K V JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners allege that the 8th respondent in his capacity as the Chairman of Road Construction Committee and Member of the Panchayat Local Council approached them demanding free surrender of their properties where boundary wall and three shop rooms, two of them with RCC roof were newly constructed and requiring the petitioners to demolish 75% of their dwelling house including boundary wall and gate for the purpose of road widening. They could not concede to the request because they would be put to heavy loss by reason of that. Exts.P1, P2 and P3 notices show that there was an attempt to construct a road by utilising free surrendered land and only four families were against that. Obviously, the four families referred to in Exts.P1 to P3 are of the petitioners. Exts.P1 to P3 are not denied by any of the respondents. It is alleged in the Original Petition that "on 20.9.1993 at about 5.30 P.M. a mob under the direction of respondents 8 to 10 trespassed into the properties of the petitioners and demolished their boundary wall and the gates of the petitioners." The people were armed with showels, pick axes, iron rods etc. At that time, the 4th petitioner, an old lady, was in the hospital hi connection with ceasaraton operation of one among her daughters. The 1st petitioner made Ext. P4 complaint to the 3rd respondent, the Superintendent of Police about the incident It is stated that the 3rd respondent had assured him that there need not be any apprehension of any further intrusion by the mob and adequate measures would be taken to ensure that there would be no further unlawful intrusion threatening security of life and property by wanton vandalism. A day after the 4th petitioner got her daughter discharged from the hospital and returned home with ten days old new born baby. Finding that her compound wall had been demolished and dismantled, she also , filed a petition before the 4th respondent Sub Inspector of Police as per Ext. P5. The 3rd respondent was also apprised of the situation by Ext. P6. The 4th petitioner had also approached the 4th respondent seeking direction for police protection, describing the happening already taken place. It is alleged in Para.8 of the Original Petition that on 23.9.1993 at about 6 A.M. again a frenzied mob under the direction of respondents 8 to 10 came to the site and started demolishing the entire building belonging to the 4th petitioner unmindful of the pathetic entreaties of the inmates who are all women including one among them who had undergone ceasarian operation ten days ago. The mob demolished 80% of the house rendering it unsuitable for the residential purposes. Though information had been given to respondents 3 and 4 by the 4th petitioner as revealed in Exts.P4, P5 and P6, no steps were taken by the police inspite of the assurance. Had any steps been taken, the demolition of the residential house would not have taken place, the petitioners submit Subsequent to the incident, FIR had been registered but nothing proceeded beyond that. The petitioners submit that law enforcement machinery had failed to provide protection to the properties and persons of the petitioners. Consequent on the demolition of the buildings the Electricity Board Officers disconnected the electrical connection to the shop rooms and the residential buildings. They apprehended that road would be constructed through their properties and over the portion of the land where demolished buildings situated. In the above circumstances, they filed a suit but they did not get any interim injunction. They have approached this Court alleging that their fundamental rights are being violated and seeking direction to respondents 3 and 4 to provide adequate police protection to the petitioners, persons, liberty and life from respondents 8 to 10 and also for a direction to respondents 1 to 10 "to pay adequate damages and compensatory damages etc. to the petitioners". This also seek for a writ of prohibition restraining respondents 5 to 7 and the PWD authorities and Panchayat authorities from embarking on further construction of the road or bridge through the properties belonging to the petitioners.

(2.) Respondents 1 the State of Kerala, 2, the District Collector, 3, the Superintendent of Police and 4 the Sub Inspector of Police have not filed any counter affidavit When the first incident took place on 20.9.1983, the 1st petitioner made Ext. P4 complaint on 21.9.1993 before the 3rd respondent, the Superintendent of Police. It is alleged that he had assured the 1st petitioner that there need not be any apprehension of further intrusion by the mob and that adequate measures would be taken. When the 4th petitioner returned from the hospital on 21.9.1993, she noticed the damages to her properties and she filed on the next day ie., 22.9.1993 a petition, Ext. P5, before the 4th respondent It is also stated by her that she had filed Ext. P6 on 22.9.1993 itself before the 3rd respondent, Superintendent of Police. It is also averred in the Original Petition that she had narrated the happenings that took place in the petition and that he passed an order directing the Sub Inspector of Police, Kodungallur, the 4th respondent that all necessary steps should be taken to protect the interests of the petitioners. But, the incident which took place on the next day ie., on 23.9.1993 show that no action had been taken. As there is no counter affidavit to controvert these allegations by the respondents 3 and 4, it has to be taken that Exts. P4 to P6 had been submitted to them and they had been apprised of the situation and that they had assured the petitioners that no vandalism would be committed in their properties again. A commission was issued from this Court. The Commissioner has filed a report. Nobody has raised any objection to the commission report. It is reported by the Commissioner that there was demolition of the shop rooms, the residential building of the petitioners and also that no other buildings than that belonging to the petitioners had been demolished. It is further reported mat demolition of the house of the 4th petitioner could have been avoided even if construction of the road was necessary. It is also reported that no habitation is possible unless the house itself was reconstructed and that no re-construction of the house was possible unless the remaining portion of the house also was demolished.

(3.) A counter affidavit has been filed by respondent Nos. 8 to 10. The 8th respondent is the member of the local Panchayat. The 9th respondent is a government servant employed in Telephone Exchange and the 10th respondent was a businessman who is no more at present and he had been deleted from the party array. In their affidavit, existence of Exts.P1 to P3 are admitted stating that these were heart felt appeals of the people to surrender land. They submit that they had not directed the mob to demolish the buildings and that they "are not responsible for any of the acts done by the mob". The reaction of the mob and the reason behind the same was highlighted in the news item appeared in Exts. P9 and P10. The respondents 8,9 and 10 are totally innocent of the incidents took place on 20.9.93 and 23.9.93. They say that "we did not participate in the "Sramadan" conducted on the aforesaid dates". These averments show that certain incidents had taken place on 20.9.93 and 23.9.93, the dates mentioned in the Original Petition when the compound wall and shop rooms of the petitioners 1 to 3 and the residential building of the 4th petitioner were demolished. The respondents 8 and 9 and the 10th respondent at that time being persons interested in the locality, should be aware of the incidents that took place on the said two days even though they might not have persuaded the mob to do so. Thus, by reason of the affidavit of respondents 8 to 10, it is proved that a large mob had on the said two dates demolished the buildings and compound walls belonging to the petitioners, trespassing into their properties and the incident also took place on 23.9.93 after Exts.P4 to P6 had been filed before the police authorities. It is thus proved that the incident on 23.9.93, demolition of the residential building of the 4th petitioner, took place as the police did not act in terms of Exts.P4, P5 and P6 and as they did not render adequate police protection to the petitioners inspite of the vandalism that was done on 20.9.93 being pointed out Thus, the police failed to render adequate protection to the petitioners' life and properties against the crime committed by the mob towards them.