IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 WP(C).No. 16673 of 2008(I) -------------------------- PETITIONER: ------------ 1. ELIAMMA PEREIRA, W/O.PERIRA NAZARETH XAVIER,, REP. BY HER HUSBAND AND POWER OF ATTORNEY HOLDER PEREIRA NAZARETH XAVIER 2. PEREIA NAZARETH XAVIER S/O.SEBASTIAN PEREIA AGED 82 RESIDING AT T.C.XXXIV/1613, KOCHUTHOPPU VASLLAKADAVU PO PETTAH VILLAGE, TRIVANDRUM BY ADV. SRI.K.B.PRADEEP RESPONDENTS: ------------- 1. THE STATEOF KERALA, REP. BY THE HOME SECRETARY, GOVERNMENT OF KERALA, TRIVANDRUM 2. THE COMMISSIONER OF POLICE, THIRUVANANTHAPURAM 3. ASSISTANT COMMISSIONER OF POLICE, VALIYATHURA,TRIVANDRUM 4. THE SUB INSPECTOR OF POLICE, VALIYATHURA, TRIVANDRUM 5. STEPHEN F.ROZARIO, S/O.FRANCIS, ADVOCATE, NEAR AMERICAN INSTITUTE BUILDING VANCHIYOOR,THIRUVANANTHAPURAM 6. AJI STEPHEN, W/O.STEPHEN F.ROZARIO, RESIDING AT THOTTAVILAKOM RC, STREET, BALARAMAPURAM, TRIVANDRUM WP(C).No. 16673 of 2008(I) 7. FREANCIS ROZARIO, S/O.SEBASTIAN ROZARIO, RESIDING IN AN UNNUMBERED HUT NEAR TO T.C.XXXIV/1613, KOCHUTHOPPU,VALLAKKADAVU PETTAH VILLAGE, THIRUVANANTHAPURAM 8. POULINE FRANCIS, W/O.FRANCIS ROZARIO RESIDING AT DO.DO. 9. GILBERT F.ROZARIO, S/O.STEPHEN S.ROZARIO ,RESIDING AT DO. DO. 10. JUSTIN F.ROZARIO, S/O.STEPHEN S.ROZARIO, RESIDING AT DO. DO. BY SR.GOVT.PLEADER SHRI BENJAMIN PAUL FOR R1 TO R4 ADV. SRI.C.K.MOHANAN FOR R5 & 7 SRI.P.BABU KUMAR FOR R9 SRI.T.M.SUNIL FOR R9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.16673/08 PETITIONER'S EXTS: EXT.P1:TRUE COPY OF THE DELIVERY REPORT FILED BY THE AMIN BEFORE THE EXECUTION COURT. EXT.P2: TRUE COPY OF THE COMPLAINT DATED 29.5.08 SUBMITTED BY THE PETITIONERS TO THE 2ND RESPONDENT. EXT.P3: TRUE COPY OF THE PLAINT IN O.S.No.152/07 BEFORE THE SUB COURT, THIRUVANANTHAPURAM. RESPONDENTS' EXTS: EXT.R9(1): TRUE PHOTOCOPY OF IDENTITY CARD DATED 4.9.97 ISSUED BY THE ELECTION COMMISSION OF INDIA. EXT.R9(2): TRUE PHOTOCOPY OF RESIDENTIAL CERTIFICAE DATED 25.4.08 ISSUED BY THE CORPORATION OF TRIVANDRUM. EXT.R9(3): TRUE PHOTOCOPY OF CASTE CERTIFICATE ISSUED BY THE VILLAGE OFFICER ON 7.4.08. EXT.R9(4): TRUE PHOTOCOPY OF INCOME CERTIFICATE ISSUED BY THE VILLAGE OFFICER ON 7.4.08. EXT.R9(5): TRUE PHOTOCOPY OF DRIVING LICENCE OF THE PETITIONER. EXT.R9(6): TRUE PHOTOCOPY OF O.S.No. 354/08 FILED BY THE 9TH RESPONDENT BEFORE THE SUB COURT, THIRUVANANTHAPURAM. TRUE COPY K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- W.P.(C)No. 16673 OF 2008 ----------------------------------------------------- DATED THIS THE 27th DAY OF JUNE, 2008 J U D G M E N T Balakrishnan Nair, J. The petitioners were plaintiffs in O.S.No.1460/03 on the file of the 3rd Additional Munsiff's Court, Thiruvananthapuram. Initially, it was filed as a suit for injunction against trespass by the defendants therein into the plaint schedule property. During the pendency of the suit, the defendants therein trespassed into the property and occupied the building thereon. Later, the suit was amended and a prayer for recovery of possession of the plaint schedule property and the building thereon was made. The suit was decreed. It was executed as evident from Exhibit P1. The petitioners submit, the Amin of the court delivered the property to the power of attorney holder of the first plaintiff, who was the second plaintiff in the suit and who is the second petitioner herein. Later, the respondents 5 to 8 who were the defendants have caused damages to the compound wall and its gate. The petitioners want to carry out some repairs in the W.P.(C)No.16673/08 -2- building and also to construct the gate. While so, respondents 5 to 8 and respondents 9 and 10 who are their relatives caused obstruction to the same. Therefore, the second petitioner has preferred Exhibit P2 petition before the police seeking effective and meaningful protection to the property and also to do the repair work of the building. Alleging that the police did not extend any help, this writ petition is filed. 2. The respondents 5 and 7 have filed a counter affidavit alleging that the petitioners are not residents of the State and they have filed the writ petition making false averments. The 9th respondent submits that he was not a party to the suit or Exhibit P1 proceedings. He was residing in the building for the last several years. He continued to reside in the building notwithstanding Exhibit P1. He has also filed O.S.No.354/08 before the Sub Court, Thiruvananthapuram seeking a decree declaring that the plaintiff therein has possessory title over the plaint schedule property. The 10th respondent has filed a counter affidavit stating that he along with his brother are residing in the building. He is not aware of Exhibit P1 or the delivery effected by W.P.(C)No.16673/08 -3- the Amin. The petitioners have filed a reply affidavit dealing with the averments in the counter affidavit of respondents 5 and 7 and two other reply affidavits dealing with respectively, the averments of respondents 9 and 10 in their counter affidavits. 3. The learned Government Pleader upon instructions submitted that the police earlier helped the petitioners at the time of delivery of the property as directed by the civil court. It is now submitted that the building is remaining there without any change as it was at the time of delivery. 4. The prayer of the petitioners is for directing the police to extend sufficient and meaningful protection and aid to the petitioners for the convenient and peaceful enjoyment of their immovable property comprised in survey No.1818/2 of Petta Village, Thiruvananthapuram with the building therein. If the enjoyment of the property is obstructed by persons who have no semblance of right or interest over it and the filing of a suit is not effective, the petitioners may be able to move the police, provided the actions of the persons obstructing disclose cognizable offences. But, in this case, we notice that W.P.(C)No.16673/08 -4- respondents 9 and 10 are not parties to the suit, which led to Exhibit P1 proceedings. They claim they are residing there. Perusing the papers presented by the petitioners, the police cannot decide whether their claim is right or not or the petitioners alone have right over the property and then come to their help. No statute in force in our State authorises the police to undertake such a duty. Under our scheme of constitutional Government, the police cannot be authorised to discharge such a function, which is essentially a judicial function concerning a civil dispute. This Court cannot adjudicate the dispute between the petitioners and the party respondents and based on a finding thereon direct the police to enforce that decision. While exercising the power of judicial review, this Court cannot decide disputes between private parties. This Court, under Article 226 of the Constitution of India, while hearing a police protection petition is considering only about the failure of duty of the police. If failure of duty is proved, this Court will issue a writ of mandamus to remedy the same. Having regard to the nature of the claim putforward by respondents 9 and 10, the police have no W.P.(C)No.16673/08 -5- power or authority to meddle in that dispute. We cannot ask them to interfere with the same, for the reasons mentioned above. The police can interfere in this dispute, if only they are directed by the civil court. In view of the above position, the application for police protection fails and it is dismissed, without prejudice to the contentions of the petitioners and their right to invoke the ordinary remedies available to them before the civil and criminal courts. It is made clear that this judgment will not affect the powers of the police to investigate into cognizable offences reported or to prevent cognizable offences. K.BALAKRISHNAN NAIR,JUDGE. M.C.HARI RANI, JUDGE. dsn