Suresh P Sreedharan v. State of Kerala and Others

W.P.(C).No.21186/22 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 8[TH] DAY OF AUGUST 2022 / 17TH SRAVANA, 1944 WP(C) NO. 21186 OF 2022** ## **PETITIONER:** SURESH P SREEDHARAN AGED 42 YEARS S/O SREEDHARAN, POORADAN HOUSE, RAVI NAGAR, THALIKULAM P.O , THRISSUR , PIN-680569. BY ADVS. ALEXANDER JOSEPH AKHILASREE BHASKARAN ANTONY NIKHIL REMELO ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, STATE SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 2 THE DISTRICT POLICE CHIEF, COMMISSIONER OFFICE, NEAR EAST POLICE STATION, THRISSUR, PIN-680001. 3 THE INSPECTOR OF POLICE, THRISSUR TOWN EAST POLICE STATION, THRISSUR, PIN680001. 4 THE CORPORATION OF THRISSUR, REPRESENTED BY THE SECRETARY, CORPORATION OFFICE, THRISSUR, PIN-680001. W.P.(C).No.21186/22 2 5 SANTHOSH KUMAR NAIR, AGED 60 YEARS S/O GOPALAN NAIR, 'SIVAM' HOUSE, SAW MILL ROAD, KOORKKANCHERRY, THRISSUR. BY ADVS. GOVERNMENT PLEADER SHRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION C.DHEERAJ RAJAN ANAND KALYANAKRISHNAN ## **OTHER PRESENT:** T.K.SHAJAHAN-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.07.2022, THE COURT ON 08.08.2022 DELIVERED THE FOLLOWING: W.P.(C).No.21186/22 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(C).No.21186 of 2022 = = = = = = = = = = = = = = = = Dated this the 8[th] day of August, 2022** ## **JUDGMENT** 1.This writ petition is filed seeking directions to respondents 1 to 3 to give adequate and effective police protection to the life and properties of the petitioner, his workers and customers and for opening and operating the restaurant of the petitioner in building No.39/1687/1 at Sawmill Road, Thrissur Corporation from the 5[th] respondent and his men. There is a further relief sought for to respondents 2 and 3 to consider Exhibits P5 and P8 complaints preferred by the petitioner and to register a criminal case against the 5[th] respondent and his men and to initiate prosecution proceedings against them for offences committed by them. - 2.It is contended that the petitioner had taken building No.39/1687/1 of Thrissur Corporation on rent from the 5[th] respondent, who is the owner of the building. Exhibit P1 is W.P.(C).No.21186/22 4 the consent letter dated 31.8.2021 given by the 5[th] respondent before the 4[th] respondent for the conduct of the restaurant in the name 'Thrissur Kada'. Exhibit P2 is the licence issued by the Corporation on 20.5.2022 to be valid from 1.4.2022 to 31.3.2023. Exhibit P3 is the consent to operate dated 28.10.2021 granted in favour of M/s.Thrissur Kada Open Restaurant. It is submitted that the restaurant was inaugurated on 8.5.2022 and Exhibits P4 and P4(a) photographs purported to be of the inaugural ceremony are also produced. It is submitted that on 5.6.2022, the petitioner fell sick and was bedridden and was prevented from operating the restaurant. On 24.6.2022, the petitioner came to know of some construction activities in the building and he went to the premises along with a friend, it was found that the 5[th] respondent had opened the restaurant with a duplicate key without the consent and knowledge of the petitioner and removed furniture, fittings, computer and other valuable items from the restaurant and destroyed the improvements, including the kitchen. It is submitted that Exhibit P5 complaint was made by the petitioner before the W.P.(C).No.21186/22 5 police. On 26.6.2022, the 5[th] respondent and his men trespassed into the restaurant and the petitioner filed a complaint, on the basis of which the police came to the premises and prevented the illegal activities. It is stated that later on 27.6.2022, the petitioner submitted a detailed complaint against the 5[th] respondent and his men, which is produced as Exhibit P8. It is contended that no action has been taken thereon and that substantial damage has been caused to the petitioner on account of the illegal acts of the 5[th] respondent. 3.The 5[th] respondent has placed a detailed counter affidavit on record. It is contended therein that the 5[th] respondent had leased out the premises to the petitioner by an agreement dated 17.8.2021. The agreement was cancelled by the petitioner himself due to the fact that he was not able to pay the rent on time. It is contended that there are several contradictions in the pleadings in the writ petition and that Exhibit R5(a) letter addressing the 4[th] respondent was given by the petitioner to the 5[th] respondent to the 4[th] W.P.(C).No.21186/22 6 respondent on 22.4.2022 stating that he does not intend to continue the restaurant and that he has no objection in cancelling the licence. It is stated that on 2.6.2022, the petitioner had returned possession of the rented premises back to the 5[th] respondent and further stated that he shall pay the rent arrears and till such time some of the hotel fixtures can be kept as surety for the said payment. It is submitted that all the other facts stated in the writ petition are incorrect and untrue and that those are matters for evidence, which cannot be decided in this writ petition. It is stated that a Caveat O.P. has been filed by the 5[th] respondent before the Munsiff's Court Thrissur on 27.6.2022 and no suit has been filed till date. It is further submitted that the 5[th] respondent had been summoned before the police station pursuant to Exhibit P5 complaint and the police had threatened and harassed the 5[th] respondent to settle the issue with the petitioner. It is submitted that Exhibit R5(c) complaint was submitted by the 5[th] respondent before the District Police Chief in this regard. It is submitted that due to the complaint of the 5[th] W.P.(C).No.21186/22 7 respondent, an FIR had been lodged as Crime No.1261/2022 of Thrissur East Police Station on 3.7.2022. It is contended that the issue in question is purely a civil dispute and that the petitioner cannot seek police protection in a case where all the facts are disputed. Exhibit R5(i), copy of a licence dated 16.11.2021, is also produced to contend that the petitioner had sought the cancellation of the initial licence as contended by the 5[th] respondent. 4.A reply affidavit is also placed on record stating that Exhibit R5(a) produced by the 5[th] respondent is a forged document and that the licence number stated in Exhibit R5(a) and Exhibit P6 are different. _(sic)._ It is contended that the statement that the petitioner returned possession of the rented premises to the 5[th] respondent is incorrect and is denied. It is also stated that the statement with regard to arrears of rent is also completely untrue and is denied. W.P.(C).No.21186/22 8 5.The learned counsel appearing for the Thrissur Corporation would contend that a licence has been granted to the petitioner on the basis of the consent issued by the landlord and that the licence had also been duly renewed. With regard to Exhibit R5(a), it is submitted that the standing counsel does not have specific instruction in the matter. 6.The learned Government Pleader would contend that complaints had been received with regard to the possession of the property in question and that the police had gone to the site on the complaint of the petitioner. However, on making enquiries it was seen that there is a civil dispute with regard to the possession of the properties between the petitioner and the 5[th] respondent and that it was in the circumstances that criminal case was not registered immediately. Thereafter, when the petitioner had approached the District Police Chief and submitted further complaints, an FIR had been registered against the 1[st] respondent. It is submitted that at present there is no law and order situation prevalent. W.P.(C).No.21186/22 9 7.The learned counsel appearing for the 5[th] respondent relies on a decision of the Apex Court in **Mohan Pandey and Another v. Smt.Usha Rani Rajgaria and others** [ 1992 KHC 912] and **Roshina T. v. Abdul Azeez K.T and others** [2018 KHC 6945] to contend that where the very question as to the possession of the property is in dispute, a writ petition for police protection cannot be filed seeking in effect restoration of possession of the property. It is contended that the issue has to be decided on evidence and therefore it is for the petitioner, if he is aggrieved, to file a suit. It is contended that since virtually restoration of possession is sought for, this Court cannot decide the issue on affidavits placed on record and that a full fledged enquiry is required. - 8.I have considered the contentions advanced. The petitioner contends that he had taken the property on rent from the 5[th] respondent on the strength of a rent agreement. It is the present contention that pursuant to the rent agreement W.P.(C).No.21186/22 10 Exhibit R5(i) licence was issued to the petitioner on 16.11.2021. The period of Exhibit R5(i) licence is from 10.12.2021 to 31.03.2022. Thereafter, a fresh licence appears to have been issued by Exhibit P2 dated 20.5.2022 from the period from 1.4.2022 to 31.03.2023. If that be so, the contention of the 5[th] respondent that the petitioner had submitted a request dated 22.4.2022 before the Municipality for rescinding the earlier licence may be untenable in view of the fact that the later licence for the period from 1.4.2022 to 31.3.2023 had been obtained by the petitioner. Once a rent deed is executed between the parties, an eviction from the rented premises would not be possible, unless there is an order of eviction duly passed. ## 9.Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 reads as follows:- **“11 Eviction of tenants.** - (1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with provisions of this Act; Provided that nothing contained in this section shall apply to a tenant W.P.(C).No.21186/22 11 whose landlord is the State Government or the Central Government or other public authority notified under this Act. Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.” The grounds for eviction of the tenant is mentioned in the remaining sub-sections of Section 11. 10.The question whether the possession of the building was handed over to the 5[th] respondent by the petitioner or not is admittedly a question of fact. Since the petitioner does not agree that the possession of the premises were handed over to the 5[th] respondent by the petitioner, it would not be safe to rely on the document produced by the 5[th] respondent which is admittedly not issued to him to come to the conclusion that possession was legally restored to the 5[th] respondent. In view of the fact the 5[th] respondent does not W.P.(C).No.21186/22 12 deny the execution of a rent agreement between the parties, I am of the opinion that any steps for summary eviction without recourse to law would be completely untenable. 11.A Division Bench of this Court in **Central Bank of India and Another vs. Beena Thiruvenkitam** [2019 (3) KHC 819] had considered the effect of a compromise between landlord and tenant and the jurisdiction of a court to pass an order of eviction under the Kerala Buildings (Lease and Rent Control) Act, 1965. Relying on the provisions of Section 11(1), this Court held that even in a case where the parties had consented before a learned single Judge of this Court, the direction of the learned single Judge to the tenant to surrender vacant possession, was not proper in view of the provisions of Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act. In the above circumstances, an alleged surrender of possession by the tenant, unless it is specifically proved, cannot give the land lord any right to summarily evict the tenant from the premises. W.P.(C).No.21186/22 13 12.In view of the fact that the entrustment on rent and the obtaining of a licence by the petitioner for conduct of a restaurant is admitted by the 5[th] respondent, I am of the opinion that it is for the 5[th] respondent to establish his case that there has been a re-entrustment of the property to the 5[th] respondent on voluntary termination of the lease agreement by the petitioner. The 5[th] respondent cannot physically obstruct the petitioner from entering into the property which was admittedly given on rent, in view of the provisions of Section 11 of the Kerala Buildings (Lease and Rent Control) Act. In the above view of the matter, it is for the police to see that law and order is maintained and that there is no threat to the life of the petitioner or the properties covered by Exhibit P2 licence issued by the 4[th] respondent, from the 5[th] respondent or anybody claiming through him. The 4[th] respondent shall not cancel Exhibit P2 licence without putting the petitioner on notice and hearing him. In case of any obstruction from the 5[th] respondent to the peaceful enjoyment of the property by the petitioner, the W.P.(C).No.21186/22 14 petitioner may approach the Station House Officer, who shall afford adequate protection to the petitioner. The writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.21186/22 15 ## **APPENDIX OF WP(C) 21186/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE CONSENT STATEMENT DATED 31/08/2021 ISSUED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT. - Exhibit P2 TRUE COPY OF THE LICENCE DATED 20/05/2022 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. - Exhibit P3 TRUE COPY OF THE CONSENT TO OPERATE DATED 28/01/2022 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD TO THE PETITIONER. - Exhibit P4 TRUE COPY OF THE PHOTOGRAPHS OF THE INAUGURAL FUNCTION OF THE RESTAURANT DATED 08/05/2022. - Exhibit P4(A) TRUE COPY OF THE PHOTOGRAPHS OF THE INAUGURAL FUNCTION OF THE RESTAURANT DATED 08/05/2022. - Exhibit P5 TRUE COPY OF THE CRIMINAL COMPLAINT DATED 24/06/2022 OF THE PETITIONER TO THE 3RD RESPONDENT. - Exhibit P6 TRUE COPY OF THE RECEIPT DATED 24/06/2022 ISSUED BY THE 3RD RESPONDENT. - Exhibit P7 TRUE PHOTOGRAPH SHOWING THE INTERVENTION OF THE POLICE ON 26/06/2022. Exhibit P8 TRUE COPY OF THE COMPLAINT DATED 27/06/2022 TO THE 2ND AND 3RD RESPONDENTS FOR POLICE PROTECTION. W.P.(C).No.21186/22 16 - Exhibit P9 TRUE COPY OF FIR NO.1261/2022 DATED 03/07/2022 OF THRISSUR EAST POLICE STATION - Exhibit P10 TRUE COPY OF THE POSTER PUBLISHED IN THE FACE BOOK Exhibit P11 TRUE COPY OF THE LAWYER NOTICE DATED 15.07.2022 TO THE 4TH RESPONDENT. RESPONDENT EXHIBITS Exhibit R5(A) TRUE COPY OF THE LETTER DATED 22/04/2022 ISSUED BY THE PETITIONER ADDRESSING TO THE 4TH RESPONDENT RESPONDENT EXHIBITS - Exhibit R5(B) TRUE COPY OF THE CAVEAT OP 209/2022 PREFERRED BY THE 5TH RESPONDENT BEFORE THE MUNSIFF COURT, THRISSUR RESPONDENT EXHIBITS Exhibit R5(C) TRUE COPY OF THE COMPLAINT FILED BY THE 5TH RESPONDENT BEFORE THE CITY POLICE COMMISSIONER, THRISSUR - Exhibit R5(D) TRUE COPY OF THE RECEIPT DATED 28/06/2022 ISSUED FROM THE OFFICE OF THE DISTRICT POLICE CHIEF TO THE 5TH RESPONDENT Exhibit R5(E) TRUE COPY OF THE RTI APPLICATION SUBMITTED BY LAWYER OF 5TH RESPONDENT DATED 28/06/2022 Exhibit R5(F) TRUE COPY OF THE CITIZEN COPY OF THE FIR IN CRIME NO. 1261/2022 OF THRISSUR EAST POLICE STATION, THRISSUR CITY W.P.(C).No.21186/22 17 Exhibit R5(G) TRUE COPY OF THE COMPLAINT PREFERRED BY THE 5TH RESPONDENT DATED 12/07/2022 BEFORE THE DISTRICT POLICE CHIEF, THRISSUR Exhibit R5(H) TRUE COPY OF THE RECEIPT ISSUED BY THE OFFICE OF THE DISTRICT POLICE CHIEF, DATED 12/07/2022 Exhibit R5(I) TRUE COPY OF THE LICENCE NO. 140170232100807 DATED 16/11/2021 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER True copy PS to Judge