Harilal,J. The averments in the writ petition are as follows:
The petitioners are the husband and the wife and the second petitioner is the owner in possession of an extent of 1 Acre of land in Kanjikuzhi Village. The property belongs to the 2nd petitioner by virtue of Ext.P1 tile deed No. 535/2010 of SRO Arakkulam. Formerly, the Chelachuvadu-Kanjikuzhi PWD road was passing on the western side of the 2nd petitioner's property. Later on, the P.W.D. has constructed a straight road on the western side of the existing road instead of the old road passing through the western side of the 2nd petitioner's property. The old PWD road is being used by the persons who have properties on either side of the road.
2. Respondents 4 to 8 are the believers of the C.S.I. Church which is situated on the northern side of the said old road. The C.S.I. Church is also using the said road for access of the church. It is alleged that earlier the 2nd petitioner's property was in possession of one of the C.S.I. Church believers and later he sold the said property to other persons and thereafter, the 2nd petitioner's father purchased the said property. Earlier, respondents 4 to 8 had an idea to purchase the property for the church. After purchase of the said property by the 2nd petitioner's father, respondents 4 to 8 had an idea to purchase the said property from the father and they demanded the said property for the church. But the second petitioner's father was not willing to sell the property to the Church. Being infuriated by this, the church authorities are in inimical terms with the petitioners and the second petitioner's father. Though the second petitioner's father and one of the neighbours K.M.Ignatious jointly filed a suit for injunction against the C.S.I.church authorities, as per mediation, the said suit was compromised by Ext.P2 compromise decree.
3. The petitioners' residential building was in a dilapidated condition and hence, the petitioners have decided to construct a new residential building in the property. For that, the petitioners availed a loan from a financial institution, demolished the old residential building for constructing a new residential building and started the work in the property. The property wherein the old building was situated is a hilly area. Therefore, the petitioners have decided to construct a new residential building adjoining to the road and constructed a retaining wall on the western side of the property. For the construction of the residential building, it is highly necessary to excavate the soil from the property of the petitioners. The petitioners have filed an application before the Sub Collector for permission to remove the sand from the petitioners' property and the Sub Collector granted permission as per Ext.P3. The petitioners have no idea to make obstruction or any damage to the western road.
4. The grievance of the petitioners is that as a pressure tactics to convey the property to the church, respondents 4 to 8 are not allowing the petitioners to excavate the soil from the property and also to remove the excavated soil through the road. On 24/5/2012, respondents 4 to 8 and their men under them removed sand which was kept on the side of the road and obstructed the petitioners to excavate soil by using JCB. They obstructed the passing of the tipper lorries through the above said road, though it is PWD road. The church has no absolute right over the said road. As per Ext.P2 compromise decree, the petitioners have every right to enjoy the road without causing any damage. Thus, on 24/5/2012, respondents 4 to 8 obstructed the work in the property, threatened the petitioners that no construction should be conducted in the property of the petitioners and declared that they will not allow to ply the tipper lorries through the road. Against the said illegal act of the respondents 4 to 8, the petitioners have filed Ext.P4 representation before the respondents 1 to 3; but they have not taken any effective steps to remove the threat and obstructions. Now the petitioners are residing in a rented building and the petitioners have no other property to construct a residential building for their occupation. Hence, the petitioners filed this writ petition and prayed to issue a writ of mandamus or any other appropriate writ or direction commanding respondents 1 to 3 to give adequate police protection to the petitioners to make residential building in Ext.P1 property and to excavate soil from the property by using JCB and also to remove the excavated soil by tippers through the road as per Ext.P3. The petitioners prayed for police protection to their life and property also.
5. The 4th respondent filed a counter affidavit on behalf of the respondents 5 to 8 denying all the averments, and contending that the church is a necessary party to resolve the issue involved in the writ petition. According to him, there was no PWD road and it was only a private road used for the purpose of taking timber from the forest after it was felled. Later, a new road was constructed for the said purpose. He admitted that the respondents are believers of the C.S.I.church which is situated on the northern side and this road gives access to the Church. They emphatically denied the allegation that the Church had an eye over the property and they demanded to reconvey the property. The main contention advanced by this respondent is that if the alleged construction is made, the road in question will subside and, therefore, no excavation is permissible. On the strength of Ext.P3, no excavation is permissible, as the Sub Collector is not the competent authority to grant permission. The alleged activities will violate Ext.P2 compromise decree. By the excavation, the lateral support to the road will be completely lost. This respondent is concerned only of maintaining the road in its present position alone. A wall constructed by the church was destroyed by the petitioners using JCB and this was objected to and they were constrained to put back the compound wall. They have taken safeguards to protect the road only. They have not done any illegal activities. The allegation that the church has no objection to make any such construction, is not correct. In fact, the church has objection, as the attempt of the petitioners is to destroy the road. Thus, the respondents 4 to 8 prayed for dismissal of the writ petition.
6. The petitioners filed a reply affidavit along with Exts.P6 and P7. In the reply affidavit, the petitioners have reiterated that the C.S.I.Church Vicar has no objection to make any construction in the 2nd petitioner's property without causing any damage to the road. The contentions in the counter affidavit itself show that the obstruction was made by respondents 4 to 8. The contentions regarding the formation of the road and its use is not correct. As per Ext.P2 compromise, the second petitioner has every right to use the 'C' schedule road in the compromise as of right. According to the petitioners, the allegations contained in paragraphs 4,5,6,7,8,9 and 10 of the counter affidavit are not correct and denied. The petitioners have obtained Ext.P6 permit from the Geologist, Idukki to excavate and remove the soil. The Panchayat has also issued Ext.P7 certificate in favour of the petitioners stating that the Panchayat has no objection to construct residential building in Ext.P1 property as per the Kerala Panchayat Raj Building Rules. Therefore, the petitioners have the right to conduct excavation as per Exts.P3 and P6. The allegation that if excavation is permitted, the lateral support of the road will be lost is not correct. For the construction of the residential building, the petitioners have to excavate soil above five feet height from the road level and, therefore, the question of lateral support does not arise. In the reply affidavit also, they undertook that the petitioners will not do any act by causing damage to the road. According to the petitioners, as per law, the petitioners are entitled to construct the building in their property and for that, they have the right to excavate and remove the soil as per Exts.P2, P6 and P7. But the respondents 1 to 3 failed to provide adequate police protection.
7. After filing of this Writ Petition, the Vicar St.
Stephen’s CSI Church was impleaded as the additional 9th respondent on the application filed by the petitioners. The additional 9th respondent filed a counter affidavit admitting that respondents 4 to 8 are persons very much closely connected with the Church, they had always informed him of the developments and they had acted for the interest of the Church. On 21-5-2012 he had lodged a complaint to the Sub Inspector of Police complaining that the petitioners along with others by using a JCB had demolished the protection wall and had caused damage to the road in question. He had sought protection against destructive activities. There was no PWD Road and it was only a private road used for the purpose of taking felled timber from the private forest. Later a new road was constructed. This road gives access to the Church also. The Church never wanted petitioners property and there was no idea to purchase it. Further 9th respondent admitted that the Church is concerned only of maintaining the road in its present position. When they found destructive activities were attempted, they obstructed the same. So the petitioners cannot do any activity which will cause damage to the road. The Church has filed EP No 4/2012 alleging substantial damage to the road and sought for legal action against violation of the decree. Since the matters are pending adjudication, it is for the party concerned to move appropriate Civil Court. So, the Writ Petition is not maintainable.
8. We heard Shri A.C. Devassia, the learned counsel for the petitioners, Shri G.Sreekumar(Chelur), learned counsel for respondents 4 to 8 and the learned Government Pleader.
9. The learned counsel for the petitioners advanced arguments in support of the various grounds alleged in the writ petition. Per contra, the learned counsel for the party respondents opposed the granting of police protection to excavate and remove the soil pointing out that it will cause damage to the road which is being used by the church.
10. The learned counsel for the 9th respondent submitted that the Church is neither challenging the right of the petitioners in thier property nor their right to construct residential building after excavating the soil. They are concerned with only of maintaining the road in its present position. They want to protect the road. Similarly, the order that may be passed in the Writ Petition shall not affect the EP pending before the Civil Court.
11. We have given our anxious consideration to the rival submissions made at the Bar by the learned counsel appearing for the parties. In view of the rival contentions, the only question to be considered is, whether the petitioners have the right to get police protection as prayed for in the writ petition invoking the writ jurisdiction of this Court? Admittedly, there is no dispute with regard to the right, title and possession of the property from which the soil sought to be excavated and removed. Respondents 4 to 9 have not raised any claim over the said property.
Therefore, the petitioners have the right to make construction in the property and for that the petitioners have right to excavate and remove the soil, if the statutory authorities permit them to do so. We have gone through Exts.P3, P6 and P7. Ext.P3 is the proceeding of the Sub Collector, Idukki dated 27/4/2012 and this proceeding has been issued on an application field by the second petitioner for granting permission to excavate and remove soil for the construction of a residential house. Ext.P3 states that this proceeding permitting the petitioners to excavate and remove soil for the construction of a residential building has been issued on the basis of an enquiry report submitted by the Tahsildar, Thodupuzha. It further states that the place where the building sought to be constructed lies at a higher level from the road and unloading of building materials is not possible, unless earth is removed. The total extent of the property is 37.20 Ares. The proceedings further refers to the report of the Tahsildar stating that since the property is lying in a higher level from the road, the excavation of the soil will not cause any harm to the road, electrical and telephone lines and water resources. The place where removed sand intended to be put is also identified by the Tahsildar. In view of the report of the Tahsildar prepared on the basis of a local inspection, the Sub Collector has issued Ext.P3 permit subject to six conditions. It is seen that these conditions are imposed to make sure that no kind of harm will be caused to neighbours' properties, road and environment. Ext.P6 is a letter dated 11/4/2012 issued by the Geologist, Department of Mining and Geology Department, Idukki to the Revenue Divisional Officer. This letter refers to an application for permission to excavate and remove soil filed by the second petitioner. Ext.P6 states that the property from where soil sought to be excavated and removed is lying at a higher level, than the surrounding properties and road and the building which stood in the above said place was seen demolished and removed. The Geologist recommended for excavating and removing soil subject to four conditions so as to preserve the right and interest of the surrounding properties. Ext.P6 also points the need for removal of soil, for making constructions. Ext.P7 is the No Objection Certificate dated 19/1/2012 issued by the Secretary Kanjikuzhi Grama Panchayath in which it is stated that the Panchayat has no objection in making construction in accordance with the Kerala Panchayat Building Rules 2011. Moreover Exts.P3 and P6 are supported by Ext.P5 photograph which shows the lie of the property and road. Ext.P5 is not disputed by the respondents.
12. Thus, it is seen that the petitioners have obtained necessary statutory sanction and permit from the concerned statutory authorities in accordance with law. Respondents have no case that that the petitioners have no right to remove the soil. Their only grievance is that the excavation shall not cause any damage to the road giving access to the neighbouring church. Considering the lie of the property reported by the Geologist and Tahsildar, there is no possibility to cause harm to the lateral support of the road alleged by the respondents. The apprehension raised by way of objection is safeguarded by the conditions imposed in Exts.P3 and P6.
13. Going by the counter affidavit filed by the respondents 4 and 9, they are concerned with the protection of the road only. But as per Ext.P2, the petitioners have the right to use the ‘C’ schedule road peacefully. Certainly, they will not cause damage to the road. Similarly, the party respondents have no right to cause obstruction to the usage of JCB for excavation or plying of tipper lorries, so long as they do not cause damage to the road. Neither the right over Ext.P1 property nor validity of Exts.P3, P6 and P7 are challenged so far.
14. There was an old dilapidated building in the said property and now it is removed so as to make a new construction. According to the petitioners, now they are residing in a rented house and they have no other property for the construction of a residential building. One can make a shelter in the property which he owns and possesses. The statutory authorities inspected the property and justified the need for leveling the property by excavating and removing soil so as to make a residential building. The right to make a reasonable accommodation to live is a fundamental right guaranteed under Article 21 of the Constitution of India. In M/s. Shantistar Builders v. Narayan Khimalal Totame[(1990) 1 S.C.C. 520], the Apex court held as follows:
“The right to life would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation which would allow him to grow in every aspect – physical mental and intellectual. The constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fire-proof accommodation.”
15. In Chameli singh v. State of U.P.[(1996) 2 S.C.C.549], the Apex court again held as follows:
“Right to live guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society. All civil, political, social and cultural rights enshrines in the Universal Declaration of Human Rights and convention or under the constitution of India cannot be exercised without these basic human rights. Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right.”
16. Thus, protection is sought for exercising a fundamental right guaranteed under the Constitution. Certainly, this right is subject to reasonable restrictions established by law. In the case of construction of a residential building, requirements of licences and permits under various statutes and construction in compliance of such permits and licences are reasonable restrictions established by law. Here, the petitioners have obtained all statutory licences and permits including sanction for excavation and removal of soil to the extent of their construction. Similarly, the exercise of their right shall not cause any harm to other citizens and their rights. The police ought to have afforded adequate police protection to exercise such right in response to Ext.P4. So, we are inclined to grant police protection as prayed for subject to certain conditions so as to protect and safeguard the interest of the party respondents also.
17. In the result, the respondents 1 to 3 are directed to afford adequate police protection to the petitioners to make a residential building in Ext.P1 property and to excavate soil from the property by using JCB and to remove the excavated soil by tipper lorries through the road as per Ext.P3 on following conditions:
(i) The excavation and removal of soil shall be strictly in accordance with Ext.P3.
(ii) No excavation shall be made in excess of an area required for the constriction of the residential building.
(iii) No excavation shall be made below the level of road.
(iv) No damage shall be caused to the road or adjacent properties by using JCB or tipper lorries. If the petitioners cause any damage to the road, they will be held liable for all proceedings both civil and criminal against them.
(v) E.A.No.15/2012 in E.P.No. 4/2012 in O.S.No.38/2008 on the file of Munsiff's Court, Idukki, shall be disposed of in accordance with law and evidence, untrammelled by this judgment.
This writ petition is disposed of in the above terms.
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V.K. MOHANAN, JUDGE ks.
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K. HARILAL, JUDGE //true copy// P.S. to Judge