P. V. THOMAS v. STATE OF KERALA and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940** **WP(C).No. 9896 of 2018 (J)** **---------------------------** ## **PETITIONER(S):** **-------------** **P.V. THOMAS, AGED 64 YEARS, S/O. P.D. VARKEY, PULINGAPPALLIL HOUSE, VETTIMUGAL P.O., KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN - 686 631.** **BY ADVS.SRI.ABRAHAM P.GEORGE SMT.M.SANTHY SMT.M.D.BEENA SRI.JOHNY THOMAS** ## **RESPONDENT(S):** ## **-------------** **1. STATE OF KERALA** - **REPRESENTED BY SECRETARY TO GOVERNMENT, HOME** - **DEPARTMENT, GOVERNMENT SECRETARIAT,** **THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR GENERAL OF POLICE,** - **STATE OF KERALA, SENA BHAVAN,** - **THIRUVANANTHAPURAM - 695 001.** **3. THE DEPUTY SUPERINTENDENT OF POLICE,** - **KOTTAYAM - 686 001.** **4. THE CIRCLE INSPECTOR OF POLICE,** - **ETTUMANOOR POLICE STATION, ETTUMANOOR, PIN - 686 631.** **5. THE SUB INSPECTOR OF POLICE,** - **ETTUMANOOR POLICE STATION, ETTUMANOOR, PIN - 686 631.** **6. MARIAM,** - **W/O. LATE LUKA, THENAKARA HOUSE, VETTIMUKAL P.O.,** **KIZHAKKUMBHAGAM KARA, ETTUMANOOR VILLAGE, KOTTAYAM** - **TALUK, KOTTAYAM, PIN - 686 631.** **WP(C).No. 9896 of 2018 (J) --------------------------** **2** **7. VINAYAPPAN, S/O. MARIAM, THENAKARA HOUSE, VETTIMUKAL P.O., KIZHAKKUMBHAGAM KARA, ETTUMANOOR VILLAGE, KOTTAYAM TALUK, KOTTAYAM, PIN - 686 631.** **8. SHERLY, W/O. VINAYAPPAN, THENAKARA HOUSE, VETTIMUKAL P.O., KIZHAKKUMBHAGAM KARA, ETTUMANOOR VILLAGE, KOTTAYAM TALUK, KOTTAYAM, PIN - 686 631.** **9. THE CHERAVA SAMBHAVA DEVELOPMENT SOCIETY (CSDS) REPRESENTED BY THE DISTRICT PRESIDENT, KOTTAYAM SRI.JOSE PANACHIKKAL, OFFICE AT KODUNGOOR, VAZHOOR P.O.- 686 504. 10. COMMUNIST PARTY OF INDIA (MARXIST), ETTUMANOOR AREA COMMITTEE, REPRESENTED BY ITS SECRETARY SRI. BIJOY, OFFICE AT AREA COMMITTEE OFFICE, CPI(M) ETTUMANOOR, PIN - 686 631.** **11. COMMUNIST PARTY OF INDIA (CPI), ETTUMANOOR AREA COMMITTEE, REPRESENTED BY ITS SECRETARY SRI. KUNJUKUTTAN, OFFICE AT AREA COMMITTEE OFFICE, CPI ETTUMANOOR, PIN - 686 631.** **12. KERALA CONGRESS (FRANCIS GEORGE GROUP), REPRESENTED BY ITS SECRETARY SRI. MAJESH, KOCHUMALA, ETTUMANOOR, VETTIMUGAL P.O., PIN - 686 631. 13. BAHUJAN SAMAJ PARTY (BSP), REPRESENTED BY DISTRICT PRESIDENT V.S.SHAJAN, OFFICE AT MUTTAMBALAM P.O., KOTTAYAM, PIN - 686 004.** **R1-R5 BY SR.GOVERNMENT PLEADER SRI.P.P.THAJUDHEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 9896 of 2018 (J) --------------------------** **APPENDIX** **-----------** ## **PETITIONER(S)' EXHIBITS: ------------------------** **EXHIBIT P1 COPY OF DECREE PASSED BY THE MUNSIFF'S COURT, ETTUMANOOR IN O.S.NO.121/2012 DATED 10.02.2017. EXHIBIT P2 COPY OF JUDGMENT PASSED BY THE MUNSIFF'S COURT, ETTUMANOOR IN O.S.NO.121/2012 DATED 10.02.2017. EXHIBIT P3 COPY OF AMIN'S REPORT SUBMITTED IN E.P.NO. 55/2017 IN O.S.NO.121/2012 IN THE FILE OF MUNSIFF'S COURT, ETTUMANOOR. EXHIBIT P4 COPY OF THE RECEIPT ISSUED BY THE 7TH RESPONDENT ACKONOWLEDGING THE RECEIPT OF MOVABLE ITEMS IN E.P.NO. 55/2017 IN O.S.NO. 121/2012 IN THE FILE OF MUNSIFF'S COURT, ETTUMANOOR. EXHIBIT P5 COPY OF THE RECEIPT ISSUED BY THE DECREE HOLDERS IN E.P.NO. 55/2017 IN O.S.NO.121/2012 IN THE FILE OF MUNSIFF'S COURT, ETTUMANOOR. EXHIBIT P6 COPY OF THE AMIN'S REPORT REGARDING THE REFUSAL ON THE PART OF THE POLICE TO CERTIFY THEIR PRESENCE AT THE TIME OF DELIVERY PROCEEDINGS IN EXECUTION PETITION. EXHIBIT P7 COPY OF COMPLAINT SUBMITTED BY THE WIFE OF PETITIONER DATED 06.03.2018 (SUBMITTED ON 07.03.2018) TO THE C.I.OF POLICE, ETTUMANOOR. EXHIBIT P8 COPY OF RECEIPT ISSUED FROM THE OFFICE OF C.I. OF POLICE, ETTUMANOOR ACKNOWLEDGING RECEIPT OF EXHIBIT P7. EXHIBIT P9 COPY COMPLAINT DATED 16.03.2018 LODGED BY PETITIONER BEFORE C.I. OF POLICE, ETTUMANOOR. EXHIBIT P10 COPY OF RECEIPT ISSUED FROM THE OFFICE OF C.I. OF POLICE, ETTUMANOOR ACKNOWLEDGING RECEIPT OF EXHIBIT P9.** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------** ## **NIL** **/TRUE COPY/** **PA TO JUDGE** _**dkr**_ ## K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------W.P.(C) No. 9896 of 2018 ------------------------------------------Dated this the 11[th] day of April, 2018 ## J U D G M E N T ## Ashok Menon, J. The petitioner is before us seeking protection to himself and the members of his family against the threat levelled by respondents 6 to 8 with the active support of the organisations like respondents 9 to 13, and also to restrain them from encroaching his property, which was delivered to him as per proceedings in E.P.No. 55/2017 in O.S.No.121/2017 of Munsiff's Court, Ettumanoor and to ensure his peaceful possession and enjoyment of the property. 2. The petitioner is the co-owner of 44.88 ares of land in R.S.No.94/1, 94/3 & 94/3, Block No.31 of Ettumanoor Village, which was originally owned by his mother Aleykutty, by virtue of an assignment of the year 1957. Consequent to her demise, the property devolved upon her husband and children, including the petitioner. The petitioner and other co-owners are thus in absolute possession of the property. There was a shed constructed by the father of the petitioner to facilitate the rubber cultivation in the _WP(C) 9896/2018_ 2 property. Luka, the 6[th] respondent's husband and father of the 7[th] respondent, was a former employee engaged in the rubber tapping in petitioner's property. He was permitted to reside in the aforesaid shed. The petitioner's mother asked him to vacate the shed, he resisted and filed O.A.No.278/1971 claiming Kudikidappu right before the Land Tribunal, Kottayam. That application was dismissed. He did not prefer any appeal and it has become final. Consequent to the demise of Luka, his wife (6[th] respondent) filed O.A.No.77/1988 once again seeking Kudikidappu right suppressing the dismissal of the earlier application filed by her husband. Thereafter, the 6[th] respondent once again tried her luck and approached the Land Tribunal, Kottayam after getting a suo motu proceedings initiated as S.M.No.152/2005 seeking Kudikidappu right. That was also dismissed and no appeal has been filed. Respondents 6, 7 and 8 continued to remain in possession of the property by force without having any right, whatsoever. Under the circumstances, the petitioner and other legal heirs of Aleykutty filed O.S.No.121/2012 before the Munsiff's Court, Ettumanoor seeking eviction from the property on the strength of the title. The _WP(C) 9896/2018_ 3 defendants remained exparte and the suit was decreed declaring petitioner's right and directing vacant possession of the property as well as restraining the defendants therein by means of perpetual injunction from trespassing into the property and committing waste or from reconstructing the temporary shed as per Ext.P1 decree and Ext.P2 judgment. It was never challenged. Thereafter, the plaintiff therein filed E.P.No.55/2017 to get the decree executed. Amin was deputed from the Court and the property was delivered to the plaintiff by virtue of Ext.P3 delivery report on 01-03-2018. The immovable articles belonging to the defendants were handed over to the 2[nd] defendant (7[th] respondent herein) and Ext.P4 receipt was obtained. Delivery receipt submitted by the decree holder is Ext.P5. Police assistance was ordered by the Execution Court. But the police did not certify their presence and a report was filed by the Amin to that effect as Ext.P6 before the court. Respondents 6 to 8 are members of 9[th] respondent-Cherava Sambhava Development Society (CSDS). On getting information of eviction, respondents 9 to 13 assembled in front of the property and openly declared that they would encroach the property and put respondents 6 to 8 in _WP(C) 9896/2018_ 4 possession again and by force reconstruct the shed. They dug pits in the property and hoisted flags of political parties. Respondents 6 to 8 are now residing in a temporary shed constructed beside the road leading to petitioner's property causing obstruction to their ingress and egress. This is being done with the wholehearted support of respondents 9 to 13. On 05-03-2018 they organised a protest march in front of petitioner's house, chanted slogans holding out threat to the members of petitioner's family and were abusive too. The police authorities remained mute spectators. The party respondents have even threatened to annihilate the petitioner and his entire family. They are also proclaiming that the orders passed by the Court is not binding upon them. Exts.P7 and P8 complaints were filed by the petitioner before the C.I.of Police, Ettumanoor. He has been indolent, doing nothing to protect the petitioner and his family. The petitioner was therefore, constrained to approach this Court seeking the reliefs as stated earlier. 3. The party respondents were served with notice, but none appeared. On hearing the learned Counsel for the petitioner and the learned Senior Government Pleader appearing for respondents 1 _WP(C) 9896/2018_ 5 to 4, it is noted that the party respondents are holding out threat ignoring the decree obtained by the petitioner and others by virtue of Exts.P1 and P2, which was also got executed through an officer of the court as per Ext.P3 delivery report. The indolence on the part of the police authorities is explicit from Ext.P6 report submitted before the Execution Court by the Amin, which indicates that although delivery was effected with police assistance, they refused to acknowledge their presence for obvious reason that there are political parties involved. In the decision reported in Illyas v. State of Kerala, 2014 (4) KLT 362 , the Division Bench of this Court held thus:- “13. Perusal of the records clearly indicates that the petitioner had obtained a decree which had become final after three stages of litigation by judgment dated 21.10.2009 of this Court in R.S.A.No.797/2009. The suit was filed in 1996. Despite the decree being passed and executed, if the defendants again trespassed into the property, the police is bound to interfere in the matter and restore possession of the property to the petitioner. Petitioner has obtained a decree of Civil Court and after delivery of property in execution proceedings the respondents have trespassed into the said property which is in gross violation of the decree passed. Persons who do not obey the judgment of the Civil Court cannot insist that the petitioner should again be driven to the Civil Court for recovery of possession of his property. Under such circumstances, we are of the view that the Writ Petition is to be allowed.” _WP(C) 9896/2018_ 6 4. In the decision reported in Harrisons Malayalam Ltd. v. ## State of Kerala, 2007 (4) KLT 540 , it was held thus:- “Forming organisation for the upliftment of the downtrodden and holding demonstration and public meetings are protected by the fundamental rights under Article 19(1)(a), (b) and (c) of the Constitution of India. Those Sub-Articles guarantee freedom of speech and expression, right to assemble peacefully without any fear and the right to form association or unions. But they cannot take law into their hands. Of course, modern jurists recognise the right to disobey the laws, which they think, are unjust and unconstitutional. The right to take the said risk and the discretion to disobey law are recognised and referred to, in all modern books on jurisprudence. But, if a person disobeys the law, whatever be the motivation for the same, the law must take its own course..........Police have a duty in the light of the provisions of the Code of Criminal Procedure and the Kerala Police Act, to maintain law and order and avert breach of peace. Threat to lives of citizens has also to be averted. If a large group of persons having no semblance of right over the property encroaches into it and commits mischief, the owner is entitled to get the help of the police to protect his property. In such circumstances, the filing of a civil suit is not an efficacious remedy. So, when the police are under such a duty and it is shown that they have failed to perform their duty in this regard, then normally, a writ in the nature of mandamus will be issued by the Court”. ## 5. Harrisons Malayalam Ltd. was followed in Jitesh v. State of Kerala and others, 2013(4) KLT 565, and it was held that driving a party to a civil court against an organised act will be ineffective and police protection has to be granted. _WP(C) 9896/2018_ 7 6. The facts in the present case is almost identical to the one in Illyas and here also, there is an organised act by the party respondents as in Harrisons Malayalam Ltd. and Jitesh to render the delivery made by the civil court ineffective. Hence, the petitioner is entitled to the reliefs sought. The Writ Petition is allowed and respondents 4 and 5 are directed to afford sufficient, adequate and meaningful protection to the petitioner to enjoy the possession of his property in terms with Exts.P1 and P2 from the threats levelled by respondents 6 to 13 and ensure that law and order situation is maintained. The trespassers shall be directed to vacate and if refusing shall be summarily evicted with police assistance, and those who are challenging the decree of the civil court and holding out threat to the petitioner shall be proceeded against in accordance with law. No costs. Sd/K.VINOD CHANDRAN Judge Sd/ASHOK MENON Judge dkr