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2024 DIGILAW 1391 (KER)

Padmanabhan N. , S/o. Late Krishna Kurup v. State Of Kerala

2024-10-29

NITIN JAMDAR, S.MANU

body2024
JUDGMENT : Nitin Jamdar, C. J. The Appellant/Original Petitioner has filed this appeal under Section 5 of the Kerala High Court Act, 1958 challenging the order passed by the learned Single Judge dated 27 September 2024 dismissing W.P.(C) No. 33980 of 2024. 2. The Petitioner filed the writ petition for a simplicitor direction to Respondents 1 & 2 – the Principal Secretary, Home Department and Station House Officer, Thalassery Police Station, Kannur District, to provide police protection to him to put up a compound wall, as he apprehended interference by Respondent Nos.3 to 5 – private parties. 3. The learned Single Judge found that there existed a civil dispute, and, therefore, disposed of the writ petition, observing that if the dispute gave rise to any law and order situation, the police would be bound to interfere and ensure that the Petitioner is not put to any physical harm. 4. The case of the Petitioner in the petition is that he is the owner of a property having an extent of 11.30 cents wherein he has constructed a two storeyed building. The said building consists of six self-contained studio flats let out to five tenants. The Petitioner stays in one of the flats. According to the Petitioner, he applied for a licence to construct a compound wall, and the Municipality granted a building permit. Respondent Nos.3 to 5 are persons residing next to the Petitioner’s property, who, having vehicular access, objected to the Petitioner putting up of the compound wall. Based on these facts, the Petitioner had initially filed a complaint dated 17 July 2024 before Respondent No.2 requesting for police protection and thereafter filed the writ petition on 25 September 2024. 5. We have heard Mr. Harshadev, learned counsel for the Appellant and Mr. V. Tekchand, learned Senior Government Pleader for the official Respondents. 6. Police protection cannot be asked for issues that fall within the jurisdiction of civil courts, particularly when it involves resolving private disputes between parties. It is well established in law that civil rights must be adjudicated by competent civil courts. The enforcement of civil court orders should be carried out in accordance with the procedures outlined in the Code of Civil Procedure, 1908, or any relevant statute that establishes the appropriate forums for such matters. 7. Turning now to the facts of the present case, admittedly, the Appellant and the private Respondents are neighbours. The enforcement of civil court orders should be carried out in accordance with the procedures outlined in the Code of Civil Procedure, 1908, or any relevant statute that establishes the appropriate forums for such matters. 7. Turning now to the facts of the present case, admittedly, the Appellant and the private Respondents are neighbours. The Appellant has not placed all the relevant facts before the Court. From the facts that have been placed on record, it can be discerned that the issue is regarding the right of way, and building a compound wall may affect this aspect. However, it is clear that the Appellant has not disclosed all the facts and is attempting to seek police protection to obviate the need for a decision in the civil court. Nothing stops the Appellant from filing a civil suit and seeking an injunction against the private Respondents, restraining them from interfering with the construction and his possession. Instead, the Appellant has sought police protection. 8. Seeking and employing a police force cannot be a means to sidestep the need for dispute resolution in competent courts. Invariably, such directions are sought invoking Article 226 of the Constitution of India. In the case of P.R. Muralidharan and Others v. Swami Dharmananda Theertha Padar and Others [ (2006) 4 SCC 501 ], the Hon’ble Supreme Court on the exercise of power under Article 226 of the Constitution of India in such matter, observed thus: “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. 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 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. 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. 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.”(emphasis supplied) 9. Thus, a writ petition seeking police protection cannot resolve civil disputes. A writ of mandamus for police protection is justified when there is a genuine threat to safety, which differs from granting protection for disputed claims. A writ for police protection has a limited scope. When the prayer for police protection is sought under Article 226 of the Constitution of India, and if the writ court finds that there is an element of civil dispute involved that will require adjudication, the writ court will not order a police protection unless it is satisfied that there is a likelihood of a law and order situation. In the impugned order, the learned Single Judge has provided for this contingency. 10. In the light thereof, we find no reason to interfere. The appeal is dismissed.