IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18506 of 2008(C)
1. JINCY,
... Petitioner
Vs
1. THE SUPERINTENDENT OF POLICE,
... Respondent
2. THE SUB INSPECTOR OF POLICE,
3. T.J.MATHEW, S/O.JOSEPH,
4. VINOD.T.J., THURUTHIYIL VEEDU,
For Petitioner :SRI.T.RAJASEKHARAN NAIR
For Respondent :SRI.K.B.ARUNKUMAR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :05/08/2008
O R D E R
K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ.
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W.P.(C)No.18506 OF 2008-C
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DATED THIS THE 5th DAY OF AUGUST, 2008
J U D G M E N T
Balakrishnan Nair, J.
The petitioner is the widow of late Santhosh who is the brother of
respondents 3 and 4. The petitioner’s marriage took place on 16.5.2005.
After seven months, her husband committed suicide. He was owning
certain properties. One of them is covered by Exhibit P3 sale deed. The
petitioner along with her husband was residing in that property. But,
soon after the death of her husband, his brothers demolished the building
and she was constrained to shift her residence to her father’s house.
Now, when she attempted to construct a residential building in the
property covered by Exhibit P3, respondents 3 and 4 obstructed and they
manhandled the father of the petitioner. On lodging information before
the Police, Exhibit P5 crime has been registered against the 4th
respondent. The party respondents have no right over the property
covered by Exhibit P3. So, they have no right to interfere, when she is
constructing a building there, it is submitted. So, she preferred Exhibit P6
representation before the police seeking necessary protection. Since, the
police did not take any steps, this writ petition is filed, seeking the
following reliefs:
W.P.(C)No.18506/08-C -2-
I. Issue a writ of mandamus or any other appropriate writ or
order or direction directing the respondents 1 & 2 to provide
adequate and effective police protection for reconstructing the
building of the petitioner, which has already been demolished
by respondents 3 and 4.
II. Issue a writ of mandamus or any other appropriate writ or
order or direction directing the respondents 1 and 2 to provide
adequate and effective police protection to the life and
property of the petitioner and her family members from
respondents 3 and 4 with immediate effect.
2. The learned Government Pleader upon instructions submitted
that after the registration of Exhibit P5 crime, there is no law and order
problem warranting interference of the police. The petitioner and her father
are coming to the property and doing agricultural operations there. Nobody
is obstructing them. In fact the petitioner is taking food from the house of
one of the brothers of her husband, it is submitted.
3. The respondents 3 and 4 have filed separate counter affidavits
denying all the allegations against them. The 3rd respondent would submit
that the property covered by Exhibit P3 is in his exclusive possession and he
has constructed a residential building there and is staying there. Both the
party respondents point out that being a widow of a Christian, who died
intestate and without issues, she is entitled to get only 50% of the property
covered by Exhibit P3. Without partition, the petitioner cannot construct a
building there. It is further submitted that none of the parents of the
deceased Santhosh are alive. So, the brothers of the deceased are entitled
to get 50% share in his properties. Respondents 3 and 4 submitted that
they have no intention to physically harm the petitioner.
4. The dispute concerning the property covered by Exhibit P3 is a
W.P.(C)No.18506/08-C -3-
civil dispute. But, the learned counsel for the petitioner submitted that there
is no dispute regarding the said property. The said contention is plainly
untenable. The petitioner claims exclusive possession and title over the
property, whereas the brothers of her husband claim half share in the
property. Further, the 3rd respondent claims exclusive possession of the said
property and he further claims that he is residing in a residential building
constructed there. So, the dispute between the parties regarding the right
over the property is a civil dispute.
5. In a petition for police protection, this Court cannot adjudicate
the rival claims of the parties over the property covered by Exhibit P3 and
thereafter direct the police to implement the finding of this Court. This Court
has no such jurisdiction under Article 226 of the Constitution of India. We
can issue directions to remedy the failure of duty from the part of the police.
In this case, the police have no power or authority to adjudicate the rival
claims over the property covered by Exhibit P3, enter a finding in favour of
the petitioner and thereafter grant protection to the petitioner to construct a
residential building in the property. No statute has been brought to our
notice whereunder the police is authorised to adjudicate a civil dispute, take
a decision and based on their decision, render protection to the party, who is
W.P.(C)No.18506/08-C -4-
found eligible by them for the same. In the absence of any duty for the
police, in this regard and the corresponding right in the petitioner, this Court
cannot issue any direction to the police to grant protection to the petitioner
to construct the residential building. See the recent decision of this Court in
Sadananda Bai T.V. v. C.M.Ravi ( 2008 (3) KHC 76). To enforce her
right over the property, the petitioner has to move the competent civil court
and to obtain appropriate orders.
6. If the orders of the civil court are violated, the said court can
address the police to render assistance to the petitioner to enforce its
orders. So, the prayer for police protection for the construction of the
building for the petitioner is declined, but without prejudice to the
contentions of the petitioner and her right to move the competent civil court
for appropriate reliefs. The submissions made by respondents 3 and 4 that
they will not physically harm the petitioner will be sufficient to dispel the
apprehension of the petitioner that she is facing threat to her life from the
said respondents. It is clarified that if any cognizable offence is reported,
the powers of the police to take appropriate action will not be affected by
this judgment.
The writ petition is disposed of as above.
K.BALAKRISHNAN NAIR,JUDGE.
M.C.HARI RANI, JUDGE.
dsn