Gujarat High Court
Hasumati Jitendrakumar vs State Of Gujarat & on 15 October, 2013
Author: Harsha Devani
Bench: Harsha Devani
HASUMATI JITENDRAKUMAR PATELV/SSTATE OF GUJARAT R/SCR.A/532/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION NO. 532 of 2013 ================================================================ HASUMATI JITENDRAKUMAR PATEL & 6....Applicant(s) Versus STATE OF GUJARAT & 3....Respondent(s) ================================================================ Appearance: MR NIRAV C THAKKAR, ADVOCATE for the Applicant(s) No. 1 - 7 MR MM TIRMIZI, ADVOCATE for the Respondent(s) No. 4 NOTICE NOT RECD BACK for the Respondent(s) No. 2 - 4 MR. H. K. PATEL, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 15/10/2013 ORAL ORDER
1) By this petition under Article 226 of the Constitution of India, the petitioners seek the following substantive reliefs;
(A)To admit this petition.
(B)To issue appropriate writ, order or direction directing the respondent authorities to provide police protection to the petitioners at their own cost so that the petitioners can put up the gates of the school and construct the compound wall which was existing earlier thereby implementing the order dated 24.12.2012 passed by the Deputy Collector, Anand passed in Mamaltdar Courts Act Revision Application No.8 of 2012.
2) The facts of the case as averred in the petition are that the respondent No.4 and others, instituted a case against the petitioners under the Mamlatdars Courts Act, 1906 being Mamlatdars Courts Act Case No.2 of 2011 alleging that he is the owner of agricultural lands bearing Survey Nos.1000/1 and 100/2 and that he has been using the road from the eastern side of the said survey numbers since time immemorial for reaching his agricultural land. That about two months prior to the filing of the case, the petitioners had put up a compound wall in their land and had obstructed his right of way. In the said proceedings, the Mamlatdar, by an order dated 25.06.2012, allowed the application filed by the respondent No. 4 and others and directed removal of the obstruction of the way situated on the eastern side of the land of the petitioners. Thereafter, since the respondent No.4 and others were attempting to pull down the compound wall of the petitioners by use of force, the petitioners moved an application before the Mamlatdar requesting him to correct the order by passing an order to the effect that the alleged obstruction on the road should be removed by the petitioners. By an order dated 28.06.2012, the Mamlatdar passed a clarificatory order to the said effect. However, in the meanwhile on 27.06.2012, a mob comprised of the respondent No.4 and others came with bulldozers and demolished the compound wall of the school in a way that endangered the students and the teachers of the school. According to the petitioners, the respondent No.4 and others are not even allowing the school to close the main gate and the entire atmosphere in the area has become tense.
3) In the meanwhile, the petitioners also moved the Deputy Collector, Anand, against the order passed by the Mamlatdar by way of revision. By an order dated 16.8.2012, the Deputy Collector, Anand stayed the operation, implementation and execution of the order of the Mamlatdar. The petitioners, thereafter, requested the Deputy Collector to direct restoration of status-quo ante. However, the Deputy Collector refused to do so, and hence, the petitioners were constrained to make representations to various other authorities including the D.S.P. and the Collector. Thereafter, the petitioners approached this court by way of a writ petition being Special Civil Application No.15421 of 2012, seeking various reliefs, including a direction to the respondent authorities to ensure that the order dated 16.08.2012 passed by the Deputy Collector is implemented by restoring status-quo as was prevailing before the order came to be passed by the Mamlatdar and thereby permitting the petitioners to put up the compound wall which was demolished by the respondent No.4 and his associates. By an order dated 08.11.2012, the petition came to be disposed of by directing the respondent No.4 to take appropriate steps in accordance with law including that of hearing the appeal within four weeks. Pursuant to the said order, the Deputy Collector heard the appeal preferred by the petitioners finally and allowed the same vide order dated 24.12.2012 by quashing and setting aside the order passed by the Mamlatdar.
4) The petitioners, thereafter, requested the respondent authorities to provide police protection to them so as to enable them to put up the compound wall and the gate which were removed by the private parties by placing reliance upon the order of the Mamlatdar, which was subsequently quashed and set aside by the Deputy Collector. Since the petitioners apprehend that if they proceed to get the status-quo ante restored without police protection, the same would result in breach of peace in the area, they sought protection from the respondents. According to the petitioners, it is the duty of the Mamlatdar and the Deputy Collector to restore the status-quo ante. However, the said authorities are not taking any steps for doing the needful in this regard and that the petitioners are willing to do the same at their own cost. Therefore, the petitioners have made oral and written requests to the respondents to provide police protection. However, under the guise of upcoming election etc., the respondents have not heeded to the request of the petitioners and even after the elections are over, the respondents have not acceded to the request which was made by the petitioners in writing on 31.01.2013. It is in the backdrop of the aforesaid facts that the petitioners have approached this court seeking the reliefs noted hereinabove.
5) Mr. Nirav Thakkar, learned advocate for the petitioners, vehemently argued that once the order of the Mamlatdar came to be set aside, the petitioners were entitled to restitution and, hence, the status-quo ante was required to be restored by the Mamlatdar and the Deputy Collector on their own. However, upon their failure to do so, the petitioners are ready and willing to construct the compound wall and put up the gate at their own. However, there is a likelihood of breach of peace as the respondent No.4 and others are not permitting the petitioners to do so and, hence, they are constrained to seek protection from the police for constructing the compound wall. It was submitted that the inaction on the part of the respondent authorities and the police machinery in not assisting the petitioners for implementing the orders of the quasi-judicial authorities by providing police protection at their own cost undermines the rule of law and is illegal and is violative of the fundamental and legal rights of the petitioners. It was urged that the orders passed by the authorities are required to be followed by all the parties and if any party tries to overreach the process of law, the beneficiary of the order is required to be protected by the machinery of law. It was argued that the compound wall and gate of the school were removed on the strength of the order of the Mamlatdar by the parties to the proceedings itself, despite the clarificatory order of the Mamlatdar that the petitioners have to remove the compound wall and the gates. Now, when the order of the Mamlatdar has been set aside, the status-quo ante is required to be restored. It was submitted that the respondent authorities are equally responsible for ensuring that the orders of the judicial and quasi judicial authorities are obeyed by aiding the beneficiary of the said order. In support of his submissions, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Mahijibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai, AIR 1965 SC 1477, for the proposition that where a wrongful or irregular execution has been set aside or where a judgment and order has been reversed after execution thereon has taken place, restitution will be made to the successful party. The order setting aside the execution or reversing the judgment or order should provide for this; and if it does, execution may issue upon it in the ordinary course. If the order does not so provide, another order may be made, or a writ called a writ of restitution be issued, commanding the judgment debtor to restore the property or pay over the proceeds of sale.
It was submitted that in the facts of the present case, the order of the Mamlatdar having been set aside, by way of restitution, the status-quo ante is required to be restored and, as such, it is incumbent upon the respondent police authorities to grant necessary police protection for implementing the order passed by the Deputy Collector. It was, accordingly, urged that the petition deserves to be allowed by granting the reliefs prayed for.
6) On the other hand, Mr. M.M. Tirmizi, learned advocate for the respondents, vehemently opposed the petition by drawing the attention of the court to the order passed by the Deputy Collector to submit that while setting aside the order passed by the Mamlatdar, the Deputy Collector has stated that the rights of the parties shall be governed by the final outcome of the Civil Suit No.244 of 1997 and Civil Suit No.48 of 2012 which is pending between the parties. It was submitted that when civil disputes are pending between the parties, the petitioners are not entitled to the grant of a writ of mandamus directing the police to grant them protection. In support of such submissions, the learned advocate placed reliance upon the decision of the Supreme Court in the case of P.R. Murlidharan v. Swami Dharmananda Theertha Padar, (2006) 4 SCC 501.
It was, accordingly, urged that the petition, being devoid of merits, deserves to be dismissed.
7) Mr. Himanshu Patel, learned Additional Public Prosecutor, submitted that when civil disputes are pending between the parties, the police should not be involved. It was submitted that in case of any breach of peace, it is always open for the petitioners to avail of the remedy under sections 107 and 151 of the Code of Criminal Procedure, 1973 and that the present petition seeking police protection is not maintainable.
8) The sole question that arises for consideration in the present case is whether on the facts and in the circumstances of the case, the petitioners are entitled to a writ of mandamus directing the police authorities to provide them police protection so that they can put up the gates of the school and construct the compound wall which was existing prior to the order passed by the Mamlatdar, for implementing the order dated 24.12.2012 passed by the Deputy Collector, Anand.
9) A perusal of the order dated 25.06.2012 passed by the Mamlatdar (Rural) shows that the Mamlatdar, while allowing the application made by the respondent No.4 and others under section 5 of the Mamlatdars Courts Act, has ordered removal of the obstruction created by the petitioners herein in the way of the respondent No.4 and others in approaching the land bearing Survey No.1000/1 and 1000/2 of Moje Bakrol, Taluka: Anand. Pursuant to the said order, it appears that the respondent No.4 and others have demolished the wall and the gate and opened the road. In the revision filed by the petitioners against the order passed by the Mamlatdar, the Deputy Collector, passed an order dated 24.12.2012, the operative part whereof as translated into English reads thus:
The applicant's revision application is allowed and the order dated 25.06.2012 passed by the Mamlatdar under the Mamlatdars Courts Act Case No.2 of 2011 as well as the amendment order dated 28.06.2012 are hereby set aside and the order dated 16.08.2012 passed by this office granting interim relief is hereby vacated.
It is held that the parties shall be governed by the final outcome of the civil suits pending in the Civil Court being Civil Suit No.244 of 1997 and Civil Suit No.48 of 2012.
10) Thus, the Deputy Collector, by the said order, has set aside the order passed by the Mamlatdar and has held that the parties shall be governed by the final outcome of the civil proceedings instituted before the Civil Court. A notable aspect of the matter is that the Deputy Collector, in the said order, has not directed restoration of status-quo ante. From the submissions made by the learned advocate for the petitioners, it is evident that he seeks restitution on the basis that once the order passed by the Mamlatdar has been set aside, the status- quo ante is required to be maintained.
11) In this regard, reference may be made to the provisions of section 144 of the Code of Civil Procedure, which bears the heading Application for restitution and provides that where and insofar as a decree or an order is varied or reversed in any appeal, revision or other proceedings or is set aside or modified in any suit instituted for the purpose, the court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed or set aside or modified and, for this purpose, the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.
12) On a plain reading of the above provision, it is apparent that in the first instance, the court itself, while passing the decree or order may provide for restitution, or, if such provision is not made therein, on an application made by the party, the court may order restitution. In the present case, on a plain reading of the order passed by the Deputy Collector, it is apparent that the Deputy Collector has not ordered status-quo ante which is claimed by way of restitution by the petitioners. Under the circumstances, it was for the petitioners to approach the Deputy Collector by way of an application seeking a direction to restore the status-quo ante. On a plain reading of the order passed by the Deputy Collector, there is nothing to indicate that the same issues any direction to restore status quo ante. Unless the order passed by the Deputy Collector specifically directs restoration of status-quo ante, the question of execution of such order on an assumption that setting aside the order of the Mamlatdar amounts to issuance of such directions does not arise.
13) At this juncture, reference may be made to the decision of the Supreme Court in the case of P.R. Murlidharan v. Swami Dharmananda Theertha Padar (supra), wherein the court has held thus;
17) 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. It is one thing to approach the High Court, for issuance of such a writ on a plea that a particular party has not obeyed a decree or an order of injunction passed in favour of the writ petitioner, was deliberately flouting that decree or order and in spite of the petitioner applying for it, or that the police authorities are not giving him the needed protection in terms of the decree or order passed by a court with jurisdiction. But, it is quite another thing to seek a writ of mandamus directing protection in respect of property, status or right which remains to be adjudicated upon and when such an adjudication can only be got done in a properly instituted civil suit. 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 temptation to grant relief in cases of this nature should be resisted by the High Court. The wide jurisdiction under Article 226 of the Constitution would remain effective and meaningful only when it is exercised prudently and in appropriate situations.
In the case on hand, various disputed questions arose based on a deed of trust and the facts pleaded by the writ petitioner and controverted by the other side. The High Court should have normally directed the writ petitioner to have his rights adjudicated upon, in an appropriate suit in a civil court. The fact that a writ petitioner may be barred from approaching the civil court, in view of Order 9 Rule 9 of the Code of Civil Procedure, or some other provisions, is no ground for the High Court to take upon itself, under Article 226 of the Constitution, the duty to adjudicate on the civil rights of parties for the purpose of deciding whether a writ of mandamus could be issued to the police authorities for the protection of the alleged rights of the writ petitioner. A writ of mandamus directing the police authorities to give protection to the person of a writ petitioner can be issued, when the court is satisfied that there is a threat to his person and the authorities have failed to perform their duties and it is different from granting relief for the first time to a person either to allegedly protect his right to property or his right to an office, especially when the pleadings themselves disclose that disputed questions are involved. My learned brother had rightly pointed out that the High Court was in error in proceeding to adjudicate on the rights and obligations arising out of the trust deed merely based on the affidavits and the deed itself. I fully agree with my learned Brother that the High Court should not have undertaken such an exercise on the basis that the right of the writ petitioner under Article 21 of the Constitution is sought to be affected by the actions of the contesting respondents and their supporters and that can be prevented by the issue of the writ of mandamus prayed for.
19) A writ for police protection so-called, has only a limited scope, as, when the court is approached for protection of rights declared by a decree or by an order passed by a civil court. It cannot be extended to cases where rights have not been determined either finally by the civil court or, at least at an interlocutory stage in an unambiguous manner, and then too in furtherance of the decree or order.
14) Thus, when the petitioners come to the court seeking a writ for police protection, the same is limited in scope, as, when the court is approached for protection of rights declared by a decree or by an order passed by a civil court. It cannot be extended to cases where rights are not being determined finally by the civil court, or at least at the interlocutory stage in an unambiguous manner, and then too in furtherance of the decree or order. In the facts of the present case, the Deputy Collector has not finally determined the rights of the parties and has held that parties shall be governed by the final outcome of the civil suits instituted by them. The police protection sought for by the petitioners is said to be in furtherance of the order passed by the Deputy Collector. However, as noted hereinabove, the order of the Deputy Collector nowhere orders restoration of status-quo ante. Under the circumstances, when the order of the Deputy Collector is not unambiguous, namely, that the same does not in any manner direct the restoration of status-quo ante, on the basis of such order, it would not be permissible for the police authorities to grant police protection to the petitioners. The petitioners are, therefore, not entitled to the issuance of a writ directing the respondent authorities to provide police protection to the petitioners for implementing the order dated 24.12.2012 passed by the Deputy Collector, Anand, inasmuch as, the said order nowhere speaks for grant of such relief.
15) The decision of the Supreme Court in Mahijibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai, (supra) on which reliance has been placed on behalf of the petitioners, also does not carry the case of the petitioners any further. What has been held in the said decision is that where a wrongful or irregular execution has been set aside or where a judgment and order has been reversed after execution thereon has taken place, restitution will be made to the successful party. The order setting aside the execution or reversing the judgment or order should provide for this; and if it does, execution may issue upon it in the ordinary course. If the order does not so provide, another order may be made, or a writ called a writ of restitution be issued, commanding the judgment debtor to restore the property or pay over the proceeds of sale. Thus, this decision fortifies the above view taken by this court, viz., if the judgment and order reversing the previous order provides for restitution the successful party is entitled to execution thereof. However, if the judgment and order does not provide for restitution another order may be made or a writ of restitution can be issued, in which case the party would have to approach the concerned court by way of an application seeking an order of restitution. However, in absence of an order of restitution, the question of restitution would not arise and accordingly, the prayer for grant of police protection without any order of restitution cannot be entertained.
16) For the foregoing reasons, the petition fails and is, accordingly, dismissed. Notice is discharged (HARSHA DEVANI, J.) Vahid Page 13 of 13