Ali Akbar v. District Police Chief, Office of the District Police Chief, Malappuram District and Rafeeque

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942** ## **WP(C).No.27170 OF 2020(U)** ## **PETITIONER:** **ALI AKBAR AGED 32 YEARS S/O.KAMMEESAKUTTY, NOONJALLUR, MUTHUVALLUR P.O., PULIKKAL VILLAGE, KONDOTTY TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAKESH** ## **RESPONDENTS:** |**1**|**THE DISTRICT POLICE CHIEF**| |---|---| ||**THE OFFICE OF THE DISTRICT POLICE CHIEF, UP**| ||**HILL, MALAPPURAM, PIN-676 505.**| |**2**|**THE STATION HOUSE OFFICER,**| ||**MALAPPURAM POLICE STATION, MALAPPURAM**| ||**DISTRICT, PIN-676 505.**| |**3**|**RAFEEQUE,**| ||**AGED 34 YEARS**| ||**S/O.URUNIYAN PARAMBAN MUHAMMEDALI, VARANGODE,**| ||**MALAPPURAM AMSOM, KEEZHMURI DESOM, MALAPPURAM**| ||**DISTRICT, PIN-676 519.**| ||**R1 & R2 BY SRI SUNIL NATH N.B-GOVERNMENT**| ||**PLEADER**| ||**R3 BY ADV. SRI.P.S.ABDUL KAREEM**| ||**R3 BY ADV. SRI.R.ABDUL AHAD**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- WP(C).No.27170 OF 2020(U) ## **JUDGMENT** The petitioner, who is conducting a home appliance shop in building Nos.24/402, 24/403, 24/405 and 24/406 of Malappuram Municipality, owned by the 3[rd] respondent, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 2 to afford adequate, effective and meaningful police protection to the life of the petitioner and his family from the threat of the 3[rd] respondent and his men. The petitioner filed O.S.No.396 of 2020 against the 3[rd] respondent alleging forceful eviction from the building in question, without adopting the procedure established by law. In that suit, the Munsiff's Court granted Ext.P1 order of interim injunction on 18.11.2020, in I.A.No.2 of 2020, in favour of the petitioner. The document marked as Ext.P2 is a copy of the report filed by the Advocate Commissioner, who inspected the property on 23.11.2020. 2. In the writ petition it is alleged that in violation of Ext.P1 order of interim injunction, the 3[rd] respondent and his supporters are causing threat to the life and property of the petitioner. In such circumstances, the petitioner submitted -3- WP(C).No.27170 OF 2020(U) Ext.P3 complaint dated 24.11.2020 before the 1[st] respondent District Police Chief, which was acknowledged vide Ext.P4 receipt dated 20.11.2020. Thereafter, the petitioner has moved this writ petition before this Court seeking the aforesaid relief. 3. On 07.12.2020, when this writ petition came up for admission, this Court issued notice before admission to the respondents. The learned Government Pleader took notice for respondents 1 and 2. Urgent notice by speed post was ordered to the 3[rd] respondent. Having considered the submissions advanced by the learned counsel for the petitioner, this Court granted an interim order directing the 2[nd] respondent to ensure that law and order is maintained. 4. On 02.02.2021, when this writ petition came up for consideration, the learned counsel for the 3[rd] respondent sought one week time to file counter affidavit. It was pointed out that the licence issued to the petitioner for conducting business in the premises in question has already been cancelled by Malappuram Municipality. By order dated 02.02.2021, it was made clear that the interim order granted on 07.12.2020 directing the 2[nd] respondent to ensure that law -4- WP(C).No.27170 OF 2020(U) and order is maintained, will not enable the petitioner to conduct business in the premises in question without a valid licence. 5. Counter affidavit has been filed by the 3[rd] respondent opposing the relief sought for in this writ petition. 6. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 and 2 and also the learned counsel for the 3[rd] respondent. 7. In **Kanwar Singh Saini v. High Court of Delhi [(2012) 4 SCC 307]** the Apex Court held that an application under Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 is maintainable in a case where there is violation of interim injunction passed during the pendency of the suit and in a case where there is disobedience of the judgment and decree it has to be dealt with in execution proceedings under Order XXI, Rule 32 of the Code. 8. In **George Mirante v. State of Kerala [1990 (2) KLT 89]** this Court held that, in matters involving civil rights, or disputes regarding title and possession over property, it is not proper for this Court to interfere under Article 226 of the Constitution with an order for police protection. Police cannot -5- ## WP(C).No.27170 OF 2020(U) be made the adjudicators of such disputes inter se between the parties, either regarding possession of property or regarding boundaries or regarding easements or the like. These are matters essentially within the domain of the civil courts. The parties should approach those Courts and seek redress. Police does 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 breach of peace or commission of cognisable offences, and to preserve law and order. 9. In **George Mirante** this Court held further that, it will be totally against the rule of law if the right of the police is to be used in favour of one party against another without an adjudication by any appropriate authority of the rights of either side. In all such cases, the proper remedy, for a party feeling aggrieved, is to approach the civil court for the establishment of his rights, and seek appropriate injunctive reliefs against the offending party, and if any such orders are attempted to be violated, to seek their enforcement by the civil court itself. The civil court has the power in such cases to -6- ## WP(C).No.27170 OF 2020(U) enforce its orders under Order XXXIX, Rule 2A or Section 151 of the Code of Civil Procedure with police aid, if necessary, as held by this Court in **Mohammed v. Mohammed Ali [1986 KLT 134]** . When such remedies are available, this Court should be loathe to direct interference by the police or to afford protection, though this Court is not powerless to act in appropriate cases to preserve the rights to property. But such interference should be made sparingly, and not in cases where the parties have an effective remedy or relief by resort to the civil court itself. 10. In **Shaji M.K. and another v. State of Kerala and others [2018 (3) KHC 69]** a Division Bench of this Court was dealing with a case in which the petitioners therein, who are husband and wife, filed writ petition seeking a writ of mandamus commanding respondents 3 and 4 to afford them adequate and effective police protection to use plaint D schedule property in O.S. No. 1241 of 2016 on the file of the Principal Munsiff's Court, Ernakulam, in terms of Ext.P2 order of injunction in I.A. No.2462 of 2018. The 1[st] petitioner filed O.S.No.1241 of 2016, a suit for declaration and injunction filed against the 5[th] respondent, seeking a decree declaring -7- ## WP(C).No.27170 OF 2020(U) that the plaintiff and his family members have absolute right over plaint D schedule pathway to the exclusion of the defendant and that, it is a private property of the plaintiff and his family members and that, the defendant has no right to use the said property in any manner whatsoever. The plaintiff has also sought for a decree of permanent prohibitory injunction restraining the defendant from obstructing or interfering with the peaceful use and enjoyment of plaint D schedule pathway by the plaintiff and his family members and from trespassing into plaint D schedule property or using the same in any manner and from committing any waste therein. During the pendency of O.S.No.1241 of 2016, the 1[st] petitioner filed I.A.No.2462 of 2018 seeking an interim prohibitory injunction restraining the 5[th] respondent and anyone claiming through her from in any manner obstructing his actual use and enjoyment of plaint D schedule pathway for free ingress and egress to his property. On 12.04.2018, when I.A.No.2462 of 2018 came up for consideration, counsel on both sides submitted 'no objection' to direct both parties to keep the present state of plaint D schedule pathway, as noted in the report filed by the Advocate Commissioner, till the -8- ## WP(C).No.27170 OF 2020(U) disposal of lis. Accordingly, by Ext.P2 order dated 12.04.2018, both parties were directed not to alter the present lie and nature of plaint D schedule pathway and not to obstruct the use of the said pathway, until further orders. On 21.04.2018, the 2[nd] petitioner submitted Ext.P3 complaint before the 4[th] respondent Sub Inspector of Police, Cheranalloor, wherein it is alleged that, in breach of Ext.P2 order of temporary injunction, respondents 5 to 8 obstructed the petitioners from bringing construction materials to plaint A schedule property through plaint D schedule pathway. Therefore, the 4[th] respondent was requested to take necessary steps to prevent them from causing any such obstruction and to render necessary protection to the petitioners. The 4[th] respondent acknowledged the receipt of Ext.P3 complaint, vide Ext.P4 receipt dated 21.04.2018. On 21.04.2018 itself, the 2[nd] petitioner submitted Ext.P5 complaint before the 3[rd] respondent Commissioner of Police alleging that, on 21.04.2018 at 11.30 am, despite Ext.P2 order of temporary injunction, respondents 5 to 8, their men and agents obstructed the petitioners from bringing bricks in a Nissan lorry to plaint A schedule property, through plaint D schedule -9- WP(C).No.27170 OF 2020(U) pathway, and the vehicle had to return without unloading the bricks. Therefore, the 2[nd] petitioner sought adequate and effective police protection to her and also to her family to bring construction materials to their property through the pathway mentioned as plaint D schedule property in Ext.P2 order of temporary injunction and for enjoying the said pathway in terms of the said order of injunction. 11. In **Shaji M.K.** , taking note of the law laid down in **Kanwar Singh Saini** , **George Mirante** and **Madavana Masjidul Badariya Jamaath** , the Division Bench of this Court held that, where there is disobedience or breach of an order of temporary injunction passed by the civil court under Order XXXIX, Rule 1 of the Code of Civil Procedure, the remedy open to the plaintiff/applicant is either to apply that court under Order XXXIX, Rule 2A of the Code seeking an order to attach the property of the person guilty of such disobedience or breach and for an order to detain such person in civil prison for a term not exceeding three months. In appropriate cases, the plaintiff/applicant can invoke the inherent powers of the civil court under Section 151 of the Code, which includes the power to grant police protection to -10- WP(C).No.27170 OF 2020(U) secure compliance of the order of temporary injunction. When there are adequate provisions under the Code which enables the civil court to enforce and implement its orders, the plaintiff/ applicant cannot approach this Court under Article 226 of the Constitution of India seeking police protection to secure compliance of the order of temporary injunction. 12. In **Shaji M.K.** , on the facts of the case on hand, the Division Bench held that, if there is any disobedience or breach of Ext.P2 order of temporary injunction, the remedy open to the 1[st] petitioner, who is the plaintiff in O.S.No.1241 of 2016 on the file of the Principal Munsiff's Court, Ernakulam, is either to apply that Court under Order XXXIX, Rule 2A of the Code against the person or persons guilty of such disobedience or breach, or to invoke the inherent powers of that court under Section 151 of the Code, which includes the power to grant police protection, in appropriate cases, to secure compliance of the order of temporary injunction. Accordingly, the Division Bench dismissed the writ petition as not maintainable, without prejudice to the right of the 1[st] petitioner - plaintiff to move appropriate applications before the Munsiff’s Court for the alleged disobedience/breach of WP(C).No.27170 OF 2020(U) -11- Ext.P2 order of temporary injunction. 13. The document placed on record as Ext.R3(A) along with the counter affidavit of the 3[rd] respondent is a copy of I.A.No.7 of 2020 in O.S.No.396 of 2020 filed by the petitioner before the Munsiff's Court, Manjeri under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 alleging violation of Ext.P1 order of interim injunction by the 3[rd] respondent. The filing of that application and its pendency before the Munsiff's Court are not disclosed in this writ petition. When such an application is pending before the competent civil court, the petitioner cannot seek police protection under Article 226 of the Constitution, alleging violation of Ext.P1 order of injunction. In such circumstances, this writ petition fails and the same is accordingly, dismissed; however leaving open the legal and factual contentions raised by both sides. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/25/2 -12- WP(C).No.27170 OF 2020(U) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE INTERLOCUTORY ORDER DATED 18.11.2020 IN IA NO.2/20 IN OS NO.396/20 OF THE MUNSIFF COURT, MANJERI.** **EXHIBIT P2 TRUE COPY OF THE REPORT FILED BY THE ADVOCATE COMMISSIONER DATED 23.11.2020.** **EXHIBIT P3** **TRUE COPY OF THE REPRESENTATION DATED 24.11.2020 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 20.11.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3 A** **TRUE COPY OF PETITION IN IA NO 7/2020 OM PS MP 396/2020 FILED BY PETITIONER AND PENDING ON THE FILES OF HONORABLE MUNSIFF'S COURT, MANJEREI DATED 25.11.2020** **EXHIBIT R3 B TRUE COPY OF THE APPLICATION OFOR LICENSE SUBMITTED BY THE PETITIONER BEFORE MALAPPURAM MUNICIPALITY DATED 24.10.2017** **EXHIBIT R3 C TRUE COPY OF THE FORGED CONSENT LETTER SUBMITTED BY THE PETITIONER BEFORE MALAPPURAM MUNICIPALITY DATED 22.07.2017** **EXHIBIT R3 D TRUE COPY OF THE DEATH CERTIFICATE ISSUED BY PERINTHALMANNA MUNICIPALITY CERTIFYING THE DEATH OF THE FATHER OF THE PETITIONER ON 27.07.2006 DATED 31.07.2006** -13- WP(C).No.27170 OF 2020(U) **EXHIBIT R3 E TRUE COPY OF THE LETTER NO HI-16531/20 ISSUED BY THE SECRETARY, MALAPPURAM MUNICIPALITY DATED 22.01.2021**