Safiya Malik

The High Court of Kerala Division Bench of Chief Justice Nitin Jamdar and Justice Basant Balaji quashed a judgment which had directed police authorities to provide police protection to parties in a property dispute. The Bench set aside the earlier order and restored the writ petition to the file of the Single Judge for fresh consideration. The Court further granted liberty to the appellants to seek early hearing of the petition and to apply for restoration of status quo ante. The Division Bench recorded that the impugned judgment was issued without findings regarding the existence of a threat to law and order, and held that such jurisdictional facts are a prerequisite before issuing a writ of mandamus to the police.

The appeals arose under Section 5 of the Kerala High Court Act, 1958 challenging the judgment dated 5 October 2023 in W.P.(C) No.22946 of 2023. The appellants in W.A. No.1866 of 2023 were respondents three and four in the writ petition, while the appellant in W.A. No.2086 of 2023 was respondent five. The writ petition had been filed by two individuals seeking police protection on the allegation that the appellants were obstructing their enjoyment of property, preventing them from closing a gate, and issuing threats. The petitioners had approached the police authorities, but in the absence of action, sought a writ of mandamus before the High Court.

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The Single Judge had allowed the petition, directing police authorities to provide protection to the petitioners for closing the gate on the eastern side of the disputed way, which was also the subject matter of O.S. No.190 of 2013 before the First Additional Munsiff Court, Ernakulam. Aggrieved, the respondents in the writ petition, who were family members of the petitioners, filed appeals before the Division Bench.

The appellants contended that the Single Judge entered into the civil dispute by directing police protection. They argued that the petitioners had already sought similar reliefs in their counter-claim in O.S. No.190 of 2013, which had been dismissed by the civil court. Against such dismissal, no appeal had been filed by the petitioners. It was contended that relief specifically declined by the civil court cannot be indirectly obtained through police protection jurisdiction. Further, it was urged that the civil court itself has powers under Order XXXIX Rule 2A or Section 151 of the Code of Civil Procedure, 1908 to enforce its orders with police aid, and in the present case there was no law and order situation.

On the other hand, the petitioners submitted that there was no bar to the issue of a writ of mandamus even in a civil dispute, and that they were entitled to police protection as owners of the property. They relied upon the decision of the Full Bench of the Kerala High Court in M/s. Essar Telecom Infrastructure (P) Ltd. v. C.I. of Police, Angamali Police Station, 2010 (2) KHC 445 (FB), to argue that the police have a duty to prevent obstruction and ensure peaceful enjoyment.

The property in question was 32 cents in Survey No.608 of Nadama Village. According to the petitioners, it originally belonged to late Kittunny, father of late M.K. Rajappan and M.K. Aravindakshan. There was a partition deed and a gift deed in relation to the property. A temple existed on the eastern side, accessible by a pathway. The petitioners contended that the settlement deed provided a wide passage on the southern extremity of their property to allow appellants access to the temple road, thereby denying them right to interfere with the eastern gate.

The appellants had filed O.S. No.190 of 2013 seeking a declaration of prescriptive easementary right over plaint B schedule way for enjoyment of plaint A schedule property, and an injunction restraining obstruction and destruction of gate pillars. They contended that despite omission in documents, they had ownership and enjoyment rights, and the pathway was necessary for beneficial enjoyment.

The petitioners had filed a written statement and counter-claim in the civil suit, seeking an injunction against the appellants and fixation of boundaries of the property. The counter-claim requested a permanent prohibitory injunction restraining appellants from trespassing, obstructing, or interfering with closing of the eastern gate. The Munsiff Court dismissed both the suit and counter-claim on 22 January 2018. The appellants challenged the dismissal through A.S. No.22 of 2018 before the District Court, which was dismissed on 28 September 2021. A further appeal in R.S.A. No.813 of 2021 was dismissed by the High Court on 6 March 2023. The petitioners did not appeal against dismissal of their counter-claim.

The Single Judge in the impugned judgment referred to the civil dispute and observed that appellants had no right to interfere with closing of the gate, thus directing police protection. The Division Bench noted that the judgment was passed without recording any finding of a law and order situation.

The Bench observed that “the main contention raised by the Appellants is that by directing police protection to lock the gate, the learned Single Judge entered into the civil dispute between the parties, and the remedy of the Petitioners was to approach the civil court.” It recorded the submission that a relief specifically denied by the civil court cannot be obtained indirectly by police protection.

The Court noted the settled principle 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.” The Bench cited P.R. Muralidharan v. Swami Dharmananda Theertha Padar, (2006) 4 SCC 501, where the Supreme Court stated that “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 Court recorded that “the wide jurisdiction under Article 226 of the Constitution would remain effective and meaningful only when it is exercised prudently and in appropriate situations.” It also referred to Sadananda Bai T.V. v. C.M. Ravi, 2008 (3) KLT 542, observing that “recently, the 'police protection jurisdiction' is being converted into a special original jurisdiction, not conferred by the Constitution. Under the guise of seeking police protection, civil disputes are raised before this Court, calling upon it to make a prima facie adjudication and based on that finding, ask the police to render assistance.”

The Bench reiterated that “the High Court has no power to adjudicate the disputes between private parties, while exercising its power of judicial review. The powers of this Court to issue writs under Article 226 of the Constitution of India are well settled. This Court can issue a mandamus to the police to perform their duty enjoined upon them by the statutes.”

The judgment further referred to Kondo Syokai Leisure India (P) Ltd. v. Assistant Commissioner of Police, 2018 SCC Online Ker 22605, which held that title and possession disputes cannot be adjudicated in writ jurisdiction under the guise of police protection. The Court also cited Rajendran Kambakkaram C.K. v. State of Kerala, 2022 (5) KLT 915, and other Division Bench judgements reiterating that police cannot act as adjudicators of civil disputes.

On the reliance placed by the petitioners on M/s. Essar Telecom Infrastructure (P) Ltd., the Court observed that in that case, a law and order situation had arisen when local inhabitants obstructed construction of mobile towers, and the Full Bench held that police could not remain silent spectators. The Court clarified that in such cases, there were no disputed questions of fact, unlike in the present matter.

The Bench stated: “It is essential to note that police assistance under the Civil Procedure Code, 1908, and police protection to be ordered under Article 226 of the Constitution of India stand on a different footing. The existence of a threat to law and order is a jurisdictional fact for the issuance of the writ of mandamus. This jurisdictional fact needs to be established before a writ of mandamus can be issued.”

The Court found that “the impugned judgment does not record any finding as to the existence of any law and order situation, but simpliciter refers to the civil rights of the parties. The police authorities had taken a stand that there is no such law and order perceived, and the parties will have to approach the civil court. The impugned judgment, rendered without recording the existence of jurisdictional facts and based merely on findings in the civil dispute, that too, only partial findings, cannot be sustained.”

The Division Bench also noted the lapse of time, recording that pursuant to the impugned judgment, the gate had been closed and the position had continued for almost two years, though mediation attempts had failed.

The Court directed that “the impugned judgment needs to be set aside and petition needs to be restored to the file of the learned Single Judge, to ascertain whether the jurisdictional fact for issuance of a writ of mandamus, namely, the existence of a threat to law and order, was established; whether, in the circumstances, the alternate remedy is more appropriate; and whether an order of status quo ante, that is, opening of the lock put up pursuant to the impugned judgment, needs to be granted leaving it to the parties to approach the civil court.”

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Accordingly, it ordered: “the judgment of the learned Single Judge dated 5 October 2023 in W.P.(C) No.22946 of 2023 is quashed and set aside, and the petition filed by the Respondents/Original Petitioners stands restored to the file. Leave is granted to the Appellants to take out an application for early hearing of the Petition and/or restoration of status quo ante. The Appeals are accordingly disposed of.”

The Bench also recorded that “though the police protection jurisdiction has been routinely invoked in the State over several years, it has to be now borne in mind that over the years the demands on the police force have grown manifold. The police force operates with limited resources and has to attend to various duties, often emergent ones. Routinely ordering police protection under Article 226 of the Constitution of India, without the apprehension of serious law and order issues being established, would divert the time and energy of the police force from areas where genuine law and order issues exist.”

Advocates Representing the Parties

For the Petitioners: Sri. Santhosh Mathew (Senior Advocate), Sri. A.A. Mohammed Nazir

For the Respondents: Sri. S.K. Premraj, Sri. C. Anilkumar (Kallesseril), Smt. V. Saritha, Sri. K.V. Sudheer, Sri. P.M. Manash, Smt. Reenu Kurian, Sri. Aadil Nazarudeen, Sri. Jain Varghese, Sri. K.S. Frijo, Sri. Aravind Ajith, Sri. Gigeesh Babu, Smt. Yamini Gopalakrishnan

Case Title: M. K. Aravindakshan & Anr. v. M. R. Pradeep & Ors.; M. A. Sunil v. M. R. Pradeep & Ors.

Neutral Citation: 2025: KER:63317

Case Number: WA. Nos. 1866/2023 & 2086/2023

Bench: Chief Justice Nitin Jamdar and Justice Basant Balaji