IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 WP(C).No. 7207 of 2008(G) ------------------------- PETITIONER: ------------ N. KUNHIRAMAN NAMBIAR, S/O.GOPALAN NAIR RAM NIVAS, P.O. NEERVARAM, WYNAD DISTRICT. BY ADV. SRI.P.VIJAYAKUMAR RESPONDENTS: ------------- 1. THE DISTRICT COLLECTOR, WYNAD DISTRICT. 2. THE REVENUE DIVISIONAL OFFICER MANANTHAVADY, WYNAD DISTRICT. 3. THE SUPERINTENDENT OF POLICE WYNAD DISTRICT. 4. SUB INSPECTOR OF POLICE KAMBALAKKAD POLICE STATION, WYNAD DISTRICT. 5. LAKSHMI, D/O.DHARAPPAN GANAPATHI KOLLIYIL, POST NEERVARAM VIA. PANAMARAM, WYNAD DISTRICT. BY ADV. SRI.M.P.ASHOK KUMAR -R5 GOVT. PLEADER SRI.P.A.SALIM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 7207/08 APPENDIX PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF THE ORDER DATED 17.12.74 OF LAND TR8IBUNAL, MANANTHAVADY IN S.M.C.1183/1973. EXT.P2 - TRUE COPY OF THE ORDER DATED 26.3.96 ISSUED BY 2ND RESPONDENT IN NO.KST 1371/1987. EXT.P3 - TRUE COPY OF THE APPEAL DATED 22.7.97 FILED BY THE PETITIONER BEFORE 1ST RESPONDENT. EXT.P4 - TRUE COPY OF THE JUDGMENT IN W.P.(C) 3273/07 DATED 13.2.2007 OF THE HON'BLE HIGH COURT OF KERALA. EXT.P5 - TRUE COPY OF THE REPRESENTATION DATED 15.10.2007 SUBMITTED BY THE PETITIONER BEFORE 1ST RESPONDENT. EXT.P5(A) – TRUE COPY OF THE ACKNOWLEDGMENT CARD ISSUED TO THE PETITIONER. EXT.P6 - TRUE COPY OF THE COMPLAINT DATED 30.1.08 GIVEN BY THE PETITIONER BEFORE 4TH RESPONDENT. EXT.P6(A) – TRUE COPY OF THE ACKNOWLEDGMENT CARD ISSUED TO THE PETITIONER. EXT.P7 - TRUE COPY OF THE REPRESENTATION DATED 2.2.08 SUBMITTED BY THE PETITIONER BEFORE 2ND RESPONDENT WITH THE ORDERS DATED 2.2.08 PASSED THEREON BY THE 2ND RESPONDENT. EXT.P8 - TRUE COPY OF THE ACKNOWLEDGMENT ISSUEDTO THE PETITIONER BY 4TH RESPONDENT. EXT.P9 - TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, PANAMARAM DATED 2.1.08. RESPONDENTS' EXTS. EXT.R5(a) – THE PHOTO COPY OF THE TAX RECEIPT DATED 3.2.1966. EXT.R5(b) – THE PHOTO COPY OF THE TAX RECEIPT DATED 8.3.1978. EXT.R5(c) – THE PHOTO COPY OF THE AGREEMENT DATED 6.6.1997. /TRUE COPY/ K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- W.P.(C) NO. 7207 OF 2008-G ----------------------------------------- Dated 2nd April, 2008. JUDGMENT Balakrishnan Nair, J. The petitioner submits, he was in possession of 6.43 acres of land in Re-survey No.138/1 of Kuppathodu Village, as a cultivating tenant. As per Ext.P1 proceedings of the Additional Land Tribunal, Mananthavady, he was granted purchased certificate. While so, one Mr.Darappan, who is the father of the 5th respondent, filed a petition under Section 6 of the Kerala Scheduled Tribes (Restriction on Transfer of lands and Restoration of Alienated lands) Act, 1975 before the Revenue Divisional Officer, claiming that out of the above holding, 2.1 acres belonged to him. The petitioner trespassed into that property in 1964 and reduced it to his possession. The R.D.O., by Ext.P2 order, directed restoration of 2.1 acres of land claimed by the 5th respondent's father. The aggrieved petitioner preferred Ext.P3 appeal before the District Collector. In the meantime, the Government enacted Act 12/1999, modifying the provisions of the aforementioned Act, giving WPC 7207/08 2 protection to the bona fide transferees of land having an extent of less than 2 hectares between 1960 and 1986. The said amending Act was challenged before this Court. This Court declared many of the provisions of the amending Act unenforceable. The State moved the Apex Court and the Apex Court admitted the appeal and granted stay of the judgment of this Court. 2. While things stood so, the 5th respondent along with her supporters, entered the property owned by the petitioner, where coffee is planted and stolen the harvested coffee beans in January, 2007. The petitioner moved the police and the police registered crime No.5/2007 against the 5th respondent and others. The writ petitioner also moved this Court by filing W.P.(C) No.3273/2007, seeking police protection. The said writ petition was disposed of by Ext.P4 judgment, which reads as follows: “This is a petition for police protection. There is already an order of the RDO and it is submitted that appeal is pending before the District Collector as Exhibit P5. We are not expressing any opinion regarding the merits of the civil or other disputes between the parties under Article 226 of the Constitution of India. The matter is pending before the District Collector and he has to decide the matter untrammelled by any observations made in this judgment. If there are disputed civil rights, parties also can approach the civil court. We are not deciding the question of title or possession in a petition filed under Article 226 for police protection. However, we direct the police to see that law and order is maintained and life of both parties are not endangered. The District Collector is directed to WPC 7207/08 3 dispose of Exhibit P5 according to law as expeditiously as possible.” 3. The harvesting of coffee beans is done annually. During this January also, the 5th respondent and others trespassed into the property and took away by force the harvested coffee beans from the workers. The petitioner moved Ext.P6 representation before the police, requesting them to recover the coffee beans stolen. He also moved Ext.P7 representation before the R.D.O. On the said representation the R.D.O made the following endorsement: “To S.I., Kambalakkad, for maintaining the status quo and manage any law & order problem, till the matter is decided by the Hon'ble Supreme Court of India.” The petitioner submits, even thereafter, the police did not take any action. So, this writ petition was filed, seeking the following reliefs: “(i) issue a writ of mandamus directing 4th respondent to enforce the order of 2nd respondent given under Exhibit P7 to maintain status quo and ensure maintenance of law and order by affording effective police protection to the petitioner for ensuring peaceful conduct of the agricultural operation over his properties as hitherto being done including harvesting and marketing of the products free from any threat, intimidation or criminal acts by 5th respondent and her associates and further direct the 4th respondent to cause the restoration of coffee beans forcibly taken away by the 5th respondent and her associates from the legitimate possession of the petitioner on 10/1/08 and 30/1/08. WPC 7207/08 4 (ii) declare that the petitioner's property covered under Exhibit P1 is not liable to be brought under the purview of Act 31 of 11975 as the same stood vested with the petitioner since 1958 and quash Exhibit P2 also in the light of Section 5(2) of Act 12 of 1999. (iii) in the alternative to relief (ii) as above direct the 1st respondent to consider Exhibit P3 appeal at the earliest in a fair and legitimate manner including on the legal objections of the petitioner that his property could not be brought under the purview of Act 31 of 1975.” 4. The 5th respondent has filed a counter affidavit, denying the allegations of the petitioner. According to her, the petitioner is trying to unlawfully deal with the land covered by Ext.P2. Earlier he tried to cut and remove the timber standing in the said property. The same led to an agreement between her and the petitioner, a copy of which is produced as Ext.R5(c). The 5th respondent submits, the petitioner has no right over the property, in view of Ext.P2. The said order is not stayed by the appellate authority. Therefore, he cannot cultivate or take the usufructs from it, it is submitted. The petitioner has filed a reply affidavit, reiterating his contentions. 5. We also heard the learned Government Pleader, appearing for the official respondents. This is a petition for police protection, where we are concerned with the failure of duty from the part of the police. We are exercising only the power of judicial review under Article 226 of the WPC 7207/08 5 Constitution of India. In that jurisdiction, we cannot grant the second relief of quashing Ext.P2. The 3rd relief also cannot be granted in this petition for police protection. Further this Court has already directed the District Collector to decide the appeal untrammelled by the observations in Ext.P4. If further directions are required in this matter, the petitioner can work out his remedy independently. 6. Regarding the first prayer, we feel that having regard to the facts of the case, the petitioner has to move the competent civil court and obtain appropriate interim orders against the 5th respondent and her supporters. The endorsement in Ext.P7, which is admittedly an ex parte direction to the S.I of Police, issued without hearing anyone, cannot be enforced by issuing a writ of mandamus to the police. The petitioner has to seek reliefs by moving the competent civil and criminal courts to enforce his rights. Accordingly, the Writ Petition is dismissed without prejudice to the contentions of the petitioner and his right to move other forums for appropriate reliefs. It is clarified that this judgment will not affect his rights flowing from Ext.P4 judgment. If the directions therein are violated, the WPC 7207/08 6 petitioner will be free to work out his remedy against it. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/