Sobha Gopinath vs The Station House Officer
2023 Latest Caselaw 1398 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
                        WP(C) NO. 23670 OF 2021
PETITIONER:

          SOBHA GOPINATH
          AGED 45 YEARS
          W/O GOPINATH, KRISHNA KRIPAYIL (VACKAYIL), PATTIMATTOM
          P.O.VALAMBOOR KARA, PATTIMATTOM VILLAGE, ERNAKULAM
          DISTRICT, PIN-683 562.
          BY ADVS.
          DINESH R.SHENOY
          EBIN MATHEW
          P.ROHIT PREMANANDAN SHENOY


RESPONDENTS:

    1     THE STATION HOUSE OFFICER
          KUNNATHUNAD POLICE STATION, PATTIMATTOM, ERNAKULAM
          DISTRICT, PIN-683 565.
    2     THE DEPUTY SUPERINTENDENT OF POLICE
          OFFICE OF DEPUTY SUPERINTENDENT OF POLICE, PERUMBAVOOR,
          ERNAKULAM DISTRICT, PIN-683 542.
    3     VARGHESE,
          AGED 44 YEARS
          S/O KORA, THEKKEPANACKAL HOUSE, PATTIMATTOM
          P.O.VALAMBOOR KARA, PATTIMATTOM VILLAGE, PIN-683 562.
    4     THE TAHSILDAR,
          KUNNATHUNADU, THE TALUK OFFICE, KUNNATHUNADU TALUK,
          PERUMBAVOOR-683 542.
    5     ADDL R5 THE SECRETARY
          KUNNATHUNADU GRAMA PANCHAYAT, KUNNATHUNADU, PIN-683 565
          IS IMPLEADED AS PER ORDER IN I.A 1/21 DATED 18-11-2021
          BY ADVS.
          PRAMOJ ABRAHAM
          DR.ABRAHAM P.MEACHINKARA, SC, KUNNATHUNAD GRAMA
          PANCHAYAT
          K.A.ANISH
          SARANYA CHANDRAN
          BY SRI.T.K.SAJAHAN, SENIOR GOVERNMENT PLEADER



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.23670 OF 2021

                                           2




                                  JUDGMENT

Dated this the 20th day of January, 2023

This writ petition is filed seeking the

following reliefs:

"(a) A writ of mandamus or any other appropriate writ, order or direction, directing respondents 1 and 2 to take immediate effective action under the Arms act and the Indian Penal Code in respect of the offences committed by the 3rd respondent detailed in Ext. P4, P5, P9 and P10 and also to grant effective police protection to the petitioner against the threats, including using his gun, and the abuse and harassment practiced by the 3rd respondent and his family members, particularly as the petitioner is a woman living all alone in her house, which is completely surrounded by and enclosed within the 3rd respondent's property.

(b) Directing the 4th respondent to take immediate action for Ext.P8 complaint submitted by the petitioner and to evict the 3rd respondent and his agents from the thodu puramboke lying on the north of Ext.P1 property and the road puramboke on the western boundary of the 3rd respondent's property, abutting the Muvattupuzha-Edapply PWD road W.P.(C)No.23670 OF 2021

running along the western boundary invoking the emergent provisions of the Land Conservancy Act.

(c) Issue a writ of mandamus or any other appropriate direction to respondents 1 and 2 and Addl. 5th respondent to take immediate action to remove/compel the 3rd respondent to remove the plastic sheet fencing put up by him illegally on the north, east and west of the petitioner's property above the height of 5 feet."

2. Heard the learned counsel for the

petitioner, the learned counsel appearing for the

contesting party respondents as well as the learned

Government Pleader appearing for respondents 1, 2

4 and the learned Standing Counsel appearing for

the 5th respondent.

3. It is submitted by the learned counsel for

the petitioner that the 3rd respondent who is the

owner of the property as evidenced by Exhibit P1

has enclosed three sides of the property and that

there is an attempt to obstruct the only pathway

leading to the petitioner's property. It is submitted

that due to the civil disputes pending between the W.P.(C)No.23670 OF 2021

parties, there was an attempt made by the 3 rd

respondent to threaten the very life of the

petitioner. It is further submitted that there were

also attempts made to obstruct her pathway which

had resulted in the petitioner approaching this

Court. It is submitted that pursuant to the interim

orders granted by this Court, the net fencing put up

by the 3rd respondent has been dismantled.

However, measurement of the properties in

question is not complete and the 2 nd prayer made

by the petitioner in the writ petition survives.

4. Learned counsel appearing for the 3rd

respondent submits that the civil disputes between

the parties are pending before this Court in

R.S.A.Nos.1052 and 1053 of 2015 and that the 3rd

respondent is not causing any obstruction to the

measurement of the properties.

5. The learned Government Pleader submits W.P.(C)No.23670 OF 2021

on instructions that the measurement of the

properties for determining the boundary of the

property of the 3rd respondent had been conducted

by the Taluk Surveyor and that boundary stones

had been erected on the boundaries, but the said

boundary stones had been removed by the 3 rd

respondent. It is submitted that further steps for

conduct of the measurement on the instructions of

the District Survey Superintendent are being taken

and that some more time is required.

6. The learned counsel for the 3 rd respondent

contends that the earlier survey was conducted

without notice to the 3rd respondent and that the 3rd

respondent will not object to any conduct of survey

with notice to the 3rd respondent and after

considering his documents as well. It is further

submitted that since the issue is pending before this

Court in R.S.A., even if a survey is conducted, it will W.P.(C)No.23670 OF 2021

be subject to the final orders in the R.S.A as well.

7. Having considered all the contentions

advanced, I am of the opinion that in view of the

fact that the petitioner in the writ petition raises a

specific case that there is puramboke land adjacent

to the property of the 3rd respondent, the survey of

the property has to be conducted by the official

respondents. The 3rd respondent cannot obstruct

the survey of the property.

In the above view of the matter, the

submission made by the 3rd respondent that there

will be no obstruction caused to a survey with

notice to all concerned is recorded. In case there is

any obstruction to the survey being conducted, the

survey can be conducted with necessary police

protection. However, the inter se dispute between

the petitioner as well as the 3rd respondent will be

decided in the civil suit in accordance with law. All W.P.(C)No.23670 OF 2021

contentions of the parties in the civil dispute are

left open. The earlier interim directions of this

Court including with regard to the placement of the

CCTV cameras as well as the dumping of the waste

shall also be complied with by the parties.

Sd/-

ANU SIVARAMAN JUDGE SSK/20/01 W.P.(C)No.23670 OF 2021

APPENDIX PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOCOPY OF SALE DEED NO 1546/2011, PUTHENCRUZ SRO DATED 24.3.2011 Exhibit P1(A) TRUE PHOTOCOPY OF ROUGH SKETCH OF THE PROPERTIES Exhibit P2 TRUE PHOTOCOPY OF COMMON JUDGMENT DATED 28.2.2014 IN OS NO 200/2011 AND OS NO 222/2011, MUNSIFFS COURT, PERUMBAVOOR.

Exhibit P2(A) TRUE PHOTOCOPY OF EXT.C SKETCH IN OS NO 222/2011 ACCEPTED BY THE MUNSIFF COURT, PERUMBAVOOR Exhibit P3 TRUE PHOTOCOPY OF INTERIM ORDER DATED 10.10.2019 IN IA NO 1/.2015 IN RSA NO 1053/2015, HIGH COURT OF KERALA Exhibit P4 TRUE PHOTOCOPY OF COMPLAINT DATED 4.7.2021 FILED BY THE PETITIONER BEFORE THE SUB INSPECTOR OF POLICE KUNNATHUNADU WITH RECEIPT Exhibit P5 TRUE PHOTOCOPY OF COMPLAINT DATED 5.7.2021 FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR, ERNAKULAM Exhibit P6 TRUE PHOTOCOPY OF REPORT OF ADVOCATE COMMISSIONER SREEDEV U FILED ON 3.9.2021 Exhibit P7 TRUE PHOTOCOPY OF THE NEW CONSTRUCTIONS MADE BY THE 3RD RESPONDENT AND HIS SON Exhibit P8 TRUE PHOTOCOPY OF COMPLAINT DATED 22.9.2021 FILED BEFORE THE 4TH RESPONDENT Exhibit P9 TRUE PHOTOCOPY OF THE COMPLAINT DATED 26.9.201 TOGETHER WITH RECEIPT Exhibit P10 TRUE PHOTOCOPY OF COMPLAINT DATED 27.9.2021 FILED BY PETITIONER BEFORE THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM WITH RECEIPT Exhibit P11 TRUE PHOTOCOPY OF STATEMENT OF THE PETITIONER DATED 7.10.2021 RECORDED BY THE S.I OF POLICE, KUNNATHUNADU POLICE STATION Exhibit P12 TRUE PHOTOCOPY OF COMPLAINT DATED 23.10.2021 FILED BY THE PETITIONER BEFORE THE KSEB, PATTIMATTOM Exhibit P12(A) TRUE PHOTOCOPY OF COMPLAINT DATED 27.10.2021 FILED BY THE PETITIONER BEFORE THE KSEB, PATTIMATTOM.

RESPONDENTS EXHIBITS EXHIBIT R-3(1) - TRUE COPY OF THE COMMON JUDGMENT IN AS NO.27/2014 AND AS NO.30/2014 BEFORE THE SUB COURT, PERUMBAVOOR DATED 30.07.2015. EXHIBIT R-3(2) TRUE COPY OF THE I.A NO 3/2021 FILED BY THE W.P.(C)No.23670 OF 2021

PETITIONER IN RSA NO.1053/2015.

EXHIBIT R-3(3) TRUE COPY OF THE STATEMENT DATED 07.10.2021 GIVEN BY 3RD RESPONDENT BEFORE SUB INSPECTOR OF POLICE, KUNNATHUNADU.

EXHIBIT R-3(4) TRUE COPY OF THE JUDGMENT DATED 08.09.2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERRY IN CC NO.2528/2011.

EXHIBIT R-3(5) TRUE COPY OF THE JUDGMENT DATED 08.09.2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERRY IN CC NO.2934/2011.

EXHIBIT R3(6) TRUE COPY OF THE COMPLAINT DATED 16.11.2021 FILED BEFORE CIRCLE INSPECTOR OF POLICE, KUNNATHUNADU POLICE.

EXHIBIT R3(7) TRUE COPY OF THE RECEIPT ISSUED BY THE KUNNATHUNADU POLICE DATED 17.11.2021. EXHIBIT R3(8) PHOTOGRAPHS SHOWING DUMBING OF WASTE MATERIALS BY THE PETITIONER INTO 3RD RESPONDENT'S PROPERTY TAKEN FROM MY CCTV FOOTAGES DATED 18.07.2021, 10.11.2021, 12.11.2021, 13.11.021.

 SSK                      //TRUE COPY//     PA TO JUDGE