IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 WP(C).No. 23178 of 2008(H) -------------------------------------- PETITIONER: ----------------- P.FRANCIS, CHEKKITTAVILA THEKEKKARA PURAYIDOM, PUTHIYATHURA, KARAKULAM, THIRUVANANTHAPURAM. BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI SRI.S.S.HUSSAIN SRI.P.K.NIJOY RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. CIRCLE INSPECTOR OF POLICE, POOVAR. 3. SUB INSPECTOR OF POLICE, KANHIRAMKULAM 4. DASAN LAWRENCE, THEKKEKARA PURAYIDOM, PUTHIYATHURA, KARAKULAM, THIRUVANANTHAPURM. 5. AMRITHAM,THEKKEKARA PURAYIDOM, PUTHIYATHURA, KARAKULAM, THIRUVANANTHAPURAM. 6. YAKOOB DASAN, THEKKEKARA PURAYIDOM, PUTHIYATHURA,KARAKUIAM, THIRUVANANTHAPURAM. 7. CLEMENT BAIJU, THEKKEKARA PURAYIDOM, PUTHIYATHURA, KARAKULAM, THIRUVANANTHAPURAM. WP(C).No. 23178 of 2008(H) 8. ROBERT, SON OF DASAN, THEKKEKARA PURAYIDOM, PUTHIYATHURA, KARAKULAM, THIRUVANANTHAPURAM. 9. PUSHPALILLY, WIFE OF CLEMENT BAIJU, THEKKEKARA PURAYIDOM, PUTHIYATHURA,KARAKULAM, THIRUVANANTHAPURAM. SR. GOVERNMENT PLEADER SRI.BENJAMIN PAUL FOR R1 TO R3 ADV. SRI.SANTHEEP ANKARATH FOR R6 ADV. SRI.V.C.MADHAVANKUTTY FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23178 of 2008(H) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMPLAINT DATED 22/02/2008 OF THE PETITIONER SUBMITTED TO THE 3RD RESPONDENT. EXT.P2: COPY OF THE DISCHARGE SUMMARY AND O.P. TICKET ISSUED TO THE PETITIONER AND HIS WIFE. EXT.P3: COPY OF THE COMPLAINT DATED 09/07/2008 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R6(a): COPY OF THE ORDER DATED 07/01/2008 IN COMPLAINT NO.278/2007 PASSED BY KERALA LOK AYUKTA. //TRUE COPY// P.S. TO JUDGE Rs/ K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== W.P.(C)NO. 23178 OF 2008 ============================ Dated this the 15th October 2008 JUDGMENT Balakrishnan Nair,J. There is a running dispute between the petitioner and respondents 4 to 9 regarding the right over a property. The petitioner claims his right over the property is recognised by all authorities whereas the claim of the respondents raised in a suit before the competent court has been dismissed by that court. Though an appeal is pending before the appellate court, there is no interim order in favour of them. The 8th respondent herein tried to trespass into the house of the petitioner and tried to outrage the modesty of his wife on 22-2-2008. The same was done, it is submitted as the petitioner did not permit the said respondent and others to use his property for playing cricket. Though the petitioner filed Ext.P1 representation pointing out the above incident before the police, no action has been taken. Again on 8-7-2008, the respondents 4 to 9 tried to pluck W.P.(C)NO. 23178/2008 -2- coconuts from the aforementioned property of the petitioner. When the petitioner and his wife tried to prevent the workers, who were brought to pluck the coconuts, the party respondents, who were armed with dangerous weapons, attacked the petitioner and his wife. Ext.P3 representation was filed before the police pointing out the above incident, but no action has been taken. In the above background, this writ petition is filed seeking protection to the lives of the petitioner and his family members. 2. The learned Government Pleader, upon instructions, submitted that though Ext.P3 representation was received by the police,the police have not registered any crime as both parties in that representation,who are relatives, requested not to register any crime. That is the reason for not registering a crime. There is a civil dispute between the parties concerning the property mentioned by the petitioner. 3. The 6th respondent has filed a counter affidavit stating that the respondents 4 to 9 have right over the disputed property having an extent of 15 cents. Though the Lok Ayuktha has passed an order for granting patta in favour of the W.P.(C)NO. 23178/2008 -3- petitioner, the said order is stayed by this court on the motion made by the party respondents. They denied the allegations of physical attack made on the petitioner and his wife. O.S.No.475/1999 filed by the party respondents before the Principal Munsiff's Court, Neyyattinkara was dismissed on technical grounds. They have preferred an appeal before the Sub Court Neyyattinkara as A.S. No. 284/2003 and the same is pending consideration before that court. 4. If the police have not registered any crime based on Exts.P1 and P3 petitions filed by the petitioner, his remedy is to move the competent criminal court and not to approach this Court under Article 226 of the Constitution of India in view of the recent decision of the Apex Court in Sakiri Vasu v. State of U.P., 2008(1)K.L.T.724. There is a civil dispute concerning the property and the petitioner and his wife was attacked, when they asserted their right over the property and prevented the party respondents from plucking coconuts. If this Court orders police protection, the same will be used to tilt the balance concerning the possession of the disputed property. If the petitioner resides in his house, goes around attending his normal W.P.(C)NO. 23178/2008 -4- business, there is no threat to his life. The threat is there only when the petitioner asserts his right over the disputed property as against the party respondents. Therefore, this Court cannot issue any order as prayed for. The petitioner can move the civil court and try to get injunction against the party respondents. That will be the proper remedy for the petitioner. Therefore, this writ petition is dismissed without prejudice to the contentions of the petitioner and his right to move other forums for appropriate reliefs. But this judgment will not affect the powers of the police to take action in accordance with law, if any cognizable offence is reported. K. BALAKRISHNAN NAIR, JUDGE M.C. HARI RANI JUDGE ks.