JUDGMENT
K. Balakrishnan Nair, J.
1. The point that arises for decision in this case is whether a land owner is entitled to get police protection to dig a bore well, if the same is obstructed by the local people on the ground that it will affect the water level in their wells.
2. The brief facts of the case are the following: The petitioners have obtained the necessary permits from the statutory authority for digging bore wells in the properties owned by them. Exts.P3 and P4 are the permits issued in favour petitioners 1 and 2 respectively. When they tried to dig bore wells in their respective holdings, the respondents 3 to 6 started causing obstruction, alleging that the same will affect the water levels in the wells in the neighbourhood. So, the 1st petitioner preferred Exts.P5 and P6 representations before the police. Similar representations were filed by the 2nd petitioner also, seeking protection for digging the bore well. But, the police did not render any help. Therefore, this writ petition was filed, seeking the following relief.
(i) To issue a writ of mandamus or any other appropriate writ, directing respondents 1 and 2 to render sufficient police protection to the life and property of the petitioners against respondents 3 to 6 and their men from causing obstruction in the construction of bore wells in the petitioners’ property, in accordance with Exts.P3 and P4 permits.
In support of their claim in this writ petition, the petitioners rely on Ext.P7 judgment, rendered in similar circumstances.
3. The 2nd respondent has filed a statement, stating that against the digging of the bore well, an Action Committee has been formed. The said Committee is protesting against the same, alleging misuse of water in the name of domestic purpose. It is opposing the digging of the bore well in the area. There is no threat to the life of the petitioners of their family members or to their properties from the persons opposing the digging of the bore well, it is stated. The petitioners have filed a reply affidavit, in which it is submitted that a few others have dug bore wells in the neighbourhood. But, the party respondents have not raised any objection. They are trespassing into the properties of the petitioners and causing mischief. It is also alleged that the 6th respondent had dug a bore well for his domestic needs about one year back.
4. If the petitioners’ civil rights to construct bore wells in their respective holdings are infringed by any one, their remedy lies before the competent civil court. The civil court can adjudicate the claim of the petitioners for injunction against the obstruction and grant appropriate reliefs. If its orders are violated, the civil court is competent to address the police to render assistance to enforce them. See the decision of the Division Bench of this Court in George v. Circle Inspector of Police 1990 (1) KIT 741, wherein it was held as follows:
Ordinarily, a civil suit will lie to prevent trespass and to obtain an order of injunction. In an ordinary action in civil court, it is possible to obtain the relief of declaration and also injunction. The civil court can grant relief restraining obstruction or impediment to the enjoyment of property or the goods. So also affirmative relief to load and unload goods can be given. The civil court will be in a better position to evaluate and grant relief, appropriate to the occasion, even if circumstances require the taking of oral and documentary evidence. The court granting the injunction can implement it by giving consequential directions, including direction to the police authorities to effectuate the order. It can also punish persons for disobeying the order of court, under Order 39 Rule 1 C.P.C. read with Rule 2-A. The advantages of declaratory judgment over mandamus need not be over stated.
5. Thus, if a person is aggrieved by the infringement of his civil rights, he can move the civil court and get reliefs. Of course, if cognizable offence is committed and information is lodged, the police have a duty to act in accordance with law. But, if there is failure from the part of the police to do that, the remedy of the aggrieved party is not to approach the High Court under Article 226 of the Constitution of India. He has to move either the superior officer of the police or the concerned criminal court under the relevant provisions of the Code of Criminal Procedure. See the decisions of the Apex Court in Aleque Padamsee v. Union of India 2007 (3) KLT 1028 (SC) and Sakiri Vasu v. State of U.P. and Ors. 2007(8) Supreme 226. Those decisions have been referred and followed by a learned single Judge of this Court in John Peruvanthanam v. State of Kerala 2008(1) KHC 226. We are in respectful agreement with the said decision. Further, we are bound by the above decisions of the Apex Court, wherein it is held that the High Courts should not issue directions under Article 226 of the Constitution of India to the police to register and investigate a case, on the ground that the police failed to do the same, though information was lodged. Further, we also notice the recent decision of the Division Bench of this Court in Thilakan v. C.I. of Police 2008(1) KLT 141 : 2007(3) KLJ 509, wherein this Court has held that when people of the locality are causing obstruction to the activities of a land owner in his land on the ground of environmental degradation, his remedy is to move the competent civil court. If bore wells are dug and water is drawn, there is likelihood of the same affecting the water level in the neighbouring wells. Water is the nectar sustaining life on earth. In the light of “the precautionary principle”, which is now part of our domestic law, in view of the decision of the Hon’ble Supreme Court in Vellore Citizens’ Welfare Forum v. Union of India , it is normally for the petitioners to show that their action is environmentally benign. In view of the above decisions, the relief sought by the petitioners cannot be granted. We are not justified in following Ext.P7 unreported judgment of this Court, as we cannot decide in these proceedings the genuineness of the objection of the local people. For deciding that, evidence should be taken. Further, in this case, we are concerned only with the failure of duty of the police. The police do not have any duty to adjudicate the rival claims and give protection to the petitioners, after rendering a finding in their favour. If that be so, in a police protection case, we cannot adjudicate on the rights of the parties, as we are only judicially reviewing on the failure of the police to discharge their duty. It is true that petitioners are armed with Exts.P3 and P4 permits issued by the competent authority. Whether the grant of permits in their favour will raise a presumption that the digging of the bore wells will not cause any environmental degradation, is a matter which can be considered by the civil court. We make it clear that we have not expressed any binding view on the rights of the petitioners to dig the bore wells. All the contentions available to them are kept open, which they may urge before the civil court.
6. In the result the writ petition fails and it is dismissed without prejudice to the contentions of the petitioners and their right to invoke the ordinary remedies available to them under the Codes of Civil Procedure and Criminal Procedure.