Dismissed

Gladstone George Varghese v. the District Police Chief

Kerala HC3 Oct 2023WA/1671/2023

Case brief

AI extract

What is this about?

The High Court dismissed this writ appeal challenging the Single Judge's order rejecting a petition for police protection while a civil suit regarding property partition and injunctions was pending. Holding that the civil court is the appropriate forum, the court found no prima facie threat to life or law and order issues required state protection, and refused interference.

What did the court decide?

Writ appeal dismissed; writ petition stands dismissed; parties directed to seek appropriate orders from the competent civil court.

Gladstone George Varghese Vs the District Police Chief — Property and Title | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN

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THE HONOURABLE MRS.JUSTICE SOPHY THOMAS

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TUESDAY, THE 3RD DAY OF OCTOBER 2023 / 11TH ASWINA, 1945

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WA NO.1671 OF 2023

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AGAINST THE JUDGMENT DATED 18.09.2023 IN WP(C)NO.28913 OF 2023 OF

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THIS COURT

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APPELLANT/PETITIONER:

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GLADSTONE GEORGE VARGHESE, AGED 41 YEARS
S/O. G. GEORGE, RESIDING AT GIE GIO COTTAGE, CHENKULAM
P.O., KOLLAM DISTRICT, REPRESENTED BY HIS FATHER AND
POWER OF ATTORNEY HOLDER MR.G.GEORGE, RESIDING AT GIE
GIO COTTAGE, CHENKULAM P.O., KOLLAM DISTRICT, PIN -
691510

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BY ADVS.
M.V.S.NAMPOOTHIRY
ASWATHY BOSE
DEVIKA. R. KRISHNA
JACOB JACOB

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RESPONDENTS/RESPONDENTS:

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1 THE DISTRICT POLICE CHIEF OFFICE OF THE DSP, KOLLAM, PIN - 691537

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2 THE STATION HOUSE OFFICER (CIRCLE INSPECTOR) POOYAPALLY POLICE STATION, KOLLAM, PIN - 691537

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3 M.ALEXANDER, AGED 87 YEARS, S/O. LATE GHEEVARGHESE, ELSY VILASOM, PUNNAKKODE, CHENKULAM P.O., AYROOR, (VIA) KOTTARAKKARA, PIN - 691510

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4 P. JOHNKUTTY, AGED 60 YEARS, S/O. PAPPAN, KOCHUVEEDU, PULAMON P.O., KOTTARAKKARA-, PIN - 691531

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OTHER PRESENT:

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SMT RASHMI K.M- SR GOVERNMENT PLEADER;
SRI GOPAKUMAR R.THALIYAL- FOR R3 AND R4

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2023,

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THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.No.1671 of 2023

“C.R"

JUDGMENT

Anil K. Narendran, J.

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The appellant filed W.P.(C)No.28913 of 2023, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 2, namely, the District Police Chief, Kollam and the Station House Officer, Pooyappally Police Station, to afford effective and meaningful protection to the appellant and his contractor for cutting and removing rubber trees from his property in Re.Sy.No.10/6 of Pooyappally Village. The appellant has also sought for a writ forbearing respondents 3 and 4 from causing any obstruction for the cutting and removal of rubber trees from the property in Re.Sy.No.10/6 of Pooyappally Village. On receipt of the notice in the writ petition, respondents 3 and 4 entered appearance and filed a counter affidavit dated 06.09.2023, producing therewith Ext.R4(a) interlocutory application filed in O.S.No.451 of 2018, invoking the provisions under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908, against the appellant and another alleging disobedience and breach of the order of injunction, i.e., Ext.P5 order 08.10.2018 and Ext.P6 order dated 20.12.2018 of the Munsiff Court, Kottarakkara in I.A.No.2847 of

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W.A.No.1671 of 2023

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2018 in O.S.No.451 of 2018. After considering the rival contentions, the learned Single Judge by the impugned judgment dated 18.09.2023 dismissed the writ petition observing that it is for the parties to obtain appropriate orders from the civil court. In the impugned judgment, the learned Single Judge noticed that there is a civil dispute between the parties, which is pending before the Munsiff Court, Kottarakkara in O.S.No.451 of 2018. Before the learned Single Judge, it was contended that the property in respect of which police protection has been sought for does not form the subject matter of O.S.No.451 of 2018. The same was disputed by respondents 3 and 4.

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2. Heard the learned counsel for the appellant-petitioner,

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the learned Senior Government Pleader for respondents 1 and 2; and the learned counsel for respondents 3 and 4.

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The learned counsel for the appellant would contend that the learned Single Judge erred in dismissing the writ petition on the ground that a civil dispute is pending between the parties in O.S.No.451 of 2018 before the Munsiff Court, Kottarakkara. Per contra, the learned counsel for respondents 3 and 4 would contend that the learned Single Judge rightly declined interference, taking note of the pendency of O.S.No.451 of 2018, and the impugned judgment warrants no interference.

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W.A.No.1671 of 2023

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The 3^rd respondent and his wife Thankamma have filed O.S.No.451 of 2018 before the Munsiff Court, Kottarakkara, in which the appellant, his father and two others are arrayed as the defendants. The said suit is one for declaration, partition and consequential injunction, in which the Munsiff Court, Kottarakkara granted Ext.P5 order of injunction dated 08.10.2018 in I.A.No.2847 of 2018, whereby the defendants and their henchmen are restrained from committing any waste or altering the present features of the plaint A to D schedule of properties, till the disposal of the suit. The said order was followed by Ext.P6 order dated 20.12.2018, whereby both parties are restrained from committing waste in the property, till the disposal of the suit. By Ext.P7 order dated 05.04.2019 in I.A.No.228 of 2019 in C.M.A.No.5 of 2019, the Sub Court, Kottarakkara, permitted the appellant and his father to renovate the building of MGM Primary School, subject to the conditions stipulated in that order.

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Alleging that, after the passing of Ext.P6 order of injunction in I.A.No.2847 of 2018 in O.S.No.451 of 2018, the appellant and his father flouted the said order and committed waste by cutting and removing the rubber trees standing in the plaint schedule property, the 3^rd respondent and his wife filed

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W.A.No.1671 of 2023

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Ext.R4(a) interlocutory application in O.S.No.451 of 2018, i.e., I.A. No.385 of 2023, invoking the provisions under Order XXXIX Rule 2A of the Code of Civil Procedure. In the said interlocutory application, the appellant filed Ext.R4(c) objection along with an interim prayer to appoint an advocate commissioner to conduct a local inspection. Along with the reply affidavit filed in the writ petition, the appellant has placed on record Ext.P15 survey plan in C.M.A.No.5 of 2019 of the Sub Court, Kottarakkara, in order to contend that the property in Re.Sy.No.10/6 of Pooyappally Village has no connection with the property of MGM Primary School. Ext.P13 order dated 29.06.2010 of the Re Survey Superintendent, Kottarakkara was challenged by the 3^rd respondent herein by filing W.P.(C)No.35123 of 2010. The said writ petition was dismissed as withdrawn, by Ext.P14 judgment dated 15.07.2022, in view of the pendency of O.S.No.451 of 2018 before the Munsiff Court, Kottarakkara, leaving open the liberty of the 3^rd respondent herein to take up all contentions before the Munsiff Court in the said suit.

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The document marked as Ext.P10 is a complaint dated 03.08.2023 made by the contractor engaged by the appellant for cutting and removal of the rubber trees standing in the property in Re.Sy.No.10/6 of Pooyappally Village, before the 2^nd respondent Station House Officer, Pooyappally Police Station, wherein it is

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stated that the cutting and removal of the rubber trees standing in the second plot was obstructed by one Baby and his son-in-law Johnkutty. The said complaint was followed by Ext.P12 complaint dated 17.08.2023 made by the appellant before the 1^st respondent District Police Chief, Kollam, wherein it is stated that the cutting and removal of rubber trees standing in the said property was obstructed by his elder brother Baby @ Alexander and his son-inlaw Johnkutty, along with their henchmen. The date of the alleged obstruction from the side of respondents 3 and 4 is not disclosed either in Ext.P10 complaint made before the 2^nd respondent Station House Officer or in Ext.P12 complaint made before the 1^st respondent District Police Chief. The age of the 3^rd respondent, namely, the elder brother of the appellant, is shown as 90 years in Ext.R4(a) interlocutory application filed in O.S.No.451 of 2018 pending before the Munsiff Court, Kottarakkara. In the counter affidavit filed by respondents 3 and 4 in the writ petition, the age of the 4^th respondent, namely, the son-in-law of the 3^rd respondent, is shown as 64 years.

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Relying on the decision of the Apex Court in L IC of India v. Consumer Education & Research Centre [(1995) 5 SCC 482] the learned counsel for the appellant would contend that the arms of the High Court are long enough to reach injustice

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W.A.No.1671 of 2023

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wherever it is found and the High Court would mould the relief appropriately to meet the peculiar and complicated requirements of the country. The learned counsel for the appellant would rely on the decision of the Apex Court in Hindustan Petroleum Corporation Ltd. v. Dolly Das [(1999) 4 SCC 450] wherein it was held that if the facts pleaded before the Court are of such nature which do not involve any complicated questions of fact needing elaborate investigation of the same, the High Court could exercise writ jurisdiction under Article 226 of the Constitution in such matters.

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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

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purpose. It is outside the limits of the duties which are cast on them, which is to prevent breach of peace or commission of cognisable offences, and to preserve law and order.

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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

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resort to the civil court itself.

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W.A.No.1671 of 2023

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In P.R. Murlidharan v. Swami Dharmananda

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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

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protection in terms of the decree or order passed by a court with

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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

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of this nature should be resisted by the High Court. The wide

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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 when the pleadings themselves disclose that disputed questions

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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

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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.

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In Bharat Singh v. State of Haryana [(1988) 4 SCC

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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

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annexed to the writ petition or to the counter affidavit, as the case

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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.

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In M/s. Larsen and Toubro Ltd. v. State of Gujarat

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[(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) 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

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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 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.

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In Narmada Bachao Andolan v. State of Madhya

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Pradesh [(2011) 7 SCC 639] a Three-Judge Bench of the Apex

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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.

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Therefore, a decision in a case cannot be based on grounds outside 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.

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In the instant case, the averments in Ext.P10 complaint

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dated 03.08.2023 made before the 2^nd respondent Station House Officer, Pooyappally Police Station, by the contractor engaged by the appellant, and that contained in Ext.P12 complaint dated 17.08.2023 made by the appellant before the 1^st respondent District Police Chief, Kollam, do not even make out a prima facie case for the issuance of a writ of mandamus invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, commanding respondents 1 and 2 to afford police protection to the appellant and his contractor for the cutting and removal of rubber trees from the property in Re.Sy.No.10/6 of Pooyapally Village. The date of the alleged obstruction from the side of respondents 3 and 4 and their henchmen is not disclosed either in Ext.P10 complaint made before the Station House Officer or in Ext.P12 complaint made before the District Police Chief. In Exts.P10 and P12 complaints and also in the statement of facts of the writ petition, the appellant failed to make out even a prima facie case of a threat to the life and/or a ‘law and order’ issue in the locality, on account of the alleged obstruction from the side of respondents 3 and 4 and their henchmen.

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In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145] a ThreeJudge Bench of the Apex Court held that a writ of mandamus can

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be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel the performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction.

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In State of U.P. v. Harish Chandra [(1996) 9 SCC 309] the Apex Court held that, under the Constitution, a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of a legal duty

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by the party against whom the mandamus is sought and said right

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was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of the law or to do something which is contrary to the law.

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In Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280] the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some

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statutory duty cast upon the authorities. In the said decision, the

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Apex Court noticed the principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F.G. Ferris and F.G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice.

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In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated that, generally, no Court has the competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been injected by law.

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19. I n 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

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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 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.

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20. In the above circumstances, we find no reason to interfere with the impugned judgment of the learned Single Judge,

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whereby the writ petition stands dismissed, without prejudice to the right of the parties to obtain appropriate orders from the competent civil court.

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The writ appeal fails and the same is accordingly dismissed. No order as to costs.

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Sd/- ANIL K. NARENDRAN, JUDGE

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Sd/- SOPHY THOMAS, JUDGE

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Dxy

Gladstone George Varghese v. the District Police Chief

Case brief

What is this about?

What did the court decide?

Gladstone George Varghese v. the District Police Chief

Case brief

What is this about?

What did the court decide?

What the court decided

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