Savithri Amma and M.K. Rajasree v. The Corporation of Kozhikode and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.M.MANOJ ``` ``` THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 WP(C) NO. 16771 OF 2024 ``` ``` PETITIONERS: ``` ``` 1SAVITHRI AMMA AGED 76 YEARS W/O LATE K.V. NARAYANA MENON, RESIDING AT ARCHANA, MEENCHANDA, P.O. ARTS AND SCIENCE COLLEGE, KOZHIKODE 673 018 NOW RESIDING AT 7T, KRISHNA PALACE, SANSKRIT COLLEGE ROAD, P.O. THRIPUNITHURA, KOCHI, PIN - 682301 2M.K. RAJASREE AGED 54 YEARS D/O LATE K.V. NARAYANA MENON, RESIDING AT 7T, KRISHNA PALACE, SANSKRIT COLLEGE ROAD, P.O. THRIPUNITHURA, KOCHI, PIN - 682301 ``` ``` BY ADVS. V.V.SURENDRAN P.A.HARISH DONA PAUL ``` ## **`RESPONDENTS:`** - **`1 THE CORPORATION OF KOZHIKODE REPRESENTED BY ITS SECRETARY, CORPORATION BUILDINGS, GANDHI ROAD, KOZHIKODE, PIN - 637032`** - **`2 THE SECRETARY, CORPORATION OF KOZHIKODE, CORPORATION BUILDINGS, GANDHI ROAD, KOZHIKODE, PIN - 673032`** - **`3 THE STATION HOUSE OFFICER, PANNIYANKARA POLICE STATION, PANNIYANKARA, P.O. KALLAI, KOZHIKODE, PIN - 673003`** - **`4 THE CIRCLE INSPECTOR OF POLICE, PANNIYANKARA POLICE STATION, PANNIYANKARA, P.O. KALLAI, KOZHIKODE, PIN – 673003`** **W.P. (C) No.16771 of 2024** 2 ``` 5M.K.RAMESH AGED 58 YEARS S/O LATE K.V. NARAYANA MENON, MANAGING DIRECTOR, K.V.N. IMPEX (PRIVATE) LIMITED, MEENCHANDA, P.O. ARTS AND SCIENCE COLLEGE, KOZHIKODE, PIN - 673018 6M.K.RAJESH AGED 56 YEARS S/O LATE K.V. NARAYANA MENON, DIRECTOR, K.V.N. IMPEX (PRIVATE) LIMITED, MEENCHANDA, P.O. ARTS AND SCIENCE COLLEGE, KOZHIKODE, PIN - 673018 ``` ``` BY ADVS. K.SUJAI SATHIAN PREETHI. P.V.(K/1819/1999) MARY LIYA SABU(K/001533/2018) AISWARYA S. ASHOKAN(K/678/2021) T.SETHUMADHAVAN (SR.)(S-310) FOR R5 & R6 v.KRISHNA MENON, SC FOR R1 & R2 E.G.GORDEN, SR.GOVERNMENT PLEADER FOR R3 & R4 ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P. (C) No.16771 of 2024** 3 ## **P.M. MANOJ, J** ## **--------------------W.P.(C) No.16771 OF 2024 ---------------------------------------------Dated this the 18[th] day of July, 2024** ## **JUDGMENT** The writ petition is preferred seeking following reliefs: (i) Issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 3 and 4 to afford necessary protection to the petitioners for implementing Ext.P7 order passed by the 2[nd] respondent. (ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 3[rd] respondent to give adequate protection to the petitioners against any obstructions caused by respondents 5 and 6 in implementing Ext.P7 order passed by the 2[nd] respondent and also for closing the opening made by respondents 5 and 6 in the outer wall of the 1[st] floor of the house belonging to them. **W.P. (C) No.16771 of 2024** 4 (iii) Issue a writ of mandamus or any other appropriate writ order or direction directing respondents 5 and 6 not to cause any obstruction to the petitioners from implementing Ext.P7 order of the 2[nd] respondent. (iv) Issue a writ of order or direction directing the 2[nd] respondent not to proceed on the basis of Exts.P8 and P9 notes so as to assess tax on the unauthorised constructions made in the property of the 2[nd] petitioner. (v) Dispense with production of the English translation of the vernacular documents. (vi) Issue any other appropriate writ, order or direction which this Honorable Court may deem just, fit and proper to grant for the redressal of the grievances of the petitioners. 2. The primary questions to be answered in this writ petition with respect to the granting of police **W.P. (C) No.16771 of 2024** 5 protection on considering the first prayer in the writ petition. It is to be noted that the parties to the writ petition on the petitioners’ side are mother and daughter on the other side the two sons of the 1[st] petitioner. 3. The dispute is with respect to property in Survey No.205/114 of Panniyankara Village of Kozhikode Taluk acquired by the 1[st] petitioner by virtue of document Nos.157/1982 and 533/1982 of the Sub Registrar Office, Chalappuram. It is also stated that certain extent of property purchased by the 1[st] petitioner was acquired for the purpose of road widening. The remaining land is having an extent of 6.37 Ares. The said property was transferred in the name of the 2[nd] petitioner as per Ext.P1 gift deed. On the other hand, respondents 5 and 6, who are the sons of the 1[st] petitioner states they are conducting a business in the name and style KVN Impex (Pvt.) Limited. It is also stated that there is no specific demarcation of property between the petitioner as well as respondents 5 and 6. **W.P. (C) No.16771 of 2024** 6 4. For the convenience of the business of the respondents 5 and 6, they were permitted by the 1[st] petitioner to use the first floor of her house. Accordingly they were keeping their excess furniture in her building, out of her love and affections towards her sons. Now it is stated that the said permission was misused by respondents 5 and 6 and they constructed a ramp connecting the buildings owned by petitioners 1 and 2, and it is stated that it is an illegal act done by respondents 5 and 6. Moreover, respondents are utilizing a portion of the property owned by petitioners 1 and 2 as a car parking area. There is disputes between these two parties, in their respect and O.S. No.371 of 2023 is pending before the Principal Munsiff Court-II, Kozhikode, which is filed by respondents 5 and 6 and O.S. No.605 of 2023 before the Munsiff Court-II, Kozhikode filed by the 1[st] petitioner, which is also pending. 5. During the pendency of these suits, Ext.P1 gift deed was executed by the 1[st] petitioner, this is also matter of dispute. The main grievances is that respondents 5 and **W.P. (C) No.16771 of 2024** 7 6 by misleading the 1[st] petitioner converted the first floor of the house as their office without obtaining necessary license as required by the statute. They are also constructed a ramp connecting the building owned by the petitioner with that of the respondents 5 and 6. This issue was brought up before the 2[nd] respondent-Corporation by the petitioners pointing out the illegality in the construction effected by the respondents on the terrace of the residence owned by petitioners 1 and 2. 6. On taking note of this illegality, the Corporation has issued preliminary notice under Section 406 (2) of the Kerala Municipalities Act. Thereby held that the construction referred to in the notice are illegal and without permission and calling upon the petitioners to show cause as to why preliminary order made final, as per Ext.P6. That was replied by the 1[st] petitioner and stated that the constructions were affected illegally by respondents 5 and 6 without her knowledge and permission, and now the building is owned by the 2[nd] petitioner as per Ext.P1 gift deed. It is also informed that **W.P. (C) No.16771 of 2024** 8 the petitioners are ready and willing to remove the additional constructions on the terrace. In the light of said reply, Ext.P7 order is issued to demolish the unauthorised construction under Section 534 of the Kerala Municipalities Act. Thereafter, the petitioners approached to the Revenue Officer intimating that there is an unauthorised usage of the residential building owned by the petitioners by respondents 5 and 6. 7. On consideration of said complaint, as consequential order, Ext.P8 was issued by the Revenue Officer. It stated in that order, since the petitioners have failed to remove the unauthorised construction, the necessary steps under Section 242 of the Municipalities Act will be initiated for assessing the tax. The petitioners also approached the Health Officer of the Corporation and a similar order has been passed as per Ext.P9. In the absence of any steps to demolish the unauthorised structure above the residence of petitioners 1 and 2, she has preferred Ext.P10 before the 2[nd] respondent and Ext.P11 before the 4[th] respondent-Station House Officer, **W.P. (C) No.16771 of 2024** 9 Panniyankara Police Station, Kozhikode. Whereby requested that in the event the 2[nd] respondent is in taking steps for demolition of the unauthorised construction, necessary support may be given by the 4[th] respondent. On alleging inaction, the petitioners approached this Court by preferring this writ petition. 8. Respondents 5 and 6 appeared and filed a counter affidavit challenging the maintainability of writ petition for police protection against and dispute having civil nature. It is also stated many litigations are pending before the competent civil court. It is further stated that against Ext.P7 order of demolition, the respondents have already approached the Tribunal for Local Self Government Institution, Thiruvananthapuram and obtained an interim order, which is produced as Ext.R5(a). It is also stated that an order similar to the nature of Ext.P7 was issued to respondents 5 and 6, as per Ext.R5(b). It is further stated that with respect to the ownership of the property in question another civil cases is pending as O.S. No.97 of 2024 before the Sub Court, Kozhikode. It is also **W.P. (C) No.16771 of 2024** 10 alleges that even Ext.P1 settlement deed by the 1[st] petitioner was executed in violation of the injunction order passed by Sub Court in I.A. No.2 of 2023 in O.S. No.371 of 2023. In the afore mentioned circumstances, it is contented that the prayers sought in the writ petition cannot be granted. 9. The respondents 1 and 2 also preferred a statement and contented that respondents 5 and 6 had affected unauthorised construction in their respective property including the construction of a sky bridge linking the building situated in the property of the petitioners, with the building situated in the property of respondents 5 and 6. In this regard, Exts.P7 and R5(b) orders were issued calling upon them to demolish the unauthorised construction effected by them except the eight car parking slots mentioned in Ext.P3 interim order of the civil court. It is also stated respondents 5 and 6 have approached the Tribunal for Local Self Government Institutions and filed appeal No.155 of 2024 and obtained an interim order dated 25.03.2024 staying the execution of the order, as **W.P. (C) No.16771 of 2024** 11 evident in Ext.R5(b) and stated that in the event of existence of Ext.R5(b), the implementation of Ext.P7 order issued under Section 534 of the Kerala Municipalities Act, 1994 is practically not possible. 10. The counsels for the petitioners as well as the party respondents have produced many additional documents in order to prove their contentions with respect to the civil disputes. 11. I have heard Sri.P.A.Harish, the learned counsel for the petitioners, Sri.V.Krishna Menon, the learned Standing Counsel for respondents 1 and 2, Sri.E.G.Gorden, the learned Senior Government Pleader for respondents 3 and 4 and Sri.T.Sethumadhavan as instructed by K.Sujai Sathian, the learned counsel for respondents 5 and 6. 12. The primary point to be considered is whether to grant police protection or not, as prayed in the writ petition. On going by the contentions from both sides, it appears that it is primarily dispute between mother and daughter on one side and the sons/brothers on the other side. The sons are conducting business in the building **W.P. (C) No.16771 of 2024** 12 constructed in the property occupied by them, which is adjacent to the building occupied by the petitioners in their respective property. There is also dispute with respect to utilisation of the additional area, which is available in the property of the petitioners. In that regard, civil suit is pending before the competent civil court. 13. The main allegation is that respondents 5 and 6 by misleading the 1[st] petitioner, had affected an unauthorised construction on the terrace of the building owned by the petitioners and utilizing it as their office. For the convenience of the usage, they constructed a sky bridge, all these constructions are unauthorised. In that regard, the petitioners as well as respondents are instituted civil suits before the Principal Munsiff Court-II, Kozhikode, as stated above. 14. The petitioners have approached the various authorities including Corporation and the maintenance tribunal as well as the authorities within the corporation I\ i.e., Revenue Officer and Health Inspector in order to **W.P. (C) No.16771 of 2024** 13 ensure that the disputed structure effected by respondents 5 and 6 to be demolished. 15. On the basis of such complaints preferred by the petitioners, the corporation has initiated proceedings under Section 534 of the Kerala Municipalities Act, 1994, for demolishing the unauthorised construction. However, that was challenged by respondents 5 and 6 before the Tribunal for Local Self Government Institutions and obtained a stay. In that circumstances, respondents 1 and 2 stated their inability to proceed with Ext.P7 order as well as Ext.R5(b) order issued to the respondents. 16. At this point of time, the petitioners alleging that their attempt to remove the unauthorised structure was prevented by respondents 5 and 6 and their men. This is the circumstances in which they approached the 4[th] respondent by preferring Ext.P11 petition for providing necessary protection to respondents 1 and 2 to remove the unauthorised construction effected by respondents 5 and 6. **W.P. (C) No.16771 of 2024** 14 17. It is pertinent to note that after all it is a dispute of ownership of property between the mother and daughter on the one side and the sons/brothers of the 1[st] petitioner/ 2[nd] petitioner on the other side. There are various litigations pending before the competent civil courts. In this regard, the counsel for the respondents 5 and 6 brought to my notice a reported decision by the Division Bench of this Court in **Gladstone George Varghese v. District Police Chief [2023 (7) KHC 30]** , wherein, it is stated that while following the decision in **George Mirante v. State of Kerala [1990 KHC 338]** this Court held, in the matters involving civil rights or disputes regarding the title and possession over property, it is not proper for the High Court to interfere under Article 226 of the Constitution with an order for police protection. Police cannot be made the adjudicators of such disputes inter se between the parties, either regarding possession of property or regarding boundaries or regarding easements of the like. These are matters essentially within the domain of the civil courts. The parties should approach **W.P. (C) No.16771 of 2024** 15 those courts and seek redress. Police does not have the right to decide on such disputes, nor is it proper or competent for them to do so. They do not also have the machinery for the purpose. It is outside the limits of the duties which are cast on them, which is to prevent breach of peace or commission of cognisable offences, and to preserve law and order. 18. It is also further held in **George Mirante** (supra), that it will be totally against the rule of law, if the right of the police is to be used in favour of one party against another without an adjudication by any appropriate authority of the rights of either side. In all such cases, the proper remedy, for a party feeling aggrieved, is to approach the civil court for the establishment of his rights, and seek appropriate injunctive reliefs against the offending party, and if any such orders are attempted to be violated, to seek their enforcement by the civil court itself. The civil court has the power in such cases to enforce its orders under Order 39 Rule 2A or Section 151 of the Code of Civil Procedure with police aid, if necessary, as held by **W.P. (C) No.16771 of 2024** 16 this Court in **Mohammad v. Mohammad Haji [1986 KHC 40]** . 19. In the case in hand, the parties to the proceedings are already approached the competent civil courts including the Munsiff-II, Kozhikode and Sub Court, Kozhikode as well as the Tribunal for Local Self Government Institutions under various proceedings and obtained respective orders. 20. On a point realising that the petitioners cannot obtain a favourable order, after complaints are preferred before various statutory authorities, now trying to get over such situation on the strength of the police protection. Only for that purpose, the petitioners approached this Court. Under such circumstances, I feel it will be inappropriate to grant relief sought by the petitioners for the reasons stated above. Accordingly, this writ petition is dismissed. **Sd/-** **P.M. MANOJ** **JUDGE** **sss** **W.P. (C) No.16771 of 2024** 17 ## **`APPENDIX OF WP(C) 16771/2024`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1A TRUE COPY OF DOCUMENT NUMBER 2244/I/2023 DATED 19.10.2023 EXECUTED BY THE 1ST PETITIONER IN FAVOUR OF THE 2ND PETITIONER Exhibit P2A TRUE COPY OF THE PLAINT IN O.S.371/2023 DATED 11.05.2023 ON THE FILE OF THE PRINCIPAL MUNSIFF II, KOZHIKODE Exhibit P3A TRUE COPY OF THE SERVED COPY OF THE ORDER OF INJUNCTION IN I.A.02/2023 IN O.S. 371/2023 DATED 24.05.2023 ON THE FILE OF THE PRINCIPAL MUNSIFF II, KOZHIKODE Exhibit P4A TRUE COPY OF THE PLAINT IN O.S. 605/2023 DATED 08.09.2023 ON THE FILE OF THE MUNSIFF II, KOZHIKODE Exhibit P5A TRUE COPY OF THE REPORT, SKETCH AND PHOTOGRAPHS DATED 01.11.2023 FILED BY THE ADVOCATE COMMISSIONER IN O.S. 605/2023 ON THE FILE OF THE PRINCIPAL MUNSIFF II, KOZHIKODE Exhibit P6A TRUE COPY OF THE PRELIMINARY ORDER NUMBER T.P.11/49385/23 AS WELL AS THE SHOW CAUSE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 14.07.2023 TO THE 1ST PETITIONER Exhibit P7A TRUE COPY OF ORDER NUMBER T.P. 11/49385/2023 PASSED BY THE 2ND RESPONDENT DATED 13.03.2024 Exhibit P8TRUE COPY OF THE NOTE DATED 13.03.2024 ISSUED BY THE SUPERINTENDING ENGINEER ATTACHED TO THE OFFICE OF THE 1ST RESPONDENT TO THE JURISDICTIONAL REVENUE OFFICER RECEIVED BY THE PETITIONERUNDERTHERIGHTTO INFORMATION ACT Exhibit P9. TRUE COPY OF THE NOTE DATED 13.03.2024 ISSUED BY THE SUPERINTENDING ENGINEER ATTACHED TO THE OFFICE OF THE 1ST RESPONDENT TO THE JURISDICTIONAL HEALTH OFFICER RECEIVED BY THE ``` **W.P. (C) No.16771 of 2024** 18 - **`PETITIONER UNDER THE RIGHT TO INFORMATION ACT`** - **`Exhibit P10 A TRUE COPY OF THE REQUEST MADE BY THE 2ND PETITIONER TO THE 2ND RESPONDENT DATED 26.03.2024`** - **`Exhibit P11 A TRUE COPY OF THE REQUEST MADE BY THE 2ND PETITIONER TO THE 3RD RESPONDENT DATED 26.03.2024`** - **`EXHIBIT P12 A TRUE COPY OF THE STATEMENT FILED BY THE 1ST PETITIONER BEFORE THE ACCOMMODATION CONTROLLER DATED 07.07.2023 IN RC - 02/2023 (A2 - 7893/2023)`** - **`EXHIBIT P13 A TRUE COPY OF THE ADDITIONAL COUNTER STATEMENT FILED BY THE 1ST PETITIONER BEFORE THE ACCOMMODATION CONTROLLER IN RC - 02/2023 (A2 - 7893/2023) DATED 6.5.2024`** - **`EXHIBIT P14 A TRUE COPY OF THE MEMORANDUM OF APPEAL AND THE APPLICATION SEEKING STAY OF EXT. R5(B) DATED 22.03.2024`** ## **`RESPONDENT EXHIBITS`** - **`EXHIBIT R5 (a) A. TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS DATED 25/03/2024 IN I.A NO: 402 OF 2024 IN APPEAL NO : 155 OF 2024`** - **`EXHIBIT R5(b) A. TRUE COPY OF THE ORDER ISSUED BY 2ND RESPONDENT DATED 13-03-2024 TO THESE RESPONDENTS`** - **`EXHIBIT R5(c) . A TRUE COPY OF THE PLAINT IN O.S. NO.97/2024DATED 04.04.2024 BEFORE THE SUB COURT KOZHIKODE`** - **`EXHIBIT R5(d) A TRUE COPY OF THE INJUNCTION ORDER PASSED BY THE PRINCIPAL MUNSIFF COURT KOZHIKODE DATED 22-05-2023 IN I.A. 2/23 IN O.S. NO.371/20 23`** - **`EXHIBIT R5 (e) A TRUE COPY OF THE ORDER PASSED BY THE APPELLATE TRIBUNAL/DISTRICT COLLECTOR KOZHIKODE DATED 17-10-2023`** - **`EXHIBIT R5(f) A. TRUE COPY OF THE ORDER OF THE ACCOMMODATION CONTROLLER DATED 20-062023`** **W.P. (C) No.16771 of 2024** 19 ``` EXHIBIT R5(g) ``` ``` A. TRUE COPY OF THE ORDER DATED 09.04.2024 IN IA NO. 2/2024 IN OS. NO. 605/2023 OF THE PRINCIPAL MUNSIFF COURT II KOZHIKODE ``` ``` Exhibit R5(H)A TRUE COPY I.A NO 402 OF 2024 IN APPEAL NO : 155 OF 2024 DATED 22.03.2024 BEFORE THE LSGD TRIBUNAL Exhibit R5(I)A TRUE COPY OF THE STATEMENT OF INCOME SUBMITTED BY THE 1ST PETITIONER FOR THE ACCOUNTING YEAR 2019-2020 DATED 29-07- 2019 ``` ``` Exhibit R5(J)A TRUE COPY OF THE STATEMENT OF INCOME SUBMITTED BY THE 1ST PETITIONER FOR THE ACCOUNTING YEAR 2020-2021 DATED 3-08- 2020 Exhibit R5(K)A TRUE COPY OF THE STATEMENT OF INCOME SUBMITTED BY 1ST PETITIONER FOR THE ACCOUNTING YEAR 2021-2022 DATED 31-12- 2021 ```