Rosamma Kurian and Siany Shaji v. The State of Kerala and Others

W.P.(C).No.37490 of 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 19[TH] DAY OF DECEMBER 2022 / 28TH AGRAHAYANA, 1944** ## **WP(C) NO. 37490 OF 2022** ## **PETITIONERS:** 1 ROSAMMA KURIAN AGED 69 YEARS W/O.P.C.KURIAN (LATE), PALLIVEETTIL HOUSE, KURAVILANGAD P.O., KOTTAYAM -686633 2 SIANY SHAJI. AGED 49 YEARS W/O.SHAJI AUGUSTINE, VELLAPLACKAL HOUSE,ELANJI P.O, ERNAKULAM-686665. BY ADVS. KALEESWARAM RAJ THULASI K. RAJ SHILPA SOMAN ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM695001. 2 SECRETARY PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 3 EXECUTIVE ENGINEER PWD DEPARTMENT, COLLECTORATE BUILDING, CIVIL STATION, KOTTAYAM-686001. W.P.(C).No.37490 of 2022 2 - 4 ASSISTANT EXECUTIVE ENGINEER PWD DEPARTMENT, KADUTHURUTHI, KOTTAYAM- 686604. - 5 ASSISTANT ENGINEER PWD (ROAD SECTION), KURAVILANGAD, KOTTAYAM - 686633. - 6 STATION HOUSE OFFICER, KURAVILANGAD POLICE STATION PHX6+H95, KOTTAYAM DISTRICT, KURAVILANGAD, KERALA 686633. - 7 DISTRICT POLICE CHIEF, - OFFICE OF THE DISTRICT POLICE CHIEF, KOTTAYAM-686 001. - 8 SUB INSPECTOR OF POLICE, KURAVILANGAD POLICE STATION PHX6+H95, KOTTAYAM DISTRICT, KURAVILANGAD, KERALA 686633. - 9 DEPUTY SUPERINTENDENT OF POLICE OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE ETTUMANOOR, KOTTAYAM-686 001. - 10 MAR. AUGUSTINE KOOTIYANIYIL, - VICAR MAJOR ARCHIEPISCOPAL MARTH MARIYAM - ARCHDEACON PILGRIM CHURCH KURAVILANGAD CHURCH JUNCTION KURAVILANGAD POST, KERALA 686633 - 11 DIOCESE OF PALA REPRESENTED BY BISHOP OF EPARCHY OF PALA MAR. JOSEPH KALLARANGATT BISHOP'S HOUSE, PALAI ,PALA, KOTTAYAM-686575 - 12 SECRETARY, - PARISH COUNCIL,MAJOR ARCHIEPISCOPAL MARTH MARIYAM ARCHDEACON PILGRIM CHURCH, KURAVILANGAD CHURCH JUNCTION, KURAVILANGAD POST, KERALA 686633. W.P.(C).No.37490 of 2022 3 13 PROF. VJ ALEXANDER S/O MP CHAKO CHURCH TRUSTEE, KOZHAYIL KARAYIL MANAKKAD, KURAVILANGAD VILLAGE, MEENACHIL TALUK, KOTTAYAM-686633 14 SYRIAC ABRAHAM S/O ABRAHAM PARAKKUNNEL, CHURCH TRUSTEE,PAKALOMATTAM KARAYIL, KURAVILANGAD VILLAGE, MEENACHIL TALUK, KOTTAYAM-686633. 15 GEORGE CHACO S/O CHACO CHURCH TRUSTEE,KOZHA KARAYIL LONDIYIL KURAVILANGAD VILLAGE, MEENACHIL TALUK, KOTTAYAM686633. 16 SUNNY MATHEW S/O MATHAI MATHEW, CHURCH TRUSTEE,ELAKKADKARAYIL, NALUMAKKIL,KURAVILANGAD VILLAGE, MEENACHIL TALUK, KOTTAYAM-686633. BY ADVS. Julian Xavier.J Joseph SIJI ANTONY P.M.JOSEPH MANOJ GEORGE FIROZ K.ROBIN(F-15) ROY JOSEPH(K/55/2006) ANIES MATHEW(K/952/2007) ANJANA RAM(K/000695/2020) NIRMAL KURIEN EAPEN(K/000151/2022) ## **OTHER PRESENT:** T.K.SHAJAHAN-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 9.12.2022, THE COURT ON 19.12.2022 DELIVERED THE FOLLOWING: W.P.(C).No.37490 of 2022 4 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.37490 of 2022** **= = = = = = = = = = = = = = = = Dated this the 19[th] day of December, 2022** ## **JUDGMENT** ## 1.This writ petition is filed seeking the following reliefs: “ i)To issue a writ of mandamus directing the respondents Nos 6 to 9 to provide sufficient and adequate police protection to the life of the petitioners and to the property of the 1[st] petitioner, i.e. 10 cents of property in R.S.No. 449/9-16 of Kuravilangad Village, Kuravilangad P.O. Kottayam-686633, so as to enable the workers/agents of the 1[st] petitioner to construct a passage as per Ext. P7; ii)To issue a writ of mandamus directing the respondents Nos. 6 to 9 to take necessary actions against the encroachment of respondent No.s 13 to 16 over the PWD road with name Ilaykad -KuravilangadPallithazham - Madayakunnu Road, and to remove all advertisement boards and obstacles created by the respondent no.10 or the persons who manage the said Major Archiepiscopal Marth Mariyam Archdeacon Pilgrim Church, Kuravilangad. iii) To issue a writ of mandamus directing the respondents Nos.6 to 9 to take appropriate actions on Exhibit P10 and Exhibit P11 complaints in the light. of Exhibit P7 and within the time granted in Exhibit P7 ” W.P.(C).No.37490 of 2022 5 2.Heard the learned counsel for the petitioners, the learned Government Pleader as well as the learned counsel appearing for respondents 10 to 16. 3.The learned counsel for the petitioners submits that the husband of 1[st] petitioner owned the property admeasuring 78 cents in RS No.449/9-16, 449/8 and 449/9, in Kuravilangad Village in Kottayam -686633 and after the death of her husband and subsequent partition, a house and an extent of 10 cents in RS No. 449/9-16 is set apart to the 1[st] petitioner and remaining 34 cents was set apart to the younger son. The 2[nd] petitioner is the daughter of the 1[st] petitioner. It is submitted that on the eastern side of the said property, the Ilaykad -Kuravilangad-Pallithazham - Madayakunnu Road, a PWD road is located and on both sides of the road, there is a footpath with a breadth of 1.30 metres. In 2019, younger son of the 1[st] petitioner started constructing a residential house in the property set apart to him in partition. It is submitted that due to the existence of the adjacent footpath, the petitioners are unable to create a passage for vehicles to their property and W.P.(C).No.37490 of 2022 6 the petitioner applied to the office of the Public Works Department for permission to create a passage from the PWD road and an amount of Rs.57,469/- has been paid to the District Treasury, Kaduthurthy as evidenced by Ext.P1. Ext.P3 order was granted permitting the 1[st] petitioner to make necessary alterations with the extent of 4.5 meters and the 1[st] petitioner employed workers for the same. - 4.It is submitted that the authorities in charge of the Major Archiepiscopal Marth Mariam Archdeacon Pilgrim Church - Kuravilangad, which is located 150 metres away from the property, with parish council members restricted the construction and the office bearers of the church demanded the petitioners to make compensatory payment for the loss allegedly caused to the church, stating that the said road belongs to the church. It is submitted that thereafter, the petitioners made payment of Rs. 35,150/- , as demanded, to the church, as is evident from Ext.P4. W.P.(C).No.37490 of 2022 7 - 5.It is submitted that the party respondents herein, continue to obstruct the petitioners from legal construction. After 3 years, the petitioners approached the PWD again and Exhibit P7 permission was granted on 10.11.2022 for 30 days. When the petitioners attempted to implement Exhibit P7, the party respondents again threatened them and hence they approached the Police, but no protection is being afforded. - 6.It is contended that the church is legally claiming ownership of the footpath constructed in 2016 by the PWD department and that the road and the footpath belong to the PWD. It is, therefore, contended that the respondents have no right to obstruct the use of the footpath for access to the petitioner's property. - 7.The learned counsel appearing for the petitioners places reliance on the decisions reported in **S.Sambandam v. Commissioner of Police** [2017 SCC online Mad 26396], **Pavithran V.K.M and another v. State of Kerala and others** [2009 (4) KHC 4] and a decision of the High Court of 8 W.P.(C).No.37490 of 2022 Delhi dated 18.05.2020 in **Inox Leisure Limited v. PVR Limited** [CS(OS) No.196/2018]. 8.A counter affidavit is placed on record by the respondents 10 and 12 to 16 wherein it is contended that the footpaths on either side of the 265m public road starting from MC road Kuravilangad Pallikkavala Junction to Pallithazham is in the ownership and possession of the church and that the said property is specifically the property belonging to the church as is evident from Ext.R16 (a) land tax receipt, Ext.R16(b) location sketch as well as Ext.R16(e) possession certificate duly issued to the church. It is submitted that the filing of the writ petition raising false allegations that the footpath belongs to the PWD is done with the express intention of misleading this Court and obtaining illegal benefits against the church. It is submitted that all relevant facts are well known to the petitioners and the entire exercise is an abuse of process of court. W.P.(C).No.37490 of 2022 9 9.It is submitted that there is a specific access provided by the church to the petitioners' property by giving a 12 feet wide pathway on its eastern side and permission was also granted to erect a wicket gate through the property of the church to the petitioner's property. It is submitted that the petitioner could enter the residential building, which is being constructed without any difficulty, through the said access and through the east-west front courtyard having a width of 4 metres. It is contended that the petitioners have approached this Court by making false statements on oath and that they are liable to be proceeded against. 10.It is further contended that there was an attempt in the year 2019 by the brother-in-law of the petitioner to destroy the hand rails constructed by the church on either side of the footpath by using a JCB and causing huge loss to the church. A criminal case was registered against the 1[st] petitioner Sibi and one Anto Thomas as evidenced by Ext. R16(g). Thereafter, the petitioner's son paid the expenses for erecting the hand rails and rectifying the damages to the church. It is further W.P.(C).No.37490 of 2022 10 contended that the entire factual contentions made in the writ petition are incorrect and that in spite of the interim order directing protection for the construction through the pathway in existence, the petitioners had encroached into the property of the church, destroyed the railings and the footpath constructed by the church in its property and had violated the orders of this Court. It is stated that the church has filed a civil suit against the petitioners and also filed a police complaint in respect of the illegal acts of the petitioners, which is liable to be considered in accordance with law. It is, therefore, contended that the writ petition is liable to be dismissed with compensatory costs to the church. The learned counsel for the petitioners relies on a decision of a Division Bench of this Court in **Santhosh Kumar Nair v. Suresh P Sreedharan** [ 2022 (7) KHC 258 (DB). - 11.A reply affidavit has also been placed on record by the petitioners. The learned counsel for the petitioners would contend that the suit was filed only after the order of police protection had been passed by this Court and that the 11 W.P.(C).No.37490 of 2022 petitioners had not been permitted to carry out the construction in accordance with the interim order of this Court. It is contended that the attitude of the party respondents is absolutely unwarranted. 12.I have considered the contentions advanced. The specific contention of the petitioners in the writ petition was that the public road as well as the footpaths on either side of the same is the property of the PWD and that the petitioner had obtained permissions from the PWD for obtaining an access to his property through the footpath belonging to the PWD. However, the party respondents have produced documents with the counter affidavit to show that the properties on either side of the public road belong to the church. It appears from the documents produced that the petitioners are perfectly aware of this fact as well. The fact that the PWD had granted a permission will not enable the petitioners to claim any right of access to his property through the property belonging to the church. W.P.(C).No.37490 of 2022 12 13.In any view of the matter now that the issue is pending consideration before the civil court, I am of the opinion that the issues with regard to onwership of the footpath and right of access through the same have to be considered therein. Just the fact that a writ petition for police protection had been filed before this Court cannot be a reason to contend that the respondents should not raise a civil dispute with regard to their rights over the property. When a bona fide dispute with regard to the property is in existence, it is to be agitated and decided in a civil suit and not by the police on the basis of a complaint. In the light of the documents produced and the pleadings placed on record in the writ petition, I am of the opinion that the police protection sought for in the writ petition is not liable to be granted. The writ petition fails and the same is accordingly dismissed. **==> picture [27 x 12] intentionally omitted <==** ## **Anu Sivaraman, Judge** sj W.P.(C).No.37490 of 2022 13 ## **APPENDIX OF WP(C) 37490/2022** PETITIONER EXHIBITS - Exhibit P1 - TRUE TRUE COPY OF THE CHALLAN DATED 02.05.2019. - Exhibit P2 TRUE COPY OF THE SKETCH PLAN. - Exhibit P3 TRUE COPY OF THE ORDER DATED 02.05.2019 ISSUED BY THE ASSISTANT EXECUTIVE DB-2412 119 ENGINEER OF PWD TO THE 1ST PETITIONER.ORDER NO. DB-2-412/19. - Exhibit P4 TRUE COPY OF THE RECEIPT AFTER COMPLETION OF PAYMENT TOWARDS THE CHURCH DATED 05.09.2019. - Exhibit P5 TRUE COPY OF THE LETTER SUBMITTED BY THE 1ST PETITIONER DATED 05.08.2022 BEFORE THE INFORMATION OFFICER, EXECUTIVE ENGINEER PWD,KOTTAYAM. - Exhibit P6 TRUE COPY OF THE REPLY SUBMITTED BY STATE PUBLIC INFORMATION OFFICER DATED 06.09.2022. - Exhibit P7 TRUE COPY OF THE ORDER NO. AB398/NOC/15-16 DATED 10.11.2022. - Exhibit P8 TRUE COPY OF THE ENQUIRY REPORT DATED 28.11.2016 BY THE DEPUTY CHIEF ENGINEER, PWD. - Exhibit P9 TRUE COPY OF THE PHOTOGRAPHS OF THE BOARD IS PLACED INFRONT OF THE PROPERTY. - Exhibit P10 TRUE COPY OF THE POLICE COMPLAINT DATED 16.11.2022 SUBMITTED BY THE 1ST PETITIONER. W.P.(C).No.37490 of 2022 14 Exhibit P11 TRUE COPY OF THE ACKNOWLEDGMENT COPY OF THE RECEIPT . RESPONDENT EXHIBITS Exhibit R16(a) TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, KURAVILANGAD VILLAGE DATED 13.05.2022 ISSUED TO MAJOR ARCHIEPISCOPAL MARTHMARIYAM ARCH DEACON PILGRIM CHURCH, KURAVILANGAD. Exhibit R16(b) TRUE COPY OF THE LOCATION SKETCH OF THE 2ND AND 3RD ITEM PROPERTY AS PER EXT. R16(A) ISSUED BY THE VILLAGE OFFICER, KURAVILANGAD VILLAGE DATED 30.11.2022. EXT.R16(C): TRUE COPY OF THE ORDER NO. ALC1440/8 DATED 04.10.1986 OF THE ASS. DIRECTOR RE-SURVE KOTTAYAM EXT.R16(D): TRUE COPY OF THE RELEVANT PAGES OF KERAL GUSSET PUBLISHED BY THE ASS. DIRECTOR, RE-SURVE OFFICE, KOTTAYAM DATED 11.09.1987 EXT.R16(E): TRUE COPY OF THE POSSESSION CERTIFICATE NC 73164604 ISSUED BY THE VILLAGE OFFICER DATE 26.11.2022 EXT.R16(F): TRUE COPY OF FIELD NO.453 IN BLOCK 9 OF KURAVILANGAD VILLAGE EXT.R16(G): TRUE COPY OF THE FI STATEMENT 22.08.2019 BEFORE THE 8TH RESPONDENT EXT.R16(H): TRUE COPY OF THE REQUEST DATED 02.09.2019 SUBMITTED BY SIJOPALLIVEETTIL, THE SON OF THE 1ST PETITIONER W.P.(C).No.37490 of 2022 15 EXT.R16(I): PHOTOS SHOWING THE DESTRUCTION OF THE PATHWAY AT THE INSTRUCTION OF THE PETITIONERS EXT.R16(J): TRUE COPY OF THE PETITION DATED 26.11.2022 SUBMITTED BY THIS RESPONDENT BEFORE THE 8TH RESPONDENT EXT.R16(I(A)): COPY OF THE RECEIPT DATED 26.11.2022ISSUED BY THE 8TH RESPONDENT EXT.R16(K): TRUE COPY OF THE PETITION DATED 01.12.2022 SUBMITTED BY THIS RESPONDENT TO THE 8TH RESPONDENT EXT.R16(L): PHOTOS SHOWING THE RE-MAINTAINED PATHWAY AT THE INSTRUCTION OF THE PETITIONERS EXT.R16(M): TRUE COPY OF THE NOTICE DATED 03.12.2022SUBMITTED BY THIS RESPONDENT TO THE 4TH RESPONDENT EXT.R16(N): PHOTOS EVIDENCING SUCH STREET VENDOR BUSINESS IN PREMISES OF THE WRIT PETITIONER'S FRONT COURTYARD ON 02.12.2022 PETITIONER EXHIBITS Exhibit P12 TRUE COPY OF THE PLAINT AS OS.NO.283/2022 FILED BEFORE THE MUNSIFF'S COURT, PALA. Exhibit P13 TRUE COPY OF THE INJUNCTION ORDER DATED 19/12/2022 IN O.S.NO.283/2022 ISSUED BY THE MUNSIFF'S COURT, PALA. True copy PS to Judge