THOMAS ABRAHAM & ANR vs SUPERINTENDENT OF POLICE & ORS

The petitioners have approached this Court seeking police protection against the alleged trespass and highhandedness of respondents 4 to 8.

The 1st petitioner owns some land, which he had allegedly purchased as per Ext.P1 document. Mutation was effected as per Ext.P2. 1st

petitioner''s nephew, and son of the 2nd 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 1st petitioner''s property, destructed the

boundary wall and committed waste. The 1st 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 1st 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. 1st 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 1st petitioner and his aged father attempted to prevent them,

the party respondents intimidated them with deadly weapons. The petitioners approached the 3rd respondent with complaints as evidenced by

Exts.P7 to P10. It is understood that the 4th 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 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.

The Senior Government Pleader appeared for respondents 1 to 3. The learned Counsel for the petitioners and the Government Pleader were

heard. Documents perused.

The 1st 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 1st 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 1st petitioner. It is also pertinent that the 2nd petitioner, acting for his son; concerned with

another property, not covered by Ext.P6 decree, has joined the 1st 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.

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.

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 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 1st 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 2nd petitioner''s property is also not revealed.

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.

In the instant case, although the 1st 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 1st petitioner, he has directly

approached this Court requesting to exercise the extra-ordinary jurisdiction of this Court by issuing a writ of mandamus. The 2nd 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 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.