking of the 4th respondent that he will not obstruct the smooth running of the restaurant in the ground floor of the building is recorded. If contrary to the said undertaking the 4th respondent does anything to obstruct the running of the restaurant, respondents 1 and 3 shall see that such obstruction is promptly averted on a complaint filed by any of the petitioners. However, under the cover of the said order, the petitioners shall not make any construction or material alterations in the first floor of the building, w.p.c.11607/11 3 which shall also be ensured by respondents 1 to 3, until the parties obtain orders from a competent court to the contrary. Sd/- S.SIRI JAGAN, JUDGE Sd/- M.L.JOSEPH FRANCIS, JUDGE sdk+ ///True copy/// P.A. to Judge