Avinash V. Saraf v. State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 23[RD]DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944 WP(C) NO. 36480 OF 2022 ``` ## **`PETITIONER:`** ``` AVINASH V. SARAF AGED 75 YEARS SON OF LATE V G SARAF, RESIDING AT 29/1F, 5TH FLOOR, SARAF APARTMENTS, S A ROAD, VYTILLA, COCHIN, PIN - 682019 BY ADV PEEYUS A.KOTTAM ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, TRIVANDRUM, PIN - 695004 2SUB INSPECTOR OF POLICE MARADU POLICE STATION, MARADU, ERNAKULAM, PIN - 682304 3ARAVIND SARAF, AGED 82 YEARS, SON OF V.G.SARAF, 1ST FLOOR, SARAF APARTMENTS, S.A. ROAD, VYTILLA, COCHIN, PIN - 682019 4ULLAS SARAF, AGED 80 YEARS, SON OF V.G.SARAF, 4TH FLOOR, SARAF APARTMENTS, S A ROAD, VYTILLA, COCHIN, PIN - 682019 5ANILKUMAR SARAF, AGED 77 YEARS, SON OF V.G.SARAF, 3RD FLOOR, SARAF APARTMENTS, S A ROAD, VYTILLA, COCHIN, PIN - 682019 ``` 2 W.P. (C) No.36480 of 2022 ``` 6VIVEK SARAF, AGED 41 YEARS, SON OF ANILKUMAR SARAF, 3RD FLOOR, SARAF APARTMENTS, S A ROAD, VYTILLA, COCHIN, PIN - 682019 7ANAND UNNITHAN CEO, GPSAI SECURITY GUARD SERVICES, NO.226, SCHOOL ROAD, GIRI NAGAR, KADAVANTHARA, KOCHI, PIN - 682020 BY ADVS. I.DINESH MENON ``` ``` SMT MARY BEENA JOSEPH SR, GOVERNMENT PLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 23.11.2022,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` 3 W.P. (C) No.36480 of 2022 ## **JUDGMENT** The petitioner states that he is the owner of Flat bearing No.29/1F on the 5th floor of Saraf Apartments in Janatha Junction. Respondents 3, 4, and 5 are the brothers of the petitioner, and the 6th respondent is the son of the 5th respondent. The 7th respondent is the proprietor of GPSAI Security Guard Services, and his employees are guarding the apartment building. This writ petition is filed seeking the following relief: i) Issue a writ of mandamus or any other appropriate writ, order or direction and thereby command the 2nd respondent to provide adequate protection to the petitioner, his family members, friends and relatives, delivery boys etc., who are coming to the petitioner’s apartment to have free and uninterrupted access through the common gate of the apartment named Saraf Apartments’ without any manner of hindrance from respondents 3 to 7, their men and agents and also for enjoying the common amenities in the flat premises without any manner of discrimination. 2. The petitioner states that, on 28.09.2022, he lodged a complaint before the Station House Officer, Maradu police station, alleging that the employees of the 7th respondent are obstructing the right of the petitioner to enjoy essential services at the premises. He also asserts that the party respondents have been obstructing the delivery boys who frequent the apartment of the petitioner for delivering items causing serious 4 W.P. (C) No.36480 of 2022 inconvenience to him. The guards who are stationed at the main gate have threatened and obstructed his relatives, friends, guests, delivery persons, etc. The grievance of the petitioner is that, in spite of the submission of a representation, the police personnel have not extended any assistance. Hence this petition seeking police protection. 3. A counter affidavit has been filed by the 6th respondent, wherein he states that he is a Doctor by profession working at the Saraf hospital. It is stated that all the residents in the family apartments except the 6th respondent are octogenarians. It is stated that the 7th respondent’s services have been availed to ensure that strangers do not trespass into the said property. It is further stated that the security persons collect the utensils and materials supplied by online sellers, and the same is handed over to the respective apartments. It is stated that the allegation that obstruction has been caused is an imaginary story. It is also stated that the petitioner has sought a prayer to permit his friends, relatives, delivery boys, and other persons whose identity is unknown to have free and uninterrupted access to the apartment, which, according to the respondents, cannot be permitted. It is stated that the allegations leveled in the complaint are fictitious, and it is also stated that the fact that most of the persons who are named as respondents are senior citizens has been suppressed. 5 W.P. (C) No.36480 of 2022 4. Sri. Peeyus A Kottam, the learned counsel appearing for the petitioner, would point out that the petitioner has earlier approached this Court and had filed W.P.(C) No.33632 of 2009, and by Ext.P1 judgment dated 28.07.2010, this Court had recorded the submission of the party respondents that they have no intention to cause any threat to the petitioner or to obstruct the enjoyment of the flat in question. After recording the same, the writ petition was closed. According to the learned counsel, instead of complying with the directions in the said judgment, obstructions are being caused. The learned counsel would further point out that the petitioner has instituted O.S.No.267/1994 before the Munsiff Court, seeking a permanent prohibitory injunction arraying the 5th respondent as the defendant, and by judgment dated 23.11.1996, the suit was decreed. It is urged that respondents 3 to 5 had instituted O.S No.567/1994 before the Sub Court, Ernakulam, seeking a decree of permanent prohibitory injunction restraining the petitioner from entering the property, and by judgment dated 26.08.1994, the learned Subordinate Judge had dismissed the suit. Against the judgment and decree, though A.S No.177/02 was preferred before this Court, by an interim order dated 12.04.2002, directions have been issued to ensure that the common entrance is not locked so as to obstruct other persons from entering the property. According to the learned counsel, the 6 W.P. (C) No.36480 of 2022 employees of the 7th respondent who are guarding the property at the instance of the party respondents are obstructing the entry of the petitioner’s family members, friends, relatives, delivery boys, etc. It is submitted that unless directions are issued to the police to intervene and ensure that no obstruction is caused to the delivery boys, friends, and relatives, serious hardships would be caused. 5. The learned counsel appearing for the respondents would submit that the assertions made in the writ petition are false and frivolous. According to the learned counsel, the party respondents have been abiding by the directions issued by this Court in the judgment dated 28.07.2010 and also the order passed by the learned Munsiff. It is further submitted that there is no case that any person has threatened the life or property of the petitioner herein. In that view of the matter, it is for the petitioner to exhaust his remedies before the Civil Court or get orders from the proceedings which are still pending before various courts. 6. The learned Government Pleader submitted that a reading of the petition would reveal that the assertions raised by the petitioner do not warrant intervention by the police. It is contended that the grievances projected are in the nature of a private dispute between family members who 7 W.P. (C) No.36480 of 2022 are occupying a residential apartment. It is further submitted that the police have no role in a case of this nature as they cannot be asked to keep watch on the visitors of the apartment to ensure that they are given free access by the guards stationed outside. As the matter is pending before the Civil Court, it is for the petitioner to seek appropriate orders. 7. I have considered the submissions and have gone through the records. 8. Essentially, the assertion of the petitioner is that he is also a co-owner of the premises and he is entitled to have the right to enjoy the common facilities provided to the co-owners of Saraf apartments. His prayer is to grant unbridled access to the delivery boys and his friends. A consideration of the matter would reveal that the dispute is purely civil in nature, and under no circumstances can the police be asked to stand duty outside the gate to ensure that the delivery boys and relatives are granted access to the apartment. When there are adequate provisions under the Code of Civil Procedure, it is not proper for a party to approach this Court under Article 226 of the Constitution of India seeking police protection, which may amount to short-circuiting the due civil litigation process. [See 8 W.P. (C) No.36480 of 2022 **Rajendran Kambakkaran v. State of Kerala[1]** ]. Furthermore, I find that A.S No.177/02 is pending before this Court, and it is open to the petitioner to seek appropriate orders if he feels that his civil rights have been infringed. The respondents have undertaken before this Court that they have no intention to obstruct the right of the petitioner to reside in the building and that they shall abide by the judgment rendered by this Court, as well as the Civil Court. Also, I do not find from Ext.P3 that the petitioner has made any sort of ground for the police to interfere in such a dispute. The Police cannot be made the adjudicators of such disputes inter se between the parties, either regarding possession of property or for enforcing civil rights. These are matters essentially within the domain of the civil courts on which the parties should approach those courts and seek redress. [See **George Mirante v. State of Kerala[2]** ]. Leaving open the right of the petitioner to approach the civil court where the disputes are pending, this writ petition is dismissed. Sd/- ## **RAJA VIJAYARAGHAVAN V, JUDGE** IAP > 1 [2022 (5) KLT 915] > 2 1990 (2) KLT 89 9 W.P. (C) No.36480 of 2022 ## **`APPENDIX OF WP(C) 36480/2022`** ``` PETITIONER'S EXHIBITS: ``` ``` Exhibit P1THE TRUE COPY OF THE JUDGMENT DATED 28.07.2010 IN W.P.(C) NO.33632/2009 Exhibit P2THE TRUE COPY OF THE ORDER DATED 12.04.2002 IN A.S.177/2002 OF THIS HONOURABLE COURT WITH NO.177/2002 ``` ``` Exhibit P3THE TRUE COPY OF THE REPRESENTATION DATED 28/9/2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P4TRUE COPY OF THE RECEIPT ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT TOWARDS THE RECEIPT OF EXT-P3 REPRESENTATION ```