IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 WP(C).No. 7835 of 2008(G) --------------------------------------- PETITIONER(S): ------------------------ E. VIJAYAN, S/O.KRISHNA KURUP, EX-SERVICEMAN, AGED 46 YEARS, "THEJAS" P.O.KADIYANGAD, (VIA) PERAMBRA, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.B.KRISHNAN RESPONDENT(S): --------------------------- 1. SUB INSPECTOR OF POLICE, MEPPAYYUR POST: MEPPAYYUR, KOZHIKODE DISTRICT. 2. THE CIRCLE INSPECTOR OF POLICE, PAYYOLI, P.O. PAYYOLI, KOZHIKODE DISTRICT. 3. THE SUPERINTENDENT OF POLICE, KOZHIKODE (RURAL), P.O.PUDUPPANAM, VADAKARA, KOZHIKODE DISTRICT. 4. STATE OF KERALA, WITH ADDRESS FOR SERVICE CHIEF SECRETARY, OFFICE OF THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 5. KUNHIRAMAN NAMBIAR, S/O.UNNI NAMBIAR, VADAKKE KUROORA, POST AVALA, KOYILANDY TALUK, KOZHIKODE DISTRICT. 6. KUNHI MADHAVI AMMA, D/O.UNNI NAMBIAR, RESIDING AT VEVOOR, ERAVATTOOR POST, KOYILANDY TALUK, KOZHIKODE DISTRICT. 7. KALLYANI AMMA, W/O.NARAYANAN NAMBIAR, CHERIYANDIYIL HOUSE, P.O.AVALA, KOYILANDY TALUK, KOZHIKODE DISTRICT. Kss ..2/- ...2..... WPC.NO.7835/2008 G 8. JANU AMMA, W/O.KUNHIRAMAN NAIR, RESIDING AT MAKKOOL, CHERUVANNUR POST, KOYILANDY TALUK, KOZHIKODE DISTRICT. * 9. APPUNNI NAMBIAR, S/O.KANARAN NAMBIAR, POST ARIKKULAM, KOYILANDY TALUK, KOZHIKODE DISTRICT.( D E L E T E D) *THE NAME OF THE 9TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DTD. 16/10/08 IN I.A.NO.13053/08. 10. KUNHIKRISHNAN NAMBIAR, S/O.KUNHIRAMAN NAMBIAR, METHALAE KUROORA HOUSE, P.O.AVALA, KOYILANDY TALUK, KOZHIKODE DISTRICT. 11. NARAYANI AMMA, W/O.KUNHIRAMAN NAIR, KIZHAKKAYILMEETHAL HOUSE, P.O.ERAVATTOOR, KOYILANDY TALUK, KOZHIKODE DISTRICT. 12. KALLIANI AMMA, W/O.GOVINDAN NAIR, KOYILOTH HOUSE, P.O.CHERUVANNUR, KOYILANDY TALUK, KOZHIKODE DISTRICT. 13. KUNHIRAMAN NAMBIAR, S/O.CHATHUKUTTY, CHEEKKILOTTU HOUSE, P.O.THODANNUR, VADAKARA TALUK, KOZHIKODE. 14. AMMALU AMMA, W/O.KELU KURUP, NELLIYULLAPARAMBATH HOUSE, P.O.PALERI, KOYILANDY TALUK, KOZHIKODE DISTRICT. 15. DAMODARAN NAMBIAR, S/O.CHATHUKUTTY NAMBIAR, KARAYIL HOUSE, P.O.CHERUVANNUR, KOYILANDY TALUK, KOZHIKODE DISTRICT. 16. NARAYANI AMMA, W/O.KANARAN NAIR, 'SURESH NIVAS', POST KUTTOTH, VADAKARA TALUK, KOZHIKODE DISTRICT. 17. JANU, W/O.KUNHIKELU NAIR, P.O.PANTHIRIKKARA, PERAMBRA, KOYILANDY TALUK, KOZHIKODE DISTRICT. Kss ..3/- ...3...... WPC.NO.7835/2008 G 18. RAGHAVAN NAMBIAR, S/O.KANARAN, EDAPARAMBIL HOUSE, KOOTHALI POST, KOYILANDY TALUK, KOZHIKODE DISTRICT. 19. UMMAYAMMA AMMA, W/O.GOVINDA KURUP, THAZHE EROTH HOUSE, POST AVALA, KOYILANDY TALUK, KOZHIKODE DISTRICT. SR. GOVERNMENT PLEADER SRI. BENJAMIN PAUL FOR R1 TO R4 ADV. SRI.SANTHARAM.P FOR R10,12,13,15,18 & R19 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.7835/2008 G APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF DEED OF SETTLEMENT EXECUTED BY EROTH KRISHNA KURUP IN FAVOUR OF THE WRIT PETITIONER DTD. 27/09/1988. EXT.P2: COPY OF PURCHASE CERTIFICATE ISSUED BY LAND TRIBUNAL, PERAMBRA TO E.KRISHNA KURUP DTD. 16/06/1977. EXT.P3: COPY OF THE JUDGMENT IN O.S.47/90 ON THE FILE OF SUBORDINATE JUDGE, KOYILANDY DTD. 31/10/1994. EXT.P4: COPY OF THE JUDGMENT IN A.S.73/95 ON THE FILE OF DISTRICT JUDGE, KOZHIKODE DTD. 12/11/1999. EXT.P5: COPY OF DECREE IN O.S.47/90 ON THE FILE OF THE SUBORDINATE JUDGE, KOYILANDY DTD. 31/05/2002 WITH TERMS OF COMPROMISE. EXT.P6: COPY OF REPORT BY COMMISSIONER ADVOCATE E.NARAYANAN NAIR, MARKED AS EXHIBIT C1 IN O.S.47/90 ON THE OF SUB COURT, KOYILANDY. EXT.P7: COPY OF COMMISSIONER'S PLAN, EXHIBIT C2 IN O.S.47/90 ON THE FILE OF SUB COURT, KOYILANDY. EXT.P8: COPY OF ORDER IN M.C.23/2000 ON THE FILE OF SUB DIVISIONAL MAGISTRATE'S COURT, KOZHIKODE DTD. 19/01/2006. EXT.P9: COPY OF THE ORDER IN CRL.R.P.38/2006 ON THE FILE OF SESSIONS COURT, KOZHIKODE DIVISION DTD. 16/11/2006. EXT.P10: COPY OF THE PETITION BY WRIT PETITIONER TO THE S.I.OF POLICE, MEPPAYYUR (R1), ENDORSING COPY TO R2 AND R3, REQUESTING FOR POLICE PROTECTION. EXT.P11: COPIES OF POSTAL RECEIPTS FOR DESPATCH OF EXHIBIT P10 TO R1 TO R3. EXT.P12: COPY OF PETITION BY WRIT PETITIONER TO R1 DTD. 11/04/2007. EXT.P13: COPY OF REQUEST FOR PROTECTION BY WRIT PETITIONER TO R1. EXT.P14: COPY OF POSTAL RECEIPT TO PROVE DESPATCH OF P13 REQUEST. /TRUE COPY/ kss P.S.TO JUDGE K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== W.P.(C)NO. 7835 OF 2008 ============================ DATED THIS THE 30th DAY OF OCTOBER 2008 JUDGMENT Balakrishnan Nair,J. This writ petition is one of those several “police protection original suits” which are being filed these days before this Court. 2. The petitioner got assignment of the tenancy right over a property under Ext.P1 deed. He submits, he perfected his title by getting Ext.P2 purchase certificate from the competent Land Tribunal. When some persons tried to interfere with his possession, he moved the civil court seeking appropriate reliefs. Though the suit was dismissed, the appellate court remanded the matter. Subsequently, the parties entered into a settlement and as per the settlement, the defendants therein recognised the right of the petitioner on two items of properties shown as 15A and 15B in Ext.P7 sketch. He submits, when on the strength of the compromise decree, he tried to take usufructs from the said WPC.7835/2008 -2- two items of properties, certain persons obstructed, who were not parties to the compromise decree in O.S.No.47/1990. The Sub Divisional Magistrate initiated proceedings under Section 145 of the Code of Criminal Procedure, as the dispute regarding the above-said immovable property created law and order problem. The said proceedings were finally disposed of by the Sub Divisional Magistrate, Kozhikode as per Ext.P8, upholding the title and possession of the petitioner over the disputed property. Pursuant to that order, he was put in possession also. The aggrieved parties in Ext.P8 filed a revision before the Sessions Court, Kozhikode. The said revision was disposed of by Ext.P9. The finding of the Sub Divisional Magistrate regarding the title of the petitioner over the property was held to be not final by the Sessions Court. The revision petitioners were relegated to the civil court to establish better right over the properties. The petitioner submits, thereafter also the respondents 5 to 19 herein tried to trespass into the property. The petitioner moved the police seeking necessary protection. The last of those representations is Ext.P13 dated 7-2-2008. Since the police failed to extend necessary protection, this writ WPC.7835/2008 -3- petition is filed seeking the following relief: “i) To issue a writ of mandamus or such other writ or order directing respondents 1 to 4 to give the petitioner police protection against respondents 5 onwards with all despatch possible acting on the request, exhibits P10,P12 and P13. ” 3. Respondents 10,12,13,15,18 and 19 have filed a counter affidavit resisting the prayers in the writ petition. They submitted that Ext.P1 assignment deed was made by a person, who has no right over the property. The property belongs to their family. By fraud and collusion, the petitioner obtained the purchase certificate. They also submitted that they are not bound by the compromise decree and they are not parties to the above-said suit. They disputed the possession and title of the petitioner over the property. So they prayed for dismissing the writ petition. 4. We heard the learned Government Pleader for the official respondents. In Ext.P13 the petitioner himself submits that about 15 persons, claiming right over the property, tried to trespass into it, though he opposed the same. The dispute concerning the property is a civil dispute. The respondents are WPC.7835/2008 -4- trying to trespass, based on the claim that the property belongs to their family and therefore they have a right over it. In this case, we cannot adjudicate the dispute between the parties and hold in favour of one side or the other. We have no such jurisdiction under Article 226 of the Constitution of India to adjudicate the dispute between private parties. In this jurisdiction we are concerned only with the failure of duty of the police. That means our powers are co-terminous with the failure of the police to discharge their statutory duties. If the police are shown to have failed to perform their duty under any statute, we will remedy the same by issuing appropriate directions. 5. Having regard to the nature of the dispute, the police cannot be conceded power or jurisdiction to decide that and thereafter go after the party, in whose favour they have decided, to grant protection. No statute in force in India authorises the police to take any decision in this civil dispute. Therefore, we feel that the police have not failed in their duty. So, we cannot issue any direction to the police. If the police have not extended any protection to the petitioner pursuant to Ext.P13, the remedy of the petitioner lies before the civil court. If the civil court WPC.7835/2008 -5- grants injunction and it is violated by the defendants therein, the said court can address the police to grant protection. 6. The petitioner has also a prayer to grant protection to his life. The said prayer is used in this type of “police protection original suits” as “open sesame” to enter the portals of this Court. If the petitioner resides in his house and goes around attending his normal business, there is no threat to his life. The threat is there only when the petitioner goes to the disputed property and asserts his right over it as against the party respondents. Therefore, this Court cannot issue any order as prayed for. If this Court orders protection for his life, the same will be used to tilt the balance concerning the possession of the disputed property. Therefore, this 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 M.C. HARI RANI, ks. JUDGE WPC.7835/2008 -6-