Jose Philip vs The Commissioner Of Police
2021 Latest Caselaw 17830 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
                       WP(C) NO. 2308 OF 2021
PETITIONER:

    1     JOSE PHILIP
          AGED 75 YEARS
          S/O.LATE P.J.PHILIP, PANIKKARUVEETTIL HOUSE,
          KANGAZHA P.O., CHANGANACHERRY TALUK, KOTTAYAM
          DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY
          HOLDER A.F.VARGHESE, AGED 54 YEARS, S/O.GEORGE,
          'LORDS COTTAGE', VILLA NO.15, KARSHAKA ROAD,
          VADUTHALA P.O., CHERANELLOOR VILLAGE, KANAYANNUR
          TALUK, ERNAKULAM DISTRICT.

    2     MOLLY JOSE
          AGED 75 YEARS
          W/O.JOSE PHILIP, PANIKKARUVEETTIL HOUSE, KANGAZHA
          P.O., CHANGANACHERRY TALUK, KOTTAYAM DISTRICT,
          REPRESENTED BY HER POWER OF ATTORNEY HOLDER
          A.F.VARGHESE, AGED 56 YEARS, S/O.GEORGE, LORDS
          COTTAGE, VILLA NO.15, KARSHAKA ROAD, VADUTHALA P.O.,
          CHERANELLOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM
          DISTRICT.

    3     SHERILYN SARA JOSE @ SHERILYN SARA CAMPIE
          AGED 50 YEARS
          D/O.JOSE PHILIP, PANIKKARUVEETTIL HOUSE, KANGAZHA
          P.O., CHANGANACHERRY TALUK, KOTTAYAM DISTRICT
          REPRESENTED BY HER POWER OF ATTORNEY HOLDER
          A.F.VARGHESE, AGED 54 YEARS, S/O.GEORGE, LORDS
          COTTAGE, VILLA NO.15, KARSHAKA ROAD, VADUTHALA P.O.,
          CHERANELLOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM
          DISTRICT.

    4     CONFIDENT PROJECTS RESIDENTIAL
          CONFIDENT HOUSE, S.A.ROAD, VYTTILA, ERNAKULAM
          DISTRICT REPRESENTED BY ITS PARTNER T.A.JOSEPH, AGED
          58 YEARS, S/O.LATE ALEXANDER THERUVIPARAMBIL,
          33/2652D, THERUVIPARAMBIL HOUSE, VENNALA P.O.,
          KOCHI, ERNAKULAM.

          BY ADVS.
          S.SHANAVAS KHAN
          SMT.S.INDU
 WP(C) NO. 2308 OF 2021                2



RESPONDENTS:

     1    THE COMMISSIONER OF POLICE
          ERNAKULAM, ABDUL KALAM MARG, MARINE DRIVE,
          ERNAKULAM - 682 011.

     2    THE STATION HOUSE OFFICER
          ERNAKULAM NORTH POLICE STATION, CHITTOOR ROAD,
          OPPOSITE SIB BANK, KACHERIPADY, ERNAKULAM - 682
          018.

     3    THE CHAKKALAPADAM RESIDENTS ASSOCIATION
          CHAKKALAPADAM ROAD, KALOOR, ERNAKULAM - 682 017,
          REPRESENTED BY ITS PRESIDENT P.A.ABDULLA, HOUSE
          NO.75, CHAKKALAPADAM ROAD, KALOOR, ERNAKULAM - 682
          017.

     4    THE ASOKA ROAD SOUTH RESIDENTS ASSOCIATION
          ASOKA ROAD, NEAR GREETS PUBLIC SCHOOL, KALOOR,
          ERNAKULAM - 682 017 REPRESENTED BY ITS PRESIDENT
          PROF.C.I.ABDUL RAHIMAN, HOUSE NO.78, NISHANTH,
          MYTHRI LANE (PADINJAREPARAMBIL), ASOKA ROAD, NEAR
          GREETS PUBLIC SCHOOL, KALOOR, ERNAKULAM - 682 017.

     5    THE ASSISTANT EXECUTIVE ENGINEER
          KOCHI MUNICIPAL CORPORATION, ZONAL OFFICE, SONIA
          NAGAR, EDAPPALLY, ERNAKULAM - 682 024.

     6    ADDL. R6 - THE KOCHI MUNICIPAL CORPORATION,
          PARK AVENUE ROAD, MARINE DRIVE,KOCHI - 682011,
          REPRESENTED BY ITS SECRETARY(ADDL.R6 IMPLEADED AS
          PER ORDER DATED 22/2/2021 IN IA 1/2021)

          BY ADVS.
          SRI.P.CHANDRASEKHAR
          SRI.K.K.MOHAMED RAVUF
          SHRI.SATHEESH V.T.
          SMT.MANJARI G.B.

          SRI E.C BINEESH-GOVERNMENT PLEADER


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   01.09.2021,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 2308 OF 2021               3

                               JUDGMENT

The petitioners seek a direction to respondents

1 and 2 to afford adequate protection to the 4th

among them and its employees from the threat and

intimidation meted out by respondents 3 and 4, so as

to enable them to conduct foundation laying ceremony

(Bhoomi Pooja) and to carry on the construction of a

project which they call the 'Confident White House'

in Elamkulam Village.

2. The petitioners say that on account of the

incessant and constant threats meted out to the 4th

petitioner and his men by respondents 3 and 4 and

their associates, they were constrained to approach

the 2nd respondent through Ext.P19 representation

seeking police protection; but that since no action

was taken thereon, they have been forced to approach

this Court. They, therefore, pray that necessary

directions be issued to respondents 1 and 2 to

afford protection, as prayed for in this writ

petition.

3. I notice that, when this matter was

considered by another learned Judge of this Court on

29.01.2021, an interim order was issued directing

the 2nd respondent to ensure that there was no threat

to law and order in the locality at the time of

'Bhoomi Pooja' of the aforementioned apartment. It

is conceded today that 'Bhoomi Pooja' was conducted

and the petitioners, therefore, pray that protection

be directed to be afforded to them for carrying on

the construction of the project in question.

4. However, Sri.K.K.Mohamed Ravuf, learned

counsel appearing for the party respondents,

submitted that a Stop Memo against the construction

has already been issued by the Local Self Government

Institution and that petitioners have challenged the

same, by filing W.P(C)No.3352 of 2021 before this

Court. He added that, in the said writ petition,

orders have been issued to the Corporation to refer

the matter to the statutory "Technical Expert

Committee" under Rule 11A of the Kerala Municipality

Building Rules and that the matter is still so

pending. Shri.K.K.Mohamed Ravuf, therefore, prayed

that this writ petition be dismissed, arguing that

no construction can now be carried on by the

petitioners at this time.

5. When I consider the afore submissions, it is

indubitable that the request of the petitioners for

police protection to carry on the construction by

them cannot be now considered or granted by this

Court, when W.P(C)No.3352 of 2021 is pending,

wherein, issues relating to the same are being dealt

with, particularly under the ambit of Section 11A of

the Kerala Municipality Building Rules.

6. I am, therefore, of the firm view that it is

only depending upon the decision to be taken by this

Court in W.P(C)No.3352 of 2021, can the petitioners

seek any relief as regards their proposed

construction. This is more so because I am aware of

the further submissions of Shri.K.K.Mohamed Ravuf

that his clients have already approached the

Tribunal for Local Self Government Institutions

against the Building Permit issued to the 4th

petitioner.

In the afore circumstances and for the reasons

above, I close this writ petition without issuing

any further orders; but leaving full liberty to the

petitioners to approach this Court again, if and

when it becomes necessary consequent to the decision

to be taken by this Court in W.P(C)No.3352 of 2021.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/3.9

APPENDIX OF WP(C) 2308/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 07/07/2020 EVIDENCING THE OWNERSHIP OF PETITIONERS 1 TO 3.

EXHIBIT P1(A) TRUE COPY OF THE COPY OF LAND TAX RECEIPT DATED 07/07/2020 EVIDENCING THE OWNERSHIP OF FIRST PETITIONER.

EXHIBIT P1(B) TRUE COPY OF THE COPY OF LAND TAX RECEIPT DATED 07/07/2020 EVIDENCING THE OWNERSHIP OF PETITIONERS 1 AND 2.

EXHIBIT P1(C) TRUE COPY OF THE COPY OF LAND TAX RECEIPT DATED 02/07/2020 EVIDENCING THE OWNERSHIP OF 3RD PETITIONER.

EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT DATED 18/11/2020 ISSUED FROM ELAMKULAM VILLAGE OFFICE EVIDENCING THE OWNERSHIP OF THANKAMMA KOSHY.

EXHIBIT P3 TRUE COPY OF THE LOCATION SKETCH DATED 20/03/2019 ISSUED FROM VILLAGE OFFICE, ELAMKULAM PERTAINING TO PROPERTY OF PETITIONERS 1 TO 3.

EXHIBIT P4 TRUE COPY OF THE LOCATION SKETCH DATED 20/03/2019 ISSUED FROM VILLAGE OFFICE, ELAMKULAM PERTAINING TO PROPERTY OF THANKAMMA KOSHY.

EXHIBIT P5 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 03/11/2020 ISSUED FROM VILLAGE OFFICE, ELAMKULAM PERTAINING TO PROPERTY OF FIRST PETITIONER.

EXHIBIT P5(A) TRUE COPY OF THE POSSESSION CERTIFICATE DATED 03/11/2020 ISSUED FROM VILLAGE OFFICE, ELAMKULAM PERTAINING TO PROPERTY OF SECOND PETITIONER.

EXHIBIT P5(B) TRUE COPY OF THE POSSESSION CERTIFICATE DATED 03/11/2020 ISSUED FROM VILLAGE

OFFICE, ELAMKULAM PERTAINING TO PROPERTY OF THIRD PETITIONER.

EXHIBIT P6 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 11/11/2020 ISSUED FROM VILLAGE OFFICER, ELAMKULAM PERTAINING TO PROPERTY OF THANKAMMA KOSHY.

EXHIBIT P7 TRUE COPY OF THE JOINT DEVELOPMENT AGREEMENT DATED 31/10/2020 EXECUTED BY PETITIONERS 1 TO 3 WITH 4TH PETITIONER.

EXHIBIT P8 TRUE COPY OF THE JOINT DEVELOPMENT AGREEMENT DATED 20/10/2020 EXECUTED WITH 4TH PETITIONER.

EXHIBIT P9 TRUE COPY OF THE DEVELOPMENT PLAN SUBMITTED BY PETITIONERS.

EXHIBIT P10 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 18/11/2020 ISSUED IN FAVOUR OF PETITIONERS BY 5TH RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE PLAN SUBMITTED BY PETITIONERS ALONG WITH THANKAMMA KOSHY.

EXHIBIT P12 TRUE COPY OF FIRE SAFETY CLEARANCE DATED 24/04/2020 ISSUED BY DIRECTOR GENERAL, FIRE AND RESCUE SERVICES.

EXHIBIT P13 TRUE COPY OF THE CERTIFICATE DATED 28/02/2020 ISSUED FROM SOUTHERN NAVAL COMMAND, KOCHI.

EXHIBIT P14 TRUE COPY OF THE HEIGHT CLEARANCE CERTIFICATE DATED 07/05/2019 ISSUED BY AIRPORTS AUTHORITY OF INDIA.

EXHIBIT P15 TRUE COPY OF THE CONSENT TO ESTABLISH DATED 22/02/2020 ISSUED BY THE CHIEF ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, ERNAKULAM.

EXHIBIT P16 TRUE COPY OF THE BUILDING PERMIT DATED 13/08/2020 ISSUED BY 5TH RESPONDENT.

EXHIBIT P17 TRUE COPY OF THE CERTIFICATE OF

REGISTRATION DATED 27/11/2020 ISSUED BY SECRETARY, KERALA READ ESTATE REGULATORY AUTHORITY.

EXHIBIT P18 TRUE COPY OF THE NOTICE DATED 20/01/2021 ISSUED BY 5TH RESPONDENT.

EXHIBIT P19 TRUE COPY OF THE COMPLAINT DATED 25/01/2021 PREFERRED BY 4TH PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P20 TRUE COPY OF THE RECEIPT EVIDENCING THE SUBMISSION OF EXT.P19.

RESPONDENT EXHIBITS

EXHIBIT R4(a): TRUE COPY OF THE GOOGLE MAP SHOWING THE WIDTH OF ASOKA ROAD.

EXHIBIT R4(b): TRUE COPY OF THE LETTER DATED 31/01/2020 ISSUED BY THE PUBLIC INFORMATION OFFICER AND ASSISTANT EXECUTIVE ENGINEER IN THE OFFICE OF THE KOCHI MUNICIPAL CORPORATION, EDAPPALLY ZONAL OFFICE.

EXHIBIT R4(c): TRUE COPY OF THE REPRESENTATION DATED 30/01/2021 SUBMITTED BY SRI.ANIL KUMAR.C.R. AND SRI.RAJENDRAN.K BEFORE THE WORSHIPFUL MAYOR OF KOCHI.

EXHIBIT R4(d): TRUE COPY OF THE LETTER DATED 4.1.2021 OF SRI.RAJENDRN.K, SECRETARY OF THE 4TH RESPONDENT SUBMITTED TO THE PUBLIC INFORMATION OFFICER, KOCHI MUNICIPAL CORPORATION UNDER THE RTI ACT.

EXHIBIT R4(e): TRUE COPY OF THE LETTER DATED 02/02/2021 ISSUED BY THE PUBLIC INFORMATION OFFICER & ASSISTANT EXECUTIVE ENGINEER, KOCHI MUNICIPAL CORPORATION, ZONAL OFFICE, EDAPPALLY.

EXHIBIT R4(f): TRUE COPY OF TH STATEMENT CONTAINING THE LIST OF NEARBY HOUSES FROM THE PLOT OF THE PETITIONERS.

EXHIBIT R4(g): TRUE COPY OF THE NOTICE DATED 20/01/2021 OF THE ASSISTANT EXECUTIVE ENGINEER,

KOCHI MUNICIPAL CORPORATION, ZONAL OFFICE, EDAPPALLY.

EXHIBIT R4(h): TRUE COPY OF THE MINUTES OF THE MEETING DATED 22/01/2020 ATTENDED BY THE REPRESENTATIVES OF THE PETITIONERS, SOME RESPONDENTS AND OFFICERS KOCHI MUNICIPAL CORPORATION.

EXHIBIT R4(i): TRUE COPY OF THE NOTICE DATED 01/02/2021 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, KOCHI MUNICIPAL CORPORATION, EDAPPALLY ZONAL OFFICE.

EXHIBIT R4(j): TRUE COPY OF THE PHOTOGRAPH SHOWING THE WELL CONSTRUCTED BY THE PETITIONERS.

EXHIBIT R4(k): TRUE COPY OF THE APPEAL DATED 20/02/2021 FILED BY THE SECRETARY OF THE 4TH RESPONDENT BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.