POSTMASTER Vs. M KUNJUKRISHNA PILLAI

JUDGEMENT

(1.) The writ petition is filed under Article 227 of the Constitution of India challenging Ext. P22 order passed by the 1st Additional Munsiff Court, Ernakulam in I.A.No. 483 of 2009. The writ petitioners are the Kerala High "Court Advocates' Association, Kerala High Court Advocates' Association Chamber Society and M/s Geo Foundation & Structures (P) Ltd. They are the defendants in O.S.No. 85 of 2009 pending before the Munsiff Court, Ernakulam. I.A.No. 483 of 2009 is a petition filed under Section 91 of the Code of Civil Procedure seeking leave of the court to institute the suit. By the impugned order, the learned Munsiff allowed the petition and the leave initially granted on 19.1.2009 is made absolute. Ext. P1 is the plaint filed along with Ext. P2 petition for leave. Suit is filed seeking the following reliefs:

(2.) The material averments in the plaint are stated in paragraphs 3, 4, 6, 7, and 9 of the plaint. In paragraphs 3 to 6 it is averred that the plaintiffs personally saw some activities of digging the scheduled property heavily, presumably with a view to effect some construction work; that on enquiry the plaintiffs had understood that the 3rd petitioner/3rd defendant contractor is engaged by the 1st and 2nd petitioners/1st and 2nd defendants and a multi storied Chamber Complex for advocates under the 1st petitioner/1st defendant is proposed to be constructed at the site and that further enquiries made by the plaintiffs clearly revealed that the defendants had encroached the Government land. In paragraph 3 it is also pleaded that they have no right, title and permission and they have no plan and licence from the competent authorities. In paragraph 5 of the plaint it is further averred that the Secretary of the 1st petitioner/ 1st defendant Association had submitted an application for permission to construct a building, declaring falsely that an extent of 1 acre 10 cents of land is in the possession of the 1st petitioner/lst defendant. In paragraph 6 it is averred that the Government on its part had not sanctioned any land either on registry or on lease to the 1st petitioner/1st defendant and that the petitioners/defendants are rank trespassers over the Government land. In paragraph 7 it is stated that the Government on its part gave sanction only to effect construction of the Chamber Complex on the site where the old Advocates' Association building was located, probably as a prelude to enable the 1st petitioner/1st defendant to move appropriate applications in that behalf. In the same paragraph it is stated that with the malicious intention to grab the Government property the first defendant Association instead of complying with the statutory requirements, simply trespassed the adjoining area on its west and further stated that obviously, the present plot encroached by the defendants is not the plot earmarked for the Association by the Government of Kerala and that the 1st and 2nd petitioners/1st and 2nd defendants are rank trespassers. In paragraph 9 it is pleaded that the conduct of the defendants amount to wrongful acts affecting public property and the public is left with no other remedy to protect the wrongful act on the public property and hence the suit is filed under Section 91 of the Code of Civil Procedure with the leave of the court.

(3.) The material averments extracted above would show that the plaintiffs proceeded on the basis that the 1st petitioner/1st defendant Association had trespassed over a portion of the old High Court compound and started construction in the site without permission from the authorities. According to the plaintiffs the defendants are rank trespassers of the land and their intention is to grab the Government land and by force they are making constructions in the site. It is also stated that the defendants have no right, title and permission and they have no plan and licence from the competent authorities for making construction. Along with the plaint, plaintiffs produced 5 documents which include photocopy of the order of the Secretary of Corporation of Cochin dated 5.11.2008, application dated 26.7.2008 filed by the 1st petitioner/1st defendant before the Corporation of Cochin seeking building permit and order of the Government of Kerala dated 2.11.2006 in GO.(Rt).No. 2519/6/Home.