PANKAJAKSHY Vs. STATE OF KERALA

JUDGEMENT

(1.) Out of the 3 Original Petitions, only O.P.No.2984/88 survives for decision on merits and accordingly I am dealing with that as the main case.

(2.) Petitioner purchased a land in R.S.38/1 of Kodiyeri Village in 1978. When the purchase was made it was a paddy land. She reclaimed the land and started construction of a residential house. To the west of this property is situate an item of property owned by petitioner's husband in which he has constructed and is running a theatre called 'Pankaj Talkies'. Sree Jagannath Temple, which was established by Sree Narayana Guru in 1906, is situate a kilometre away from the petitioner's property. The above temple is managed by 4th respondent Yogam. The 5th respondent is the President of the Yogam. The petitioner alleges that the 5th respondent is the owner of a theatre situate nearby and that there is business rivalry between him and petitioner's husband as the establishment of Pankaj Theatre affected his cinema business. The 5th respondent started harassing the petitioner and her husband ever since the establishment of Pankaj Theatre by adopting various means. He persuaded the authorities to initiate proceedings under the Land Utilisation Order, but ultimately the Assistant Collector by his proceedings dated 18-2-1985 granted permission to the petitioner to construct buildings in the property. Accordingly she constructed a residential building and a row of shop buildings consisting of 5 shop rooms by the side of the Main Road.

(3.) As part of the festival in the Jagannath Temple, a Pallivetta (Royal Hunt) will be performed on the penultimate day of the festival every year. It will be performed at a place situate to the south of the petitioner's property. The deity will be taken out on an elephant in procession to the place where the Pallivetta is performed and the procession together with other rituals will take an hour. According to the petitioner there is no fixed route as such through which procession passes from the Main Road to the Thara where the Pallivetta is performed. After purchasing the proper by the petitioner left a passage of 10 feet wide on the eastern side of her property for access to the place to the south of her property where Pallivetta is usually performed. But the 5th respondent in order to harass the petitioner insisted that the procession should be taken out through the western side of the petitioner's property and according to him it is through that portion the procession was passing from time immemorial. Petitioner filed O.S. No.33/83 before the Munsiffs Court, Tellicherry for a permanent injunction restraining respondents 4 and 5 and their men from entering the property and demolishing the compound wall from her property. The said suit was filed before the Pallivetta day in 1983. The 4th respondent Yogam also filed a suit, O.S.No.315/53, for a declaration that the Sree Jagannatha Temple has an easementary right of way through the petitioner's property for taking out the Pallivetta procession. A person claiming to be a devotee of the temple filed O.S.No.370/88 for the very same declaration. There is a stiff fight between the petitioner and respondents 4 and 5 regarding the existence of the passage through the petitioner's property. Various interlocutory orders were passed by the Trial Court for the conduct of the Pallivetta procession every year, which were challenged before this Court and the Supreme Court. By 29-5-1985 the petitioner had completed the construction of the shop rooms, on which date the parties were directed to maintain 'status quo' as on that day. In the guise of the interim order 'by the District Court, respondents 4 and 5 even demolished a portion of the westernmost shop room and a hole was made in the southern wall through which the Pallivetta procession was taken out in one year as per the direction contained in an interim order passed by this Court. Ultimately the suits were decided in favour of the 4th respondent during the pendency of these Original Petitions by judgment and decree dated 29-1-1990. By the above decree the Munsiff, Tellicherry declared that Sree Jagannath Temple has acquired by prescription an easementary right of way to a width of 12 feet to take Pallivetta procession through the petitioner's property. An injunction restraining the petitioner and her husband from interfering with the above right, and a mandatory injunction directing them to remove and demolish the shop rooms to the extent it blocks the 12 feet way on or before 20-2-1990 were also granted. Petitioner has filed an appeal against f the above decree and it is pending.