IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
WP(C) NO. 16884 OF 2022
PETITIONERS:
1 JOSEPH JOHN.C
AGED 65 YEARS
S/O.JOHN, CHANAYIL HOUSE, ESI ROAD, PALLURUTHY P.O.,
KOCHI-682 006.
2 C.J.XAVIER,
AGED 73 YEARS
S/O.JOHN, CHANAYIL HOUSE, ESI ROAD, PALLURUTHY P.O.,
KOCHI-682 006.
3 MARY ALIAS VALSA, AGED
AGED 74 YEARS
W/O JACOB C.J., CHANAYIL HOUSE, ESI ROAD, PALLURUTHY
P.O., KOCHI-682 006
BY ADVS.
N.JAMES KOSHY
MIDHUN R.
T.SANJAY
RESPONDENTS:
1 THE CIRCLE INSPECTOR OF POLICE
PALLURUTHY POLICE STATION, ERNAKULAM DISTRICT,
KOCHI - 682 006.
2 THE ASSISTANT COMMISSIONER OF POLICE,
MATTANCHERRY, ERNAKULAM DISTRICT, KOCHI-682 002.
3 THE ASSISTANT HEALTH OFFICER,
KOCHI MUNICIPAL CORPORATION, MATTANCHERRY ZONAL OFFICE,
KOCHI-682002.
WP(C) NO. 16884 OF 2022 2
4 KOCHI MUNICIPAL CORPORATION,
CANON SHED ROAD, ERNAKULAM DISTRICT, KOCHI-682 011,
REPRESENTED BY THE SECRETARY.
5 CHANDRAN,
S/O.RAMAN, PALLIVATHUKKAL HOUSE, ESI ROAD, PALLURUTHY
P.O., ERNAKULAM DISTRICT, KOCHI-682 006.
6 MANI ALIAS RADHA,
D/O.NARAYANAN, PALLIVATHUKKAL HOUSE, FSI ROAD, PALLURUTHY
P.O., ERNAKULAM DISTRICT, KOCHI-682 006.
7 KAVITHA
D/O MANI ALIAS RADHA, PALLIVATHUKKAL HOUSE, ESI ROAD,
PALLURUTHY P.O., ERNAKULAM DISTRICT, KOCHI-682 006.
8 BABU,
S/O.SREENIVASAN, PALLIVATHUKKAL HOUSE, ESI ROAD,
PALLURUTHY P.O., ERNAKULAM DISTRICT, KOCHI-682 006.
BY ADVS.
C.P.PEETHAMBARAN
CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT
OTHER PRESENT:
T.K.SHAJAHAN-SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 16884 OF 2022 3
JUDGMENT
This writ petition is filed seeking the following reliefs: -
i) issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents 1 to 4 to prevent respondents 5 to 8 from depositing any waste, debris or filth in the petitioners' property of 11.3 cents in Sy.No.615/1 in Rameswaram Village, Palluruthy, Kochi-682 006;
ii) issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents 1 to 3 to take appropriate legal action against the respondents 5 to 8 for violating the provisions of the Kerala Municipalities Act and Rules and for committing offences punishable under the Indian Penal Code;
iii) issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents 1 and 2 to grant adequate and effective police protection to the petitioners to remove the waste, debris or filth in the petitioners' property of 11.3 cents in Sy.No.615/1 in Rameswaram Village, Palluruthy, Kochi-682 006 and to erect protective fencing around the said property as per Exhibit-P10 notice without any obstruction or hindrance from the respondents 5 to 8 and their supporters.
2. Heard the learned counsel for the petitioners, the learned Senior Counsel appearing for respondents 5 to 8, the WP(C) NO. 16884 OF 2022 4 learned Government Pleader and the learned counsel appearing for the respondent Corporation.
3. It is submitted by the learned counsel for the petitioners that the petitioners have been required to remove the waste deposited in property which is in the possession of the petitioners by Ext.P10 and that adequate protection is liable to be granted for the removal of the waste.
4 A detailed counter affidavit has been placed on record by respondents 5 to 8. It is submitted that Ext.P3 delivery kaichit on the basis of which the petitioners claim possession of the property has been set aside by this court by Ext.R7(b) order in CRP and that reliance placed by the petitioners on Ext.P3 is therefore not warranted. It is further submitted that there are several civil disputes pending between the parties with regard to the properties and that the attempt of the petitioners is to demarcate properties and construct compound walls while the civil suits with regard to the properties are pending.
5. The learned Senior counsel appearing for respondents WP(C) NO. 16884 OF 2022 5 5 to 8 also submits that the party respondents will not cause any waste to be deposited in the properties and will also co-operate to see that the waste is removed and that the order of police protection as sought for cannot be granted in the facts of this case.
6. The learned counsel appearing for the Corporation submits that the Corporation had conducted an inspection and found that waste had accumulated in the property and had only required the petitioners to see that the waste is removed from the properties in question.
7. The learned Government Pleader submits that the parties had been summoned to the police station and it was found that civil disputes are pending with regard to the rights to the property in question which is why the police did not take any action in the matter.
8. Having considered the contentions advanced, I am of the opinion that all the questions with regard to the ownership and possession of the properties in question have to be decided in WP(C) NO. 16884 OF 2022 6 the civil disputes said to be pending between the parties. However, in view of the submissions made by the learned standing counsel appearing for the Corporation that a site inspection had been conducted and that the entire property was seen overgrown with shrubs and that waste was seen deposited therein. That Ext.P10 notice was issued to the petitioner, I am of the opinion that appropriate steps are liable to be taken to see that the waste is removed and the property is to be maintained in a hygienic manner.
8. The learned counsel appearing for the petitioners submits that the attempt is only to remove the waste in pursuance of Ext.P10 notice issued by the corporation and that there is no attempt whatsoever to construct any compound wall.
9. It is submitted by the learned senior counsel appearing for the respondents that there is no obstruction caused by the party respondents to the removal of the waste, provided the petitioners do not make any attempt to construct any compound wall or fencing. It is further submitted that the party respondents WP(C) NO. 16884 OF 2022 7 shall also co-operate for the removal of the waste and shall see that no waste is deposited in the property in future.
Having considered the contentions advanced on both sides, there will be a direction to the respondents to permit the petitioner to carry out the instructions in Ext.P10 notice and to remove the waste from the property. The submissions made by the learned senior counsel appearing for respondents 5 to 8 that there will be no obstruction caused by the party respondents is recorded. In case the petitioner, faces obstruction from any other person with regard to the removal of the waste, the petitioner may inform the station house officer, who shall afford adequate protection for the removal of the waste. It is also recorded that the parties will not deposit waste in the property, in future. All other issues with regard to the properties are left open to be decided in the appropriate proceedings.
Sd/-
ANU SIVARAMAN JUDGE ska WP(C) NO. 16884 OF 2022 8 APPENDIX OF WP(C) 16884/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PATTAYAM NO.91/74 DATED 24.10.1972 IN O.A.NO.21/1972, ISSUED BY THE LAND TRIBUNAL, PALLURUTHY.) Exhibit P2 TRUE COPY OF DECREE DATED 21.03.1995 IN O.S.NO.669/1989 OF THE PRINCIPAL MUNSIFF COURT, KOCHI.
Exhibit P3 TRUE COPY OF THE REPORT NO.4/2000 SUBMITTED BY THE ADVOCATE RECEIVER SRI.O.J.ALFRED BEFORE THE MUNSIFF COURT, KOCHI IN O.S.NO.669/ 1989 ON 09.10.2000 ALONG WITH RECEIPT OF THE POSSESSION OF THE PROPERTY DATED 07.10.2000. Exhibit P4 TRUE COPY OF THE LAND TAX RECEIPT KL07011404095/2022 DATED 11.04.2022 ISSUED BY THE VILLAGE OFFICER, PALLURUTHY FOR THE YEAR 2022-23 IN RESPECT OF THE PROPERTY IN THANDEPER NO.21983/P TO THE PETITIONERS. Exhibit P4 A TRUE COPY OF THE LAND TAX RECEIPT KL07011404097/2022 DATED 11.04.2022 ISSUED BY THE VILLAGE OFFICER, PALLURUTHY FOR THE YEAR 2022-23 IN RESPECT OF THE PROPERTY IN THANDEPER NO.21984/P TO THE 1ST PETITIONER. Exhibit P5 TRUE COPY OF THE POSSESSION CERTIFICATE NO.61748687 DATED 29.11.2021IN RESPECT OF THANDEPER NO.21983/P ISSUED BY THE VILLAGE OFFICER, RAMESWARAM VILLAGE TO THE PETITIONERS.
Exhibit P5 A TRUE COPY OF THE POSSESSION CERTIFICATE NO.61748671 DATED 29.11.2021IN RESPECT OF THANDEPER NO.21984/P ISSUED BY THE VILLAGE OFFICER, RAMESWARAM VILLAGE TO THE 1ST WP(C) NO. 16884 OF 2022 9 PETITIONER.
Exhibit P6 TRUE COPY OF THE LETTER NO.WZH3/1363/17 DATED 12.2.2018 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER.
Exhibit P7 TRUE COPY OF THE G D REGISTER COMMUNICATION DATED 10.05.2018 GIVEN TO THE PETITIONER BY THE 1ST RESPONDENT.
Exhibit P8 TRUE COPY OF THE SKETCH OF THE PROPERTY OF THE PETITIONERS COVERED BY EXHIBIT-P4 AND P4 (A). Exhibit P9 TRUE COPY OF THE JUDGMENT IN W.P(C) NO.18494/2018 DATED 31.07.2018 OF THE HON'BLE HIGH COURT OF KERALA.
Exhibit P10 TRUE COPY OF THE NOTICE NO.WZ H3/ 558/22 DATED 28.04.2022 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER.
Exhibit P11 TRUE COPY OF THE PETITION DATED 10.05.2022 SEEKING POLICE PROTECTION SUBMITTED BY THE PETITIONERS BEFORE RESPONDENT. R2 Exhibit P12 TRUE COPY OF THE DIRECTION PASSED BY 1ST RESPONDENT DATED 13.05.2022 DIRECTING THE PETITIONERS TO APPROACH THE HON'BLE COURT. Exhibit P13 TRUE COPY OF THE COMMUNICATION DATED 14.05.2022 SENT BY THE 1ST PETITIONER TO 3RD RESPONDENT.
RESPONDENT EXHIBITS Exhibit R7 A TRUE TYPED COPY OF THE PLAINT IN O.S. NO.
140/1996 FILED BY THE OUR SIDE BEFORE THE SUB COURT, KOCHI Exhibit R 7B TRUE COPY OF THE ORDER DATED 07.09.2001 IN CRP WP(C) NO. 16884 OF 2022 10 NO. 2402/2000 OF THIS HONOURABLE COURT. Exhibit R7 C TRUE COPY OF THE ORDER DATED 02.02.2010 IN MJC NO. 37/2010 IN FAO NO. 34/2003 OF THIS HONOURABLE COURT.
Exhibit R7 D TRUE COPY OF THE ORDER DATED 13.09.2010 IN R.P NO. 612/2010 IN MJC NO. 37/2010 IN FAO NO. 34/2003 OF THIS HONOURABLE COURT.
Exhibit R 7 E TRUE COPY OF THE JUDGMENT DATED 10.03.1999 IN O.S. NO. 58/1997 OF ADDL.SUB COURT, KOCHI Exhibit R7 F TRUE COPY OF THE OCMMISSIONERS REPORT AND PLAN IN I.A. NO. 1208/1999 IN OS NO. 58/1997 OF SUB COURT KOCHI, Exhibit R7 G TRUE COPY OF THE JUDGMENT DATED 21.07.2017 IN RFA NO. 420/2006 OF THIS HONOURABLE COURT. Exhibit R7 H TRUE COPY OF THE COMPLAINT DATED 16.05.2022 FILED BY THE 7TH RESPONDENT AND OHTERS BEFORE THE STATION HOUSE OFFICER, KASABA POLICE STATION, PALLURUTHI Exhibit R7 I TRUE COPY OF THE APPLICATION FILED BY THE 7TH RESPONDENT OF PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT.