IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14039 of 2010(D)
1. ALEYAMMA CYRIL, W/O. CYRIL PAAREKKATIL,
... Petitioner
2. ROSILY JOSEPH, W/O. JOYICHAN,
3. ALPHONSA AJI, W/O. AJI JOSEPH,
4. JOSE KURIAN, S/O. P.A.JOSEPH,
5. ANIL ABEY JOSE, S/O. ABRAHAM MATHEW,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DISTRICT SUPERINTENDENT OF POLICE,
3. THE DEPUTY SUPERINTENDENT OF POLICE,
4. THE SUB INSPECTOR OF POLICE,
5. ITTYAVIRA JOSEPH, S/O. P.A.JOSEPH,
6. P.A.ABRAHAM @ ITIYAVIRA, S/O.
7. PAULOSE K.A., S/O. ALIAS,
8. ERAYIL JOSEPH @ PAPPAN,
9. BESSY, S/O. UMMACHI,
10. JACOB CHELAMATTOM,
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.M.C.RATNAKARAN
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :01/07/2010
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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W.P.(C).No. 14039 of 2010 D
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Dated this the 1st day of July, 2010
JUDGMENT
Joseph Francis, J.
This Writ Petition is filed under Article 226 of the
Constitution of India with the following prayers:
“(i) Issue a writ of mandamus or other
appropriate writ, order or directions
commanding the respondents 2 to 4 to render
adequate and sufficient police protection to the
life and liberty of the petitioners and their near
ones in the hands of the respondents 5 to 10 and
their henchmen and political associates.
(ii) Issue a writ of mandamus or any
other appropriate direction to the respondents
commanding respondents 2 to 4 to abate all the
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obstructions and threats being offered and caused by
the respondents 5 to 10 and their henchmen by
adopting appropriate steps as per law.
iii) issue a writ in the nature of mandamus or
any other appropriate writ, direction or order
commanding respondents 2 to 4 to afford adequate
and effective police protection to the petitioners and
the persons engaged by them for surveying the
properties to conduct survey and measurement of the
properties covered by Exts.P1 to P6 without being
obstructed in any fashion either by respondents 5 to
10 or any others under them in any fashion.”
2. The case of the petitioners is briefly as follows. The
petitioners offered the properties belonging to them and covered by
Exts.P1 to P6 for sale as it was found difficult for them to attend to the
properties situated far away from their respective residences. They
also entered into an agreement for sale dated 28.10.2009, as per which,
W.P.(C).No. 14039 of 2010
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the sale has to be completed on or before 30.5.2010 on convincing the
purchasers regarding actual extent of the properties.
3. Respondents 5 to 10, who are engaged in real estate business,
being dissatisfied by the agreement for sale arranged without their
intervention, wanted to frustrate the sale somehow or other. They also
started to threaten the purchasers with dire consequences. On
13.3.2010, when the survey of the property was arranged, respondents
5 to 10, with the support of their henchmen, physically attacked the
husbands of the elder sisters of petitioners 1 to 4, who were present
there, and also insulted the petitioners with abusive words and
obstructed the survey of the properties. Subsequent attempts to
measure the properties were also defeated by threatening the
petitioners, the purchasers and the surveyors.
4. Therefore Ext P7 representation was made to the 2nd
respondent seeking police protection to life and liberty and also for
completing the measurements. Similar petitions were made to
W.P.(C).No. 14039 of 2010
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respondents 3 and 4. No steps have been taken by the said respondents
on account of the influence of the respondents. All steps to pacify the
respondents have also failed. None of the respondents have any sort of
right over the properties covered by the sale agreement; still they are
offering threat to the life, liberty and freedom of the petitioners to
survey the property and complete the sale. None of the respondents
have property in the locality to share any common boundary with the
petitioners’ property. The petitioners seek appropriate direction to
respondents 2 to 4 to render adequate police protection.
5. Respondents 5 to 10 filed counter affidavit, to which the
petitioners filed reply affidavit.
6. Heard the learned counsel for the petitioners, learned counsel
for the contesting party respondents and the learned Government
Pleader.
7. In the counter affidavit filed by the party respondents it is
stated that the 5th respondent is the brother of petitioners 1 to 4 and
W.P.(C).No. 14039 of 2010
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the uncle of 5th petitioner. Respondents 6 to 10 have nothing to do
with the disputes between the petitioners and the 5th respondent and
that they have not done anything adverse to the petitioners. It is further
stated that the properties mentioned in the Writ Petition and another 8
acres of property situated west of this property are in the possession of
the 5th respondent and that the petitioners have absolutely no right over
the property mentioned in the Writ Petition. It is stated in the counter
that there is no physical threat against the petitioners by any of the
respondents. If at all the petitioners have any right over the property,
such rights are lost by adverse possession. It is stated that the 5th
respondent is filing a suit for injunction restraining the petitioners from
encroaching upon the property before the Civil Court immediately after
the reopening of the court.
8. The remedy available to an aggrieved party under Article 226
of the Constitution is an extra ordinary remedy and it is not intended to
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be used for the purpose of declaring the private rights of the parties. In
the case of enforcement of constitutional rights and liabilities, the
normal remedy of filing a civil suit is available to the aggrieved party
and the High Court will not exercise its prerogative writ jurisdiction
to enforce such contractual obligations. Since the proceedings under
Article 226 of the Constitution are of summary nature, disputed
questions of facts should not normally be allowed to be agitated and
the High Court should not proceed to determine such questions.
9. In view of the fact that there are disputes raised relating to
the property, we do not think it appropriate for us to interfere in the
matter. Hence we decline jurisdiction and relegate the petitioners to
approach the competent civil court seeking appropriate reliefs. We
further direct that in case any cognizable offence is committed by the
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party respondents, the fourth respondent shall take action in
accordance with law.
(K. M. JOSEPH)
Judge
(M.L. JOSEPH FRANCIS)
Judge
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