JOSEPH POTHEN Vs. STATE OF KERALA

JUDGEMENT

(1.) Three prayers are asked for by the petitioner in these proceedings under Article 226 of the Constitution. They are:-

(2.) I am not inclined to entertain any of these requests in proceedings under Article 226. So tar as the prayer (c) is concerned, namely, for quashing the order Ext. P-2, it may be stated that the said order is one passed by the Executive First Class Magistrate, Trivandrum on 2-12-1960 under Section 144 of the Criminal Procedure Code. Whatever may be the merits of the order, or the attack made as against that order, the petitioner has got appropriate remedies available to him under the Criminal Procedure Code to challenge the said order, if he is advised. There is also the further circumstance that the order itself clearly shows that the petitioner, if he is aggrieved by that order, can appear before the Executive First Class Magistrate, Trivandrum at 11 A. M. on 16-12-1960 and move that Court for amending or rescinding the order, namely, Ext. P-2. In view of these circumstances, the relief asked for regarding Ext. P-2, will have to be straightaway negatived.

(3.) Now coming to the reliefs (a) and (b) referred to earlier, in my opinion, they cannot also be entertained in these proceedings under Article 226. I am not concerned with the merits of the claim made by the petitioner in these proceedings as against the various respondents. But one thing is clear that before he can get directions in the manner asked for under prayers (a) and (b), the essential requisite is that the petitioner's ownership and possession of the wall on the eastern side of the schedule property, will have to be declared and established by a Court. Again, it wilt be seen that regarding the demolition asked for under prayer (b), the question will have to be considered, and the petitioner will have also to establish that any construction that may have been made by respondents 1,3 and 4 of a wall, has been not on their property but on a property belonging to the petitioner. That is, the petitioner will have to establish that the respondents have constructed a wall on a property belonging to the petitioner and he has also to establish that the said property is one to which he has got right, title and possession.