IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22252 of 2010(F)
1. C.M.VARGHESE, AGED 89 YEARS,
... Petitioner
Vs
1. SUPERINTENDENT OF POLICE,
... Respondent
2. DEPUTY SUPERINTENDENT OF POLICE,
3. SUB INSPECTOR OF POLICE,
4. MANU, S/O.KOCHURAMAN,
5. SURESH, S/O.SURA,
6. LITHIN BABY,S/O.BABY,
7. M.C.YOUNACHAN, MOOLANKUZHIYIL HOUSE,
For Petitioner :SRI.K.ABDUL JAWAD
For Respondent :SRI.A.K.JAYAPRAKASH
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :18/08/2010
O R D E R
K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ.,
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W.P.(C) No.22252 of 2010 F
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Dated this the 18th 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.
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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 7th respondent.
Though the petitioner has instructed the 7th respondent to comply
with all statutory requirements, the 7th respondent conducted the
quarrying operations without obtaining permit. The petitioner
entered into Ext.P6 agreement dated 23.1.0.2009 with the 7th
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
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conducting the quarry, which was turned down by the 7th
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 7th 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 4th 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
W.P.(C) No. 22252 of 2010
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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 4th 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 4th respondent
and they were enjoying the same from 1980 onwards. The
Panchayat authorities numbered the hut of the parents of 4th
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
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protest against blasting. Suit as O.S. No. 320 of 2010 is filed
against the petitioner by the 4th 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
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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
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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 7th respondent. 7th
respondent is not seeking any relief. Of course the petitioner has
attempted to explain that 7th respondent is apprehensive of
respondents 4 to 6 and their men.
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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
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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/