P.P. Arshad v. Sub Inspector of Police, Tanur, Malappuram District, and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 WP(C).No. 28759 of 2010(T) ------------------------------------- PETITIONER(S): ---------------------- P.P.ARSHAD, S/O. BAVUTTY, PAZHAYA PUTHEN PURACKAL, PARAVANNA, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV RESPONDENT(S): ------------------------- 1. THE SUB INSPECTOR OF POLICE, TANUR, MALAPPURAM DISTRICT, PIN-676 313. 2. SHIHAB, S/O. KUNJUMOIDEEN, PARAMMAL HOUSE, CHURANGARA P.O., OZHUR-676 313. 3. ALAVIKUTTY, -DO- -DO- 4. KUNHIMOIDEEN, S/O. MAMMADKUTTI, THARAMMAL HOUSE, P.O.OZHUR, MALAPPURAM DISTRICT-676 313. R1 BY GOVERNMENT PLEADER SMT.KARISHMA. R2 TO R4 BY ADV. SRI.R.RAJESH KORMATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WPC NO.28759/2010-T ## PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 24.8.2010. EXT.P1A. TRUE COPY OF THE RECEIPT GIVEN TO THE PETITIONER SHOWING RECEIPT OF EXT.P1. EXT.P2. TRUE COPY OF THE JUDGMENT IN OS.111/93 DATED 29.6.1996 OF THE MUNSIFF COURT, TIRUR. EXT.P3. TRUE COPY OF THE FIR NO.362/2010 OF THE TANUR POLICE STATION DATED 5.9.2010. EXT.P4.TRUE COPY OF THE ASSIGNMENT DEED NO.2195/2010 DATED 26.5.2010. ## RESPONDENT'S EXHIBITS: EXT.R4A. TRUE COPY OF THE MEMORANDUM OF CIVIL REVISION PETITION DATED 11.1.2009 IN CRP NO.18 OF 2009 ON THE FILE OF THE HIGH COURT OF KERALA. EXT.R4B. TRUE COPY OF THE MEMORANDUM OF CIVIL REVISION PETITION DATED 17.2.2009 IN CRP NO.132 OF 2009 ON THE FILE OF THE HIGH COURT OF KERALA. EXT.R4C.TRUE COPY OF IA NO.2412 OF 2010 DATED 20.9.2010 WITH THE ACCOMPANYING AFFIDAVIT IN CRP NO.18 OF 2009 ON THE FILE OF THE HIGH COURT OF KERALA. EXT.R4D.TRUE COPY OF IA NO.2510 OF 2010 DATED 03.10.2010 WITH THE ACCOMPANYING AFFIDAVIT IN CRP NO.132 OF 2009 ON THE FILE OF THE HIGH COURT OF KERALA. ## **K.M.JOSEPH & M.C.HARI RANI, JJ.** ------------------------------------------------------ ## **W.P.(C) No.28759 of 2010-T** ---------------------------------------------Dated, this the 29[th] day of October, 2010 ## **J U D G M E N T** ## K.M.Joseph, J. ## Petitioner has approached this Court seeking following reliefs: “a) to issue a writ of mandamus commanding the Ist respondent to afford adequate and effective police protection to the life of the petitioner and his workers and for the petitioner's property situated in R.S.246/1 & 2 of Ozhur village. b) to issue a writ of mandamus directing the first respondent to expedite the investigation in Crime No.362 of 2010 of Tanur police station.” 2. Briefly put, the case of the petitioner is as follows: About 2.87 acres of land situated in R.S.246/1 & 2 of Ozhur village belongs to the petitioner and his brother Shahul Hameed. They got this property as per registered assignment deeds executed in the year 2010. They have been in possession and enjoyment of the property as full owners. Adjacent to that property respondents 2 to 4 are residing. Petitioner and his brother are residing about 15 Kms from this WPC 28759/2010 -2- property. Due to this, respondents 2 to 4 have exploited the situation and they have been attempting to pluck coconuts illegally and to cut and remove valuable trees. Petitioner filed a complaint on 28.7.2010. The Circle Inspector called them to the police station and warned them not to criminally trespass into the property. It is alleged that on 22.8.2010 when the petitioner was doing works in the property some of the constables of Tanur police station came and asked the petitioner and his workers to stop the works. Being convinced of the right and possession of the property of the petitioner and his brother the Ist respondent warned respondents 2 to 4 not to trespass into the property or do any mischiefs therein. Still there is trespass it is alleged. Petitioner has filed Ext.P1 representation. Ext.P2 purports to be the judgment of the Munsiff Court, Tirur in O.S.111/93 dated 29.6.1996. It is stated that a suit is filed by the 2[nd] respondent against the petitioner and his assignors. The Munsiff Court dismissed the suit with costs. Though an appeal is filed there is no interim order against the petitioner or in favour of the appellant. Ext.P3 purports to be the FIR of the crime under Section 447 WPC 28759/2010 -3- and 502 (2) IPC. It is alleged that the Ist respondent has criminally trespassed into the petitioner's property and obstructed his workers from doing work in the property and also intimidated the petitioner that he will kill the petitioner. 3. A counter affidavit is filed by the 4[th] respondent producing Exts.R4(a) to Ext.R4(d). In the counter affidavit it is inter alia stated as follows: Though the petitioner and his brother claim to have purchased 2.87 acres of land the petitioner has deliberately suppressed the fact as to who is the assignor of the property. To their knowledge, it is stated that, the petitioner is claiming under Kanchana Rani, Susheela and Jayalakshmi of Nelluli Pandarathil Tharawad. Purchase certificate is issued to the deponent in respect of 1.40 acres of land in R.S.No.246/1A of Ozhur village finding that he is the cultivating tenant of the property. Reference is made to the order passed by the appellate authority. Thereafter it is pointed out that Ext.R4(a) revision is filed by the deponent while Ext.R4(b) is said to be the revision filed by the assignors of the petitioner. Petitioner is a member of the Communist Party of India (Marxist) and he wields considerable political WPC 28759/2010 -4- clout. He is a member of Tirur Block Panchayat and is contesting the ensuing election. There is allegation that on 22.8.2010 and 5.9.2010 the petitioner came along with goondas armed with deadly weapons and tried to destroy the improvements in the property with a JCB machine and the same was thwarted only because of their timely intervention. There is reference to the 2[nd] respondent and the wife of the deponent being arrested and detained by the police officer. The allegation about threat to life of the petitioner and his workmen are denied. The appeal filed by the deponent is said to be posted to 28.12.2010. A reply affidavit is filed. 4. We heard Sri.K.Ramachandran, learned counsel for the petitioner, Sri.Rajesh R.Kormath, learned counsel for the party respondents and also the Government Pleader. Learned counsel for the petitioner would submit that this is a fit case where this Court should grant the reliefs sought for by way of police protection. He would rely on the contents of Ext.P2 judgment as also the order passed by the appellate authority in favour of the predecessor in interest and would contend that party respondents cannot claim any right. He WPC 28759/2010 -5- would submit that the petitioner has invested huge sum of money no doubt in the year 2010. He would submit that it is for the respondents if they are so inclined to move the civil Court and obtain appropriate orders which they have not done. They have also been worsted in the civil suit as is evident from Ext.P2. Ext.P2 is the judgment by which the contentions stands answered against the party respondent. This being the position, in the facts of this case, particularly in the light of the threat to life and also having regard to the huge investment of money by the petitioner, this Court should interfere, it is submitted. 5. Per contra, learned counsel for the 4[th] respondent would point out that this is a case where there is no order obtained by the petitioner in his favour. All that has happened is that the suit filed by the party respondent stands dismissed. But, that has not become final as an appeal is admittedly pending. Furthermore, against the order passed by the appellate authority remanding back the matter to the Land Tribunal, revisions have been filed by both parties namely the 4[th] respondent and also the assignors of the WPC 28759/2010 -6- petitioner. He would submit that, in such circumstances, it is not at all a fit case for this Court to exercise the extra ordinary jurisdiction and to grant any relief to the petitioner. 6. Having heard the learned counsel for the parties, we are of the view that this may not be a fit case for this Court to exercise the extraordinary jurisdiction under Article 226. It is true that the suit filed by the 4[th] respondent stands dismissed. It is also true that there are various findings in the said judgment against the 4[th] respondent. None-the-less the fact remains that the 4[th] respondent has appealed the said decision and it is currently pending before the Additional District Judge (Adhoc III), Manjeri. We cannot also lose sight of the fact that the 4[th] respondent was assigned the rights of the landlord by the Land Tribunal suo motu. That has been set aside by the appellate authority. But, it is remanded back. The said order stands challenged before the High Court and it is submitted that in both the revisions there is a delay and the matter has still not attained finality in that sense. In short, in this case it cannot even be said that the decision of the learned Munsiff in the civil suit WPC 28759/2010 -7- filed by the 4[th] respondent or the decision of the appellate authority can be said to have attained finality. Of course, learned counsel for the petitioner relies upon the right to life and that the right to life is sought to be exercised when his property is purchased for a huge sum of money. But, the question before us is in exercise of the extraordinary jurisdiction under Article 226 when the petitioner contends that he is in possession of the property by virtue of the assignment made by his assignors which the learned counsel for the 4[th] respondent points out is done in the year 2010 whether we can hold that the petitioner is in possession of the property? Pending consideration of the matter in civil Court and it not having being finally adjudicated can we hold that the petitioner is in possession and direct the police officers to proceed to grant protection on the basis that the petitioner is in possession. We would think that it may not be appropriate for us to hold that the petitioner is in possession of the property and has right. It is a matter yet to be finally adjudicated upon. In such circumstances, we decline jurisdiction. As far as the 2[nd] prayer is concerned, we feel WPC 28759/2010 -8- that the petitioner has got alternative remedy and it is for the petitioner to invoke the alternative remedy before the appropriate forum. While declining to interfere, we make it clear that it is open to the petitioner to move the appellate Court in A.S.174/1996 seeking appropriate relief against the 4[th] respondent for interim injunction. It is also open for the 4[th] respondent to move for interim injunction against the petitioner before the appellate Court. If any application is filed before the appellate Court, a decision shall be taken on the same after hearing the 4[th] respondent also within a period of one month from the date on which such application is moved. Needless to say, if an order of injunction is passed it is always open to the petitioner/4[th] respondent to seek relief of police protection before the appellate Court also. We also make it clear that it is open to the 4[th] respondent to move the Court for early disposal of the revision petitions which have been filed. 7. As far as the apprehension of threat to life is concerned, we should bear-in-mind the principles laid down in the decision of this Court reported in _Suseela vs. State of_ WPC 28759/2010 -9- _Kerala (2008 (4) KLT 561)_ . We record the submission of the learned counsel for respondents 2 to 4 that respondents 2 to 4 will not cause any threat to the life of the petitioner as long as they do not come to the property which is in dispute. The writ petition is disposed of as above. We have not expressed any view regarding the merits of the matter and when the appellate Court takes up the appeal it shall proceed with the same untrammelled by anything contained in this judgment. (K.M.JOSEPH) JUDGE. (M.C.HARI RANI) JUDGE. MS