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2022 DIGILAW 1543 (GUJ)

MAHENDRABHAI BABUBHAI PATEL v. STATE OF GUJARAT

2022-11-09

ILESH J.VORA

body2022
JUDGMENT : ILESH J. VORA, J. 1. This application filed under Article 226 of the Constitution of India, has been preferred with the following prayers: “(A) admit this petition. (B) issue appropriate writ, order or direction and be pleased to direct the respondent no. 2 authorities to quash and set aside the order/communication dated 11.02.2021 passed by the respondent no. 2 and be pleased to direct respondent no. 2 to grant police protection for a period of at least 60 days at the expenses of State and the same may be provided on other terms as may be deemed fit by this Hon’ble Court. (C) pass such orders as thought fit in the interest of justice.” 2. It is the case of the applicant that, he is owner of land bearing Survey No. 308/Paiki/1(359), which is situated at Village Hajipur, District Sabarkantha. The land bearing Survey No. 234/Paiki/1/2, owned by Patel Yogesh Rambhai and Dave Kamlesh Jivanlal is adjacent to the land of the applicant. The land owner of the adjacent land has developed housing units in the name of “Shri Ville Bungalow.” The developer and owner of the adjacent land, have illegally made encroachment on the land of the applicant and have constructed road for access of the purchaser of the bungalow. It is the case of the applicant that, the developer and land owner who have made encroachment are head strong persons and in connivance with the Village Sarpanch and Government Officials, constructed the road without any authority and/or legal title. In order to protect his right over the land, the applicant has filed three different suits namely RCS No. 27 of 2016, RCS No. 49 of 2017 and RCS No. 105 of 2020, which are pending before the Civil Courts, Himmatnagar. 3. In the aforesaid facts, the applicant herein had filed an application dated 19.11.2020, addressed to D.S.P. Sabarkantha at Himmatnagar to provide police protection so as to enable him to carry out fencing work over the disputed land. The police authority vide communication dated 11.02.2021, did not consider the prayer of police protection mainly on the ground that, three civil suits on the subject matter are pending before the Court concerned. 4. Mr. The police authority vide communication dated 11.02.2021, did not consider the prayer of police protection mainly on the ground that, three civil suits on the subject matter are pending before the Court concerned. 4. Mr. V.A. Pujara, learned counsel for the applicant submitted that, the applicant is the owner of the alleged land and measurement and rough sketch, undertaken by the District Inspector of Land Records, clearly establish that, the adjacent land owner and developer have made encroachment upon the land of the applicant and have illegally constructed road over the land which action on the part of the persons, is illegal and is in violation of his legal rights. He urged that, the applicant having reasonable apprehension of his life and liberty and if protection as prayed is not granted, the persons who have made encroachment would assault him physically. He further urged that, the Village Sarpanch and Government Officials are not discharging their duties properly and therefore, the applicant could not carry out fencing work over the disputed land. In such circumstances, applicant had submitted an application for deployment of the police personnel so as to enable him to carry out fencing work. However, the police authority, without application of mind straightway rejected the application, inter alia, stating that, the civil suits are pending and due to pendency of the civil suits, they cannot provide police protection to carry out the fencing work. 5. In view of the aforesaid facts, learned counsel for the applicant submitted that, the respondent authorities are duty bound to provide police protection to the applicant and his property, but since they have failed to discharge their statutory duties, the applicant is invoking extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India and considering the facts and circumstances of the present case, case is made out for exercising the jurisdiction to grant necessary relief. 6. Countering the said submission, learned APP Mrs. Krina Calla, submitted that, police protection cannot be extended to cases where rights have not been determined by the Civil Court. The applicant herein under the guise of police protection intends to carry out fencing work which cannot be granted. 6. Countering the said submission, learned APP Mrs. Krina Calla, submitted that, police protection cannot be extended to cases where rights have not been determined by the Civil Court. The applicant herein under the guise of police protection intends to carry out fencing work which cannot be granted. In this context, the State Counsel submitted that, exercise of jurisdiction under Article 226 of the Constitution of India is discretionary and writ is not issued as of right or as a matter of course and power must be exercised with great caution and larger public interest must be kept in mind. Here in the present case, dispute is purely private in nature for which the Court concerned has not granted any interim relief. In such circumstances, it is submitted that, no case is made out for exercising discretionary powers of this Court. 7. This Court has carefully considered the submissions made by learned counsel for the respective parties and have perused the material placed on record. 8. The facts naratted above and the extensive submissions made by respective counsel makes it evidently clear that there is a serious dispute involving the right of way over the land referred by the applicant. It is not in dispute that, the Civil Court has not granted any prohibitory injunction order in favour of the applicant. None of the Civil Courts have determined the rights and liabilities of parties either finally or at an interlocutory stage. In other words, the applicant is failed to get interim relief from the Court concerned restraining the adjacent owner and developer for accessing the right of way over the alleged land. Since 2016, the dispute is pending before the Civil Court. In 2020, the applicant approached the police authority for granting police protection to his property and considering the pendency of the civil suits, the authority declined to provide police protection to carry out the fencing work as claimed by the applicant. 9. In the aforesaid facts, it will be useful to refer to the decision of the Apex Court reported in P.R. Murlidharan and Others vs. Swami Dharmananda Theertha Padar and Others, 2006 (4) SCC 501 wherein in paragraphs 12 and 17 to 19, it has been laid down as under: “12. 9. In the aforesaid facts, it will be useful to refer to the decision of the Apex Court reported in P.R. Murlidharan and Others vs. Swami Dharmananda Theertha Padar and Others, 2006 (4) SCC 501 wherein in paragraphs 12 and 17 to 19, it has been laid down as under: “12. It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining such disputed questions of fact which was beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact. 17. A writ petition under the guise of seeking a writ of mandamus directing the police authorities to give protection to a writ petitioner, cannot be made a forum for adjudicating on civil rights. It is one thing to approach the High Court, for issuance of such a writ on a plea that a particular party has not obeyed a decree or an order of injunction passed in favour of the writ petitioner, was deliberately flouting that decree or order and in spite of the petitioner applying for it, or that the police authorities are not giving him the needed protection in terms of the decree or order passed by a court with jurisdiction. But, it is quite another thing to seek a writ of mandamus directing protection in respect of property, status or right which remains to be adjudicated upon and when such an adjudication can only be got done in a properly instituted civil suit. It would be an abuse of process for a writ petitioner to approach the High Court under Article 226 of the Constitution seeking a writ of mandamus directing the police authorities to protect his claimed possession of a property without first establishing his possession in an appropriate civil court. The temptation to grant relief in cases of this nature should be resisted by the High Court. The temptation to grant relief in cases of this nature should be resisted by the High Court. The wide jurisdiction under Article 226 of the Constitution would remain effective and meaningful only when it is exercised prudently and in appropriate situations. 18. In the case on hand, various disputed questions arose based on a deed of trust and the facts pleaded by the writ petitioner and controverted by the other side. The High Court should have normally directed the writ petitioner to have his rights adjudicated upon, in an appropriate suit in a civil court. The fact that a writ petitioner may be barred from approaching the civil court, in view of Order 9 Rule 9 of the Code of Civil Procedure, or some other provisions, is no ground for the High Court to take upon itself, under Article 226 of the Constitution, the duty to adjudicate on the civil rights of parties for the purpose of deciding whether a writ of mandamus could be issued to the police authorities for the protection of the alleged rights of the writ petitioner. A writ of mandamus directing the police authorities to give protection to the person of a writ petitioner can be issued, when the court is satisfied that there is a threat to his person and the authorities have failed to perform their duties and it is different from granting relief for the first time to a person either to allegedly protect his right to property or his right to an office, especially when the pleadings themselves disclose that disputed questions are involved. My learned Brother has rightly pointed out that the High Court was in error in proceeding to adjudicate on the rights and obligations arising out of the trust deed merely based on the affidavits and the deed itself. I fully agree with my learned Brother that the High Court should not have undertaken such an exercise on the basis that the right of the writ petitioner under Article 21 of the Constitution is sought to be affected by the actions of the contesting respondents and their supporters and that can be prevented by the issue of the writ of mandamus prayed for. 19. A writ for “police protection” so-called, has only a limited scope, as, when the court is approached for protection of rights declared by a decree or by an order passed by a civil court. 19. A writ for “police protection” so-called, has only a limited scope, as, when the court is approached for protection of rights declared by a decree or by an order passed by a civil court. It cannot be extended to cases where rights have not been determined either finally by the civil court or, at least at an interlocutory stage in an unambiguous manner, and then too in furtherance of the decree or order.” 10. In yet another decision of the Apex Court reported in Moran M. Baselios Marthoma Mathews and Others vs. State of Kerala and Others, (2007) 6 SCC 517 , it has been laid down as under: “The High Court should not have gone into the rival contentions of the parties. The High Court committed a manifest error in going into the disputed questions of title as also the disputed questions in regard to the rights of a particular group to manage the Churches, in exercise of its jurisdiction, particularly, when such questions are pending consideration before competent civil courts. Such disputed questions in regard to title of the properties or the right of one group against the other in respect of the management of such a large number of Churches could not have been the subject-matter for determination by a writ court under Article 226 of the Constitution of India in the garb of grant of police protection to one or the other appellants.” 11. In light of the aforesaid principles laid down by the Apex Court and considering the peculiar facts and circumstances of the present case, this Court is of considered view that, no case is made out for exercising discretionary power under Article 226 of the Constitution of India to extend the relief of police protection, where rights as claimed have not been determined either finally by the Civil Court, or at an interlocutory stage. The applicant herein under the guise of police protection, intends to carry out the fencing work over the disputed land for which dispute is pending before the Civil Court. The police authority has rightly refused to extend police protection when such issue is pending before the competent Civil Court. The proceedings seeking a writ of mandamus, directing the police authorities to extend police protection to the applicant or his property cannot be made forum for adjudicating civil rights. The police authority has rightly refused to extend police protection when such issue is pending before the competent Civil Court. The proceedings seeking a writ of mandamus, directing the police authorities to extend police protection to the applicant or his property cannot be made forum for adjudicating civil rights. In the case of P.R. Muralidharan (supra), the Apex Court held that “it would be an abuse of the process of the Court for any person to approach the High Court under Article 226 of the Constitution of India, seeking a writ of mandamus directing police officers to protect his property without first establishing his right in appropriate legal proceedings.” It is further observed by the Apex Court that “a writ for police protection, has limited application to cases where the Court is approached for protection of rights declared by an order passed by the Court and High Court would not, collaterally determine disputed question of facts.” 12. For the aforesaid reasons, the application fails and the same is dismissed.