Court’s Decision
The Kerala High Court allowed two writ appeals and set aside the order of a Single Judge that had directed police authorities to provide protection to one set of parties in a family property dispute to close and lock a gate. The Division Bench, led by the Chief Justice, held that writ jurisdiction under Article 226 of the Constitution is not intended to adjudicate private civil disputes. The Court clarified that police protection under writ jurisdiction can only be granted when there is a genuine threat to law and order, not merely to enforce civil rights already adjudicated or rejected by civil courts
.
Facts
The litigation arose out of a long-standing family dispute over 32 cents of ancestral property in Nadama Village, Ernakulam. The property originally belonged to a common ancestor, and following partition and settlement deeds, different branches of the family laid claim to various portions.
A temple was situated to the east of the property, and a pathway connected the property to the temple road. Disputes arose regarding access and use of this pathway, particularly whether one branch of the family had a prescriptive easementary right over it.
A civil suit (O.S. No.190 of 2013) was filed before the Munsiff Court, Ernakulam, seeking declaration of easementary rights and injunctions. The petitioners in the counter-claim also sought prohibitory injunctions and boundary fixation. Both the main suit and the counter-claim were dismissed in 2018, and subsequent appeals, including before the High Court in second appeal, were dismissed. Despite these dismissals, disputes persisted over the right to close the eastern gate, leading to the filing of a writ petition for police protection
.
Issues
- Whether the High Court can issue a writ of mandamus directing police protection in a civil property dispute where the civil court has already rejected similar reliefs.
- Whether writ jurisdiction under Article 226 can be invoked to indirectly enforce rights not granted by civil courts.
- Whether the existence of a law and order situation is a jurisdictional prerequisite for the grant of police protection under writ jurisdiction.
Petitioner’s Arguments
The petitioners argued that as owners in possession of the property, they were entitled to close and lock the eastern gate to prevent interference by the appellants. They contended that despite dismissal of the civil claims, their ownership remained intact and warranted protection. They urged that police authorities had failed to act on complaints, thereby necessitating a writ of mandamus to ensure their peaceful enjoyment of the property.
They relied on the Full Bench decision in Essar Telecom Infrastructure (P) Ltd. v. CI of Police, Angamali (2010), which held that where there is a threat to law and order, the High Court may issue directions to the police even if the dispute has civil dimensions
.
Respondent’s Arguments
The appellants countered that the writ petition was an attempt to circumvent the civil court’s dismissal of both the suit and counter-claim. They stressed that the petitioners had already sought similar reliefs before the civil court, which were expressly rejected, and no appeal was preferred against the counter-claim’s dismissal.
It was submitted that a writ petition cannot be used to indirectly enforce reliefs denied in civil proceedings. The appellants emphasized that no law and order situation existed; hence, the writ jurisdiction was wrongly invoked. They pointed out that under the Code of Civil Procedure, mechanisms such as Order XXXIX Rule 2A and Section 151 already empower civil courts to enforce injunctions with police assistance
.
Analysis of the Law
The Bench reiterated that writ jurisdiction under Article 226 is discretionary and intended for enforcing statutory duties of public authorities. It cannot become a forum for adjudicating private property disputes.
- Section 27 of the Kerala Police Act, 2011 and Section 149 CrPC (now Section 168 BNSS, 2023) oblige the police to prevent cognizable offences and maintain law and order. However, these powers are triggered only when there is a demonstrable law and order situation.
- Police protection under writ jurisdiction and police assistance under the Civil Procedure Code stand on different planes. The former is limited to situations where law and order is threatened, while the latter enables enforcement of decrees and injunctions.
The Court stressed that the existence of a law and order situation is a jurisdictional fact that must be established before a writ of mandamus can be issued. Without this, writ courts risk overstepping into the domain of civil courts
.
Precedent Analysis
The Court relied on several key rulings:
- P.R. Muralidharan v. Swami Dharmananda Theertha Padar (2006) 4 SCC 501 — The Supreme Court held that writ jurisdiction cannot be a substitute for adjudicating civil rights, and mandamus cannot be issued to protect possession without first establishing rights in civil court.
- Sadananda Bai T.V. v. C.M. Ravi (2008 KLT 542) — Warned against misuse of police protection jurisdiction to resolve private disputes.
- Kondo Syokai Leisure India (P) Ltd. v. Assistant Commissioner of Police (2018 SCC OnLine Ker 22605) — Held that disputed questions of title and possession fall outside writ jurisdiction.
- Rajendran Kambakkaram C.K. v. State of Kerala (2022 (5) KLT 915) — Clarified that police cannot be made adjudicators of civil disputes.
- Essar Telecom (2010 (2) KHC 445 FB) — Distinguished by noting that police protection is justified only where public law and order threats exist, such as obstructions to mobile tower construction.
Court’s Reasoning
The Bench found that the Single Judge’s order was flawed because it granted police protection solely on the basis of civil rights, without establishing the jurisdictional fact of a law and order threat.
The Court noted that:
- Both the suit and counter-claim had been dismissed by competent civil courts.
- No appeal was filed against the rejection of the counter-claim.
- Police authorities had themselves stated that no law and order issue existed.
Thus, the order of the Single Judge was “unsustainable” as it amounted to indirect enforcement of civil rights already adjudicated upon, which lies within the civil court’s domain. The Bench warned that routine orders of police protection in civil disputes would drain police resources from genuine law and order needs.
Conclusion
The Division Bench quashed the Single Judge’s judgment and restored the writ petition for fresh consideration, directing the Single Judge to assess whether a genuine law and order situation exists. The Court emphasized that mandamus can only issue where statutory duties are neglected and threats to public order are established, not for adjudicating private property disputes.
Implications
This judgment draws a clear boundary between writ jurisdiction and civil adjudication. It affirms that police protection cannot be invoked as a substitute for civil remedies, thereby discouraging litigants from bypassing civil courts. By cautioning against the routine invocation of police protection jurisdiction, the Court also highlighted the strain on limited police resources.
For future disputes, parties must approach civil courts for enforcement of property rights, while writ jurisdiction will remain confined to law and order concerns.
FAQs
Q1. Can High Courts issue writs of mandamus in civil property disputes?
Not ordinarily. The Kerala High Court held that writ jurisdiction cannot adjudicate civil rights and is limited to ensuring law and order.
Q2. When can police protection be granted under Article 226?
Only when there is a demonstrable law and order situation. Without this jurisdictional fact, mandamus cannot be issued.
Q3. What remedies exist if a party violates civil court orders?
Parties can invoke Order XXXIX Rule 2A or Section 151 of the Civil Procedure Code for enforcement with police assistance.