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Joseph Pothen Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberO.P. 1502 of 1960
Judge
Reported inAIR1961Ker259
ActsConstitution of India - Article 226; Code of Criminal Procedure (CrPC) - Sections 144
AppellantJoseph Pothen
RespondentState of Kerala
Advocates: K. Velayudhan Nair and; K.J. Joseph, Advs.
DispositionPetition dismissed
Cases ReferredState of Orissa v. Madan Gopal Rungta
Excerpt:
- - 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......will have to be taken for this purpose or whether there is a controversial issue regarding title or possession to be investigated, will arise only when the state appears on the scene in response to a notice issued by this court and files a counter-affidavit challenging the title or possession of the plaintiff. in my opinion, it is not at all necessary to wait for that stage to be reached.on the allegations made in the petition, and in view of the specific prayers asked for, this court is now concerned to find out, even assuming that the petitioner's case is correct and can be accepted in toto, whether this court in proceedings under article 226 can give a declaration of the title of the petitioner to the disputed property and also declare his right to possession. that, in my.....
Judgment:
ORDER

C.A. Vaidialingam, J.

1. Three prayers are asked for by the petitioner in these proceedings under Article 226 of the Constitution.

They are:-

(a) The issue of a writ of prohibition or other appropriate writ or direction prohibiting respondents 1, 3 and 4, namely, the State of Kerala, Executive Engineer, Roads and Buildings, Trivandrum, and Sri Ratnaswamy, P. W. D. Contractor, Trivandrum respectively from entering into or trespassing upon the property mentioned in the schedule or constructing a wall in the property or in any other manner interfere with the ownership and possession by the petitioner of the wall on the eastern side of the schedule property:

(b) A writ of mandamus or other appropriate writ or order directing respondents 1, 3 and 4 to remove the wall if they have already constructed it, on the property, belonging to the petitioner; and

(c) A writ of certiorari or other appropriate proceedings quashing the order, Ext. P-2, as infringing the petitioner's right under Article 19(1)(f) of the Constitution.

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.

4. In my view, this declaration of title of the plaintiff to the property in question or to his possession cannot be granted in proceedings under Article 226 of the Constitution,

5. Mr. Kalathil Velayudhan Nair, learned counsel for the petitioner, contended that the question whether other proceedings will have to be taken for this purpose or whether there is a controversial issue regarding title or possession to be investigated, will arise only when the State appears on the scene in response to a notice issued by this Court and files a counter-affidavit challenging the title or possession of the plaintiff. In my Opinion, it is not at all necessary to wait for that stage to be reached.

On the allegations made in the petition, and in view of the specific prayers asked for, this court is now concerned to find out, even assuming that the petitioner's case is correct and can be accepted in toto, whether this Court in proceedings under Article 226 can give a declaration of the title of the petitioner to the disputed property and also declare his right to possession. That, in my opinion, is totally foreign to the scope of proceedings under Article 226 of the Constitution. Such claims based on title or on possession, can only be more appropriately investigated in a proper civil suit.

6. No doubt, Mr. Kalathil Velayudhan Nair also urged another circumstance, namely, that it civil proceedings are to be taken by way of suit, the requisite period for issue of notice under Section 80 C. P. C. will' have to be allowed to expire and there will be delay in getting relief. I am not impressed with this contention either. As held by their Lordships of the Supreme Court in State of Orissa v. Madan Gopal Rungta, 1951 SCJ 764 : (AIR 1952 SC 12), the fact that the petitioner cannot get suitable orders or direction in a civil court immediately should not be a ground for the High Court giving interim relief under Article 226 of the Constitution, when the High Court is of the view that a party Cannot be granted any of the reliefs in the main application itself.

7. For all these reasons given above, the application is rejected.


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