IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
WP(C) NO. 14743 OF 2021
PETITIONER:
ASOKAN VASU,
AGED 71 YEARS
S/O. VASU, PRATHIBHAS, NAVAIKKULAM,
VAVAIKKULAM P.O. NAVAIKKULAM VILLAGE,
CHIRAYINKEEZHU TALUK,
THIRUVANANTHAPURAM DISTRICT.
BY ADV SYAM J SAM
RESPONDENTS:
1 THE RURAL SUPERINTENDENT OF POLICE
SP OFFICE KOLLAM, SP OFFICE KOTTARAKKARA,
KOLLAM, KERALA 691 506.
2 SHO OF POLICE,
CHADAYAMANGALAM POLICE STATION,
KOTTARAKKARA, KOLLAM, KERALA 691 506.
3 ANILKUMAR,
AGED 59 YEARS, S/O. KUNJIRAMAN,
RESIDING AT THODIYIL VEEDU,
KIZHAVOOR MUKHATHALA P.O.,
THAZHUTHALA VILLAGE,
KOLLAM TALUK, KOLLAM DISTRICT.
4 SUNILKUMAR,
AGED 50 YEARS,
S/O. DIVAKARAN,
RESIDING AT THRIPTHI,
PANKONAM CHERI, THRIKKOVILVATTOM VILLAGE,
KOLLAM TALUK, KOLLAM DISTRICT.
5 ADDL.R5. THE DEPUTY EXCISE COMMISSIONER,
KOLLAM
ADDITIONAL RESPONDENT NO.5 IS SUO MOTU IMPLEADED AS PER
THE ORDER DATED 27.08.2021 IN WP(C) 14743/2021(P)
BY ADVS.
T.SETHUMADHAVAN (SR.)
PREETHI. P.V.
M.V.BALAGOPAL
WP(C) NO. 14743 OF 2021
2
OTHER PRESENT:
SRI E C BINEESH - GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 14743 OF 2021
3
JUDGMENT
The petitioner claims to be running a Hotel and Bar, by name "Mangalathu Bar and Resort", at Chadayamangalam, and he concedes to have entered into Ext. P1 agreement with respondent 3, for sale of the same, for a total considerations of Rs.12 crores. The petitioner admits that, as is evident from Ext. P1, Rs. 1.25 crores was accepted by him as advance, but contends that, as per clause 6 of the said agreement, possession of the property and the building was agreed to be given to the respondents only on the payment of the entire sale consideration.
2. The petitioner says that he believed respondents 3 and 4 and therefore, even filed Ext. P3 application for transfer of the licence in their favour; but that they subsequently, defaulted their obligations under the agreement and refused to pay the balance sale price. The petitioner says that, in spite of this, respondents 3 and 4 now trying to trespass into the building, which forced him to approach the first respondent- Superintendent of Police, through Ext.P6, seeking protection. WP(C) NO. 14743 OF 2021 4 He alleges that, however, no action was taken thereon, thus constraining him to approach this Court through this writ petition.
3. Sri. T. Sethumadhavan, learned Senior Counsel, instructed by Smt. P.V. Preethi, appearing for respondents 3 and 4, contested the afore submissions made on behalf of the petitioner by his learned Counsel - Sri. Sreekumar Chelur, showing me that, through Ext.R3(H), his clients had put in possession of the building and premises as early as on 11/04/2021. He submitted that the writ petition was filed much later on 23/07/2021; but that when he obtained an interim order from this Court, he trespassed into the hotel with the help of the hired mercenaries on 02/09/2020. He added that his client, therefore, preferred Ext. R3(D) complaint before the Police, but alleges that no action was taken thereon until now. The learned Senior Counsel, therefore, prayed that this writ petition be dismissed, because the attempt of the petitioner is to obtain an order from this Court and illegally remain in possession of the property and building.
4. Sri. E. C. Bineesh, learned Government Pleader WP(C) NO. 14743 OF 2021 5 appearing for the respondents 1 and 2, submitted that police have no information as to if respondents 3 and 4 were in possession of the property at any point of time; but that the licence to run the Bar still remains in the name of the petitioner. He explained that, even though the petitioner had preferred Ext. R3 (D) application for transfer of licence in favour of respondents 3 and 4, same was withdrawn subsequently; and consequently that as of today, the Bar remains in his name. The learned Government Pleader then submitted that, in terms of the interim order of this Court, law and order has been maintained in the area where the petitioners' establishment is situated and that no one has been allowed to breach peace thereafter.
5. When I evaluate the afore said submissions, it is clear that, on one hand the petitioner says that he has always been in possession of the Hotel and its premises; while, on the other, respondents 3 and 4 asserts that they were put in possession of it by the petitioner on 11/04/2021, through Ext. R3(H). However, Sri. Sreekumar Chelur, learned Counsel for WP(C) NO. 14743 OF 2021 6 the petitioner, vehemently submits that Ext.R3(H) is strongly disputed and that the signature of his client shown therein was not affixed by him but has been forged.
6. It is therefore, without doubt that there is severe disputation of facts between the parties with respect to the validity and genuineness of Ext.R3 (H); and consequently, this Court cannot act upon it or speak on its merits, on account of the inherent limitation in the jurisdiction of this Court, while acting under Article 226 of the Constitution of India.
7. As matters now stand, respondents 3 and 4 concede that petitioner is in possession of the Hotel and premises, though they say that it was taken illegally obtained by him, using force on 02/09/2021. However, this is not a fact that this Court can verify or adjudicate on its merits for the reasons as already recorded above.
In the afore circumstances, I direct respondents 1 and 2 to ensure that law and order is maintained in the area where the petitioners' Hotel and Bar is situated. And that he and his WP(C) NO. 14743 OF 2021 7 employees are afforded effective and adequate protection to their lives, from all threats and intimidation from any person, including respondents 3 and 4 or their men or associates.
Needless to say, the respondents 3 and 4 are given full liberty to invoke and pursue all their remedies against the petitioner before the competent Court or Forum; for which purpose, I leave open all the rival contentions, including as regards the validity of Ext. R3 (H).
This writ petition is thus ordered.
Sd/-
DEVAN RAMACHANDRAN JUDGE ANB WP(C) NO. 14743 OF 2021 8 APPENDIX OF WP(C) 14743/2021 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE AGREEMENT DATED 16.2.2021 EXECUTED BY THE PETITIONER AND THE THIRD RESPONDENT.
Exhibit P2 THE TRUE COPY OF THE CAVEAT FILED BY THE PETITIONER DATED 25.06.2021 BEFORE THE MUNSIFF COURT, KOTTARAKARA.
Exhibit P3 THE TRUE COPY OF THE PETITION IN CAVEAT OP
64/2021 BEFORE THE MUNSIFF COURT,
KOTTARAKARA.
Exhibit P4 THE TRUE COPY LICENSE ISSUED TO THE
PETITIONER FL3-KLM-42/2018-19.
Exhibit P5 THE TRUE COPY OF THE LICENSE RENEWAL DATED
31.3.2021 ISSUED TO THE PETITIONER.
Exhibit P6 THE TRUE COPY OF THE REPRESENTATION GIVEN
TO THE FIRST RESPONDENT DATED 25.6.2021. Exhibit P7 THE TRUE COPY OF THE RECEIPT ISSUED BY THE FIRST RESPONDENT DATED 25.6.2021.
Exhibit P8 THE TRUE COPY OF THE DISCHARGE SUMMARY DATED 5.4.2021 FROM THE SREE NARAYANA MEDICAL MISSION HOSPITAL, VARKALA Exhibit P9 THE TRUE COPY OF THE EMAIL SEND BY THE PETITIONER BEFORE THE EXCISE COMMISSIONER Exhibit P10 THE TRUE COPY OF THE LETTER GIVEN BY THE PETITIONER BEFORE THE EXCISE CIRCLE INSPECTOR, KOTTARAKARA DATED 1.9.2021 Exhibit P11 THE TRUE COPY OF THE BILL DATED 8-9-2021 ISSUED BY THE KSB (M&M) CORPORATION LTD TO THE PETITIONER WP(C) NO. 14743 OF 2021 9 RESPONDENT EXHIBITS Exhibit R3(a) TRUE COPY OF THE POSSESSION NOTICE DATED 25/10/2016.
Exhibit R3(b) TRUE COPY OF THE AGREEMENT DATED 26/03/2021 EXECUTED ON 28/03/2021.
Exhibit R3(c) TRUE COPY OF THE AGREEMENT DATED 27/03/2021 EXECUTED ON 28/03/2021.
Exhibit R3(d) TRUE COPY OF THE LETTER ALONG WITH THE AFFIDAVIT SUBMITTED BY THE PETITIONER DATED 23/03/2021.
Exhibit R3(e) TRUE COPY OF THE CERTIFICATE ISSUED BY THE WELFARE FUND INSPECTOR, ABKARI EMPLOYEES WELFARE FUND BOARD DATED 25/03/2021. Exhibit R3(f) TRUE COPY OF THE RECEIPT ISSUED BY THE CHADAYAMANGALAM GRAMA PANCHAYATH DATED 10/03/2021 WITH RESPECT TO BUILDING NO.626.
Exhibit R3(g) TRUE COPY OF THE RECEIPT ISSUED BY THE CHADAYAMANGALAM GRAMA PANCHAYATH DATED 10/03/2021 WITH RESPECT TO BUILDING NO.627.
Exhibit R3(h) TRUE COPY OF THE STATEMENT OF STOCK TAKEN ON 11/04/2021.
Exhibit R3(i) TRUE COPY OF THE LAWYER NOTICE ISSUED ON BEHALF OF RESPONDENTS DATED 06/08/2021. Exhibit R3(j) TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 2nd RESPONDENT DATED 02.09.2021