KALYANSILKSTRICHUR PRIVATE LIMITED AND KALYANSILKSPROPERTIES PRIVATE LIMITED v THE DISTRICT POLICE CHIEF (OFFICE OF THE DISTRICT POLICE CHIEF, KOLLAM CITY POLICE); THE STATION HOUSE OFFICER, KOLLAM EAST POLICE STATION; SREEMURUKAN RESIDENTS ASSOCIATION (SANKARNAGAR), KOLLAM

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945`** ## **`WP(C) NO. 6580 OF 2024`** ## **`PETITIONERS:`** ``` 1KALYANSILKSTRICHURPRIVATELIMITED HAVINGITSREGISTEREDADDRESSAT4/621/2,KURIACHIRA, THRISSURREPRESENTEDBYITSREGIONALMANAGERAND - AUTHORISEDSIGNATORYSRI.SHIBUKUMARK.,PIN686006 2KALYANSILKSPROPERTIESPRIVATELIMITED HAVINGITSREGISTEREDADDRESSAT'KALYANBUILDINGS', KURIACHIRA,THRISSURREPRESENTEDBYITSMANAGING DIRECTORANDAUTHORISEDSIGNATORYSRI.PRAKASH, - PIN686006 ``` ``` BYADVS. ASWINGOPAKUMAR ANWINGOPAKUMAR ADITYAVENUGOPALAN NIKITHASUSANPAULSON SARANYABABU MAHESHCHANDRAN SHALLETK.SAM ``` ## **`RESPONDENTS:`** ``` 1THEDISTRICTPOLICECHIEF OFFICEOFTHEDISTRICTPOLICECHIEF,KOLLAMCITY - POLICE,MUNDAKKAL,KOLLAM,PIN691001 2THESTATIONHOUSEOFFICER KOLLAMEASTPOLICESTATION,KOLLAMDISTRICT,KERALA, - PIN691001 ``` W.P.(C).6580 of 2024 2 ``` 3SREEMURUKAN AGED44YEARS S/O.SRI.M.R.SAHAJAN,AGED44YEARS,RESIDINGAT S-25,SANKARNAGAR,KOLLAMPRESIDENTOFSANKARNAGAR RESIDENTSASSOCIATION,SANKARNAGAR,KOLLAM, - PIN691001 ``` ``` SMT.MABLECKURIAN,SRGOVERNMENTPLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON19.02.2024,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` W.P.(C).6580 of 2024 3 ## **JUDGMENT** The petitioners, private companies duly represented by their principal officers, have approached this Court by filing this writ petition under Article 226 of the Constitution of India, seeking to remedy what they perceive as a failure on the part of the official respondents to take action and provide protection for the construction of a boundary wall by removing the obstructions caused by the 3rd respondent and his men. 2. Short facts are as under : The 2nd petitioner has acquired a parcel of land spanning 33.88 Ares, situated across various survey numbers of Kollam East Village, as per Ext.P1 Sale Deed. This property was leased to the 1st petitioner for the purpose of constructing a commercial building intended for textile and hypermarket operations. The petitioners affirm that they have obtained all requisite permits and licenses necessary for the construction activities. 3. Adjacent to the northern boundary of the property, as delineated in Ext.P1, lies a sewage canal covered by concrete slabs, with a public road further northward. Upon the acquisition of the property, an old compound wall W.P.(C).6580 of 2024 4 existed along its northern boundary. However, when the petitioners endeavored to replace it with a taller wall for security and aesthetic purposes, certain individuals led by the 3rd respondent, purporting to be residents of a nearby housing colony, obstructed the construction. They claimed ownership rights over the portion of the property where construction was taking place. Subsequently, as arrangements for the showroom inauguration were underway, the petitioner lodged a complaint with the 2nd respondent. The police promptly intervened and removed the obstructions, which enabled the construction to go on. 4. Shortly thereafter, the 3rd respondent, identifying himself as the President of the Sankar Nagar Residents Association, approached the Principal Munsiff Court and initiated O.S.No.13 of 2024, seeking an injunction, arraying an employee of the 2nd petitioner and a common Director of the petitioners as defendants. The learned Munsiff, on the strength of the pleadings, proceeded to pass an order of interim injunction restraining the respondent in the application and his associates from constructing the compound wall by encroaching upon the plaint schedule property or causing any waste or damage. Incidentally, the plaint schedule property is stated to be a road W.P.(C).6580 of 2024 5 measuring 8 meters in width, extending from the Excise Office Junction towards the Sankar Nagar Colony, traversing the eastern and southern boundaries of the petitioners’ property, with a length of 300 meters. 5. The petitioners contend that the 3rd respondent misrepresented facts before the learned Munsiff Court and deviously obtained the order. A Commissioner Advocate has been appointed to conduct a site inspection. The defendants have duly appeared and filed a comprehensive counter, refuting the contentions raised. Despite the defendants' request to expedite the proceedings, no orders have been forthcoming to date. 6. The petitioners state that in the course of arguments, the learned Munsiff had remarked that the construction, that is being carried out by the petitioners on their private property, cannot be obstructed by any person, let alone the 3rd respondent. The petitioners, in the said circumstances, instructed the contractor to complete the construction. However, the 3rd respondent and his men threatened the petitioners with physical harm if they were to proceed with the construction. The petitioners promptly approached the 2nd respondent and filed Ext.P9 complaint. However, the 2nd respondent is stated to have expressed his helplessness in rendering any assistance. It is W.P.(C).6580 of 2024 6 on these assertions that this writ petition is filed seeking the following relief: - i. Issue a writ of mandamus or such other appropriate writ of mandamus or such other appropriate writ, direction or order commanding Respondents 1 and 2 to afford adequate protection to the life and property of the petitioners, its employees, the civil contractor and his workmen engaged in the construction of the compound wall in the property belonging to Petitioner No.2, without any obstruction, threat or intimidation by Respondent No.3 and his men; 7. Sri. Aswin Gopakumar, the learned counsel appearing for the petitioners, submitted that nothing prevents the petitioners from continuing with the construction of the boundary wall as no orders have been passed against the petitioners by the learned Munsiff. It is submitted that in spite of all measures taken by the petitioners to get the order vacated, the matter is being delayed. It is submitted that there is no justification on the part of the 2nd respondent in not affording protection to the petitioners to carry out the construction of the boundary wall. 8. In response, it is submitted by the learned Government Pleader that as long as the interim order passed by the learned Munsiff is in force, the petitioners are not entitled to contend that they have a legal right to carry out W.P.(C).6580 of 2024 7 the construction of the boundary wall and the police are having a corresponding duty to render assistance. 9. In view of the reasons that follow, I am of the view that no notice be issued to the 3rd respondent. 10. I have considered the submissions advanced and have carefully gone through the records. 11. I find from the records that the 3rd respondent has instituted a suit and has secured an interim order restraining the defendants therein from proceeding with the construction of a boundary wall. A perusal of Ext.P3 plaint clearly discloses that the dispute is with regard to the construction of the boundary wall on the northern side of the property covered under Ext.P1. Admittedly, the jurisdictional civil court has interdicted the construction of the boundary wall, and the said order is still in force. What is pleaded in the writ petition is that the learned Munsiff had remarked during the hearing that the petitioners could carry on with the construction as it is being carried out on their property. I am unable to accept the said contention. As rightly submitted by the learned Government Pleader, the police have no statutory duty to assist the petitioners in putting up the boundary wall, which action has been W.P.(C).6580 of 2024 8 interdicted by the civil court. As a matter of fact, the police are bound to ensure that the Rule of Law prevails, and as long as the interim order passed by the learned Munsiff is in force, the defendants have no alternative but to abide by the same. 12. 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 under Article 226 of the Constitution of India with an order for police protection. Police cannot be made the adjudicators of such disputes inter se between the parties, either regarding possession of property, boundaries, easements, or the like. These are matters essentially within the domain of the Civil Courts. The parties should approach the 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 offences, and to preserve law and order. 13. In **P. R. Murlidharan[2]** , it was held by the Apex Court that a writ > 1 George Mirante v. State of Kerala [1990 (2) KLT 89] > 2 P. R. Murlidharan v. Swami Dharmananda Theertha Padar [2006 (4) SCC 501] W.P.(C).6580 of 2024 9 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 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. W.P.(C).6580 of 2024 10 ## 14. 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. 15. In the case on hand, the petitioners had failed to substantiate that they have a legal right to compel the performance of a statutory duty by the 2nd respondent as there is an order by a competent Civil Court interdicting > 3 Gladstone George Varghese v. District Police Chief, Office of the DSP, Kollam [2023 (7) KHC 30] W.P.(C).6580 of 2024 11 the construction of the boundary wall. It is for the petitioners to seek appropriate orders from the Munsiff. If positive orders are obtained by the petitioners, they may approach the police and request protection and not otherwise. In that view of the matter, I find no reason to entertain this writ petition. This writ petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP W.P.(C).6580 of 2024 12 ## **`APPENDIX OF WP(C) 6580/2024`** ``` PETITIONERS’EXHIBITS: ``` ``` Exhibit1ATRUECOPYOFTHESALEDEED ``` ``` ExhibitP2TRUECOPYOFTHEPHOTOGRAPHSSHOWINGTHESITEOF CONSTRUCTIONANDTHEPUBLICROAD ``` - `Exhibit P3 A TRUE COPY OF THE PLAINT IN THE ORIGINAL SUIT NO.13 OF 2024 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, KOLLAM` - `Exhibit P4 TRUE COPY OF I.A. NO. 1 OF 2024 IN O.S. NO. 13 OF 2024 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, KOLLAM` - `Exhibit P5 TRUE COPY OF THE ORDER DATED 08.01.2024 PASSED BY THE PRINCIPAL MUNSIFF'S COURT, KOLLAM IN IA NO.1/2024 IN OS NO.13/2024` - `Exhibit P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN I.A. NO.1 OF 2024 IN O.S. NO.13 OF 2024 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, KOLLAM` - `Exhibit P7 TRUE EXTRACT OF THE PROCEEDINGS OF THE PRINCIPAL MUNSIFF'S COURT, KOLLAM IN O.S NO.13 OF 2024 FOR THE POSTING DATES 01.02.2024` - `Exhibit P8 TRUE EXTRACT OF THE PROCEEDINGS OF THE PRINCIPAL MUNSIFF'S COURT, KOLLAM IN O.S NO.13 OF 2024 FOR THE POSTING DATE 17.02.2024` - `Exhibit P9 TRUE COPY OF THE WRITTEN COMPLAINT FILED BY PETITIONER NO.1 BEFORE RESPONDENT NO.2`