C.M. Varghese v. Superintendent of Police, Aluva and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 WP(C).No. 22252 of 2010(F) -------------------------- PETITIONER: --------------- C.M.VARGHESE, AGED 89 YEARS, S/O.MATHAI, CHELAPARAMBATHU PUTHANPURAYIL HOUSE, PALAKUZHA P.O., MUVATTUPUZHA TALUK. BY ADV. SRI.K.ABDUL JAWAD RESPONDENTS: - --------------- 1. SUPERINTENDENT OF POLICE, ALUVA.683 101 2. DEPUTY SUPERINTENDENT OF POLICE, MUVATTUPUZHA.686661 3. SUB INSPECTOR OF POLICE, KOTHATTUKULAM.686662 4. MANU, S/O.KOCHURAMAN, VETTICHUVATTIL VEEDU, PALAKUZHA P.O., MUVATTUPUZHA TALUK.686 686 5. SURESH, S/O.SURA, PARAKKAL VEEDU, PALAKUZHA P.O., MUVATTUPUZHA TALUK.686 686 6. LITHIN BABY,S/O.BABY, OZHUKKAN PARAYIL HOUSE, PALAKUZHA P.O., MUVATTUPUZHA TALUK.686 686 7. M.C.YOUNACHAN, MOOLANKUZHIYIL HOUSE, EAST MARADY P.O., MUVATTUPUZHA.686 673 GOVERNMENT PLEADER SHRI T K VIPINDAS FOR R1-3 ADV. SRI.A.K.JAYAPRAKASH FOR R4 SRI.BABY THOMAS FOR R4 SRI GIGIMON ISSAC FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22252 of 2010 ## APPENDIX ## PETITIONER'S EXHIBITS : EXT.P1 : TRUE COPY OF THE SETTLEMENT DEED DT.20.6.60. EXT.P2 : TRUE COPY OF THE LAND TAX RECEIPT DT.6.7.2010 EXT.P3 : TRUE COPY OF THE POSSESSION CERTIFICATE DT.5.10.09 - EXT.P4 : TRUE COPY OF THE OBJECTION DT.27.8.09 SUBMITTED BY PETITIONER BEFORE THE GEOLOGIST. - EXT.P5 :TRUE COPY OF THE RECEIPT OF MONEY DT.23.10.09 - EXT.P6 : TRUE COPY OF THE AGREEMENT DT.23.10.09 ENTERED INTO BETWEEN THE PETITIONER AND 7TH RESPONDENT. - EXT.P7 : TRUE COPY OF THE SURVEY PLAN ISSUED BY THE TALUK SURVEYOR MUVATTUPUZHA AND APPROVED BY THE TAHSILDAR MUVATTUPUZHA. - EXTP8 : TRUE COPY OF THE PERMIT FOR QUARRYING, VALID UPTO 22.10.10 ISSUED BY THE GEOLOGIST. - EXT.P9 : TRUE COPY OF THE COMPLAINT THROUGH HIS SON NAMELY JAMES BEFORE THE 3RD RESPONDENT WITH COPY TO THE 2ND RESPONDENT ON 8.7.10. - EXT.P10 : TRUE COPY OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT. - EXTP11 : TRUE COPY OF THE LETTER DT.9.7.10 ISSUED TO THE 7TH RESPONDENT. - EXT.P12 : TRUE COPY OF THE RELEVANT EXTRACT OF THE THANDAPER REGISTER. - EXT.P13 : TRUE COPY OF THE POSSESSION CERTIFICATE DT. 28.2.1987 SHOWING THE ABSOLUTE POSSESSION OF THE LAND WITH THE PETITIONER. - EXT.P14 : TRUE COPY OF THE REVENUE LIST ISSUED UNDER THE SEAL OF VILLAGE OFFICER. - EXT.P15 : TRUE COPY OF THE INFORMATION ISSUED BY THE SECRETARY OF THE PANCHAYATH. - EXTP16: TRUE COPY OF THE PLAINT IN O.S. 320/10 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA. - EXT.P17 : TRUE COPY OF THE REPLY DT.4.8.10 ISSUED BY THE ASST. DEVELOPMENT COMMISSIONER (GENERAL) RESPONDENTS' EXHIHBITS ; NIL // TRUE COPY// ## **K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No.22252 of 2010 F** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 18[th] day of August, 2010 ## JUDGMENT Joseph J., The petitioner has approached this court seeking the following prayers: (i) Issue a writ of mandamus or any other writ or order commanding the respondents Nos. 1 to 3 to grant adequate and meaningful protection to the life and property of the petitioner for the full enjoyment of the land without any obstruction from the respondents 4 to 6 and their henchmen. (ii) Issue a writ of mandamus or direction to the respondents Nos. 1 to 3 to remove all encroachment and nuisance from the land of the petitioner and take necessary criminal action against respondents 4 to 6 in accordance with law based on Ext.P.9 complaint. 2 ## **W.P.(C) No. 22252 of 2010** 2. Briefly the case of the petitioner is as follows. The petitioner is the absolute owner in possession of 2 Acres and 40 cents of land which was owned by his father. The petitioner leased out a portion of the land for quarrying rock to the 7[th] respondent. Though the petitioner has instructed the 7[th] respondent to comply with all statutory requirements, the 7[th] respondent conducted the quarrying operations without obtaining permit. The petitioner entered into Ext.P6 agreement dated 23.1.0.2009 with the 7[th] respondent leasing out the land to conduct the quarry with legal sanction. Ext.P7 is the copy of survey plan issued by the Taluk Surveyor, Muvattupuzha and approved by the Tahasildar, Muvattupuzha. The permit issued by the Geologist is produced as Ext.P8. 3. Respondents 4 to 6 are anti-social elements in the area. They are also local activists of a major political party. There is reference to a demand for illegal gratification for smoothly ## **W.P.(C) No. 22252 of 2010** **==> picture [7 x 9] intentionally omitted <==** conducting the quarry, which was turned down by the 7[th] respondent. It is stated that they approached the petitioner also likewise. They declared that they will not allow the quarry to work. 4. On 7.7.2010 respondents 4 to 6 and 15 along with some other identifiable people criminally trespassed into the property of the petitioner and erected a temporary shed and they have declared that they will not allow the quarry to function. The petitioner preferred complaints, Ext.P9 and P10 respectively. The petitioner also instructed the 7[th] respondent to stop the quarry till the nuisance is removed to avoid human casualty vide Ext.P11. 5. A counter affidavit is filed by the 4[th] respondent, to which a reply affidavit is also filed by the petitioner. 6. In the counter affidavit it is inter alia stated as follows. The petitioner is having 2 Acre 40 cents of land. It is a hilly and rocky area and on the western side of the said land about 50 cents 4 ## **W.P.(C) No. 22252 of 2010** of land was also uncultivatable being rocky as well as very steep and lying separately from the remaining land. While the petitioner was cultivating the remaining portions, the said 50 cents of property was abandoned. 7. During 1978 the 4[th] respondent's father married his mother against the interest of his parents and because of difference of opinion, the parents reduced the land abandoned by the petitioner in their possession and made boundaries and put up a shed and started residing there. Later the shed is modified into a hut and some cultivation was also preferred. Thus the entire land abandoned by the petitioner was taken possession by the parents of 4[th] respondent and they were enjoying the same from 1980 onwards. The Panchayat authorities numbered the hut of the parents of 4[th] respondent and even ration card was also issued. 8. Because of the quarry in the land of the petitioner and heavy blasting, there is public resistance. The respondent joined **W.P.(C) No. 22252 of 2010** 5 protest against blasting. Suit as O.S. No. 320 of 2010 is filed against the petitioner by the 4[th] respondent, his mother and his sister seeking declaration of their title over the property, which they have perfected by adverse possession and limitation. 9. The petitioner has produced various additional documents. 10. We heard Sri. Abdul Jawad, learned counsel for the petitioner and Sri. Gigimon Issac, learned counsel appearing on behalf of the fourth respondent and also the learned Government Pleader. 11. Learned counsel for the petitioner reiterated his contentions. He would also submit that this is a case where the fourth respondent has no right and he has committed trespass very recently, in fact after receipt of notice issued by this court in the Writ Petition. He made fervent attempt and persuaded us to hold that this is a Writ Petition where relief for police protection could 6 ## **W.P.(C) No. 22252 of 2010** be granted. In this regard he also referred to the decisions in **M/s.** **Glasco Curries (P) Ltd v. P.T. Thomas and others** (1994 (2) KLJ 497) and decision of this Court in **George v. Circle Inspector of Police** (1990 (1) KLT 741). 12. The learned counsel for the petitioner also relied on the judgment of this court in **M/s. Harrisons Malayalam Ltd. v. State of Kerala** (2007(4) KLT 540). No doubt the Court in that case took the view that when large numbers of persons having no semblance of right trespassed into the property and committed mischief, the filing of civil suit may not be an efficacious remedy and a Writ Petition is maintainable. The learned counsel for the petitioner also referred to the decision in **M/s. Harrisons Malayalam Ltd. and others v. State of Kerala and others** (2010 (2) HC 813), in which we find that reasoning running on similar lines as the decision reported in **M/s. Harrisons Malayalam ltd. v. State of Kerala** (2007(4) KLT 540). **W.P.(C) No. 22252 of 2010** 7 13. As we have already noted that the averment of the petitioner is that respondents 4 to 6 and 15 and other identifiable persons have committed trespass. We notice that there is a suit pending filed by the fourth respondent, his mother and sister. The fourth respondent is apparently a plaintiff in the said suit where his case is that the land was reduced to their by his predecessors in interest in the year 1980. 14. This court would not normally decide question of title and possession in a Writ Petition. The question which the court has to consider is whether there is an omission on the part of statutory authorities/ police to discharge their duty. 15. We must notice another aspect. It is the case of the petitioner that the quarry is being run by the 7[th] respondent. 7[th] respondent is not seeking any relief. Of course the petitioner has attempted to explain that 7[th] respondent is apprehensive of respondents 4 to 6 and their men. **W.P.(C) No. 22252 of 2010** 8 18. This is a case where there is a dispute between the petitioner and the fourth respondent and apparently the mother and sister of the fourth respondent who are incidentally not parties before us. In the facts of this case we cannot proceed to decide the dispute between the petitioner and fourth respondent. Without deciding the dispute, it will not be appropriate for us to grant any relief to the petitioner. There has been no adjudication by any court as regard to the rights of the parties. This court has held that normally there must be an adjudication before the competent forum, before which a writ for police protection is maintainable in a situation where the disputes are raised between the parties. We would also think that the petitioner cannot derive support from decisions reported in **M/s. Harrisons Malayalam Ltd. v. State of Kerala** (2007(4) KLT 540 and **M/s. Harrisons Malayalam ltd., and others v. State of Kerala and Others** (2010 (2) KHC 813). 19. We have already noted that this is not a case where it can 9 ## **W.P.(C) No. 22252 of 2010** be held that a large number of people are obstructing without semblance of any right which may warrant interference. In the light of the fact that the suit is pending adjudication we do not think it appropriate to look into the questions raised by the parties. Accordingly the petitioner is relegated to pursue his remedies before the competent forum, namely, Civil Court for adjudication of the issue. We make it clear that the Civil court shall proceed with the matter and take a decision untrammeled by anything contained in this judgment. The Writ Petition is disposed of as above. ## **K.M. JOSEPH, JUDGE** ## **M. L. JOSEPH FRANCIS, JUDGE.** dl/