IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 WP(C).No. 14039 of 2010(D) -------------------------- PETITIONER(S): --------------- 1. ALEYAMMA CYRIL, W/O. CYRIL PAAREKKATIL, KANIYARAM P.O., MANANTHAVADI, WAYANAD DISTRICT. 2. ROSILY JOSEPH, W/O. JOYICHAN, KUTTIYANIYIL, THICHOOR P.O., ERUMAPETTY, THRISSUR DISTRICT. 3. ALPHONSA AJI, W/O. AJI JOSEPH, MUNDAMATTOM HOUSE, POOVARANI P.O., PALA, KOTTAYAM DISTRICT. 4. JOSE KURIAN, S/O. P.A.JOSEPH, PALLIVAATHUKKAL, MATTANNOOR, KANNUR DISTRICT. 5. ANIL ABEY JOSE, S/O. ABRAHAM MATHEW, "ALTINHO", VETTOOR, ETTUMANOOR, KOTTAYAM DISTRICT. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE HOME SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT SUPERINTENDENT OF POLICE, KANNUR. 3. THE DEPUTY SUPERINTENDENT OF POLICE, IRUTTY, KANNUR DISTRICT. 4. THE SUB INSPECTOR OF POLICE, KELAKOM, KANNUR DISTRICT. -: 2 :- 5. ITTYAVIRA JOSEPH, S/O. P.A.JOSEPH, PALLIVATHUKKAL, ADAKKATHOD, KELAKOM, KANNUR DISTRICT. 6. P.A.ABRAHAM @ ITIYAVIRA, S/O. P.I.ABRAHAM, PALLIVATHUKKAL, RAMACHI, ADAKKATHOD, KANNUR DISTRICT. 7. PAULOSE K.A., S/O. ALIAS, KOLLUVELIL HOUSE, KELAKOM, KANNUR DISTRICT. 8. ERAYIL JOSEPH @ PAPPAN, ERAYIL HOUSE, ADAKKATHODU P.O., KELAKOM, KANNUR DISTRICT. 9. BESSY, S/O. UMMACHI, CHOLAMATTOM HOUSE, CHETTIYAM PARAMBU P.O., KELAKOM, KANNUR DISTRICT. 10. JACOB CHELAMATTOM, CHOLAMATTOM HOUSE, CHETTIYAM PARAMBU, KELAKOM, KANNUR DISTRICT. R1 TO 4 BY PUBLIC PROSECUTOR SHRI. T.K. VIPIN DAS ADV. SRI.M.C.RATNAKARAN FOR R5 TO 10 SMT.M.R.JAYALATHA FOR R5 TO 10 SRI.P.V.JOSE FOR R5 TO 10 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON 01/07/2010 DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXTS: EXT.P1 TRUE COPY OF TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, KELAKOM IN FAVOUR OF THE 1ST PETITIONER DT.17.2.2010. EXT.P2 DO. DO. IN FAVOUR OF 2ND PETITIONER DT.17.2.2010. EXT.P3 DO. DO. DO. 3RD PETITIOER DT. 17.2.2010. EXT.P4 DO. DO. IN FAVOUR OF GEORGE PERUMALIL DT. 17.2.2010. EXT.P5 DO. DO. DO. 5TH PETITIONER DT.17.2.2010. EXT.P6 DO. DO. IN FAVOUR OF ARUN ABEY MATHEW DT. 17.2.2010. EXT.P7 TRUE COPY OF REPRESETATION MADE BY THE PETITIONERS TO THE 2ND RESPONDENT DT. 25.3.2010. EXT.P8 TRUE COPY OF POSSESSION CERTIFICATE IN RESPECT OF THE PROPERTY OF THE 1ST PETITIONER ISSUED BY THE VILLAGE OFFICER, KELAKOM DT.11.5.2010. EXT.P9 DO. DO. OF 2ND PETITIONER DO. DO. EXT.P10 DO. DO. 3RD PETITIONER, DO. DO. EXT.P11 DO. DO. PROPERTY OF GEORGE PERUMALIN DO. DO. EXT.P12 DO. DO. 5TH PETITIONER DO. DO. EXT.P13 TRUE COPY OF ENCUMBRANCE CERTIFICATE IN RESPECT OF THE PROPERTY OF THE 1ST PETITIONER ISSUED FROM THE SRO, PERAVOOR DT. 8.2.2010. EXT.P14 DO. DO. OF 2ND PETITIONER DO. DO. EXT.P15 DO. DO. 3RD PETITIONER DO. DO. EXT.P16 DO. DO. OF GEORGE PERUMALIN DO. DO. EXT.P17 DO. DO. OF 5TH PETITIONER DO. DO. EXT.P18 DO. DO. OF ARUN ABEY MATHEW, BROTHER OF 5TH PETITIONER, DO. DO. /TRUE COPY/ P.S. TO JUDGE K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 14039 of 2010 D - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2010 JUDGMENT Joseph Francis, J. This Writ Petition is filed under Article 226 of the Constitution of India with the following prayers: “(i) Issue a writ of mandamus or other appropriate writ, order or directions commanding the respondents 2 to 4 to render adequate and sufficient police protection to the life and liberty of the petitioners and their near ones in the hands of the respondents 5 to 10 and their henchmen and political associates. (ii) Issue a writ of mandamus or any other appropriate direction to the respondents commanding respondents 2 to 4 to abate all the W.P.(C).No. 14039 of 2010 2 obstructions and threats being offered and caused by the respondents 5 to 10 and their henchmen by adopting appropriate steps as per law. iii) issue a writ in the nature of mandamus or any other appropriate writ, direction or order commanding respondents 2 to 4 to afford adequate and effective police protection to the petitioners and the persons engaged by them for surveying the properties to conduct survey and measurement of the properties covered by Exts.P1 to P6 without being obstructed in any fashion either by respondents 5 to 10 or any others under them in any fashion.” 2. The case of the petitioners is briefly as follows. The petitioners offered the properties belonging to them and covered by Exts.P1 to P6 for sale as it was found difficult for them to attend to the properties situated far away from their respective residences. They also entered into an agreement for sale dated 28.10.2009, as per which, W.P.(C).No. 14039 of 2010 3 the sale has to be completed on or before 30.5.2010 on convincing the purchasers regarding actual extent of the properties. 3. Respondents 5 to 10, who are engaged in real estate business, being dissatisfied by the agreement for sale arranged without their intervention, wanted to frustrate the sale somehow or other. They also started to threaten the purchasers with dire consequences. On 13.3.2010, when the survey of the property was arranged, respondents 5 to 10, with the support of their henchmen, physically attacked the husbands of the elder sisters of petitioners 1 to 4, who were present there, and also insulted the petitioners with abusive words and obstructed the survey of the properties. Subsequent attempts to measure the properties were also defeated by threatening the petitioners, the purchasers and the surveyors. 4. Therefore Ext P7 representation was made to the 2nd respondent seeking police protection to life and liberty and also for completing the measurements. Similar petitions were made to W.P.(C).No. 14039 of 2010 4 respondents 3 and 4. No steps have been taken by the said respondents on account of the influence of the respondents. All steps to pacify the respondents have also failed. None of the respondents have any sort of right over the properties covered by the sale agreement; still they are offering threat to the life, liberty and freedom of the petitioners to survey the property and complete the sale. None of the respondents have property in the locality to share any common boundary with the petitioners' property. The petitioners seek appropriate direction to respondents 2 to 4 to render adequate police protection. 5. Respondents 5 to 10 filed counter affidavit, to which the petitioners filed reply affidavit. 6. Heard the learned counsel for the petitioners, learned counsel for the contesting party respondents and the learned Government Pleader. 7. In the counter affidavit filed by the party respondents it is stated that the 5th respondent is the brother of petitioners 1 to 4 and W.P.(C).No. 14039 of 2010 5 the uncle of 5th petitioner. Respondents 6 to 10 have nothing to do with the disputes between the petitioners and the 5th respondent and that they have not done anything adverse to the petitioners. It is further stated that the properties mentioned in the Writ Petition and another 8 acres of property situated west of this property are in the possession of the 5th respondent and that the petitioners have absolutely no right over the property mentioned in the Writ Petition. It is stated in the counter that there is no physical threat against the petitioners by any of the respondents. If at all the petitioners have any right over the property, such rights are lost by adverse possession. It is stated that the 5th respondent is filing a suit for injunction restraining the petitioners from encroaching upon the property before the Civil Court immediately after the reopening of the court. 8. The remedy available to an aggrieved party under Article 226 of the Constitution is an extra ordinary remedy and it is not intended to W.P.(C).No. 14039 of 2010 6 be used for the purpose of declaring the private rights of the parties. In the case of enforcement of constitutional rights and liabilities, the normal remedy of filing a civil suit is available to the aggrieved party and the High Court will not exercise its prerogative writ jurisdiction to enforce such contractual obligations. Since the proceedings under Article 226 of the Constitution are of summary nature, disputed questions of facts should not normally be allowed to be agitated and the High Court should not proceed to determine such questions. 9. In view of the fact that there are disputes raised relating to the property, we do not think it appropriate for us to interfere in the matter. Hence we decline jurisdiction and relegate the petitioners to approach the competent civil court seeking appropriate reliefs. We further direct that in case any cognizable offence is committed by the W.P.(C).No. 14039 of 2010 7 party respondents, the fourth respondent shall take action in accordance with law. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm