IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 WP(C).No. 35505 of 2010(K) -------------------------- PETITIONER: ------------------ GOPI, G.O.NIVAS, PUTHIYAVILA MURI, ARATTUPUZHA VILLAGE, KARTHIKAPALLY TALUK, ALAPPUZHA. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENTS: ---------------------- 1. DISTRICT SUPERINTENDENT OF POLICE, ALAPPUZHA 690001. 2. THE DEPUTY SUPERINTENDENT OF POLICE, KARTHIKAPPALLY TALUK, ALAPPUZHA 690516. 3. THE SUB INSPECTOR OF POLICE, KANAKAKUNNU POLICE STATION, KARTHIKAPPALLY TALUK, ALAPPUZHA 690516. 4. BHASKARA BABU, S/O.RAGHAVAN, LINNIT HOUSE, PUTHIYAVILA MURI, ARATTUPUZHA VILLAGE, KARTHIKAPALLY TALUK, ALAPPUZHA 690516. 5. SHYLAJA, W/O.BHASKARA BABU, LINNIT HOUSE, PUTHIYAVILA MURI, ARATTUPUZHA VILLAGE, KARTHIKAPALLY TALUK, ALAPPUZHA 690516. 6. PRASAD, S/O.CHAKRAPANI, PUTHUPARAMBIL, PUTHIYAVILA MURI, ARATTUPUZHA VILLAGE, KARTHIKAPALLY TALUK, ALAPPUZHA 690516. WP(C).No. 35505 of 2010(K) --------------------------------------- ADDL.R7 IMPLEADED -------------------------------- ARATTUPUZHA GRAMA PANCHAYATH, REPRESENT5ED BY ITS SECRETARY, ARATTUPUZHA GRAMA PANCHAYATH, KARTHIKAPPALLY TALUK, ALAPPUZHA; IS IMPLEADED THIS COURT'S ORDER DATED 7.1.11 IN IA.17630/2010 R1 TO 3 BY GOVERNMENT PLEADER, SMT.CHERISHMA R4 TO 6 BY ADVS. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 35505 of 2010(K) -------------------------------------- APPENDIX ---------------- PETITIONER'S EXHIBITS ------------------------------------- EXT.P1. COPY OF THE TAX RECEIPT DATED 20.5.2010 OF THE PROPERTY EXT.P2. COPY OF THE COMMON DECREE DATED 2.1.2009 IN O.S.NO.284 OF 2005 AND IN O.S. NO.167 OF 2006. EXT.P3.COPY OF THE PERMIT DATED 19.11.2010 GRANTED FOR CONSTRUCTING COMPOUND WALL BY THE ARATTUPUZHA PANCHAYATH. EXT.P4. COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT ON 22.11.2010. EXT.P5. COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 3RD RESPONDENT ON 22.11.2010. EXT.P6. COPY OF THE JUDGMENT IN O.S.NO.284/2005 DATED 2.1.2009 BEFORE THE MUNSIFF COURT HARIPPAD. EXT.P7. COPY OF THE PHOTOGRAPH SHOWING THE WAY OF ACCESS TO THE RESIDENCE OF RESPONENTS 4 AND 5. EXT.P8. COPY OF THE PHOTOGRAPH SHOWING PREPARATIONS MADE BY THE PETITIONER FOR CONSTRUCTING COMPOUND WALL IN FROM OF THE BUILDING. EXT.P9. COPY OF THE ANOTHER PHOTOGRAPHS SHOWING THE FRONT OF PETITIONER'S BUILDING AND PROPERTY WITH THE ROAD FRONTAGE AND PARTIALLY CONSTRUCTED COMPOUND WALL. EXT.P10. COPY OF THE PHOTOGRAPH SHOWING THE CONSTRUCTION OF COMPOUND WALL ON THE SOUTH EASTERN SIDE FACING THE PUBLIC ROAD. EXT.P11. COPY OF THE APPROVED PLAN. EXT.P12. COPY OF THE PHOTOGRAPH SHOWING THE WAY OF ACCESS TO THE PROPERTY OF RESPONDENTS 4 TO 6 AND ALSO THE EXCACATED PORTIONOF PROPERTY OF THE PETITIONER ABUTTING THE ROAD AFTER REMOVING THE FENCE. EXT.P13. COPY OF THE PHOTOGRAPH SHOWING THE PARTLY CONSTRUCTED COMPOUND WALL AND REMAINING EXCAVATED SOUTHERN BOUNDARY FACING THE ROAD. EXT.P14. COPY OF THE PHOTOGRAPH SHOWING THE PARTLY CONSTRUCTED COMPOUND WALL AND REMAINING EXCAVATED SOUTHERN BOUNDARY FACING THE ROAD. WP(C).No. 35505 of 2010(K) --------------------------------------- EXT.P15. COPY OF THE PLAINT IN O.S.NO.284/2005 BEFORE THE MUNSIFF COURT, HARIPPAD. EXT.P16. COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENTS 4 AND 5 IN O.S.NO.284/2005 BEFORE THE MUNSIFF COURT HARIPPAD. EXT.P17. COPY OF THE COMMISSION REPORT AND MAHAZAR PREPARED ON 26.11.2005 AND FILED IN O.S.NO.284/2005 BEFORE THE MUNSIFF COURT HARIPPAD. EXT.P18. COPY OF THE COMMISSION REPORT AND MAHAZAR PREPARED ON 01.09 2006 AND FILED IN O.S.NO.284/2005 BEFORE THE MUNSIFF COURT HARIPPAD. RESPONDENTS' EXHIBITS : NIL --------------------------------------- / TRUE COPY / P.A. TO JUDGE VK R.BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ W.P(C) NO: 35505 OF 2010 K ----------------------------------------------------------- Dated this the 7th January, 2011. JUDGMENT Basant, J. The petitioner has come to this Court with this petition for issue of directions under Art.226 of the Constitution to respondents 1 to 3 to afford police protection to the petitioner for construction of a compound wall on the southern boundary of the petitioner's 15 cents residential plot. Fourth respondent has his property/residence on the north-western side of the petitioner's property. According to the petitioner there was a civil suit between the petitioner on the one hand and the fourth respondent on the other. That suit has been decreed. It is now not disputed that an appeal is pending against that judgment and decree. No interim orders have been passed by the appellate court so far, it is agreed. Counsel for the respondent submits that an order of stay has already been passed on 14-12-2010. No such order has been produced. 2. According to the petitioner respondents 4 and 5, spouses can have possibly no objection against the petitioner WPC 35505/2010 2 putting up the southern boundary of his property. On the southern side of the southern boundary is the public road. No other person has raised any objections against putting up the boundary on the southern side. Petitioner has obtained requisite permission from the additional seventh respondent. Additional seventh respondent has no case that the petitioner has trespassed into the road or that he is undertaking the construction in violation of the permit granted to him. Sixth respondent is the brother of the fifth respondent i.e brother-in- law of the fourth respondent. Respondents 4 to 6 along with some others are raising objections against the completion of the compound wall against the southern boundary. The petitioner prays that the police may be directed to afford protection. 3. It is the admitted case that no objections was raised for construction of the southern boundary from the eastern end to some distance on the west. But objection is raised only thereafter for completion of construction of the boundary. 4. Respondents 4 to 6 have entered appearance through counsel. They submit that the civil dispute has not been finally resolved yet. The petitioner has not sought any direction from the civil court to facilitate construction of the compound wall. WPC 35505/2010 3 Respondents 4 to 6 have serious objection about the point up to which the southern boundary of the petitioner can be constructed. According to them if the petitioner constructs it as desired by him that would be obstructing a pathway on the west of the property of the petitioner which leads to the house of the fourth respondent. The attempt of the petitioner, it is contended, is to secure an order of police protection and construct the boundary as it pleases him. Petitioner may not be permitted to construct such boundary without getting appropriate orders from the civil court submits learned counsel for respondents 4 to 6. 5. We have considered all the relevant inputs. There is indeed a civil dispute between the parties about the point up to which the southern boundary of the petitioner can extend on the west. We are not persuaded to agree that the jurisdiction under Art.226 can or ought to be invoked to permit the petitioner to construct such compound wall with police aid in the light of such dispute. This is certainly a fit case where the petitioner must seek directions from the Civil Court before which the matter is pending to enable him to complete the construction. WPC 35505/2010 4 6. Learned counsel for the petitioner submits that in that event the petitioner shall construct the southern compound wall up to an undisputed point on the west. We are unable in these proceedings under Art.226 to identify such undisputed point. The parties are not in agreement before us about the point up to which the southern boundary can extend on the west. Therefore such limited prayer of the petitioner cannot also be granted. 7. This writ petition in these circumstances dismissed with the observation that the petitioner must seek appropriate directions from the civil court before which the dispute is pending to enable him to construct the southern compound wall. Needless to say if such petition is filed the civil court must make every endeavour to dispose of the same expeditiously in accordance with law. R.BASANT Judge K. SURENDRA MOHAN Judge jj WPC 35505/2010 5