IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 WP(C).No. 35471 of 2010(H) ---------------------------------------- PETITIONER(S): ------------------------- 1. VIJAYAN, S/O.ANDEYATH KONNAN, RESIDING AT MUTTICHOOR DESOM, PLADIYAM VILLAGE, THIRSSUR TALUK. 2. ALUKKAS GOLD RETAIL INDIA (P) LIMITED, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR A.V.JOSE, CORPORATE OFFICE, MARAR ROAD, THRISSUR-680 001. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, BY ADV. SRI.T.C.SURESH MENON, SRI.JIBU P THOMAS, SRI.P.S.APPU, SRI.NIKHIL S.KUMAR, SRI.P.V.BENNYKUMAR, SRI.C.A.ANOOP. RESPONDENT(S): ---------------------------- 1. THE SUB INSPECTOR OF POLICE, VIYYUR POLICE STATION, THIRSSUR-680 001. 2. THE THRISSUR URBAN DEVELOPMENT AUTHORITY (TUDA), NOW MERGED WITH THE CORPORATION OF THRISSUR, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR-680 001. 3. THE KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY ITS REGISTRAR, MANNUTHY, THRISSUR-680 651. 4. DR.PATHIYOOR GOPINATH, RESIDING AT `PRAKRUTHI', GANDHI NAGAR, MANNUTHY P.O., THRISSUR-680 651. R1 BY GOVERNMENT PLEADER SMT. C.M.CHARISHMA R2 BY ADV. SRI.ASOK M.CHERIAN, SC R3 BY ADV. SRI. K.P.MUJEEB, SC R4 BY ADVS. SRI.K.S.MADHUSOODANAN, SRI.T.V.JAYAKUMAR NAMBOODIRI, SRI.THUSHAR NIRMAL SARATHY, SRI.M.M.VINOD KUMAR, SRI.P.K.RAKESH KUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.35471/2010 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DECREE IN O.S.NO.885/2002 ON THE FILE OF THE COURT OF THE THIRD ADDITIONAL MUNSIFF OF THRISSUR DTD. 13/02/2004. P2: COPY OF THE JUDGMENT IN AS NO.310/2004 ON THE FILE OF THE FIRST ADDITIONAL DISTRICT JUDGE OF THRISSUR DTD. 20/03/2010. P3: COPY OF THE SALE DEED DTD. 21/08/2010. P4: COPY OF THE RECEIPT DTD. 25/09/2010. P5: COPY OF THE POSSESSION CERTIFICATE DTD. 25/09/2010. P6: COPY OF THE PHOTOGRAPHS EVIDENCING THE DUMPING OF SOIL DTD. NIL. P7: COPY OF THE INFORMATION FURNISHED BY THE PUBLIC INFORMATION OFFICER DTD. 10/11/2009. P8: COPY OF THE REPRESENTATION SUBMITTED BY THE SECOND PETITIONER DTD. 23/11/2010. P9: COPY OF THE MEMO ACKNOWLEDGING THE RECEIPT DTD. 23/11/2010. P10: COPY OF THE INFORMATION ELICITED UNDER THE RIGHT TO INFORMATION ACT BY THE ADVOCATE OF THE SECOND PETITIONER DTD. 2/12/2010. P11: COPY OF THE INFORMATION ELICITED UNDER THE RIGHT TO INFORMATION ACT BY THE ADVOCATE OF THE SECOND PETITIONER DTD. 2/12/2010. P12: COPY OF THE SURVEY SKETCH DTD. NIL. RESPONDENT'S EXHIBITS: R4(A): COPY OF THE GOVERNMENT ORDER BEARING NO.GO(MS) 1604/2010/LSGD DTD. 14/05/10. R4(B): COPY OF THE DECISION OF THE MEETING LAMPS DTD. 14/09/2010. R4(C): COPY OF THE LETTER OF THE SECRETARY OF TRICHUR CORPORATION DIRECTED TO IMPLEMENT THE PROJECT INCLUDING AT KOVILAKATHUPADAM DTD. 29/09/10. R4(D): COPY OF THE SURPRISE CHECK REPORT DTD. 28/02/05. /TRUE COPY/ P.A.TO JUDGE Kss K.M.JOSEPH & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.C.No.35471 of 2010 ---------------------------------------- Dated this the 10th day of December 2010 J U D G M E N T K.M.JOSEPH,J The petitioners have approached this Court seeking the following reliefs: i) issue a writ in the nature of mandamus directing the first respondent to afford adequate police protection to the life and property of the petitioners covered by Exts.P1 decree and P2 judgment which have already become final; ii) issue a writ in the nature of mandamus directing the second and third respondents to forbear from trespassing into the property of the second petitioner and dump soil therein in violation of Ext.P1 decree and Ext.P2 judgment; iii) issue a writ in the nature of mandamus directing the first respondent to consider Ext.P8 representation on merits expeditiously and take sufficient remedial steps to prevent brazen violation of Ext.P1 decree and Ext.P2 judgment. 2. Briefly put, the case of the petitioners is as follows: W.P.C.No.35471 of 2010 2 3. The 1st petitioner is the decree holder in O.S.No.885/2002 of Second Additional Munsiff Court, Thrissur. The decree schedule property is 35 cents of dry land in Sy.No.132/2A of Thrissur village in Thrissur Taluk. The decree of prohibitory injunction restrains the 2nd respondent, the Thrissur Urban Development Authority now merged with the Corporation of Thrissur, from trespassing into the property or planting concrete poles therein as well as annexing any part of the same. Ext.P1 decree stands affirmed in Ext.P2 judgment dated 20/03/2010, which, as of now, is not appealed against. The 1st petitioner sold the property to the 2nd petitioner for Rs.1,40,00,000/- vide Ext.P3 dated 21/08/2010. Thus, the 2nd petitioner is the bona fide purchaser for valuable consideration and mutation has been effected in favour of the 2nd petitioner by Ext.P4. The 2nd petitioner is the absolute owner of the property and Ext.P5 is the copy of the certificate issued by the Village Officer. It appears that the 2nd respondent has sought the technical assistance of the 3rd respondent to establish a Solid Waste Processing Plant. The 4th respondent, who is working as a Dean in the 3rd respondent is the person entrusted with the task of supervising the establishment of the Solid Waste Processing W.P.C.No.35471 of 2010 3 Plant. It is stated that the petitioners to their dismay found that the concrete poles along with the boundaries have been uprooted and soil dumped after annexing a portion of the property covered by the decree. The petitioners, on enquiry, found that the same is being done at the instance of the fourth respondent as part of establishing the Solid Waste Processing Plant. Ext.P6 is the photographs produced. Ext.P7 is the information furnished by the Public Information Officer pursuant to a question as to whether the 2nd respondent owns any property in Sy.No.132/2A of Thrissur Village. The petitioners submitted Ext.P8 representation to the Sub Inspector of Police seeking protection against the brazen violation of the decree. 4. The 4th respondent has filed a counter affidavit wherein it is inter alia produced Ext.R4(d) which purports to be a surprise check report dated 28/2/2005 submitted by the Deputy Superintendent of Police, Vigilance & Anti-Corruption Bureau, Thrissur. It is his case inter alia that the Corporation is taking hectic steps to challenge Exts.P1 and P2 decree and judgment before this Court. The so called patta issued to the 1st petitioner is found to be forged in the surprise check report and it is not a fit case for police protection. W.P.C.No.35471 of 2010 4 5. We have heard Adv.Sri.V.Chidambaresh, the learned senior counsel for the petitioners, Adv. Sri.Asok.M.Cherian, the learned counsel for the 2nd respondent, Adv.Sri.K.S.Madhusoodhanan, the learned counsel for the 4th respondent, the learned counsel for the 3rd respondent and the learned Government Pleader. Adv.Sri.V.Chidambaresh, the learned senior counsel for the petitioners reiterates the facts and submits that as long as Ext.P1 decree is affirmed by Ext.P2 judgment which is not appealed against, it is the duty of this Court to grant protection to see that the brazen violation of the decree by a public authority is prevented. In answer to the case set up by the 4th respondent, he would submit that actually, after having submitted the report, he has no function in the matter. He would further submit that even if there are allegations affecting the title of the petitioners to the property in question, the 2nd respondent has not sought to impugn the decree before the proper forum. As long as the decree stands, there is a duty to obey the decree and if there is violation, the Court must interfere. The learned counsel for the 2nd respondent Adv.Sri.Ashok M.Cherian would also rely on the contents of Exts.R4(d) report. He would also submit that the copy of the W.P.C.No.35471 of 2010 5 judgment of the first appellate court has been obtained and the 2nd respondent intends to file an appeal. 6. It is true that there is Ext.P1 decree as affirmed by Ext.P2 stands as on today. But, we also notice that there is an allegation that the title claimed by the predecessors-in-interest of the 1st petitioner is forged. We feel that we should relegate the petitioner to approach the civil court and seek appropriate relief by way of executing the decree. The writ petition is dismissed, subject to the right of the petitioners to seek to execute the decree. (K.M.JOSEPH, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge W.P.C.No.35471 of 2010 6 W.P.C.No.35471 of 2010 7 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010