Salikuttan O.N. v. Circle Inspector of Police, Cherthala; The Station House Officer, Cherthala Police Station; T. Prakashan; M.S. Anandan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 30TH DAY OF MARCH 2017/9TH CHAITHRA, 1939** **WP(C).No. 11105 of 2017 (K) ----------------------------** **PETITIONER:** **-------------** **SALIKUTTAN O.N, AGED 46 YEARS,** **S/O NADESAN, RESIDING AT ONTHIRIKKALCIRA VEEDU PALLIPPURAM P.O., CHARTHALA 688541** **BY ADVS.SRI.DIPU.R SRI.SANAL P.RAJ SRI.K.S.BAIJU SMT.K.P.SUSMITHA** ## **RESPONDENTS:** ## **--------------** **1. CIRCLE INSPECTOR OF POLICE, OFFICE OF THE CIRCLE INSPECTOR OF POLICE, CHERTHALA PO, CHERTHALA 688524** **2. THE STATION HOUSE OFFICER, CHERTHALA POLICE STATION CHERTHALA P.O, CHERTHALA 688524.** **3. T.PRAKASHAN, S/O THANKAPPAN, AGED 50 YEARS, RESIDING AT THEKKAYKARYAKATTU, PALLIPPURAM PO CHERTHALA 688541** **4. M.S. ANANDAN, AGED 60 YEARS, S/O SANKARAN RESIDING AT PUTHENNIKARATHIL, PALLIPPURAM PO CHERTHALA 541.** **R1 & 2 BY SR.GOVERNMENT PLEADER SRI. P.P THAJUDDIN.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 11105 of 2017 (K)** ## **----------------------------** ## **APPENDIX:** ## **PETITIONER'S EXHIBITS:** **P1: COPY OF APPLICATION DATED 21.3.2017, BEFORE THE AKDS, CHERTHALA TALUK COMMITTEE.** **P2: COPY OF THE COMPLAINT DATED 27.3.2017, SUBMITTED BY THE PETITIONER'S MOTHER BEFORE THE 2ND RESPONDENT.** ## **RESPONDENTS EXHIBITS:** ## **NIL** ## **TRUE COPY** **P.A. TO JUDGE.** **kp** ## **P.N.RAVINDRAN & ANU SIVARAMAN, JJ.** ## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=** W.P.(C).No.11105 of 2017 **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=** Dated this the 30[th] day of March, 2017 ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ The petitioner, who claims to be the Secretary of Akhila Kerala Dheevara Sabha Karayogam (AKDS), Branch No.32, Pallippuram Cherthala has filed this writ petition inter alia seeking a writ in the nature of mandamus commanding respondents 1 and 2 to provide adequate police protection to him and the other office bearers of the said organization to take charge of the affairs of the said organization. It is stated that he and the other office bearers were elected to various posts in the election held on 5.3.2017, under the supervision of the Secretary of the Akhila Kerala Dheevara Sabha, Taluk Karayogam, that as per the bye-laws, charge should be handed over to the newly elected officer bearers within 15 days from the date of election, but respondents 3 and 4 who are former office bearers have not handed over charge to the newly elected office bearers. The petitioner submits that though he had submitted Ext.P1 representation pointing out the said aspect before the Cherthala Taluk Committee of the Akhila Kerala Sheevara Sabha, on account of the threat held out by W.P.C. No.11105 of 2017 -:2:- respondents 3 and 4 and their supporters, he and the other office bearers have not been able to take charge. 2. A Division Bench of this court has in **Sree Narayana Samskarika Samithy v. State of Kerala** (2008 (2) KLT 118) held in paragraph 4 as follows: “4. We heard the learned counsel Shri.Vakkom N. Vijayan, for the writ petitioners. This Court has time and again said, while hearing a Writ Petition for police protection, this Court is only exercising its power of judicial review under Art.226 of the Constitution of India. If it is shown that the police have failed in their duty and the writ petitioners have got a right to the performance of that duty by the police, this Court will interfere and issue appropriate orders. In this case, the police cannot go into Exts.P1 and P2 proceedings, peruse the bye-laws of the Samithy and arrive at a finding that the second petitioner has a right to assume charge as the Administrator and grant protection for the same. If the police do not have such a duty, this Court is not justified in issuing any such direction to the police under Art.226 of the Constitution of India. A Division Bench of this Court in _Thilakan v. C.I. of Police_ (2008 (1) KLT 141) has held as follows: “Now-a-days, a Writ Petition for police protection is filed as if it is a suit. The petitioner mentions his right and states about the infringement or attempted infringement of it by the party respondents. This Court is expected to adjudicate their rival claims and on establishing the right of the petitioner, order the police to help him to exercise or assert his right. We are of the view that the said approach sought to be introduced and established in the police protection jurisdiction is unacceptable. W.P.C. No.11105 of 2017 ## -:3:- While hearing an application for police protection, this Court is exercising its power under Art.226 of the Constitution of India to issue a writ of mandamus. This Court's power to issue a writ of mandamus to the police is co-terminus with the duties of the police. If there is a failure of duty from the part of the police, this Court will remedy that. In this case, the police has no power or authority to adjudicate on the competing claims of the land owner/his assignee and of the persons in the locality. It is a complex issue and the police cannot be conferred jurisdiction to adjudicate the issue and to render protection to the person, whose right is upheld by them. If the police have no duty to adjudicate the rights of the parties, this court also cannot do that in this police protection jurisdiction, where, as we have stated earlier, this Court is concerned only with the failure of duty from the part of the police and the consequential remedial action.” In this case also, the petitioners have produced Exts.P1 and P2 to contend that he has got a right to assume office. The learned counsel for the petitioners submitted that to satisfy this Court about the legality of the claim of the petitioners, Exts.P1 and P2 have been produced. According to him, they will conclusively prove the second petitioner's right to assume office of the post of Administrator. But, we are of the view that for assuming charge of an office and for running the administration connected with an office, police protection cannot be granted by this Court. For that, the petitioners have to move the competent civil court. The Apex Court, in _P.R.Muralidharan v. Swami Dharmananda Theertha Padar_ (2006 (2) KLT 119 = (2006) 4 SCC 501), while reversing the Judgment of this Court granting police protection to the life of the petitioner and to administer a trust, under Art.226 of the Constitution of India, held as follows: W.P.C. No.11105 of 2017 ## -:4:- “A Division Bench of the said High Court went into the question as to whether the first respondent was entitled to hold the office of Madathipathi and Sthiradhyakshan for the purpose of issuing an appropriate direction as regards grant of police protection. The High Court opined that the State and the police officials have got a legal obligation to give protection to the life and properties of the appellant upon arriving at a finding of fact that he was entitled to hold the said office. The High Court proceeded to determine the said purported question in the light of Art.21 of the Constitution and opined: “Respondents 5 and 6 have not given adequate and effective police protection in spite of repeated requests which only paved the way for the contesting respondents and others to take law into their hands and act contrary to the terms of the trust deed. Such being the conduct of the respondents, their assertion that Ext.P3 is fabricated by the petitioner cannot be believed. Going by the facts and circumstances of the case and on going through the materials placed before us, we are inclined to accept the averment made by the petitioner that he is Sthiradhyakshan and Madathipathi of the Ashramam.” It was directed: “We have therefore, no hesitation to allow this Writ Petition giving direction to respondents 5 and 6 to give adequate and effective police protection to safeguard the interest of the petitioner being the Sthiradhyakshan and Madathipathi of the Vadayampadi Ashramam. The petitioner be given effective police protection so as to discharge the function as Sthiradhyakshan and Madathipathi as per Ext.P1 trust deed for his peaceful residence in the Ashramam.....................................................” W.P.C. No.11105 of 2017 -:5:- We have noticed hereinbefore that another suit being O.S. No.30 of 2002 is pending in the Court of Munsiff. The High Court, despite noticing the said fact, sought to usurp the jurisdiction of the civil court. It, as noticed hereinbefore, determined the contentious issues which were required to be proved in terms of the provisions of the Evidence Act. It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact. Respondent 1 who sought to claim a status was required to establish the same in a court of law in an appropriate proceeding .................................. Indeed, the jurisdiction of the writ court is wide while granting relief to a citizen of India so as to protect his life and liberty as adumbrated under Art.21 of the Constitution, but while doing so, it could not collaterally go into that question, determination whereof would undoubtedly be beyond its domain. What was necessary for determination of the question arising in the Writ Petition was not the interpretation of the documents alone, but it required adduction of oral evidence as well. Such evidence was necessary for the purpose of explaining the true nature of the deed of trust, as also the practice followed by this trust. In any event, the impleading applicant herein, as noticed hereinbefore, has raised a contention that he alone was ordained to hold the said office as per the bye-laws of the trust. W.P.C. No.11105 of 2017 ## -:6:- The qualification of the first respondent to hold the office was also in question. In this view of the matter, we are of the opinion that such disputed questions could not have been gone into by the High Court in a writ proceeding. Furthermore, the jurisdiction of the civil court is wide and plenary. In a case of this nature, a writ proceeding cannot be a substitute for a civil suit. For the foregoing reasons, the impugned judgment cannot be sustained which is set aside accordingly.” In view of the above authoritative pronouncement, the reliefs sought by the petitioners which are quoted above, cannot be granted. The remedy of the petitioners lies before the civil court. If the civil court is satisfied that the second petitioner is entitled to assume charge and the obstruction by the party respondents is unjustified, it can pass appropriate orders in favour of the said petitioner. If its orders are violated, apart from taking action against the offenders, the civil court can address the police also to render assistance to enforce its orders. In view of the above position, the Writ Petition fails and it is dismissed.” 3. Though it was contended before us that there is threat to the family members of the petitioner, learned Government Pleader submitted on instructions that no incident as alleged in Ext.P2 complaint has happened and that the rival groups of the members of the Akhila Kerala Dheevara Sabha Karayogam, Branch No.32 have filed complaints against each other. Such being the situation, we are of the opinion that the relief prayed for by the petitioner cannot be granted. His remedy in our opinion, lies elsewhere. W.P.C. No.11105 of 2017 **==> picture [26 x 8] intentionally omitted <==** The writ petition fails and is accordingly dismissed, but without prejudice to the right of the petitioner to move the competent civil court seeking redressal of his grievances. Sd/- ## **P.N.RAVINDRAN, JUDGE** sd/- **ANU SIVARAMAN, JUDGE** kp