Salim v. Assistant Commissioner of Police, Fort Circle, Thiruvananthapuram and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** ## **W.P.(C) No.6092 OF 2021(J)** ## **PETITIONER/S:** **SALIM, AGED 66 YEARS, S/O. HANEEFA, SUNITHAS, VIZHINJAM STREET, VIZHINJAM P.O, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.GEORGE MECHERIL SRI.JOJO JOSEPH** ## **RESPONDENT/S:** **1 THE ASSISTANT COMMISSIONER OF POLICE, FORT CIRCLE, THIRUVANANTHAPURAM - 695009. 2 THE CIRCLE INSPECTOR OF POLICE VIZHINJAM P.O, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM - 695042, 3 THE STATION HOUSE OFFICER, VIZHINJAM P.O, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM - 695042. 4 NOOHUKHAN AGED 58 YEARS S/O. KHADIRKANNU VYDIAN, 'MOUSAM', KOVALAM P.O, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM - 695527.** ## **OTHER PRESENT:** **SRI SUNIL NATH N.B- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.6092 OF 2021(J) 2 ## **JUDGMENT** The petitioner is stated to be the owner of properties having an extent of 20.30 ares of land in Re.Survey No. 193/9, 2.99 ares of land in Re.Survey No.193/7, 0.20 ares of land in Re.Survey No. 193/12, 07.47 ares of land in Re.Survey No.193/16-1, 04.80 ares of land in Re.Survey No.193/5, 6.40 ares of land in Re.Survey No.193/8, 24.30 ares of land in Re.Survey No.193/10 and 04.05 ares of land in Re.Survey No.193/20, all situated in Vizhinjam Village covered by sale deed Nos.1460/2002, 1559/2006, 1943/2005, 1221/2012, 1605/2004 of the Sub Registrar Office, Vizhinjam. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 3 to provide adequate and sufficient police protection to the life and property of the petitioner and to enjoy the property without any interference from the 4th respondent. The 4th respondent is the brother-in-law of the petitioner, who is residing at Kovalam. In the writ petition, it is alleged that the 4th respondent along with his men forcefully trespassed into the petitioner's property and parked their vehicles including tipper lorries, JCB, etc., and they are continuously causing disturbance to the petitioner's peaceful possession and W.P.(C) No.6092 OF 2021(J) 3 enjoyment of the said properties. Regarding an incident alleged to have occurred on 10.01.2020, Crime No.90/2020 of Vizhinjam Police Station was registered against the 4[th] respondent for offence punishable under Sections 294 (b), 341, 323, 324 of the Indian Penal Code, as evidenced by Ext.P1 FIR. Thereafter, the petitioner filed O.S. No.63 of 2020 before the Munsiff Court, Neyyattinkara, seeking an order restraining the 4[th] respondent and his men from trespassing into the plaint schedule property with vehicles and from committing any kind of waste therein and not to disturb the petitioner's peaceful possession and enjoyment of the plaint schedule property. In that suit the Munsiff Court granted Ext.P3 order of interim injunction dated 20.01.2020, whereby the 4[th] respondent and his men are restrained from trespassing into plaint B schedule property with their vehicles, committing waste therein or in any way disturbing peaceful possession of plaint B schedule property, until further orders. Alleging that the 4[th] respondent is continuously violating Ext.P3 order of injunction by trespassing into the property with vehicles, the petitioner filed Ext.P4 complaint dated 12.01.2021 before the 2[nd] respondent Circle Inspector of Police, which was followed by Ext.P5 representation dated 12.01.2021 before the 1[st] respondent Assistant W.P.(C) No.6092 OF 2021(J) 4 Commissioner of Police. The petitioner filed I.A. No.7 of 2021 in O.S. No.63 of 2020 seeking adequate police protection. The said application, which was listed before the Munsiff Court on 26.02.2021, now stands posted to 25.05.2021, for consideration. Thereafter, the petitioner filed this writ petition before this Court, on 08.03.2021 seeking the aforesaid relief. 2. On 16.03.2021, when this writ petition came up for consideration, the learned Government Pleader took notice on admission for respondents 1 to 3. Urgent notice on admission by special messenger was ordered to 4[th] respondent, returnable by 23.03.2021. The learned Government Pleader was directed to file statement based on the instructions already received. 3. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 3. Despite service of notice, none appears for the 4[th] respondent. 4. The issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for an order of police protection, in exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 5. In **Shaji M.K. and another v. State of Kerala and others [2018 (3) KHC 69]** a Division Bench of this Court was W.P.(C) No.6092 OF 2021(J) 5 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 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 W.P.(C) No.6092 OF 2021(J) 6 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 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 W.P.(C) No.6092 OF 2021(J) 7 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 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. 6. In **Shaji M.K.** , taking note of the law laid down in **Kanwar Singh Saini v. High Court of Delhi [(2012) 4 SCC 307]** , **George Mirante v. State of Kerala [1990 (2) KLT 89]** and **Madavana Masjidul Badariya Jamaath v. Seethi K.A. [2017 (4) KHC 770]** , 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 W.P.(C) No.6092 OF 2021(J) 8 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 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. 7. 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. W.P.(C) No.6092 OF 2021(J) 9 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 Ext.P2 order of temporary injunction. 8. In **Kunhumuhammed v. Bava Haji [1999 (2) KLT 816]** a Division Bench of this Court held that, when there is dispute between parties and when it is only an interim ex parte order passed by the Munsiffs Court which alone is in force, the High Court shall not interfere in the matter invoking its jurisdiction under Article 226 of the Constitution of India, with a direction for police aid. The High Court shall not interfere in matters involving civil rights with an order of police protection on the basis of an ad interim ex parte order of the civil court and that only a final order passed under Rule 1 or Rule 2 of Order XXXIX of the Code of Civil Procedure can be enforced with the assistance of the police. Courts should be reluctant to grant police protection on the basis of ex parte injunction orders, which would only pave the way for further litigation between parties, since the parties, on the basis of the police protection order and with the connivance of the police, complete constructions or commit waste or do other acts which W.P.(C) No.6092 OF 2021(J) 10 they would not be able to do even after final orders are passed by the civil court. The above legal principle has been followed in another Division Bench decision of this Court in **Devadasan v. State of Kerala [ILR 2005 (3) Ker. 249]** . 9. In the instant case, the petitioner obtained Ext.P3 order of interim injunction in O.S.No.63 of 2020 on the file of the Munsiff's Court, Neyyattinkara, whereby the 4[th] respondent and his men are restrained from trespassing into the property in question with their vehicles, committing waste therein or in any way disturbing peaceful possession of the said property by the petitioner. The petitioner submitted Ext.P4 compliant dated 12.01.2021 before the 2[nd] respondent Circle Inspector of Police, followed by Ext.P5 representation dated 12.01.2021 before the 1[st] respondent Assistant Commissioner of Police, alleging violation of Ext.P3 order of injunction by the 4[th] respondent, by trespassing into the property with vehicles. In case there is any violation of the order of injunction, in view of the law laid down in the decisions referred to supra, the petitioner can approach the Munsiff's Court with an application under Order XXXIX Rule 2A of the Code seeking appropriate reliefs or even for grant of police protection under Section 151 of the Code to secure compliance of the said W.P.(C) No.6092 OF 2021(J) 11 order of injunction. As a matter of fact, the petitioner has filed I.A.No.7 of 2021 in O.S.No.63 of 2020 seeking adequate police protection. On 26.02.2021, the Munsiff's Court adjourned that application to 25.05.2021. Immediately thereafter, the petitioner has approached this Court in this writ petition invoking the writ jurisdiction under Article 226 of the Constitution of India. 10. In view of the law laid down in the decisions referred to supra, the petitioner is not entitled for the relief of police protection sought for in this writ petition, on the alleged violation of Ext.P3 order of injunction by the 4[th] respondent. 11. In the result, this writ petition fails for the aforesaid reason and the same is accordingly dismissed; however without prejudice to the right of the petitioner to prosecute I.A.No.7 of 2021 in O.S.No.63 of 2020 filed before the Munsiff's Court, Neyyattinkara. No order as to cost. Sd/- ## **ANIL K. NARENDRAN** **JUDGE** MIN W.P.(C) No.6092 OF 2021(J) 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE FIR IN CRIME NO. 90/2020 DATED 11/01/2020 U/S. 294(B), 341, 323, 324 OF IPC.** **EXHIBIT P2** **TRUE COPY OF THE OS NO. 63/2020 FILED BY THE PETITIONER FOR INJUNCTION BEFORE THE HONOURABLE MUNSIFF'S COURT OF NEYYATTINKARA.** **EXHIBIT P3 TRUE COPY OF THE INTERIM INJUNCTION ORDER DATED 20.1.2020 IN IA NO.02/2020 IN OS.63/2020.** **EXHIBIT P4 TRUE COPY OF THE PETITION DATED 12.01.2021 IN VIZHINJAM POLICE CIRCLE INSPECTOR FOR POLICE PROTECTION.** **EXHIBIT P5 TRUE COPY OF THE PETITION DATED 12.01.2021 SUBMITTED TO THE FORT POLICE ASSISTANT COMMISSIONER.** **EXHIBIT P6** **TRUE COPY OF THE IA NO. 7/2021 IN OS 63/2020 OF THE MUNSIFF'S COURT, NEYYATTINKARA.**