IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36769 of 2009(M)
1. MOOSA, AGED 49 YEARS,
... Petitioner
Vs
1. THE SUB INSPECOTR OF POLICE
... Respondent
2. KUTTAPPAN, AGED 59 YEARS,
3. M/S. INDIA TELECOM INFRA LTD.,
For Petitioner :SRI.T.A.UNNIKRISHNAN
For Respondent :SRI.P.FAZIL
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :03/02/2010
O R D E R
K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ.
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W.P.(C) No.36769 of 2009-M
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Dated, this the 3rd day of February, 2010
J U D G M E N T
K.M.Joseph, J.
Petitioner has approached this Court seeking the
following relief:–
“to issue a writ of mandamus or such other writ,
order or direction commanding the Ist respondent
not to grant any protection to the respondents 2
and 3 to make any construction in the property
covered by the interim order passed by the
Munsiff Court, Muvattupuzha in
O.S.No.473/2009”.
2. Briefly put, the case of the petitioner is as
follows:–Petitioner is a poor cooli. The 2nd respondent is the
adjoining owner residing on the northern side. It is stated that
there is civil dispute and the boundary has to be fixed. It is
stated that when the disputes were going on, the 2nd
respondent permitted the 3rd respondent to erect a mobile
phone tower in the disputed property. It is the further case of
the petitioner that the 3rd respondent filed W.P.(C)
No.27618/2009 before this Court seeking police protection for
construction of the tower. The petitioner was the 2nd
WPC 36769/2009 -2-
respondent in the said writ petition. Ext.P1 is the judgment
pronounced by this Court in the said writ petition along with
other writ petitions. It is the further case of the petitioner
that protection was given only if there is no interdiction for
the construction from any competent forum. Petitioner filed a
civil suit against the 2nd respondent seeking declaration of his
right over plaint B-schedule property, that is, the property
now possessed by the 2nd respondent and permitted the 3rd
respondent for construction of tower. Recovery of possession
is prayed. The learned Munsiff has granted interim order
(Ext.P2). Ext.P3 is the sketch prepared by the Advocate
Commissioner.
3. A counter affidavit has been filed on behalf of
the 2nd respondent. Therein, inter alia it is stated that the
suit is filed only after Ext.P1 judgment. It is also contended
that there is no merit in the case of the petitioner. In this
context, the respondent has produced the report of the
Advocate Commissioner as Ext.R2(b) and the report of the
Village Officer, Muvattupuzha as Ext. R2(c). The Village
Officer, according to the 2nd respondent has categorically
stated that the construction of the mobile tower is in 15 cents
of property belonging to the 2nd respondent.
WPC 36769/2009 -3-
4. We heard the learned counsel for the
petitioner, learned counsel for respondents 2 and 3 besides
learned Government Pleader. The learned counsel for the
petitioner essentially relies on Ext.P2 order. The learned
counsel for the 3rd respondent would point out that the 3rd
respondent is not even made a party in that proceedings.
The 2nd respondent would point out the fact that Ext.P1
judgment is not even mentioned in the plaint (Ext.R2(a).
5. A perusal of Ext.P1 judgment would show that,
this Court, while granting protection had made it clear that
parties can approach civil Court and other forum. In this
context, the learned counsel for the 2nd respondent submits
that having regard to the prayers in the suit, construction of
the tower by the 3rd respondent cannot be interdicted even in
terms of Ext.P1 judgment. The fact remains that the Civil
Court has passed an order inter alia directing the parties to
maintain status quo regarding B-schedule property as noted
by the Advocate Commissioner. Ext.P2 is an order passed
exparte. In the nature of the order passed we would think
that while Ext.P2 order is pending it may not be appropriate at
the same time to permit construction to go on in violation of
the order. As to whether the order will be violated by
WPC 36769/2009 -4-
permitting construction on the basis of police protection
ordered as per Ext.P1 it is a matter which should be decided
by the Civil Court. No doubt, apparently Ext.P1 judgment was
not brought to the notice of the Civil Court by the petitioner in
the plaint.
6. The writ petition is disposed of directing the Ist
respondent not to grant protection to respondents 2 and 3 to
make any construction without getting Ext.P2 order clarified or
modified. This order will be conditional upon fulfilling the
following conditions. The petitioner will implead the 3rd
respondent in the civil suit O.S.473/2009 &
I.A.No.2836/2009) within one week from today. If steps are
not taken to implead the 3rd respondent by the petitioner
within one week from today, the direction given by us will
automatically stand recalled.
(K.M.JOSEPH)
JUDGE.
(M.L.JOSEPH FRANCIS)
JUDGE.
MS