Madras High Court
Ramzan Thaikkal Pallivasal vs The Superintendent Of Police on 7 October, 2021
W.A.No.1663 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.10.2021
CORAM
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
and
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.A.No.1663 of 2021
and
C.M.P.No.10481 of 2021
Ramzan Thaikkal Pallivasal,
Rep by its Muthavalli,
Mohamed Shahid,
S/o.Mohamed Ishak,
Ramzan Thaikkal,
Udayargudi,
Kattumannarkoil,
Cuddalore District – 608 301. ... Appellant
vs.
1.The Superintendent of Police,
District Police Office,
Cuddalore.
2.The Inspector of Police,
Kattumannarkoil Police Station,
Kattumannarkoil,
Cuddalore District – 608 301.
3.Mahboob Sharif
4.Mohamed Farooq
5.Mathiyazhagan
6.Lenin ... Respondents
1/6
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W.A.No.1663 of 2021
Prayer: Writ Appeal filed under clause 15 of the Letters Patent praying
to set aside the order made in W.P.No.11959 of 2021 dated
20.05.2021.
For Appellant : Mr.G.Pugazhenthi
For Respondents 1 & 2 : Mr.D.Ravichander
State Government Counsel
For Respondents 4 to 6 : Mr.S.Rajmakesh
For Respondent 3 : Not ready in notice
JUDGMENT
(delivered by PUSHPA SATHYANARAYANA, J.)
The writ appeal is directed against the order dated 20.05.2021
passed in W.P.No.11959 of 2021.
2. The prayer in the writ petition is for issuance of a Writ of
Mandamus, seeking a direction to respondents 1 and 2, who are the
police officials, to give police protection to remove the under-wood
plants and bushes and to put up fence around the property situated at
Udayargudi Village, Kattumannarkoil comprised in R.S.No.103/1, 2 and
3 ad-measuring 9.60 acre owned by the Ramzan Thaikkal Pallivasal,
who is the appellant herein.
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W.A.No.1663 of 2021
3. The learned Single Judge had found that though the writ
petitioner/appellant herein has succeeded in the civil proceedings upto
Second Appeal before this Court, the respondents 3 to 6 were not
parties to the same and they are claiming separate right over the
property as tenant. In paragraph 8 of the affidavit filed in support of
the writ petition, the writ petitioner/appellant has also stated that the
respondents 3 and 4 joined hands with the respondents 5 and 6,
trespassed into the lands and prevented the appellant and other
trustees from cleaning the land. Therefore, it is admitted that the
private respondents are in possession of the property as trespassers,
according to the writ petitioner/appellant herein.
4. The learned counsel appearing for the private respondents
would submit that they are the cultivating tenants, who are in
possession.
5. Be that as it may, the relief sought for in the writ petition
was for police protection, which was refused by the Writ Court. Whether
an intra-Court appeal is maintainable against such an order making the
police as a party? In fact, one of us (Justice Pushpa Sathyanarayana)
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W.A.No.1663 of 2021
sitting in another Division Bench before the Madurai Bench, had passed
a similar judgment in W.A(MD).No.18 of 2016 on 20.01.2021 relying on
the earlier Division Bench order of this Court in the case of K.N. Pudur
Primary Agricultural Co-operative Credit Society Ltd., Salem
District and others v. G.Balakrishnan and others reported in AIR
2018 Madras 149, wherein, it has been specifically held that under
Clause 15 of the Letters Patent, intra-Court appeal is not provided if the
Writ Court has exercised the criminal jurisdiction sitting and deciding
the matter under Article 226 of the Constitution of India. The First
Division Bench also in the case of D.Kumar Vs. Raichand Daga and
Others reported in (2020) 6 MLJ 245 held that the appeal is not
maintainable against the order passed in the writ petition, exclusively
making the police as parties. The relevant paragraph in the said
judgment is extracted hereunder:
“25. It is no doubt true that the Court can exercise
powers appropriately but the facts of this case do indicate
that the appellant even though was arrayed as a proper and
necessary party, as held by the Apex Court in the case of
Narain Singh Malpaharia v. Board of Revenue, LNIND 1962
SC 338 : AIR 1963 SC 786, yet the learned Single Judge
appears to have proceeded to issue directions in the
absence of the facts as indicated by the appellant and
narrated hereinabove. In the above background since the
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W.A.No.1663 of 2021
impugned order has been passed in a Writ Petition filed
under Article 226 of the Constitution of India and is not a
petition under Sec.482 Cr.P.C., it may be open to an
aggrieved person to seek review or recall of an order on the
principle Actus Curiae Neminem Gravabit – act of the Court
shall prejudice no man. The power of review can be
exercised if it is established that principles of natural justice
have been violated and prejudice has been caused on
account of issue of any such direction by pointing out an
error apparent on face of the record. The Apex Court in the
case of Mst.Jamna Kuer v. Lal Bahadur, AIR 1950 F.C. 131,
has held that a mistake, even if that of the Court, can be
corrected through review.”
6. In view of the above, we have to hold that the present
case is arising out of a Writ Petition under Article 226 of the
Constitution of India and not a proceeding under the Criminal Procedure
Code. The exercise of extraordinary powers under Article 226 are
prerogative Writs involving judicious discretion. Therefore, the intra-
Court appeal is not maintainable, however, it is open to the appellant to
take appropriate initiative, as he may be advised to evict the private
respondents.
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W.A.No.1663 of 2021
PUSHPA SATHYANARAYANA, J.
and
KRISHNAN RAMASAMY, J.
rsi
7. In view of the aforesaid legal position, the Writ Appeal
cannot be entertained and the same is dismissed. No costs.
Consequently, the connected miscellaneous petition is closed.
[P.S.N., J.] [K.R., J.]
07.10.2021
rsi
To
1.The Superintendent of Police,
District Police Office,
Cuddalore.
2.The Inspector of Police,
Kattumannarkoil Police Station,
Kattumannarkoil,
Cuddalore District – 608 301.
W.A.No.1663 of 2021
and
C.M.P.No.10481 of 2021
https://www.mhc.tn.gov.in/judis/
