Philip. P.Oommen vs State Of Kerala
2022 Latest Caselaw 6910 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.11317 OF 2022
PETITIONER :-

          PHILIP. P.OOMMEN, AGED 62 YEARS
          S/O.OOMMEN, PARUTHIKATTIL PARAYIL HOUSE,
          THUKALASSERY MURI, THIRUVALLA VILLAGE,
          THIRUVALLA TALUK, PIN - 689 115.

          BY ADVS.
          P.HARIDAS
          BIJU HARIHARAN
          SHIJIMOL M.MATHEW
          P.C.SHIJIN
          RISHIKESH HARIDAS


RESPONDENTS :-

    1     STATE OF KERALA REPRESENTED BY SECRETARY,
          DEPARTMENT OF HOME, GROUND FLOOR,
          MAIN BLOCK STATE SECRETARIAT,
          THIRUVANANTHAPURAM, PIN - 695 001.

    2     THE DIRECTOR GENERAL OF POLICE AND THE STATE POLICE
          CHIEF, KERALA STATE POLICE HEAD QUARTERS,
          VAZHUTHACAUD P.O, THIRUVANANTHAPURAM, PIN-695 001.

    3     THE DISTRICT POLICE CHIEF PATHANAMTHITTA,
          OFFICE OF THE DISTRICT POLICE CHIEF,
          PATHANAMTHITTA P.O, PIN - 689 645.

    4     THE DEPUTY SUPERINTENDENT OF POLICE,
          THIRUVALLA SUB DIVISION, OFFICE OF THE
          DEPUTY SUPERINTENDENT OF POLICE, THIRUVALLA P.O, PIN
          - 689 101.

    5     STATION HOUSE OFFICER,
          THIRUVALLA POLICE STATION, THIRUVALLA, PIN-689 101.

    6     P.K. VENU,
          PARAYIL HOUSE, THUKALASSERY MURI,
          THIRUVALLA VILLAGE, THIRUVALLA TALUK, PIN-689 115.
 WP(C) NO.11317 OF 2022

                                 -: 2 :-

     7       M.G. RAGHU,
             S/O. GOPI, PARAYIL HOUSE, THUKALASSERY MURI,
             THIRUVALLA VILLAGE, THIRUVALLA TALUK, PIN-689 115.

     8       SUNIL GEORGE,
             S/O. KUTTAYI, PARAYIL HOUSE, THUKALASSERY MURI,
             THIRUVALLA VILLAGE, THIRUVALLA TALUK, PIN-689 115.

             BY ADVS.
             T.P.PRADEEP
             P.K.SATHEES KUMAR
             MINIKUMARY M.V.
             R.K.PRASANTH
             BY 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.11317 OF 2022

                                -: 3 :-

                            JUDGMENT

Dated this the 14th day of June, 2022

This writ petition is filed seeking directions to

respondents 2 to 5 to render adequate, effective and

meaningful protection to the life and properties of the

petitioner, his family members and his workers to remove silt

from the pond situated in the properties covered by Exts.P1

and P2 and protect it with bund and walls and conduct fish

farming/pisciculture without any obstruction from

respondents 6 to 8.

2. The learned counsel for the petitioner submits that

the petitioner is the absolute owner in possession of the

property where a pond is situated and that respondents 6 to 8

are obstructing the lawful use and enjoyment of the property

by the petitioner.

3. A counter affidavit has been placed on record by

respondents 6 to 8. It is contended that there is a pond in the

petitioner's property which, according to the respondents, in

existence for more than 60 years. It is submitted that the

petitioner is attempting to reclaim the pond by filling it with WP(C) NO.11317 OF 2022

soil and waste. It is contended that the respondents have

preferred a suit before the Thiruvalla Munsiff Court, which is

numbered as O.S.No.119/2022 for a declaration of easement

right over the above pond and the same is pending

consideration. It is submitted that an Advocate Commissioner

was appointed and the matter is being examined by the

competent civil court. It is submitted that it is only to defeat

the rights of respondents 6 to 8 that the petitioner had

approached this Court seeking police protection.

4. Having considered the contentions advanced, I am

of the opinion that since a suit has been filed seeking

declaration of an easementary right, the matters raised in the

said suit are not liable to be considered by this Court.

However, it is also clear that the petitioner's right over the

property is not disputed even by respondents 6 to 8.

In the above view of the matter, this writ petition is

disposed of with a direction that the issues raised with regard

to the easementary right will be considered and decided in the

appropriate civil proceedings. However, if the petitioner is

carrying out permitted activity in the premises without filling WP(C) NO.11317 OF 2022

up the pond in any way and if any obstruction is caused by

respondents 6 to 8, the petitioner may approach the Station

House Officer, who shall afford adequate protection for the

lawful activities in the petitioner's premises.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/14.6.2022 WP(C) NO.11317 OF 2022

APPENDIX OF WP(C) 11317/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE SETTLEMENT DEED NO. 2415/2002 OF THIRUVALLA SRO DATED 17.10.2022.

Exhibit P2 TRUE COPY OF PETITIONER'S LAND TAX RECEIPT OF KUTTAPPUZHA VILLAGE DATED 07.07.2021.

Exhibit P3 THE RDO CLARIFIED THAT NO SUCH PERMISSION IS REQUIRED FOR FISH FARMING. TRUE COPY OF THE ORDER OF RDO, THIRUVALLA, DATED 08.04.2021.

Exhibit P4 TRUE COPY OF THE REPRESENTATION FILED BEFORE 4TH RESPONDENT DATED 26.03.2022.

Exhibit P5 TRUE COPY OF THE REPRESENTATION FILED BEFORE 5TH RESPONDENT DATED 26.03.2022.

Exhibit P6 TRUE COPY OF THE PLAINT IN O.S. NO. 119/2022 BEFORE THE MUNSIFF COURT, THIRUVALLA DATED 19.03.2022.

Exhibit P7 TRUE COPY OF THE INJUNCTION APPLICATION IN O.S. NO.

119/2022 BEFORE THE MUNSIFF COURT, THIRUVALLA DATED 19.03.2022.

RESPONDENT EXHIBITS

Exhibit R6(A) TRUE COPY OF THE SUIT NAMELY IN O.S. 119/222 ON THE FILES OF THE MUNSIFF COURT, THIRUVALLA

Exhibit R6(B) TRUE COPY OF THE REPRESENTATION BEFORE THE R.D.O, THIRUVALLA DATED 03/03/2022

Exhibit R6(C) TRUE COPY OF THE REPRESENTATION PREFERRED BEFORE THE DISTRICT COLLECTOR, PATHANAMTHITTAA DATED 03/03/2022

Exhibit R6(D) PHOTO SHOWING NATURAL FLOW FROM THE DISPUTED POND