K. John alias Ashok John and Dr. Annie John v. State of Kerala and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 WP(C).No. 29044 of 2011(E) -------------------------------- ## 1. K.JOHN @ ASHOK JOHN, S/O.JOSEPH, MAMMOOTTIL ESTATE, OOTTUPARA, ARUVAPPALAM VILLAGE, PATHANAMTHITTA, PRESENTLY RESIDING AT 9B2 CONDOR DAFFODILS, UPPER MERDIAN ROAD, KOWDIAR, TRIVANDRUM-695003. 2. DR.ANNIE JOHN, W/O.JOHN @ ASHOK JOHN, - MAMMOTTIL ESTATE, OOTTUPARA, ARUVAPPALAM VILLAGE, PATHANAMTHITTA, PRESENTLY RESIDING AT 9B2 CONDOR DAFFODILS, UPPER MERDIAN ROAD, KOWDIAR, TRIVANDRUM-695003. - BY ADV. SRI.K.JOHN @ ASHOK JOHN (PARTY IN PERSON ## 1. STATE POLICE CHIEF, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-695005. 2. DISTRICT POLICE CHIEF, PATHANAMTHITTA-689001. 3. SUB INSPECTOR OF POLICE, KONNY, PATHANAMTHITTA-689690. 4. LEELA THOMAS, W/O.THOMAS NINAN, KARIPPACHERI HOUSE, OOTTUPARA, ARUVAPPALLAM VILLAGE, PATHANAMTHITTA-689691. WP(C).No. 29044 of 2011(E) -2- 5. REJI NINAN, S/O.THOMAS NINAN, KARIPPACHERI HOUSE, OOTTUPARA, ARUVAPPALAM VILLAGE, PATHANAMTHITTA-689691. 6. RISHI NINAN, S/O.THOMAS NINAN, KARIPPACHERI HOUSE, OOTTUPARA, ARUVAPALAM VILLAGE, PATHANAMTHITTA-689691. ADV. SRI.K.JAIJU BABU FOR R4-5 - SMT.M.U.VIJAYALAKSHMI FOR R4-5 SRI.T.S.SHYAM PRASANTH FOR R4-5 SR. GOVT. PLEADER SRI.SHYSON P. MANGUZHA STATE ATTORNEY SRI.P.VIJAYA RAGHAVAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29044 of 2011(E) APPENDIX PETITIONER'S EXTS EXT.P1:- TRUE PHOTOCOPY OF THE REPORT AND MAHAZAR PREPARED BY THE ADV. COMMISSIONER IN OS.206/98 ON THE FILE OF MUNSIFF COURT, PATHANAMTHITTA. EXT.P2:- TRUE PHOTOCOPY OF THE SKETCH PLAN PREPARED BY THE ADVOCATE COMMISSIONER. EXT.P3:- TRUE PHOTOCOPY OF THE JUDGMENT DT.30/11/2000 IN O.S. NO.206/96 ON THE FILE OF MUNSIFF COURT, PATHANAMTHITTA. EXT.P4:- TRUE COPY OF THE DECREE IN THE O.S. NO.206/96 ON THE FILE OF MUNSIFF COURT, PATHANAMTHITTA. EXT.P5:- TRUE COPY OF the JUDGMENT DT.12/06/07 IN A.S.39/01 ON THE FILE OF DIST. COURT, PATHANAMTHITTA. EXT.P6:- TRUE COPY OF THE COMPLAINT DT.12/09/07 TO THE 2ND AND 3RD RESPONDENTS SUBMITTED BY THE PETITIONERS. EXT.P7:- TRUE COPY OF THE REPRESENTATION DATED 21/10/11 SUBMITTED BEFORE 3RD RESPONDENT. EXT.P8:- TRUE COPY OF THE REPRESENTATION DT. 21/10/11 SUBMITTED BEFORE 2ND RESPONDENT. EXT.P9:- TRUE PHOTOCOPY OF THE ORDER DATED 20/05/98 IN .C. NO.46/97 ON THE FILE OF THE SUB DIVISIONAL MAGISTRATE, ADOOR. EXT.P10:- TRUE COPY OF THE CHARGE SHEET IN C.C. NO.548/99 ON THE FILE OF HON. JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PATHANAMTHITTA. EXT.P11:- PHOTOGRAPHS TKEN BY THE PETITIONER SHOWING THE INSPECTION OF PATHWAY BY 3RD RESPONDENT. EXT.P12:- PHOTOGRAPHS SHOWING IMPLANTING GRANITE STONE HAVING 4 FEET ABOVE THE ROAD. EXT.P13:- TRUE COPY OF THE DECREE DT.16/06/2000 IN O.S.306/93 ON THE FILE OF THE HON. SUB COURT, PATHANAMTHITTA. //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & K. HARILAL, JJ. -----------------------------------------------W. P. C. No.29044 of 2011 -----------------------------------------------Dated this the 22[nd] day of November, 2011 ## **JUDGMENT** ## _Pius C. Kuriakose, J_ Petitioners, a retired academician and his Scientist wife have approached this Court seeking directions for police protection for continued user of a road leading to their properties and also for their lives and limbs. It is averred that a competent civil court, the Munsiff Court, Pathanamthitta granted a decree of permanent prohibitory injunction in favour of the petitioners against the party respondents vide Ext.P4. It is further averred that Ext.P4 has attained finality as the Appeal Suit No.39/01 preferred against Ext.P4 and its corresponding judgment was dismissed by the District Court, Pathanamthitta vide Ext.P5. The allegation of the petitioners is that in spite of the currency of Ext.P4 injunction decree, the party respondents are every now and then placing obstructions on the W. P. C. No.29044 of 2011 -2- pathway/road so that the petitioners are unable to enjoy the fruits of Ext.P4 decree. It is also alleged that there is constant threat from the party respondents towards the petitioners. It is further alleged that even though the 3[rd] respondent and the 2[nd] respondent were moved by several petitions (Exts.P7 and P8 respectively) they have adopted an attitude of lethargy which emboldened the party respondents to perpetrate more illegalities against them. The police are acting hands in glove with the party respondents, it is alleged. 2. The party respondents have filed a detailed counter affidavit wherein they deny all the allegations. It is submitted that all the accusations raised in this Writ Petition against party respondents are untrue. It is also averred that Ext.P4 decree has never been violated by the party respondents. It is further submitted that they have no intention at all to violate Ext.P4 decree. It is pointed out that the 6[th] respondent is abroad for the past so many years. This W. P. C. No.29044 of 2011 -3- is a fact well known to the petitioners also. Just because he made a recent visit to India and went back in August, 2011 his name is unnecessarily dragged into this Writ Petition. The sole objective is to humiliate and harass the party respondents. 3. On behalf of the State Attorney, Sri.Shyson P. Manguzha, the learned Government Pleader would address submissions on the basis of written instructions imparted by the Sub Inspector of Police, the 3[rd] respondent. In fact the written instructions as well as the statement which was given by Sri.Reji Ninan, the 5[th] respondent in the enquiry conducted was also placed before us. The submission of Sri.Shyzon was that the allegations which the petitioners have raised against the party respondents are not true. There is rocky portion in the petitioners' property. The petitioner wanted to blast that rocky portion and transport the granites realised from the above portion in lorries through the pathway/road in question. This was obstructed W. P. C. No.29044 of 2011 -4- by the local public and not by the party respondents. No law and order situation exists in the property. This was the submission of the learned Government Pleader. 4. Sri.K.John alias Ashok John, the 1[st] petitioner who appeared before us in person submitted that the police are acting hand in glove with the party respondents. What is reported by the police to the State Attorney is absolutely untrue. No incidents involving the local public as a result of attempt by the petitioner to transport rock from his property has taken place. The same is a cock and bull story. The petitioners intend to initiate appropriate action against the police officers who has imparted false instructions to the State Attorney. The petitioner has filed a fresh interlocutory application for receiving certain documents, particularly Exts.P11 and P12 photographs. 5. It was submitted by Sri.K.Jaiju Babu for the party respondents that Exts.P11 and P12 photographs themselves will reveal that the pathway in question is remaining as W. P. C. No.29044 of 2011 -5- intact as a pathway. There is no attempt whatsoever by the party respondents to violate the injunction order and to obstruct the petitioners through user of the above pathway. Learned counsel for the respondents submitted that this Court can record the assurance given for the party respondents that the decree Ext.P4 will always be honoured. 6. In reply Sri.K.John alias Ashok John drew our attention to the judgment of this Court in Ashok v. State of Kerala (1995(2) KLT S.N. Case No.79 Page 59) and submitted that this Court is quite competent to issue police protection directions even when there is a civil dispute provided the illegalities are perpetrated by somebody violating orders of the court. 7. We have given our anxious consideration to the rival submissions addressed at the Bar. We have gone through the pleadings raised by the parties as well as the materials placed on record by them. The question which arises before us is whether there is any warrant for issuance of the police W. P. C. No.29044 of 2011 -6- protection direction sought for. As already stated protection directions are sought for facilitating the continued user of the pathway by the petitioners on the strength of Ext.P4 decree. The stand taken by the party respondents against whom directions are sought for is that they have never violated Ext.P4 decree and that they have not obstructed and also that they have no intention whatsoever to obstruct the further user of the pathway by the petitioners. 8. We record all the submissions of Sri.Jaiju Babu made on behalf of the party respondents. According to us, if it is revealed that the injunction decree Ext.P4 is being violated the petitioner can levy execution of the decree and can also seek enforcement of the decree. This relief he will have to seek from the court which passed the decree itself. Ashok's case (cited supra) was one where it was not in dispute that a civil court's decree was violated by the person against whom police protection direction was sought for. In the instant case very serious dispute exists. This means that in order to W. P. C. No.29044 of 2011 -7- enter a finding as to whether the decree is violated evidence will have to be recorded. It is not within our domain to conduct enquiry as to whether injunction decree is violated. On the materials made available including the submission of Sri.Jaiju Babu, the learned counsel for the respondents, we do not find any justification for entering a finding that injunction decree is violated by the party respondents. We make it clear that if and when the decree is violated by the party respondents (against whom only protection direction are sought for in respect of the pathway), it is open to the petitioners to move the court. 9. Coming to the protection direction sought for in respect of the lives of the petitioners, here again we record the submissions of the party respondents. However, we direct the Station House Officer having jurisdiction over the area, the 3[rd] respondent to keep constant vigil over the places of residence of the petitioners and party respondents and the property through which the pathway which is W. P. C. No.29044 of 2011 -8- subject matter of Ext.P2 goes and to ensure that the dispute between the petitioners and the party respondents do not give rise to any law and order situation in future. Whenever complaints are received from the petitioners or from the party respondents, thorough enquiry will be conducted promptly by the 3[rd] respondent into the complaints and appropriate action will be taken on the basis of the facts which are revealed out in the enquiry. Sd/PIUS C. KURIAKOSE JUDGE Sd/K. HARILAL JUDGE kns/- //True Copy// P. A. TO JUDGE