Smt. K.R. Rajakumari and Sri P.S. Rao v. N.T. Rajendran, Sri Pramod, Sri Prasanth, Sri K. Manoj, Sri M.L. Suresh, The Sub Inspector of Police, Udayamperoor Police Station, Circle Inspector of Police, Hill Palace Police Station, Assistant Commissioner of Police, Thrikakkara and Udayamperoor Grama Panchayath represented by its Secretary (and added Respondent)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941** ## **WP(C).No. 24690 of 2017** ## **PETITIONERS:** - **1 SMT. K.R. RAJAKUMARI, W/O.P.S.RAO, AGED 69 YEARS, RETIRED BANK EMPLOYEE, RESIDING AT 'APSARA', 62/1314, ASOKA ROAD,KALOOR, KOCHI-682 017.** - **2 SRI.P.S.RAO, AGED 73 YEARS, 'APSARA', 62/1314, ASOKA ROAD, KALOOR, KOCHI-682 017. BY ADVS. SRI.GEORGE THOMAS (MEVADA)(SR.) SRI.AMAL GEORGE SRI.MANU GEORGE KURUVILLA** ## **RESPONDENTS:** - **1 SRI. N.T. RAJENDRAN, S/O.THANKAPPAN, KUNNUMPURATHU HOUSE, VATTAVAYAL ROAD, NEAR COMMUNITY HALL, POOTHOTTA, UDAYAMPEROOR PO, PIN-682 307.** - **2 SRI.PRAMOD, S/O.LATE SADASIVAN, DRIVER, MOOLATHARAYIL HOUSE, KAMBIVELIKKAKOM, POOTHOTTA, UDAYAMPEROOR P.O, ERNAKULAM-682 307.** - **3 SRI.PRASANTH, S/O.LATE SADASIVAN, RESIDING AT MOOLATHARAYIL, KAMBIVELIKKAKOM, POOTHOTTA, UDAYAMPEROOR P.O, ERNAKULAM-682 307.** - **4 SRI.K.MANOJ S/O.KRISHNAN, NADUVATHEZHATHUCHIRAYIL, POOTHOTTA, UDAYAMPEROOR, PIN-682 307.** **WP(C).No. 24690 of 2017** 2 - **5 SRI.M.L.SURESH, S/O.LAKSHMANAN, MATAKKAL HOUSE, S.PARAVOOR, UDAYAMPEROOR, PIN-682 307.** - **6 THE SUB INSPECTOR OF POLICE, O/O THE SUB INSPECTOR OF POLICE, UDAYAMPEROOR POLICE STATION, PIN-682 307.** - **7 THE CIRCLE INSPECTOR OF POLICE, O/O THE CIRCLE INSPECTOR OF POLICE, HILL PALACE POLICE STATION, THRIPUNITHURA PO, PIN-682 301.** - **8 ASSISTANT COMMISSIONER POLICE, OFFICE OF THE ASSISTANT COMMISSIONER OF POLICE, THRIKKAKKARA PO, PIN-682 021.** - ***9 UDYAMPEROOR GRAMA PANCHAYATH, UDAYAMPEROOR P.O, ERNAKULAM, PIN-682 307, REPRESENTED BY ITS SECRETARY.** - ***(ADDL.RESPONDENT IMPLEADED AS PER ORDER DATED 17.06.2019 IN I.A.NO.16891 OF 2019)** **BY ADVS. SRI.JOSE P.JOSEPH SMT.AJITHA C.G. SMT.C.G.BINDU SRI.E.M.THOMAS** **SR.GP SRI.P.P.THAJUDEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 24690 of 2017** 3 ## **JUDGMENT** ## **P.R.Ramachandra Menon, J.** The petitioners have moved this Court seeking to direct the 6[th] and 7[th] respondents to provide effective and adequate protection to the petitioners, contractor and the workmen deployed for carrying out the construction of a compound wall in the 1[st] petitioner's property, based on Ext.P7 order passed by a Civil Court, without being forcefully obstructed by the respondents 1 to 5 or anybody under them. 2. Heard Sri.George Thomas Mevada, learned senior counsel appearing for the petitioners, Smt. C.G.Bindu, the learned counsel appearing for the Panchayath and Sri. P.P. Thajudeen, learned Senior Government Pleader appearing on behalf of the State/Department. The sum and substance of the case projected before this Court is that the petitioners (wife and husband respectively) acquired some property purchased in the name of the 1[st] petitioner **WP(C).No. 24690 of 2017** 4 and are enjoying the same to the exclusion of all others with absolute ownership, exclusive possession and title. Ext.P1 is the location sketch of the property, whereas Ext.P2 is the lay out plan. With intent to protect the property and facilitate better enjoyment, a compound wall was sought to be constructed. According to the petitioners, no permission of the local authority is necessary by virtue of the relevant rules. When the construction was progressing as above, it was sought to be interdicted by the Panchayath by issuing Ext.P3 stop memo dated 22.06.2014. The said stop memo was issued with reference to a complaint preferred by the 1[st] respondent alleging that a 'thodu' was passing through the middle of the property and that attempt was made by the petitioners to have it filled up and to block the water flow. 3. It is stated that the petitioners have already moved the Civil Court by filing O.S.No.110 of 2016 against respondents 1 to 5 seeking for **WP(C).No. 24690 of 2017** 5 injunction and such other reliefs. An Advocate Commissioner has been appointed by the Civil Court, who has inspected the site and submitted Ext.P4 report. The proceedings are still pending. The learned senior counsel for the petitioner submits that the petitioners, being aggrieved by Ext.P3 had moved the Tribunal for Local Self Government Institutions. However, taking note of the pendency of the Civil Suit, the petitioners have been relegated to move the said Court in this regard. 4. The learned senior counsel for the petitioners submit that the grievance was caused to be considered by the Sub Court, Ernakulam in C.M.A.No.2/2016 and after hearing both the sides, Ext.P7 interim order was passed on 08.12.2016, whereby the petitioners have been permitted effect construction of the compound wall. Though the factual position as above was brought to the notice of the police, the forceful obstruction being caused by the private respondents continues and hence the writ petition. **WP(C).No. 24690 of 2017** 6 5. The learned counsel appearing for the respondent Panchayath submits that the petitioners are not entitled to get the relief sought for with reference to Ext.P7. This is more so since the Panchayath was not made a party to Ext.P7 proceedings. That apart, Ext.P3 stop memo was issued by the Panchayath with reference to the existence of a 'thodu' passing through the property belonging to the petitioners, as pointed out by the complainant i.e., the 1[st] respondent herein and as to the steps being taken to have the same filled up, blocking the water flow. The learned counsel further submits that the factual position has been taken note of by the Sub Court as well. It is accordingly, that Ext.P7 order has been passed, whereby the petitioners stand permitted to construct the compound wall without blocking the water flow, after constructing a culvert, which rider cannot be ignored by the petitioners. 6. The learned senior Government Pleader submits that, as per the instruction received, **WP(C).No. 24690 of 2017** 7 there was a water channel passing through the property in question and unless and until this issue is decided by the competent court of law, where the issue is pending, the petitioners are unjustified in attributing lapse on the part of the police in giving protection. 7. After hearing both the sides, this Court finds that the Panchayath has already issued Ext.P3 stop memo. As conceded by the learned senior counsel, the said stop memo has not been subjected to challenge before any forum till date. In so far as such stop memo stands, we cannot hold that there is lapse on the part of the police in giving protection to the petitioners for effecting the construction of the compound wall. As such, no interference of this Court is warranted in the writ petition. We are of the view that the parties have to work out their remedy before the Civil Court, where the issues are pending. This is more so in view of the ruling rendered by a Single Bench of this Court as reported in **Mohammad v. Mohammed Haji** **WP(C).No. 24690 of 2017** 8 **[1986 KLT 134]** that it is quite possible for the very same court to pass appropriate orders to the requisite extent. As mentioned already, so long as it is conceded that Ext.P3 memo stands, having not set aside or stayed by any court, we find it difficult to grant the relief sought for by the petitioners. The writ petition, fails and it is dismissed accordingly, without prejudice to the rights and liberties of the petitioners to move the Civil Court where the issue is pending. **Sd/-** **P.R.RAMACHANDRA MENON JUDGE** **Sd/-** **N.ANIL KUMAR** DG **JUDGE** **WP(C).No. 24690 of 2017** 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 : TRUE PHOTOCOPY OF LOCATION SKETCH CUM CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MANAKUNNAM VILLAGE DATED 2-112010.** - **EXHIBIT P1A : ENGLISH TRANSLATION OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MANAKUNNAM VILLAGE DATED 2-11-2010.** - **EXHIBIT P2 : TRUE PHOTOCOPY OF LAYOUT SKETCH SUBMITTED BY THE 2ND RESPONDENT BEFORE THE UDAYAMPEROOR GRAMA PANCHAYAT.** - **EXHIBIT P3 : TRUE PHOTOCOPY OF THE STOP MEMO DATED 22-6-2015.** - **EXHIBIT P3A : ENGLISH TRANSLATION OF THE STOP MEMO DATED 22-6-2015.** - **EXHIBIT P4 : TRUE PHOTOCOPY OF THE COMMISSION REPORT IN OS 110 OF 2016 DATED 23-2-2016.** - **EXHIBIT P5 : TRUE PHOTOCOPY OF THE OBJECTIONS IN IA NO.3107 OF 2016 IN CMA 2 OF 2016 DATED 30-9-2016.** - **EXHIBIT P6 : TRUE PHOTOCOPY OF THE REPLY AFFIDAVIT IN IA NO.3107 OF 2016 IN CMA 2 OF 2016 DATED 14-10-2016.** - **EXHIBIT P7 : TRUE PHOTOCOPY OF THE ORDER IN IA NO.3107 OF 2016 IN CMA 2 OF 2016 DATED 8-12-2016.** - **EXHIBIT P8 : PHOTOGRAPH SHOWING THE FOUNDATION FOR THE COMPOUND WALL AT THE SOUTHERN BOUNDARY ABUTTING THE RESIDENCE OF RESPONDENTS 2 AND 3 AND BUILT THE WALL PARTIALLY.** - **EXHIBIT P9 : PHOTOGRAPHS OF THE BRIDGE MADE OF TELEPHONE POSTS NEAR THE CULVERT.** - **EXHIBIT P10 : PHOTOGRAPH SHOWING SOUTH WESTERN PORTIION 2 CONCRETE ELECTRIC POSTS WERE PLACED ACROSS THE DRAINAGE.** **WP(C).No. 24690 of 2017** 10 **EXHIBIT P11 :** **TRUE PHOTOCOPY OF THE PETITION IN IA 1590/2017 DATED 25-3-2017 FILED BY THE RESPONDENTS 1, 4 AND 5.** **EXHIBIT P12 : TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT IA 1590/2017 FILED BY THE PETITIONERS DATED 5-4-2017.** **EXHIBIT P13 : TRUE PHOTOCOPY OF THE COMPLAINT SUBMITTED BY THE PETITIONERS DATED 253-2017** **EXHIBIT P13A :** **ENGLISH TRANSLATION OF THE COMPLAINT SUBMITTED BY THE PETITIONERS DATED 253-2017.** **EXHIBIT P14 : TRUE PHOTOCOPY OF THE COMPLAINT ADDRESSED TO THE 6TH RESPONDENT DATED 26-6-2017.** **EXHIBIT P19.** **TRUE PHOTOCOPY OF THE CERTIFIED COPY OF THE PROOF AFFIDAVIT DATED 11.12.2017 AND DEPOSITION.**