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 16TH JANUARY 2008 / 26TH POUSHA 1929 WP(C).No. 28545 of 2007(W) -------------------------- PETITIONER: ------------ M.G.AJAYAKUMAR, S/O.RAJAPPAN, RESIDING AT MANAPPALATHU HOUSE, KUDAYATHOOR VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.K.DIVAKARAN NAIR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY DIRECTOR OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KANJAR, IDUKKI DISTRICT. 3. M.K.CHITHAMBARAN PILLAI, S/O.KRISHNA PILLAI, RESIDING AT *(KUNNUPARAMBIL) HOUSE, KUDAYATHOOR VILLAGE, THODUPUZHA TALUK. (* CORRECTED AS MULLUPPARAMBIL HOUSE, VIDE ORDER DT. 23.10.07 IN IA 13793/07) GOVT. PLEADER SRI.P.A.SALIM. BY ADV. SRI.C.M.TOMY SRI.MATHEW SKARIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 28545/2007 APPENDIX PETITIONER'S EXTS. EXT.P1 - PHOTO COPY OF JUDGMENT IN O.S.28/2006 OF THE MUNSIFF'S COURT, THODUPUZHA. EXT.P2 - PHOTO COPY OF THE DEPOSITION OF PW2 (VILLAGE OFFICER) IN EXT.P1 SUIT. EXT.P3 - COPY OF F.I.R. IN CRIME NO.402/07 OF KANJAR POLICE STATION. /TRUE COPY/ K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. -------------------------------------------------------------------------------- Writ Petition (C) No.28545 of 2007-W -------------------------------------------------------------------------------- Judgment Balakrishnan Nair, J. The “police protection” jurisdiction exercised by this Court is one of the most abused jurisdictions. Suits which are to be filed before the concerned civil court are converted into writ petitions and filed before this Court. This case is one among such cases. 2. The brief facts of the case are the following: The petitioner is the owner of 12 cents and 500 sq.links of land, which he purchased in 2004. On the southern side of the property, there is a PWD Road and on the northern side, there is a canal of Muvattupuzha Valley Irrigation Project. When the third respondent tried to trespass into his property, he moved the Munsiff's Court and obtained Ext.P1 judgment, restraining the said respondent from trespassing into the aforementioned property owned by him. The petitioner submits, the third respondent, who is a lawyer, is residing on the opposite side of the road. There is no common boundary for the properties owned by the petitioner and the said respondent. The third respondent is unnecessarily WPC 28545/97 2 troubling and harassing him. The petitioner wanted to construct a compound wall to protect his property. When he attempted to do that, the third respondent again obstructed. The petitioner orally informed the police to give protection to him. When the police did not render any assistance, this Writ Petition is filed, seeking mainly, the following relief : “i. issue a writ of mandamus or any other appropriate writ, direction or order, directing the respondents 1 and 2 to give adequate police protection to the petitioner for constructing the compound wall of his property involved in Ext.P1 case.” 3. The third respondent has filed a counter affidavit, disputing the submissions of the petitioner. According to him, the petitioner is trying to construct the compound wall, encroaching into the neighbouring puramboke land and also encroaching into the public pathway, going by the western side of his property. The petitioner and his wife filed OS No.42/06 before the Munsiff's Court, Thodupuzha against one Mr.Thankachan and others, on the allegation that they are trying to trespass into their property and trying to cut open a pathway. The said Mr.Thankachan and others filed OS No.45/06 against the petitioner, his wife and one Mr.Ramakrishna Pillai, praying to WPC 28545/97 3 injunct them from obstructing the public pathway and also obstructing the steps leading to the public thodu flowing on the western side of the property. The third respondent submits, the plaintiffs in O.S.No.45/2006 are the persons who are really obstructing the construction of the compound wall. Instead of impleading them, the petitioner has impleaded the third respondent to mislead this Court. 4. Though the petitioner filed an additional affidavit, he has chosen not to traverse the above averments of the third respondent. The learned Government Pleader, upon instruction, submitted that there is an allegation against the petitioner that he is encroaching into the purambooke land belonging to the PWD and the Irrigation Department. The Irrigation Department has filed a suit against him. The local people are objecting to the construction of the compound wall. 5. While entertaining a Writ Petition for police protection, this Court is exercising its power under Article 226 of the Constitution of India, to issue a writ in the nature of mandamus. The applicant, to get a direction from this Court to the police, must show that he has got a legal right and the police have got a corresponding duty. If there is any dispute regarding the boundary, the WPC 28545/97 4 police have no duty or power to decide where the correct boundary is and thereafter render protection to a person, who wants to put up a compound wall. The proper remedy for the petitioner is to move the civil court for fixation of the boundary, get the boundary fixed and thereafter, construct the compound wall. If there is any obstruction to that, the civil court is competent to address the police to render assistance to enforce its orders also. See the decision of the Division Bench of this Court in George v. Circle Inspector of Police [1990(1) KLT 741], wherein it was held as follows: “Ordinarily, a civil suit will lie to prevent trespass and to obtain an order of injunction. In an ordinary action in civil court, it is possible to obtain the relief of declaration and also injunction. The civil court can grant relief restraining obstruction or impediment to the enjoyment of the property or the goods. So also affirmative relief to load and unload goods can be given. The civil court will be in a better position to evaluate and grant relief, appropriate to the occasion, even if circumstances require the taking of oral and documentary evidence. The court granting the injunction can implement it by giving consequential directions , including direction to the police authorities to effectuate the order. It can also punish persons for disobeying the order of court, under O.39 R1, C.P.C., read with R2-A. The advantages of declaratory judgment over mandamus need not be over stated.” If the High Court directs the police to render assistance to the petitioner to construct the compound wall and if he builds the wall on the forbidden line, WPC 28545/97 5 there will be no remedy for others, who are aggrieved by it. So, having regard to the boundary dispute between the petitioner and others in the locality, no direction as sought for, can be issued in this Writ Petition. Accordingly, the Writ Petition is dismissed without prejudice to the contentions of the petitioner and his right to move other forums for appropriate reliefs. K.BALAKRISHNAN NAIR,JUDGE 16.01.2008 P.N.RAVINDRAN, JUDGE sta WPC 28545/97 6