Sasidharan Nair v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA, 1942** ## **WP(C).No.9097 OF 2020(J)** ## **PETITIONER/S:** **SASIDHARAN NAIR, AGED 56 YEARS S/O.KRISHNAN NAIR, PATHIVILA VEEDU, OLAYIL, THEVALLY P.O., KOLLAM WEST VILLAGE, KOLLAM DISTRICT.** **BY ADV. SRI.R.SATISH KUMAR** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY,**| ||**HOME DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**THE STATION HOUSE OFFICER,**| ||**KOLLAM WEST POLICE STATION, KOLLAM.**| |**3**|**M.N.MANI, AGED 58 YEARS, S/O.NANOO,**| ||**HARITHAM VEEDU, NO.16 VISHNATHUKAVU NAGAR,**| ||**THIRUMULLAVARAM P.O., PUNNATHALACHERRY,**| ||**KOLLAM WEST VILLAGE, KOLLAM,**| ||**FROM MULLOTHUKUZHI, PUTHUPALLI VILLAGE,**| ||**PUTHUPALLI MURI, KOTTAYAM.**| |**4**|**SREEMANTHINI, W/O.M.N.MANI, HARITHAM VEEDU,**| ||**NO.16 VISHNATHUKAVU NAGAR, THIRUMULLAVARAM**| ||**P.O., PUNNATHALACHERRY, KOLLAM WEST VILLAGE,**| ||**KOLLAM, FROM MULLOTHUKUZHI, PUTHUPALLI**| ||**VILLAGE,PUTHUPALLI MURI, KOTTAYAM.**| ||**R3-4 BY ADV. SRI.B.SURESH KUMAR**| ||**SRI P.P.THAJUDHEEN - SR.GOVERNMENT PLEADER**| |**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON**|| |**23.11.2020,**|**THE COURT ON THE SAME DAY DELIVERED THE**| |**FOLLOWING:**|| -2- W.P.(C). No. 9097 of 2020 ## **JUDGMENT** The petitioner is stated to be co-owner of a property having an extent of 5.35 cents as per Sale Deed No.3329/91 of Sub Registrar Office, Kollam. The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 2[nd] respondent Station House Officer, Kollam West Police Station to provide him adequate and meaningful protection against the illegal and high handed act of the respondents 3 and 4, so as to execute and enforce Ext.P1 judgment of the Munsiff's Court, Kollam dated 18.02.2011 in O.S.No.847 of 2008 and Ext.P4 settlement dated 31.07.2017 before the Tahsildar (LR), Kollam. 2. On 20.03.2020, when this writ petition came up for admission, this Court issued urgent notice by speed post to respondents 3 and 4. The learned Government Pleader took notice for respondents 1 and 2. 3. A counter affidavit has been filed by respondents 3 and 4 opposing the reliefs sought for in this writ petition. The -3- W.P.(C). No. 9097 of 2020 petitioner has also filed a reply affidavit. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 and 2 and also the learned counsel for respondents 3 and 4. 5. The Kerala Police Act, 2011 is enacted to consolidate and amend the law relating to the establishment, regulation, powers and duties of the Police Force in the State of Kerala and for matters connected therewith and incidental thereto. Chapter II of the Act deals with duties and functions of Police. Section 3 of the Act deals with general duties of Police. As per Section 3, the Police, as a service functioning category among the people as part of the administrative system shall, subject to the Constitution of India and the laws enacted thereunder, strive in accordance with the law, to ensure that all persons enjoy the freedoms and rights available under the law by ensuring peace and order, integrity of the nation, security of the State and protection of human rights. Section 4 of the Act deals with functions of Police. As -4- W.P.(C). No. 9097 of 2020 per Section 4, the Police Officers shall, subject to the provisions of the Act, perform the functions enumerated in clauses (a) to (s) of Section 4. As per clause (a), the Police Officers shall enforce the law impartially; and as per clause (b), the Police Officers shall protect the life, liberty, property, human rights and dignity of all persons in accordance with the law. 6. Lord Denning in 'The Due Process of law' [First Indian Reprint 1993, Page 102] has described the role of the Police thus; "In safeguarding our freedoms, the police play vital role. Society for its defence needs a well-led, welltrained and well-disciplined force or police whom it can trust, and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice. The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man's house without authority. They must not use more force than the occasion warrants." 7. In **Manohar Lal Sharma v. Principal Secretary** -5- W.P.(C). No. 9097 of 2020 **[(2014) 2 SCC 532]** the Apex Court held that, one of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to the book. The Apex Court reiterated the said principle in **Ankush Maruti Shinde v. State of Maharashtra [(2019) 15 SCC 470]** . 8. As borne out from the pleadings and materials on record, there are certain disputes between the petitioner and respondents 3 and 4, in respect of a pathway having an extent of 929 sq.mtr. Respondents 3 and 4 have filed O.S. No.847 of 2008 before the Munsiff's Court, Kollam for fixation of boundary and permanent prohibitory injunction restraining the petitioner and his wife, who are defendants 1 and 2 in that suit, from committing any act of waste in 'plaint schedule way' and making any alterations in the nature of 'plaint schedule way'. In that suit, the defendants filed written statement raising counter claim, claiming exclusive right over the -6- W.P.(C). No. 9097 of 2020 pathway. 9. In Ext.P1 judgment dated 18.02.2011 in O.S.No.847 of 2008, the Munsiff's Court found that the plaintiffs and defendants are not entitled for injunction as prayed for. The Advocate Commissioner, after measuring the properties with the help of the surveyor, filed Ext.C2(b) plan, in which he has identified the plaintiffs' 7½ cents, the defendants' 8 cents of land and also the pathway on the northern and eastern side of the plaint schedule property. Since the plaintiffs have right to use the pathway, it was separately shown in Ext.C2(b) plan. Accordingly, by Ext.P1 judgment, the Munsiff's Court rejected the counter claim and decreed the suit in part and the plaintiffs are granted a decree fixing the boundaries of the plaint schedule property, that of the defendants' property and the pathway as per Ext.C2(b) plan. As pointed out in the counter affidavit filed by respondents 3 and 4, the essence of Ext.P1 judgment is that both the parties can use the pathway, which means the defendants cannot put up a gate at the starting point (eastern -7- W.P.(C). No. 9097 of 2020 side) of the pathway and he can put up a gate only at the end of the pathway (western side). 10. After Ext.P1 judgment, a settlement was entered into between the parties, as evidenced by Ext.P4 settlement dated 31.07.2017, in the Adalath. In Ext.P4, both parties have expressed no objection to demarcation of the boundaries as per re-survey records. As per that settlement, respondents 3 and 4 have to leave the boundary stone outside while constructing the boundary wall. It is pointed out in the counter affidavit filed by respondents 3 and 4 that the said respondents have constructed the boundary wall, leaving the boundary stone outside, as shown in Ext.R4(a) rough sketch. 11. Alleging that respondents 3 and 4 have put up a compound wall on the southern side of the petitioner's property, leaving a gap of 1 meter to enter into his property and that, they have dismantled and removed the gate fixed by the petitioner on the eastern side of the property, he filed Ext.P7 complaint dated 20.12.2019 before the Director General of Police, seeking implementation of Ext.R2(b) -8- W.P.(C). No. 9097 of 2020 judgment dated 28.11.2017 of the Judicial First Class Magistrate Court-III, Kollam in C.C.No.1462 of 2015. Thereafter, the petitioner filed Ext.P9 complaint before the 2[nd] respondent Station House Officer, Kollam West Police Station, alleging that on 02.03.2020, respondents 3 and 4 attacked the petitioner when he came to his property in order to close the property by putting up a gate. 12. Along with the reply affidavit filed by the petitioner, the petitioner has placed on record Ext.P10 Sale Deed bearing No.3329/1991 of the Sub Registrar Office, Kollam dated 07.11.1991 and also Ext.P11 tax receipt dated 13.08.2018. Relying on Exts.P10 and P11, the learned counsel for the petitioner would point out that the petitioner is presently holding only 5.35 cents of land, including 929.99 links mentioned as pathway. As evident from Ext.R4(a) rough sketch produced along with the counter affidavit, respondents 3 and 4 are having another pathway in the northern side of the disputed pathway. 13. As pointed out in the counter affidavit filed by -9- W.P.(C). No. 9097 of 2020 respondents 3 and 4, the petitioner was an accused in C.C.No.1462 of 2015 on the file of the Judicial First Class Magistrate Court-III, Kollam for an offence punishable under Sections 341 and 323 of the Indian Penal Code. Along with the counter affidavit, Ext.R4(c) compounding petition dated nil, filed in C.C.No.1462 of 2015 by the petitioner and respondents 3 and 4, is placed on record, in order to show that respondents 3 and 4 never agreed to use the pathway on eastern side, as stated in Ext.P7 complaint dated 20.12.2019 made by the petitioner before the Director General of Police. 14. As can be seen from Ext.P9, the request made by the petitioner before the 2[nd] respondent Station House Officer is for exclusive possession and use of the pathway shown in Ext.C2(a) plan, by putting up a gate. Such a claim made by the petitioner is beyond the scope of Ext.P1 judgment of the Munsiff's Court, Kollam in O.S.No.847 of 2008. The petitioner cannot raise such a claim in a writ petition filed under Article 226 of the Constitution of India, seeking police protection. 15. The learned Senior Government Pleader, on -10- W.P.(C). No. 9097 of 2020 instructions from the 2[nd] respondent Station House Officer, would submit that there is no law and order problem and that, there is certain civil disputes between the petitioner and respondents 3 and 4, in relation to the pathway. 16. Having considered the pleadings and materials on record and also the submission made by the learned counsel on both sides, this Court finds that the petitioner cannot seek police protection by claiming exclusive right over the pathway in question, beyond the scope of Ext.P1 judgment by the Principal Munsiff's Court, Kollam in O.S.No.847 of 2008. The decree in O.S.No.847 of 2008 has already been executed, as evidenced by Ext.P2. 17. In the result, this writ petition is disposed of with following directions; (i) In case there is any law and order problem, it is for the petitioner to make a proper representation before the 2[nd] respondent Station House Officer, in which the 2[nd] respondent shall take necessary action to maintain law and order in the locality, taking note of the statutory provisions referred to above and -11- W.P.(C). No. 9097 of 2020 also the law laid down in the decisions referred to supra. (ii) No order as to costs. **Sd/ANIL K.NARENDRAN JUDGE** das -12- W.P.(C). No. 9097 of 2020 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 18.02.2011 IN O.S.NO.847/2008 OF MUNSIFF COURT, KOLLAM.** - **EXHIBIT P2 TRUE COPY OF ORDER DATED 09.02.2012 IN E.P.NO.275/2011 IN O.S.NO.847/2008 OF MUNSIFF COURT, KOLLAM.** - **EXHIBIT P3 TRUE COPY OF THE COMMISSIONER'S REPORT AND SURVEY PLAN IN O.S.NO.847/2008 OF MUNSIFF COURT, KOLLAM.** - **EXHIBIT P4 TRUE COPY OF THE SETTLEMENT DEED DATED 31.07.2017.** - **EXHIBIT P5 TRUE PHOTOGRAPHS SHOWING THE COMPOUND WALL PUT UP BY THE RESPONDENTS 3 & 4 WITH GAP OF 1 METER WIDTH.** - **EXHIBIT P6 TRUE PHOTOGRAPHS SHOWING THE DISMANTLED GATE NOW KEPT AT PETITIONER'S PROPERTY.** - **EXHIBIT P7 TRUE COPY OF THE COMPLAINT DATED 20.12.2019 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM.** - **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 03.01.2018 ISSUED BY THE TAHSILDAR (SURVEY), KOLLAM TO THE PETITIONER.** - **EXHIBIT P9 TRUE COPY OF THE COMPLAINT DATED 02.03.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P10 TRUE COPY OF THE SALE DEED NO.3329/1991 OF SRO, KOLLAM.** -13- W.P.(C). No. 9097 of 2020 **EXHIBIT P11 TRUE COPY OF THE TAX RECEIPT DATED 13/08/2018 ISSUED BY THE KOLLAM VILLAGE.**