Muraleedharan v. State of Kerala and others

W.A.No.1799 of 2023 1 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR ``` ``` FRIDAY, THE 8[TH] DAY OF DECEMBER 2023/17TH AGRAHAYANA, 1945 ``` ``` WA NO. 1799OF 2023 ``` ``` AGAINST THE JUDGMENT DTD. 25.07.2022 IN WP(C)NO.29852 OF ``` ``` 2021 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/PETITIONER:`** ``` MURALEEDHARAN, AGED 59 YEARS S/O VIMALA NETHIAR, AGED 59, AGRICULTURIST, MATHRUMANDIRAM, AKATHETHARA ENGINEERING COLLEGE PO, PALAKKAD, PIN - 678008 ``` ``` BY ADVS. K.G.BALASUBRAMANIAN AJITH VISWANATHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF FORESTS, SECRETARIAT, THIRUVANANTHAPURAM PO, PIN - 695001`** - **`2 THE DIVISIONAL FOREST OFFICER KALLEKKULANGARA PO, PALAKKAD, PIN - 678009`** - **`3 THE RANGE FOREST OFFICER WALAYAR PO, PALAKKAD, PIN - 678624`** - **`4 THE COMMISSIONER POLICE PALAKKAD P O, PIN - 678001`** - **`5 THE DEPUTY SUPERINTENDENT OF POLICE PALAKKAD P O, PIN - 678009`** W.A.No.1799 of 2023 2 ``` 6 THE SHO HEMAMBIKA NAGAR POLICE STATION, PALAKKAD P O, PIN - 678009 ``` ``` OTHER PRESENT: ``` ``` SRI P. VISWANATHAN (SR) FOR APPELLANT ``` ``` SRI T.P.SAJAN- SPL GOVERNMENT PLEADER ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.A.No.1799 of 2023 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant filed W.P.(C).No.29852 of 2021 invoking the writ jurisdiction under Article 226 of the Constitution of India seeking writ of mandamus commanding respondents 1 to 3, namely, the State of Kerala, the Divisional Forest Officer, Palakkad and the Range Forest Officer, Valayar and their subordinates not to interfere with the rights of the appellant, his family members and workers to hold and enjoy properties covered by Exts.P1 to P18 including maintaining the cow shed, structures, improvements and wells thereon, directly and with the help of his family members and workmen (laborers); a writ of mandamus commanding respondents 4 to 6 to conduct an enquiry on Ext.P14 representation dated 05.10.2020 made before the District Collector with copy to the Commissioner of Police, Deputy Superintendent of Police, Divisional Forest Officer, Palakkad; and a writ of mandamus commanding respondents 4 to 6, namely, the Commissioner of Police, Palakkad, the Deputy Superintendent of Police, Palakkad and the Station House Officer, Hemambika Nagar Police Station, to afford immediate and adequate protection to the W.A.No.1799 of 2023 4 petitioner, his family members and workers without let or interference from any person for enjoyment of the properties covered by Exts.P1 to P18. 2. In the writ petition, a statement dated 25.03.2022 has been filed by the 2[nd] respondent Divisional Forest Officer, which was followed by another statement dated 27.06.2022. The petitioner has filed a reply affidavit dated 05.07.2022, producing therewith Ext.P19 common order dated 22.07.2018 in OA.No.455 of 1976 and OA.No.456 of 1976 on the file of the Forest Tribunal, Palakkad. 3. After considering the rival contentions, the learned Single Judge disposed of W.P.(C).No.29852 of 2021, by the judgment dated 25.07.2022, with the directions contained in paragraph 7 of that judgment. Paragraphs 5 to 7 of the judgment read thus; ''5. It is therefore, essentially the contention of the respondents that the property covered by OA.456/1976 had been fully de-notified after due enquiries under Section 10(A) of the EFL Act. However, with regard to OA.455/1976, it is the contention that only 1.746 acres of land were denotified and remaining one acre is still lying as EFL land. It is therefore, contended that the contention of the petitioner that there is no Forest land abutting his property on any side is incorrect and that, since some extent of the property W.A.No.1799 of 2023 5 in OA.455/76 still remains notified as EFL land, there is a portion of Forest land abutting the petitioner’s property and the said question cannot be decided by this Court. 6. A reply affidavit has been filed by the petitioner producing Ext.P19 order of the Forest Tribunal in which OA 455/1976 and 456/1976 had been fully allowed. The Petitioner contends that constructions in the property were put up by him in his property, as evidenced from Ext.P5 and the contentions to the contrary are unsustainable. 7. Having considered the contentions advanced from either side, I am of the opinion that the petitioner is fully entitled to enjoy his properties which are covered by a common order in OA.456/1976 as well as the denotification order admittedly issued in respect of the said properties. There can be no obstruction to the petitioners enjoyment of the said properties. The submission made on behalf of the respondents that there is no obstruction to the enjoyment of the property restored to the petitioner is recorded. However, with regard to the contention that the petitioner has made attempts to encroach into a portion of the property which remains notified as EFL, I am of the opinion that the said question cannot be considered in this writ petition. The contention of the petitioner with regard to the de-notification of the remaining extent of land in OA.455/1976 which, according to the respondents, still stands notified as EFL land, is left open to be agitated in appropriate proceedings in accordance with law.'' 4. Feeling aggrieved by the judgment of the learned Single Judge, the appellant is before this Court in this appeal, invoking the provisions under Section 5 of the Kerala High Court W.A.No.1799 of 2023 6 Act, 1958. This appeal was filed along with C.M.Appl.No.1 of 2023, for condoning the delay of 82 days in re-presenting the appeal after curing the defect, which was condoned by the order dated 11.10.2023 in C.M.Appl.No.1 of 2023. 5. Heard the learned Senior Counsel for the appellantpetitioner and also the learned Special Government Pleader for the respondents. 6. 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 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 W.A.No.1799 of 2023 7 cognisable offences, and to preserve law and order. 7. 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 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 **Mohammad** **v. Mohammed Haji [1986 KLT 134]** . When such remedies are available, the High 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. 8. In **P.R. Murlidharan v. Swami Dharmananda** W.A.No.1799 of 2023 8 **Theertha Padar [(2006) 4 SCC 501]** P.K. Balasubramaniam J in his concurring judgment observed that 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. 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 W.A.No.1799 of 2023 9 jurisdiction under Article 226 of the Constitution would remain effective and meaningful only when it is exercised prudently and in appropriate situations. On the facts of the case on hand, the learned Judge noticed that, 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 IX, 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 W.A.No.1799 of 2023 10 when the pleadings themselves disclose that disputed questions are involved. As rightly pointed out in the judgment, 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. 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. 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. 9. In the impugned judgment, the learned Single Judge found that the appellant-petitioner is fully entitled to enjoy his properties covered by Ext.P19, common order dated 22.07.2018 of the Forest Tribunal, Palakkad in O.A.No.446 of 1976 as well as the denotification order issued in respect of that property. There W.A.No.1799 of 2023 11 cannot be any obstruction to his enjoyment of that property. The learned Single Judge recorded that submission made on behalf of the respondent that there is no obstruction to the enjoyment of the property restored to the petitioner. 10. With regard to the contention of the respondents that the appellant-petitioner has made attempts to encroach into a portion of the property, which remains notified as Ecologically Fragile Land (EFL), the learned Single Judge opined that the said question cannot be considered in the writ petition. Therefore, while disposing of the writ petition, the learned Single Judge left open to be agitated in appropriate proceedings, in accordance with law, the contention of the appellant-petitioner with regard to denotification of the remaining extent of land in O.A.No.455 of 1976, which according to the respondent, still stands notified as EFL. Viewed in the light of the law laid down by this Court in **George Mirante [1990 (2) KLT 89]** and the law laid down by the Apex Court in **P.R.Muralidharan [(2006) 4 SCC 501],** under the guise of seeking a writ of mandamus commanding the police authorities to give protection, the appellant-petitioner cannot seek adjudication of such issues in writ proceedings under Article 226 of the Constitution of India. W.A.No.1799 of 2023 12 ## 11. In **Bharat Singh v. State of Haryana [(1988) 4 SCC** **534]** the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. Further, there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. ## 12. In **M/s. Larsen and Toubro Ltd. v. State of Gujarat** **[(1998) 4 SCC 387]** the Apex Court was dealing with a case arising out of the proceedings initiated for the acquisition of land for M/s. Larsen and Toubro Ltd. under the provisions of the Land Acquisition Act, 1894. The Apex Court noticed that in the absence of any allegation that Rule 3 of the Land Acquisition (Companies) W.A.No.1799 of 2023 13 Rules, 1963 had not been complied with and there being no particulars in respect of non-compliance of Rule 4, it is difficult to see as to how the High Court could have reached the finding that statutory requirements contained in these Rules were not fulfilled before issuance of notification under Section 4 and declaration under Section 6 of the Land Acquisition Act. High Court did not give any reason as to how it reached the conclusion that Rules 3 and 4 had not been complied with in the face of the record of the case. Rather, it returned a finding which is unsustainable that it was "not possible on the basis of the material on record to hold that there was compliance with Rules 3 and 4". The Apex Court held that it is not enough to allege that a particular Rule or any provision has not been complied with. It is a requirement of good pleading to give details, i.e., particulars as to why it is alleged that - there is non compliance with a statutory requirement. Ordinarily, no notice can be taken on such an allegation which is devoid of any particulars. No issue can be raised on a plea, the foundation of which is lacking. Even where rule nisi is issued, it is not always for the department to justify its action when the court finds that a plea has been advanced without any substance, though ordinarily department may have to place its full cards before the court. On W.A.No.1799 of 2023 14 the facts of the case, the Apex Court found that the State has more than justified its stand that there has been compliance not only with Rule 4 but with Rule 3 as well, though there was no - challenge to Rule 3 and the averments regarding non compliance with Rule 4 were sketchy and without any particulars whatsoever. High Court was, therefore, not right in quashing the acquisition proceedings. ## 13. In **Narmada Bachao Andolan v. State of Madhya** **Pradesh [(2011) 7 SCC 639]** a Three-Judge Bench of the Apex Court held that it is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete the Court is under no obligation to entertain the pleas. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned about the questions in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that as a rule relief not founded on the pleadings should not be granted. Therefore, a decision in a case cannot be based on grounds outside W.A.No.1799 of 2023 15 the pleadings of the parties. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice. 14. In **Gladstone George Varghese v. District Police Chief, Kollam and others [2023 (7) KHC 30 : 2023:KER: 64935]** a Division Bench of this Court in which one among us [Anil K. Narendran, J.] was a party, held that in a writ petition filed under Article 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 Article 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 Article 226 of the Constitution of Inda, the writ petitioner has to first approach the concerned Station House Officer with a proper complaint against those who are causing a W.A.No.1799 of 2023 16 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. The said complaint should contain necessary pleadings. In case there is any failure on the part of the officer concerned in discharging the statutory duty or obligation, he can approach this Court in a writ petition under Article 226 of the Constitution of India, with proper parties in the party array. A writ petition for police protection should be drafted with careful concern and not in a haphazard manner harbouring the notion that the High Court is required to grant an order for police protection as a matter of course. 15. In the instant case, a copy of the complaint made by the appellant-petitioner before the 6[th] respondent Station House Officer is not part of the pleadings in W.P.(C)No.29852 of 2021. The document marked as Ext.P14 is a copy of the representation dated 05.10.2020, made before the District Collector, Palakkad W.A.No.1799 of 2023 17 with copy to the Commissioner of Police, Palakkad, the Deputy Superintendent of Police, Palakkad, the Station House Officer Hemambika Nagar Police Station, the Divisional Forest Office, Palakkad and the Forest Range Officer, Walayar. The document marked as Ext.P15 is a copy of a reply dated 13.10.2020 of the 6[th] respondent Station House Officer to a complaint made by the appellant-petitioner, through e-mail, seeking police protection. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that in the writ petition, the appellantpetitioner has made out a case for grant of writ of mandamus. As held by this Court in **Gladstone George Varghese [2023 (7) KHC 30]** in a writ petition filed under Article 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 Article 226 of the Constitution of India, the High Court cannot grant an order for police protection as a matter of course. A writ petition for police protection should be drafted with careful concern and not in a haphazard manner harbouring the notion that the High Court is required to grant an order for police protection as a matter of course. 16. Viewed in the light of the law laid down in the decisions W.A.No.1799 of 2023 18 referred to supra, when there is a total lack of pleadings in the writ petition, we find no reason to interfere with the impugned judgment of the learned Single Judge. In the result, this writ appeal fails on the aforesaid ground and the same is accordingly dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P. G. AJITHKUMAR, JUDGE** Dxy