Thomas Abraham & Shaji Thomas v. Superintendent of Police, Kasaragod & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON TUESDAY, THE 16TH DAY OF JANUARY 2018 / 26TH POUSHA, 1939 WP(C).No. 1508 of 2018 (K) -------------------------------- PETITIONER(S): ------------- 1 THOMAS ABRAHAM AGED 42 YEARS, S/O.ABRAHAM, MANNOORAMPARAMBIL, PARAKALAYI P.O., KANJANGAD, KASARAGOD DISTRICT. 2 SHAJI THOMAS AGED 49 YEARS, S/O.THOMAS, NAMBIAPARAMBIL HOUSE, PUTHUSSERYIL, CHERUPUZHA P.O., KANNUR. BY ADVS.SRI.LAL GEORGE SRI.SEBASTIAN VARGHESE(K/141/2000) RESPONDENT(S): ------------- 1. SUPERINTENDENT OF POLICE KASARAGOD, PIN - 671 531. 2. CIRCLE INSPECTOR OF POLICE BAKKAL, KASARAGOD, PIN - 671 531. 3. STATION HOUSE OFFICER AMBALATHARA POLICE STATION, AMBALATHARA P.O., ANANDASRAMAM (VIA), KANJANGAD, KASARAGOD, PIN - 671 531. 4. T.K.BALAKRISHNAN AGED 55 YEARS, S/O.KANISSAN AMBU, THONIKALLU, PARAKALAYI P.O., ANANDASRAMAM (VIA), KANJANGAD, KASARAGOD DISTRICT, PIN - 671 531. ## 5. BALAN AGED 46 YEARS, S/O.CHANDRA, CHETTAYIL, PARAKALAYI P.O., ANANDASRAMAM (VIA), KANJANGAD, KASARAGOD DISTRICT, PIN - 671 531. WP(C).No. 1508 of 2018 (K) -------------------------- **==> picture [8 x 8] intentionally omitted <==** 6. AMBU AGED ABOUT 35 YEARS, S/O.CHANDRA, CHETTAYIL HOUSE, PARAKALAYI, ANANDASRAMAM (VIA), KANJANGAD, KASARAGOD DISTRICT, PIN - 671 531. ## 7. JAYAN S/O.CHANDOTTY, PULIKKODAN VEETIL, MUNDAPLAVU, KALIKKADAVU, PARAKKALAYIL, ANANDASRAMAM (VIA), KANJANGAD, KASARAGOD DISTRICT, PIN - 671 531. 8. RAJEEV KUMAR S/O.LEKSHMI, THONIKALLU VEEDU, PARAKKALAYI, ANANDASRAMAM (VIA), KANJANGAD, KASARAGOD DISTRICT, PIN - 671 531. R1-R3 BY SR.GOVERNMENT PLEADER SHRI P.P.THAJUDDIN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-01-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 1508 of 2018 (K) ------------------------- ## APPENDIX --------- PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1. COPY OF THE TITLE DEED DATED 19.04.1996. EXHIBIT P2. COPY OF THE BASIC TAX RECEIPT EVIDENCING OF LAND TAX IN RESPECT OF THE PROPERTY FOR THE YEAR 2016-2017. EXHIBIT P3. COPY OF THE SALE DEED NO.2811/06 OF RAJAPURAM SUB REGISTRY. EXHIBIT P4. COPY OF THE LAND TAX RECEIPT DATED 27.11.2017 EVIDENCING OF LAND TAX IN RESPECT OF 2.4283 HECTORS OF PROPERTY FOR THE YEAR 2017-18. EXHIBIT P5. COPY OF THE POWER OF ATTORNEY EXECUTED IN FAVOUR OF THE 2ND PETITIONER. EXHIBIT P6. COPY OF THE DECREE PASSED IN O.S.NO.367/2006. EXHIBIT P7. COPY OF THE PETITION DATED 09.12.2017. EXHIBIT P8. COPY OF THE RECEIPT DATED 08.01.2018 ISSUED FROM THE POLICE STATION. EXHIBIT P9. COPY OF THE PETITION DATED 19.12.2017. EXHIBIT P10. COPY OF THE RECEIPT DATED 29.12.2017 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT. ## RESPONDENT(S)' EXHIBITS: ----------------------- NIL /TRUE COPY/ PA TO JUDGE _dkr_ K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------- W.P.(C) No. 1508 of 2018 ------------------------------------------Dated this the 16[th] day of January, 2018 ## J U D G M E N T ## Ashok Menon, J. The petitioners have approached this Court seeking police protection against the alleged trespass and highhandedness of respondents 4 to 8. The 1[st] petitioner owns some land, which he had allegedly purchased as per Ext.P1 document. Mutation was effected as per Ext.P2. 1[st] petitioner's nephew, and son of the 2[nd] petitioner, Prince Thomas, purchased adjoining land as per Ext.P3, for which he has paid land tax as per Ext.P4. The 2nd petitioner is the power of attorney of his son as per Ext.P5. The petitioners have planted rubber trees in their property and they are solely depending on the income derived from that property for their livelihood. The property has well defined boundary in all the four sides with a gate installed for the ingress and egress. During 2006, the party respondents attempted to encroach into 1[st] petitioner's property, destructed the boundary wall and committed waste. The 1[st] _WP(C) 1508/2018_ 2 petitioner filed O.S.No.367/2006 for a perpetual injunction and obtained a favourable decree, which is Ext.P6. The decree has attained finality. The party respondents are indulging in several illegal and unlawful activities. They abused the petitioners and the members of their family. The gate installed in the property was destructed. Father of 1[st] petitioner made a complaint before the police and a case was registered as C.C.No.2/2016 on the file of the Judicial First Class Magistrate Court, Hosdurg. 1[st] petitioner's father had also approached this Court with a Writ Petition seeking police protection and the same was closed. The party respondents trespassed into the property of the petitioners during 2017 and started tapping the rubber trees illegally. When the 1[st] petitioner and his aged father attempted to prevent them, the party respondents intimidated them with deadly weapons. The petitioners approached the 3[rd] respondent with complaints as evidenced by Exts.P7 to P10. It is understood that the 4[th] respondent is carrying a gun with him and is posing threat to the life of the petitioners and the members of their family. The police authorities are not taking any action and the party respondents are _WP(C) 1508/2018_ 3 continuing with their illegal activities and hence the petitioners were left with no other option than to approach this Court and seek interference of this Court by issuance of a writ of mandamus directing respondents 1 to 3 to afford adequate police protection to the petitioners and the members of their family and to enable them to tap the rubber trees standing in their property. 2. The Senior Government Pleader appeared for respondents 1 to 3. The learned Counsel for the petitioners and the Government Pleader were heard. Documents perused. 3. The 1[st] petitioner had already approached the civil court as early as in 2006 and obtained a favourable decree of injunction against respondents 5 and 6, which has now attained finality and is binding on the party respondents. In case there is any violation of the decree of the civil court, the first thing that the 1[st] petitioner ought to have done is to approach the civil court, seeking remedy for violation of injunction. Admittedly no such action has been taken for reasons best known to the 1[st] petitioner. It is also pertinent that the 2[nd] petitioner, acting for his son; concerned with another property, not covered by Ext.P6 decree, has joined the 1[st] _WP(C) 1508/2018_ 4 petitioner seeking protection against the other property also. Further, the injunction obtained is against respondents 5 and 6 and the interest of respondents 4, 7 and 8 is not clear. There is not even an averment in the Writ Petition as to the said respondents being the henchmen of respondents 4 and 5 or acting under their instigation. 4. The learned Counsel for the petitioners relied on two decisions of this Court in support of his argument that even where a civil dispute is pending, police protection can be afforded under Article 226 of the Constitution of India. 5. In the first decision reported in Jithesh v. State of Kerala, 2013 (4) KLT 565 , it is held that, even if a civil remedy is available to a party in respect of property right, if the Court feels, that driving the party to a civil court against an organised act will be ineffective, then this Court has got the power under Article 226 of the Constitution of India to grant necessary police protection to protect the property of such affected person. In the above cited decision, the facts would reveal that this Court exercised the extra-ordinary jurisdiction against an organised act by a political party under the _WP(C) 1508/2018_ 5 leadership of the party respondents therein. It was held, in the peculiar circumstance of a political party being involved, that it would be improper to drive the party to the civil court, as the respondents therein had trespassed into the property of the petitioner therein and put up some temporary sheds, on the allegation that the petitioner therein was holding excess land. There, the party respondents had no individual claim over the property and the trespass was on an allegation of land in excess of the Kerala Land Reforms Act liable for allotment to the landless, being in possession of the petitioners therein. Hence, specific direction was issued by granting police protection. In the instant case, the 1[st] petitioner had obtained a favourable decree from the civil court against the party respondents as early as in 2006 and the same has now attained finality and remains unchallenged by respondents 5 and 6. The allegations are against the specific individuals, who were parties to the civil suit and other persons, whose interest is not disclosed. The dispute with respect to the 2[nd] petitioner's property is also not revealed. _WP(C) 1508/2018_ 6 6. In yet another decision relied upon by the learned counsel, reported in Illyas v. State of Kerala, 2014 (4) KLT 362 , this Court was pleased to grant police protection to the petitioner under Article 226 of the Constitution of India, despite there being a decree and petition filed for execution. It was found from the facts of the above cited decision that the petitioner therein had obtained a decree and got it executed and the property was delivered to him. In gross violation of that, the party respondents had again trespassed into the property. This Court found that if persons do not obey orders of the civil court, it cannot be insisted that the petitioner should again be driven to the civil court for recovery of possession of property, when once under a decree the plaintiffs were put in possession in a validly instituted execution proceedings. The trespass was also at the instance of the failed defendants/judgment debtors. Under that circumstances, the petition was allowed and police was directed to provide adequate police protection to the petitioner to restore the possession of building, in terms with the orders of the civil court. _WP(C) 1508/2018_ 7 7. In the instant case, although the 1[st] petitioner has obtained a decree as early as in 2006 against respondents 5 and 6, he did not attempt to file any petition before the civil court for violation of the injunction and appropriate action against those respondents, who are obliged to comply with the civil court decree. Without having taken any recourse to the effective alternate civil remedies available to the 1[st] petitioner, he has directly approached this Court requesting to exercise the extra-ordinary jurisdiction of this Court by issuing a writ of mandamus. The 2[nd] petitioner, in any event, cannot claim any orders on the basis of Ext.P6 decree and there is a clear attempt to obtain protection for his son's property, on the basis of a decree with respect to another property. We find that the decisions relied upon by the petitioners would not apply to the facts and circumstances of this case and we do not find it essential to issue any positive direction of police protection. However, in case there is any law and order situation requiring the police to take action against any miscreants for any cognizable offence, even without any specific direction from this Court, they have a duty to proceed in accordance with law. If any complaint is _WP(C) 1508/2018_ 8 made of threat to life and limb of the petitioners or of their family members, necessarily the police shall enquire into it and ensure that such threat is averted. But the police shall not involve in disputes, purely civil in nature. With these observations, the petition is dismissed. No costs. Sd/K.VINOD CHANDRAN Judge Sd/ASHOK MENON Judge dkr