Molly Varghese vs State Of Kerala
2022 Latest Caselaw 6735 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
   TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                    WP(C) NO.5934 OF 2022
PETITIONER :-

          MOLLY VARGHESE, AGED 80 YEARS
          W/O.LATE VARGHESE, PALAL HOUSE, VATTIYOORKAVU,
          THIRUVANANTHAPURAM - 695 013.

          BY ADVS.
          R.SANJITH
          C.S.SINDHU KRISHNAH(K/942/2008)
          CHARUTHA BHAIJU
          ANOOP GEORGE
          P.S.ANJU


RESPONDENTS :-

    1     STATE OF KERALA
          REPRESENTED BY THE SECRETARY, HOME DEPARTMENT,
          SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

    2     STATION HOUSE OFFICER,
          INFOPARK POLICE STATION, ATHULYA MAIN BUILDING,
          ATHULYA RD, INFOPARK CAMPUS, INFOPARK,
          KAKKANAD - 682 030.

    3     ASSISTANT COMMISSIONER OF POLICE,
          ASSISTANT POLICE COMMISSIONER OFFICE, 28CW+957,
          THRIKKAKAA, KAKKANAD, KERALA - 682 021.

    4     THRIKKAKARA MUNICIPALITY,
          KAKKANAD P.O., ERNAKULAM - 682 030,
          REPRESENTED BY ITS SECRETARY.

    5     SETHU KOROTHU, AGED 38 YEARS
          S/O. T.I. KORATHU, THURUTHUMMEL HOUSE,
          KUSUMAGIRI P.O., KAKKANAD - 682 030.

         BY ADVS.
         S.JAMAL, SC, THRIKKAKARA MUNICIPALITY
         P.M.RAFIQ
         M.REVIKRISHNAN
         RAHUL SUNIL
         AJEESH K.SASI
         SRUTHY N. BHAT
 WP(C) NO.5934 OF 2022

                                  -: 2 :-

           MITHA SUDHINDRAN
           SRUTHY K.K
           BAIJU JOHN
           SRI.T.K.SHAJAHAN, SR.GP


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   14.06.2022,    THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO.5934 OF 2022

                                    -: 3 :-


                                JUDGMENT

Dated this the 14th day of June, 2022

This writ petition is filed seeking the following reliefs :-

"(I) To issue a writ of mandamus and command respondents 1-3 to provide adequate police protection to the petitioner, and her property and ensure that the repair and reconstruction of the compound wall are carried out without interference of the 5th respondent, his men and agents or from any other person. (II) To issue a writ of mandamus and command respondents 1 to 3 to ensure that the 5th respondent, his men, agents or any other person are not creating any trespass into the property of the petitioner lying in survey No.482/6, 7, 8 in Kakkanad Village, Kanayannur Taluk, Ernakulam District, belonging to the petitioner and her daughters."

2. Heard the learned counsel for the petitioner, the

learned counsel appearing for the 5th respondent and the learned

Government Pleader as well as the learned counsel appearing

for the 4th respondent Municipality.

3. It is submitted by the learned counsel for the

petitioner that the petitioner is the co-owner in possession of a

property in Survey No.482/6, 7, 8 in Kakkanad Village in

Kanayannur Taluk of Ernakulam District. It is submitted that WP(C) NO.5934 OF 2022

she had obtained deemed permit for the reconstruction of a

compound wall and when she attempted to do so, the 5 th

respondent had obstructed the construction and complaints

were submitted before the police. It is stated that neither the 5 th

respondent nor any other person acting under him have any

right over the property in question and that the obstruction is,

therefore, completely unwarranted. On these grounds, the

petitioner seeks police protection for construction of the

compound wall.

4. A counter affidavit has been placed on record by the

5th respondent. It is contended therein that the 5 th respondent

has not committed any trespass or obstruction. It is submitted

that the attempt of the petitioner is to construct a compound

wall by annexing a portion of the public pathway and that the

said pathway is included in the Asset Register of the

Municipality. It is submitted that the 5th respondent had not

physically obstructed the construction, but that the attempt of

the petitioner is only to see that the construction of the

compound wall encroaching into the municipal property by

obtaining police protection.

WP(C) NO.5934 OF 2022

5. The learned counsel for the 4th respondent submits

that a stop memo had been issued to the petitioner on 5.5.2022

and that the petitioner cannot effect any construction

encroaching into the property of the Municipality. It is

submitted that the issue will be appropriately considered by the

Municipality, if the petitioner submits a reply to the stop memo.

6. The learned counsel for the petitioner submits that a

reply has been submitted to the stop memo.

7. Having considered the contentions advanced, I am of

the opinion that the issue with regard to the encroachment into

the municipal property is not something which can be

considered by this Court in these proceedings. Since the 5 th

respondent submits that no obstruction is being caused by the

5th respondent, the said submission only requires to be recorded.

In the above view of the matter, the only issue which

remains to be considered is with regard to the stop memo issued

by the Municipality. There will, accordingly, be a direction that

in case a reply is submitted to the stop memo, the issue shall be

appropriately considered by the Municipality and the

construction shall proceed in accordance with the orders to be

passed by the Municipality. If the reply has already been WP(C) NO.5934 OF 2022

submitted by the petitioner, appropriate orders shall be passed,

after hearing the petitioner and any other affected parties,

within a period of one month from the date of receipt of a copy

of this judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/16.6.2022 WP(C) NO.5934 OF 2022

APPENDIX OF WP(C) 5934/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE THANDAPER REGISTER OF THE PROPERTY.

Exhibit P2 TRUE COPY OF THE SKETCH OF THE PROPERTY PREPARED BY THE TALUK SURVEYOR.

Exhibit P3 TRUE COPY OF THE FIR BEARING NO. 457/2020 REGISTERED BY THE 3RD RESPONDENT.

Exhibit P4 TRUE COPY OF THE LETTER DATED 23.11.2021 ALONG WITH THE ACKNOWLEDGEMENT RECEIPTS ISSUED BY THE 4TH RESPONDENT.

Exhibit P5 TRUE COPY OF THE LETTER DATED 20.12.2021 ALONG WITH THE ACKNOWLEDGEMENT RECEIPTS ISSUED BY THE 4TH RESPONDENT.

Exhibit P6 TRUE COPY OF THE LETTER DATED 07.02.2022 ALONG WITH THE ACKNOWLEDGEMENT RECEIPTS ISSUED BY THE 4TH RESPONDENT.

Exhibit P7 TRUE COPY OF THE COMPLAINT DATED 18.11.2021 ALONG WITH ITS RECEIPT.

Exhibit P8 TRUE COPY OF THE COMPLAINT 06.12.2021 ALONG WITH RECEIPT ISSUED BY THE 3RD RESPONDENT.