Ajith Sankar C v. P. Padmakumar and Others

1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` MONDAY,THE19[TH]DAYOFFEBRUARY2024/30THMAGHA,1945 WP(C)NO.2194OF2024 ``` ``` PETITIONER: ``` ``` AJITHSANKARC AGED55YEARS S/O.SANKARANARAYANAN, RESIDINGATPOOOZHIKKATHOUSE, KUMARAPURAM,ERIKKAVUP.O, - ALAPPUZHA,PIN690516 BYADVS. B.BILWIN NITA.N.S. KEERTHIM. N.BHARAT T.N.GIRIJA ``` ## **`RESPONDENTS:`** ``` 1P.PADMAKUMAR THACHANGATTIL,CLAPANAP.O, - KARUNAGAPALLY,KOLLAMDISTRICT,PIN690525 2P.BSREEKUMAR PALLIYAEMBILHOUSE, GOVINDAMUTTOMP.O,KAYAMKULAM, - ALAPPUZHA,PIN690527 3STATIONHOUSEOFFICER KAYAMKULAMPOLICESTATION, KAYAKULAM-THIRUVALLAHIGHWAY, - KAYAMKULAM,PIN690502 4STATEOFKERALA REPRESENTEDBYTHESECRETARY,HOMEDEPARTMENT, GOVERNMENTOFKERALASECRETARIAT, - THIRUVANANTHAPURAM,PIN695001 BYADVS. R.KISHORE(KALLUMTHAZHAM) G.KIRAN(K/403/2008) AMARS.R.(K/1932/2020) TITOANDREWSALEXANDER(K/1674/2022) SRIPMSHAMEER,GP. ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 19.02.2024,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` ``` WP(C)NO.2194OF2024 ``` 2 ## **`JUDGMENT`** The petitioner states that he has been appointed as the Administrator of the Ad hoc Administrative Committee appointed by the State General Secretary of Sree Narayana Samskarika Samithy (hereinafter referred to as the ‘Samithy’) to manage the administration and affairs of the various school functioning under the Karthikappally Unit of the Sree Narayana Samskarika Samithy. This petition is filed by the petitioner seeking issuance of directions to the 3rd respondent, who is the Station House Officer of the Kayamkulam Police Station, to grant effective protection to the petitioner and other committee members to take possession of the office for the administration of the schools run by the Samithy. ## 2. The short facts are as under:- Sree Narayana Samskarika Samithy (hereinafter referred to as the ‘Samithy’) is registered under the Societies Registration Act. Under the said Samithy, the Karthikapilly Unit is running three schools, wherein about 4000 children are pursuing their education. Before the expiry of the term of the previous office bearers, the persons in office sought the appointment of a Returning Officer to the election scheduled to be held on ``` WP(C)NO.2194OF2024 ``` 3 17.12.2023. Immediately thereafter, Samithy is stated to have approached this Court seeking police protection for the smooth conduct of the election on 17.12.2023. While so, a certain Bipin C. Babu, claiming that he was appointed as the Returning Officer by the International Secretary of the Samithy, approached this Court and filed W.P.(C.) No. 42266/2023, seeking police protection for the conduct of the election to the Committee, has been scheduled to be held on 31.12.2023. In other words, there were apparently two factions who were claiming that they are entitled by virtue of the provisions of the bye-laws of the Society to manage the affairs of the School. 3. The petitoner asserts that while the writ petitions filed by them were pending consideration, the election to the Samithy was held on 17.12.2023, and certain office bearers were elected. In the said circumstances, W.P.(C.) No. 41647/2023 was withdrawn. 4. However, W.P.(C) No. 42266/2023 was heard by a learned Single Judge of this Court, after hearing the contentions of both sides, by Ext.P1 interim order dated 29.12.2023, the jurisdictional police were directed to grant adequate and effective protection to the election proposed to be held on 31.12.2023. It was, however, made clear that the grant of police protection would not confer any force, legality, or validity to ``` WP(C)NO.2194OF2024 ``` 4 any of the claims espoused by the petitioner and that the court was concerned only with the maintenance of the law and order situation during the election. It was in pursuance to the election so conducted that the party respondents assumed office of the Commitee. 5. The petitioner states that immediately after the election, one of the factions led by Sri. V. Chandradas filed an appeal challenging the election before the State General Secretary. The respondents 1 and 2 appeared before the appellate authority and submitted Exts.P3 and P4 statements. In those statements, it was contended that the authority was bereft of jurisdiction under the bye-laws to hear the election petition. It was further held that the person who was hearing the appeal was, in fact, an accused who had trespassed into the school and had committed mischief on 25.12.2023 and a crime had been registered against him. They contended that they were the legitimate office bearers of the Samithy, Karthikappilly Unit. 6. It appears that the objection raised by the party respondents was rejected. The appeal was heard in the absence of the respondents, and Ext.P5 order was passed on 12.1.2024, holding that the election which was held on 17.12.2023 was valid and the one which was held on 31.12.2023 was not in accordance with law. It was found that ``` WP(C)NO.2194OF2024 ``` 5 disputes existed between the members of the Samithy over the management and administration of the school, and taking note of the acts of violence and the registration of the crimes appointed a three-member Administrative Commitee, and the petitioner was appointed as the Administrator. 7. On the strength of the above order, when the petitioner went to the Samithy to assume office, the party respondents forcefully obstructed him and threatened him with physical harm. It is in the said circumstances the petitioner is seeking assistance to take over the office, and Ext.P6 complaint was lodged before the 3rd respondent. The petitioner asserts that no assistance was granted. It is on these assertions that this writ petition is filed seeking appropriate directions to the police to grant protection to the petitioner to take possession of the office for the administration of the three schools run by the Samithy. 8. A counter affidavit has been filed by respondents 1 and 2 refuting the contentions advanced by the petitioner in the writ petition. It is contended that the person by the name Lohithan, who claims himself to be the State Secretary of the Samithy and appointed the Administrative Commitee, is not vested with any authority to hear the appeal or to pass an enforceable order. It is stated that on receipt of a copy of the appeal, ``` WP(C)NO.2194OF2024 ``` 6 the party respondents have appeared before the Authority and challenged his authority to hear the appeal. It is stated that by Ext.R1(a), the State Secretary, Sri. N. Retnakaran had appointed Adv. Bibin C. Babu to function as the Returning Officer to the election scheduled to be held on 31.12.2023 for which an order of police protection was granted by this Court. It is further stated that no election had taken place on 17.12.2023 as alleged in the writ petition. It is further stated that the person who has now been appointed as Administrator is an accused in as many as 24 cases. Finally, it is stated that the prayer to grant police protection to assume office, cannot be granted in a writ petition and requested that the petitioner be relegated to the civil court for appropriate remedies. 9. Sri. N.N Sugunapalan, the learned Senior Counsel appearing for the petitioner, would raise the following contentions:- a) Sri. Bipin C. Babu, while approaching this Court seeking an order of police protection, had produced a document marked as Ext.P3 in the said writ petition from which it could be seen that the Returning Officer was appointed by the International Committee. It is submitted that Ext.R1(a) produced before this Court would disclose that the Returning Officer was appointed by the State Committee. These records disclose that the document which was produced before this Court to secure orders is ``` WP(C)NO.2194OF2024 ``` 7 not a genuine document. According to the learned Senior counsel, a serious fraud was played by the party respondents to secure an order from this Court. Reliance is placed on the law laid down in **Satluj Jal Vidyut Nigam v. Raj Kumar Rajinder Singh (Dead) Through LRS. & Others** [2019 (14) SCC 449] and it is urged that the fraud would vitiate the entire proceedings. b) Secondly, it is urged that in the exercise of the powers under the bye-law, the State Secretary, after considering all relevant aspects, had come to the conclusion that the election, which was held on 17.12.2023, was valid. It is submitted that the Appellate Authority was well aware that the function of the school would come to a standstill if urgent measures were not taken. It was in order to protect the interest of the Samithy that the Administrative Committee was appointed to manage the affairs of the institution for a period of one year. c) It is submitted that it is the bounden duty of the police to enforce the rule of law, and when the Administrator lawfully appointed is obstructed, the official respondents are bound to intervene and grant protection. 10. In response, Sri. R. Kishore, the learned counsel for the party respondents, submitted that this Court, on numerous occasions, held ``` WP(C)NO.2194OF2024 ``` 8 that in matters involving civil rights or disputes regarding title and possession, it would not be proper for this Court to interfere under Article 226 of the Constitution of India with an order of police protection, as such matters are essentially within the purview of the Civil Court. It is submitted that what is in dispute is rival claims to an office and when the records suggest that an independent body has not adjudicated the dispute inter se between the parties, this Court should decline interference. He would point out that the person who passed the order in the appeal and the Administrator appointed by him are the accused in cases registered on the allegation that they had committed mischief in the school premises. It is also submitted that no election was held on 17.12.2023, as contended in the writ petition, and if that be the case, the order procured by the petitioner from a non-existent authority is nullified. The learned counsel would also refer to the judgment rendered by the Division Bench of this Court in judgment dated 27.09.2016 in W.P.(C.) No. 29823/2016, and it is submitted that an identical dispute with regard to the same Samithy had come up for consideration before this Court, and this Court held disputes have to be thrashed out in the Civil Court and police protection was refused. 11. The learned Government Pleader points out that there are ``` WP(C)NO.2194OF2024 ``` 9 disputes between the two factions, and it is uncertain as to which faction has the authority to administer the school. It is submitted that it is on the strength of the election, which was conducted pursuant to the directions issued by this Court, that the respondents have assumed the office. It is further submitted that there have been acts of violence, and the police are keeping vigil to ensure that law and order is maintained. Finally, it is submitted that it is not the duty of the police to remove one party from office over another on the strength of an order passed by an authority whose jurisdiction is under a shadow of doubt. 12. I have considered the submissions, and I have gone through the records. 13. I have carefully considered the submissions advanced and have perused the records. 14. I find from the submissions that there is a serious dispute as to the authority which is competent to carry out the administration of various institutions under the Karthikapilly Unit of the Samithy. The petitioner in the instant case contends that he has been appointed as administrator by the General Secretary of the Samithy by an order passed in appeal challenging the election to the Committee held on 31.12.2023. It has to be immediately noticed that on receipt of notice of the appeal, ``` WP(C)NO.2194OF2024 ``` 10 respondents 1 and 2 had appeared and had submitted Exts.P3 and P4 statements. In the said statement, they disputed the authority of Sri. Lohithan and contended that he is not the General Secretary of the Samithy. They had contended that Lohithan was arrayed as an accused in respect of an incident which took place on 25.12.2023 whereby mischief was caused by a group of people. They had also contended that no election had taken place on 17.12.2023, as claimed. In other words, they had challenged the authority of the Appellate body and had also contended that the provisions of the bye-law did not enable him to act as an Appellate body. Now the question is whether, in this writ petition, this Court has been made a forum for deciding the entitlement of the contesting parties to assume the office of the Commitee. 15. In **George Mirante[1]** , this Court had occasion to hold that in matters involving civil rights or disputes regarding title and possession over property, it would not be proper for this Court to interfere in a writ petition under Article 226 of the Constitution of India seeking an order for police protection. Police cannot be made the adjudicators of such disputes inter se between the parties, either regarding possession of the property, boundaries, easements, or alike matters. These are matters essentially within the domain of the Civil Courts. The parties should approach the > 1 George Mirante v. State of Kerala [1990 (2) KLT 89] ``` WP(C)NO.2194OF2024 ``` 11 appropriate Courts and seek redress. Police do not have the right to decide on such disputes, nor is it proper or competent for them to do so. They do not also have the machinery for the purpose. It is outside the limits of the duties which are cast on them, which is to prevent a breach of peace or commission of cognizable offenses and to preserve law and order. 16. In **P. R. Murlidharan[2]** , it was held by the Apex Court that a writ petition under the guise of seeking a writ of mandamus directing the police authorities to give protection 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 favor 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 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 of India seeking a writ of mandamus directing the police authorities to > 2 P. R. Murlidharan v. Swami Dharmananda Theertha Padar [2006 (4) SCC 501] ``` WP(C)NO.2194OF2024 ``` 12 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 of India would remain effective and meaningful only when it is exercised prudently and in appropriate situations. ## 17. In **Gladstone George Varghese[3] ,** a Division Bench of this Court had occasion to observe as under: 19. In a writ petition filed under Art.226 of the Constitution of India, the petitioner is not entitled to an order for police protection as a matter of right. Similarly, in the exercise of the writ jurisdiction under Art.226 of the Constitution of India, the High Court cannot grant an order for police protection as a matter of course. In order to seek police protection under Art.226 of the Constitution of India, the writ petitioner has to first approach the concerned Station House Officer with a proper complaint against those who are causing a threat to his life/property and/or a 'law and order' issue in the locality. Since a writ of mandamus can be granted only in a case where there is a failure on the part of that officer concerned to discharge the statutory obligation, in the complaint filed before the concerned Station House Officer, which is the foundation upon which a writ petition seeking police protection has been built, the writ petitioner has to disclose his legal right to compel performance of a statutory duty cast upon that officer. ## 18. In view of the principles above, I am of the considered opinion that the police cannot be directed to protect the claimed right of > 3 Gladstone George Varghese v. District Police Chief, Office of the DSP, Kollam [2023 (7) KHC 30] ``` WP(C)NO.2194OF2024 ``` 13 the petitioners to the right of office without establishing the same in a proper forum. It would not be proper for this Court to conduct a roving inquiry to determine the question as to whether the authority which passed the order appointing the petitioner as administrator was jurisdictionally competent to pass such an order. A writ petition under the guise of seeking a writ of mandamus directing the police authorities to give protection cannot be made a forum for adjudicating civil rights. In this context, it would be relevant to note that an identical issue between the same parties had come up before this Court in W.P.(C) No. 29823/2016, wherein this Court had unequivocally held that such contentions can be resolved only in a property instituted civil suit. The petitioner can very well raise the contentions before the jurisdictional Civil Court if so advised, and secure appropriate remedies. This writ petition is dismissed. SD/- ## **`RAJA VIJAYARAGHAVAN V`** ``` JUDGE ``` ``` DCS ``` ``` WP(C)NO.2194OF2024 ``` 14 ## **`APPENDIX OF WP(C) 2194/2024`** ``` PETITIONEREXHIBITS ExhibitP1TRUECOPYOFTHEINTERIMORDERDATED 29/12/2023INW.P.(C)NO.42266/2023 ExhibitP2TRUECOPYOFTHEAPPEALMEMORANDUMINAPPEAL NO.1/2024BEFORETHEGENERALSECRETARY,SREE NARAYANASAMSKARIKASAMITHY ExhibitP3TRUECOPYOFTHESTATEMENTDATED06/01/2024 FILEDBY1STRESPONDENT ExhibitP4TRUECOPYOFTHESTATEMENTDATED06/01/2024 FILEDBY2NDRESPONDENT ExhibitP5TRUECOPYOFTHEORDERINAPPEALNO.1/2024 DATED12/01/2024 ExhibitP6TRUECOPYOFTHECOMPLAINTDATED16/01/2024 SUBMITTEDBYTHEPETITIONERBEFORETHE3RD RESPONDENTSHOKAYAMKULAM RESPONDENTEXHIBITS ExhibitR1TheTrueCopyoftheBye-lawoftheSree NarayanaSamskarikaSamithi Exhibit:R1(a)TheTrueCopyoftheappointmentorderofthe ReturningofficerissuedbytheState SecretaryN.Ratnakumardated02.12.2023 PETITIONEREXHIBITS EXHIBITP7 Truecopyoftheorderdated12/11/2023issued ``` ``` WP(C)NO.2194OF2024 ``` 15 ``` Sri.Lohithan ``` ``` EXHIBITP8Truecopyoftheproceedingsdated18/02/2022 issuedbySri.Lohithan ``` ``` EXHIBITP9TruecopyofthewritpetitionNo.42266/2023 EXHIBITP10Truecopyofthenoticedated04/01/2024 issuedbySri.Lohithan ``` ``` RESPONDENTEXHIBITS ``` ``` ExhibitR1(b)THETRUECOPYOFTHENOTICEOFTHESTATE SECRETARYSREENARAYANASAMSKARIKASAMITHY DATED22.10.2021 ``` ``` ExhibitR1(C)THETRUECOPYOFTHELETTERISSUEDBYTHE STATESECRETARYTOONELOHITHANWHOPRESIDES OVEREXHIBIT:P2INTHISWRITPETITIONALLEGING ASSTATESECRETARYREGARDINGCORRUPTION ```