Writ Appeal No. 1536 of 2021, Kerala High Court

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** # **`THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR`** ## **`&`** ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 7[TH] DAY OF DECEMBER 2021 / 16TH AGRAHAYANA, ``` ``` 1943 ``` ## **`WA NO. 1536 OF 2021`** ``` AGAINST THE ORDER/JUDGMENT IN WP(C) 14743/2021 OF HIGH ``` ## **`COURT OF KERALA`** ## **`APPELLANTS/RESPONDENTS 3 & 4:`** - **`1 ANILKUMAR, AGED 59 YEARS S/O. KUNJIRAMAN, THODIYIL VEEDU, KIZHAVOOR, THAZHUTHALA VILLAGE, MUGHATHALA P.O., PIN-691 577, KOLLAM.`** - **`2 SUNILKUMAR D., AGED 50 YEARS S/O. DIVAKARAN, THRIPTHY, PANKONAM, THRIKKOVILVATTOM VILLAGE, MUGHATHALA P.O., PIN-691 577, KOLLAM.`** - **`BY ADVS. T.SETHUMADHAVAN (SR.) PREETHI. P.V. M.V.BALAGOPAL`** ## **`RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2 AND ADDL.R5 :`** - **`1 ASOKAN VASU, AGED 71 YEARS S/O. VASU, PRATHIBHAS, NAVAIKKULAM VILLAGE, NAVAIKKULAM P.O., CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695 614.`** - **`2 THE RURAL SUPERINTENDENT OF POLICE SP OFFICE KOTTARAKKARA, KOLLAM, KERALA-691 506.`** - **`3 SHO OF POLICE CHADAYAMANGALAM POLICE STATION, KOTTARAKKARA, KOLLAM-691 506.`** - **`4 THE DEPUTY EXCISE COMMISSIONER KOLLAM.`** - **`BY ADV G.SREEKUMAR (CHELUR)`** Writ Appeal No.1536 of 2021 ..2.. ## **`OTHER PRESENT:`** ``` SR.GP.V.K.SUNIL ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Writ Appeal No.1536 of 2021 ..3.. ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ. ----------------------------------------------Writ Appeal No.1536 of 2021** **----------------------------------------------Dated this the 07[th] day of December, 2021** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This writ appeal is directed against the judgment dated 5.10.2021 in W.P.(C) No.14743 of 2021. The appellants are respondents 3 and 4 in the writ petition. Parties and documents are referred to in this judgment, as they appear in the writ petition. 2. The petitioner claims to be running a Hotel and Bar at Chadayamangalam. It is stated by the petitioner that though he had entered into Ext.P1 agreement with the third respondent for sale of the Hotel and Bar for a consideration of Rs.12 Crores, and received a sum of Rs.1.25 Crores by way of advance sale consideration from him, the sale did not take place. It is alleged by the petitioner in the writ petition that nevertheless, respondents 3 and 4 are attempting to trespass Writ Appeal No.1536 of 2021 ..4.. into the Hotel and Bar and respondents 1 and 2 police officers are not affording protection to the petitioner to run the Hotel and Bar. The prayer in the writ petition, in the circumstances, was for a direction to respondents 1 and 2 to afford protection to the petitioner to run the Hotel and Bar. 3. A counter affidavit has been filed by the fourth respondent on his behalf and also on behalf of the third respondent stating, among others, that the petitioner who was facing proceedings under the Securitisation and Reconstruction and Financial Assets and Enforcement of Security Interest Act at the instance of State Bank of Travancore, Varkala has approached the third respondent with a proposal to sell the Hotel and Bar for the purpose of liquidating the liability to the Bank; that Ext.P1 agreement was executed in the said background; that the petitioner has liquidated his liability to the Bank making use of the advance sale consideration paid by the third respondent and that he has thereafter handed over the title deeds of the property mortgaged to the Bank to the third respondent as part of the arrangement. It is also stated by the fourth respondent in the counter affidavit that the arrangement between the parties was that the petitioner Writ Appeal No.1536 of 2021 ..5.. would buy back a property owned by the fourth respondent and others and the sale price of that property would be adjusted against the balance sale consideration payable in terms of Ext.P1 agreement for sale. It is also stated by the fourth respondent in the counter affidavit that there was also an understanding that the Hotel and Bar would be purchased by a partnership consisting of the owners of the property agreed to be sold to the petitioner and the third respondent. It is also stated by the fourth respondent in the counter affidavit that in the light of the said arrangement, an agreement for sale was executed between the fourth respondent and others on one side and the petitioner on the other side in respect of the property agreed to be purchased by the petitioner and a partnership was constituted for the purpose of purchasing the Hotel and Bar. It is also stated by the fourth respondent in the counter affidavit that the partnership thereupon transferred a sum of Rs.30,80,000/- to the Bank account of the petitioner so as to enable him to remit the licence fee in respect of the Bar for transferring the licence in favour of the partnership, and making use of the said amount, the petitioner remitted the licence fee and applied to the competent authority for Writ Appeal No.1536 of 2021 ..6.. transferring the licence of the Bar to the partnership. It is also stated in the counter affidavit that later on 11.4.2021, the petitioner handed over possession of the Hotel and Bar to the partnership, after taking a stock of the foreign liquor kept in the Bar and receiving its price from the partnership so as to enable the partnership to run the Bar and that the Bar was being run thereafter by the partnership till 17.06.2021, on which day it was closed due to the various disputes that arose between the parties in the meanwhile concerning the transactions. It is also stated by the fourth respondent in the counter affidavit that in the meanwhile, the partnership has paid to the petitioner a sum of Rs.1.07 crores also towards the balance sale consideration. It is stated by the fourth respondent that the position as on 17.6.2021 was that no further amount was due to be paid by the third respondent to the petitioner in connection with Ext.P1 agreement. It is stated in the counter affidavit that in the circumstances, the partnership caused to issue a lawyer's notice to the petitioner calling upon him to transfer the ownership of the Hotel and Bar to the partnership and take the sale deed in respect of the property agreed to be purchased by him. It is also stated in the Writ Appeal No.1536 of 2021 ..7.. counter affidavit that the petitioner has not responded to to the said lawyer's notice and instead he has approached this Court with the writ petition. According to the fourth respondent, in the aforesaid facts and circumstances, the petitioner is not entitled to the police protection sought for. 4. On 03.09.2021, the fourth respondent filed an additional affidavit in the writ petition stating that while the writ petition was pending, at about 9 O'clock on 24.08.2021, the petitioner along with the members of his family forcibly entered the premises of the Hotel and Bar and though the matter was informed to the police, no action was taken by the police. It is also stated in the said affidavit that while so, on 02.09.2021, the petitioner reopened the Bar. 5. Although the learned Single Judge took the view that the factual disputes involved in the matter cannot be decided in the writ petition, the writ petition was disposed of directing the police to afford protection to the lives of the petitioner and his employees in the Hotel and Bar, as it was stated by respondents 3 and 4 that the petitioner has reopened the Bar. Respondents 3 and 4 are aggrieved by the said decision of the learned Single Judge and hence, this Writ Appeal No.1536 of 2021 ..8.. appeal. 6. Heard the learned Senior Counsel for the appellants, the learned Government Pleader appearing for respondents 2 to 4 as also the learned counsel for the first respondent. 7. The learned Senior Counsel for respondents 3 and 4 submitted that the materials on record would show that respondents 3 and 4 were in possession of the Hotel and Bar at the time when the writ petition was instituted and the learned Single Judge, in the circumstances, ought not have disposed of the writ petition in the said manner, that too, in favour of a person who intruded into the possession of respondents 3 and 4 during the pendency of the writ petition. According to the learned Senior Counsel, in a case of this nature, this court ought to have relegated the parties to work out their remedies before a civil court. 8. Per contra, the learned counsel for the petitioner contended that this Court did not grant any relief to the petitioner except directing the police to ensure that nothing happens to the lives of the petitioner and his employees and there is absolutely no reason to interfere with Writ Appeal No.1536 of 2021 ..9.. the said direction. It was also argued by the learned counsel that insofar as it is admitted by respondents 3 and 4 that the petitioner is now in possession of the Hotel and Bar and insofar as there is no dispute as to the title to the property and also as to the right of the petitioner to run the Bar, the learned Single Judge cannot be found fault with for having issued the said direction. 9. We have considered the arguments advanced by the learned counsel for the parties on either side. 10. In a writ petition instituted under Article 226 of the Constitution seeking a writ of mandamus to the police to provide aid and protection to the petitioner, this Court is expected and required to consider only the question as to whether there is any failure of duty on the part of the police, for the authority of the court to grant relief in such matters is coterminous with the failure of duty on the part of the police. In other words, if the police is shown to have failed to perform their duty, this court would remedy that, or otherwise, this court will have no option, but to dismiss the proceedings. The case on hand being a writ petition seeking a writ of mandamus to the police to provide aid and protection to the petitioner to Writ Appeal No.1536 of 2021 ..10.. run his Hotel and Bar, the pointed question is as to whether the police have any duty, in a case of this nature, to afford the aid and protection sought for by the petitioner. 11. As noted, though there is no dispute between the parties to the fact that the Hotel and Bar referred to in the writ petition is one owned by the petitioner, the petitioner admits in the writ petition itself that he has entered into Ext.P1 agreement for sale of the same to the third respondent and received from him a sum of Rs.1.25 crores by way of advance sale consideration. The documents produced by the petitioner along with the writ petition, especially the caveats lodged by the petitioner against respondents 3 and 4, and respondents 3 and 4 against the petitioner, would show that there is a dispute between them as to who is in possession of the Hotel and Bar, for while the petitioner asserts in Ext.P2 caveat that he is in possession of the Hotel and Bar, respondents 3 and 4 assert in Ext.P3 caveat that they are in possession of the Hotel and Bar. 12. Be that as it may, in the counter affidavit filed in the matter, respondents 3 and 4 have asserted again that they are in possession of the Hotel and Bar ever since 11.4.2021. That apart, respondents 3 and 4 have asserted in Writ Appeal No.1536 of 2021 ..11.. the counter affidavit that if the sale price of the property agreed to be purchased by the petitioner from the fourth respondent and others is adjusted as agreed, no further amounts are payable by the third respondent to the petitioner in furtherance to Ext.P1 agreement for sale. There cannot be any doubt that the police cannot resolve the disputes between the parties, especially the dispute relating to possession. Disputes of this nature are essentially disputes to be resolved by a civil court of competent jurisdiction. The said position has been reiterated by this Court time and again. Paragraph 8 of the judgment of this Court in **Ajith Associates (Pvt) Ltd. v. Commissioner of Police, Ernakulam and Others** , 2016 (3) KHC 280, wherein the said proposition has been reiterated, reads thus : “8. It is trite that questions relating to title, possession, right to enjoy an immovable property, etc. are matters falling within the exclusive jurisdiction of Civil Courts. In a long line of decisions, this Court has held that such matters shall not be left to police for adjudication for very many reasons. Axiomatic is the proposition that no law enables the Police Officers to determine the disputed questions of civil rights. Right, title, interest, possession, etc. in respect of properties are matters to be determined by Civil Courts in appropriate proceedings. We are of the definite view that such matters shall not be relegated to Writ Appeal No.1536 of 2021 ..12.. police authorities for the following reasons. Firstly, they are not supposed to handle such matters unless there is any breach of peace, law and order situation or commission of an offence enabling them to enforce the law. Secondly, they do not have the expertise to determine vexed factual and legal questions relating to the civil rights of parties. Thirdly, if such matters are left to be determined by police authorities, it would result in meting out injustice, atleast to one of the parties, for obvious reasons.” If police cannot adjudicate the factual disputes between the parties, especially the disputes relating to possession of the Hotel and Bar, there is no question of failure of duty on their part. If that be so, no relief can be granted by this Court in a proceedings of the instant nature where reliefs are sought on the basis of possession. It is all the more so since respondents 3 and 4 have a case that the petitioner has intruded into their possession during the pendency of the writ petition, taking advantage of the interim order passed by this Court directing the police to maintain law and order. In other words, the learned Single Judge ought to have dismissed the writ petition in limine. 13. As pointed out by the learned counsel for petitioner, this Court did not grant the protection sought by the petitioner to run the Hotel and Bar. But, the finding rendered Writ Appeal No.1536 of 2021 ..13.. by the learned Single Judge in paragraph 7 of the writ petition that the petitioner is now in the possession of the Hotel and Bar, though respondents 3 and 4 would contend that the same was illegally obtained by the petitioner, and the direction issued to the police to afford protection to the lives of the petitioner and his employees in the Bar, would certainly give an indication that the direction issued in the judgment is to enable the petitioner to run the Hotel and Bar. The said direction, according to us, would certainly affect a fair adjudication of the disputes between the parties before the civil court. In the said view of the matter, the writ appeal is allowed, the impugned judgment is set aside and the writ petition is dismissed. **Sd/P.B.SURESH KUMAR, JUDGE.** **Sd/C.S.SUDHA, JUDGE.** ds 02.12.2021