High Court of KeralaDivision Bench2008-01-16Writ Petition dismissed

M.G. Ajayakumar v. State of Kerala and Others

Case / Petition Number:WP(C) No. 28545 of 2007(W)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Balakrishnan Nair
P. N. Ravindran
Judgment Date: 2008-01-16
Court Decision / Holding: The writ petition is dismissed. The court held that police protection cannot be issued to decide boundary disputes or to facilitate construction in lieu of civil adjudication; it is a matter for the civil court to fix boundaries and order enforcement, with police aid if required to implement civil orders. Judgment explicitly states that the petitioner’s request cannot be granted and is dismissible, without prejudice to the petitioner pursuing other remedies available in civil forums.
Final Disposition: Writ Petition dismissed

Parties to the Case

Appellants / Petitioners

M.G. Ajayakumar, S/o Rajappan, Manappalathu House, Kudayathoor Village, Thodupuzha Taluk

Respondents

State of Kerala represented by Director of Prosecution, High Court of Kerala, Ernakulam
Sub Inspector of Police, Kanjir, Idukki District
M.K. Chithambaran Pillai, S/O Krishna Pillai, Mullupparambil House, Kudayathoor Village, Thodupuzha Taluk (corrected address)

Legal Representation & Advocates

Counsels for Petitioners

• K. Divakaran Nair (Advocate)

Counsels for Respondents

• P.A. Salim (Govt. Pleader)
• C.M. Tomy (Advocate)
• Mathew Skaria (Advocate)

Case Synopsis & Summary

This Division Bench of the Kerala High Court examines a writ petition filed by M.G. Ajayakumar seeking police protection under Article 226 of the Constitution to construct a boundary wall on his land near a PWD road and a canal of the Muvattupuzha Valley Irrigation Project. Ajayakumar, who purchased about 12 cents and 500 sq. links of property in 2004, asserts that a third respondent (a lawyer living opposite his property) trespasses and harasses him despite a prior Munsiff’s Court injunction (Ext.P1) restraining trespass. He pleads for police protection to enable fencing and asserts that police inaction leaves his property vulnerable. The third respondent and others counter that the petitioner encroaches on puramboke land and a public pathway, and that civil suits (OS No.42/06 and OS No.45/06) are pending in the Munsiff’s Court, making the border issue a civil matter. The Government Pleader notes allegations of encroachment and dispute over boundaries. In its analysis, the Court emphasizes that police protection cannot resolve boundary disputes; the appropriate remedy lies in civil adjudication, with police aid only to enforce a court’s orders. Citing George v. Circle Inspector of Police, the court dismisses the petition, noting the petitioner’s right to pursue civil remedies, while warning against misusing police protection. The ruling clarifies the limited role of police in boundary disputes and reaffirms civil court primacy.

Provisions of Law Cited

Article 226 of the Constitution of IndiaOrder 39 Rule 1 of the CPC (read with Rule 2-A)

Legal Doctrines & Maxims

Police protection under Article 226 cannot substitute for civil adjudication in boundary disputes.
Ordinarily, a civil suit lies to prevent trespass and obtain injunction; the civil court can enforce its orders (including by directing police).
The advantages of a declaratory judgment over mandamus.
For boundary disputes, the proper remedy is civil court boundary fixation, not police protection.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner seeks a writ of mandamus or any appropriate writ directing the first two respondents to provide adequate police protection to construct the wall on his land, citing his legal right to preserve and enjoy his property. He relies on Ext.P1 (Munsiff’s Court judgment) and contends that police have failed to protect him from harassment by the third respondent. He submits that boundary disputes and encroachment concerns necessitate police aid to enforce the civil order. He argues for prompt police intervention to avoid ongoing trespass and to enable lawful construction, and asserts his right to pursue civil remedies if necessary.

Contentions of Respondents

The counter contends that the petitioner is encroaching upon puramboke land and obstructing a public pathway; civil suits OS 42/06 and OS 45/06 are already in progress before the Munsiff’s Court. The respondents argue that the boundary dispute should be resolved by civil adjudication rather than by police action, and that the High Court should not issue police protection in such disputes. They rely on the principle that the boundary issues require judicial determination and that police cannot determine boundaries or substitute civil proceedings; they also cite George v. Circle Inspector of Police to emphasize civil remedies and the limited role of police.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
George v. Circle Inspector of Police	1990(1) KLT 741	Positive	The Division Bench cites this decision to support the proposition that civil actions should generally prevail over police direction or protection in boundary disputes, and that police cannot substitute for civil adjudication; it is used to justify not granting police protection in the present case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 WP(C).No. 28545 of 2007(W) -------------------------- PETITIONER: - ------------ M.G.AJAYAKUMAR, S/O.RAJAPPAN, RESIDING AT MANAPPALATHU HOUSE, KUDAYATHOOR VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.K.DIVAKARAN NAIR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY DIRECTOR OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KANJAR, IDUKKI DISTRICT. 3. M.K.CHITHAMBARAN PILLAI, S/O.KRISHNA PILLAI, RESIDING AT *(KUNNUPARAMBIL) HOUSE, KUDAYATHOOR VILLAGE, THODUPUZHA TALUK. (* CORRECTED AS MULLUPPARAMBIL HOUSE, VIDE ORDER DT. 23.10.07 IN IA 13793/07) GOVT. PLEADER SRI.P.A.SALIM. BY ADV. SRI.C.M.TOMY SRI.MATHEW SKARIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 28545/2007 ## APPENDIX ## PETITIONER'S EXTS. EXT.P1 - PHOTO COPY OF JUDGMENT IN O.S.28/2006 OF THE MUNSIFF'S COURT, THODUPUZHA. EXT.P2 - PHOTO COPY OF THE DEPOSITION OF PW2 (VILLAGE OFFICER) IN EXT.P1 SUIT. EXT.P3 - COPY OF F.I.R. IN CRIME NO.402/07 OF KANJAR POLICE STATION. /TRUE COPY/ ## **K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.** -------------------------------------------------------------------------------- Writ Petition (C) No.28545 of 2007-W -------------------------------------------------------------------------------- ## Judgment ## Balakrishnan Nair, J. The “police protection” jurisdiction exercised by this Court is one of the most abused jurisdictions. Suits which are to be filed before the concerned civil court are converted into writ petitions and filed before this Court. This case is one among such cases. 2. The brief facts of the case are the following: The petitioner is the owner of 12 cents and 500 sq.links of land, which he purchased in 2004. On the southern side of the property, there is a PWD Road and on the northern side, there is a canal of Muvattupuzha Valley Irrigation Project. When the third respondent tried to trespass into his property, he moved the Munsiff's Court and obtained Ext.P1 judgment, restraining the said respondent from trespassing into the aforementioned property owned by him. The petitioner submits, the third respondent, who is a lawyer, is residing on the opposite side of the road. There is no common boundary for the properties owned by the petitioner and the said respondent. The third respondent is unnecessarily WPC 28545/97 2 troubling and harassing him. The petitioner wanted to construct a compound wall to protect his property. When he attempted to do that, the third respondent again obstructed. The petitioner orally informed the police to give protection to him. When the police did not render any assistance, this Writ Petition is filed, seeking mainly, the following relief : _“i. issue a writ of mandamus or any other appropriate writ, direction or order, directing the respondents 1 and 2 to give adequate police protection to the petitioner for constructing the compound wall of his property involved in Ext.P1 case.”_ 3. The third respondent has filed a counter affidavit, disputing the submissions of the petitioner. According to him, the petitioner is trying to construct the compound wall, encroaching into the neighbouring puramboke land and also encroaching into the public pathway, going by the western side of his property. The petitioner and his wife filed OS No.42/06 before the Munsiff's Court, Thodupuzha against one Mr.Thankachan and others, on the allegation that they are trying to trespass into their property and trying to cut open a pathway. The said Mr.Thankachan and others filed OS No.45/06 against the petitioner, his wife and one Mr.Ramakrishna Pillai, praying to WPC 28545/97 3 injunct them from obstructing the public pathway and also obstructing the steps leading to the public thodu flowing on the western side of the property. The third respondent submits, the plaintiffs in O.S.No.45/2006 are the persons who are really obstructing the construction of the compound wall. Instead of impleading them, the petitioner has impleaded the third respondent to mislead this Court. 4. Though the petitioner filed an additional affidavit, he has chosen not to traverse the above averments of the third respondent. The learned Government Pleader, upon instruction, submitted that there is an allegation against the petitioner that he is encroaching into the purambooke land belonging to the PWD and the Irrigation Department. The Irrigation Department has filed a suit against him. The local people are objecting to the construction of the compound wall. 5. While entertaining a Writ Petition for police protection, this Court is exercising its power under Article 226 of the Constitution of India, to issue a writ in the nature of mandamus. The applicant, to get a direction from this Court to the police, must show that he has got a legal right and the police have got a corresponding duty. If there is any dispute regarding the boundary, the WPC 28545/97 4 police have no duty or power to decide where the correct boundary is and thereafter render protection to a person, who wants to put up a compound wall. The proper remedy for the petitioner is to move the civil court for fixation of the boundary, get the boundary fixed and thereafter, construct the compound wall. If there is any obstruction to that, the civil court is competent to address the police to render assistance to enforce its orders also. See the decision of the Division Bench of this Court in **George v. Circle Inspector of Police** [1990(1) KLT 741], wherein it was held as follows: “Ordinarily, a civil suit will lie to prevent trespass and to obtain an order of injunction. In an ordinary action in civil court, it is possible to obtain the relief of declaration and also injunction. The civil court can grant relief restraining obstruction or impediment to the enjoyment of the property or the goods. So also affirmative relief to load and unload goods can be given. The civil court will be in a better position to evaluate and grant relief, appropriate to the occasion, even if circumstances require the taking of oral and documentary evidence. The court granting the injunction can implement it by giving consequential directions , including direction to the police authorities to effectuate the order. It can also punish persons for disobeying the order of court, under O.39 R1, C.P.C., read with R2-A. The advantages of declaratory judgment over mandamus need not be over stated.” If the High Court directs the police to render assistance to the petitioner to construct the compound wall and if he builds the wall on the forbidden line, WPC 28545/97 5 there will be no remedy for others, who are aggrieved by it. So, having regard to the boundary dispute between the petitioner and others in the locality, no direction as sought for, can be issued in this Writ Petition. Accordingly, the Writ Petition is dismissed without prejudice to the contentions of the petitioner and his right to move other forums for appropriate reliefs. **K.BALAKRISHNAN NAIR,JUDGE** 16.01.2008 **P.N.RAVINDRAN, JUDGE** sta WPC 28545/97 6