Albert Augustine K.J vs State Of Kerala
2021 Latest Caselaw 15905 Ker

WP(C) NO. 12392 OF 2021        1

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
        MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
                        WP(C) NO. 12392 OF 2021
PETITIONER/S:

            ALBERT AUGUSTINE K.J.,
            AGED 73 YEARS,
            S/O. JOSEPH, PENSIONER, HOUSE NO. XII/642, IN KOTTAPADY
            GRAMA PANCHAYATH, KOTHAMANGALAM TALUK, ERNAKULAM
            DISTRICT 686 692.

            BY ADV LIJOY P.VARGHESE



RESPONDENT/S:

    1       STATE OF KERALA
            REP. BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM 695 001.

    2       THE SUB INSPECTOR OF POLICE,
            KOTTAPPADY POLICE STATION, KOTTAPADY GRAMA PANCHAYATH,
            KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 692.

    3       THE SUPERINTENDENT OF POLICE,
            ERNAKULAM (RURAL), POWER HOUSE JUNCTION, SUB JAIL ROAD,
            PERIYAR NAGAR, ALUVA, ERNAKULAM DISTRICT 683 101.

    4       SUB REGISTRAR,
            OFFICE OF THE SUB REGISTRAR, KOTHAMANGALAM, ERNAKULAM
            686 691.

    5       KOTTAPPADY SERVICE CO OPERATIVE BANK LTD., NO. E 155,
            REPRESENTED BY ITS SECRETARY, KOTTAPPADY 686 692.

    6       VALSALA THAMPAN,
            AGED 63 YEARS,
            W/O. LATE C.N. THAMPAN, CHERUVALLIPADY KOTTAPPADY GRAMA
            PANCHAYATH, KOTHAMANGALAM, TALUK, ERNAKULAM DISTRICT 686
            695.
 WP(C) NO. 12392 OF 2021      2

    7      BABU,
           AGED 41 YEARS,
           DRIVER,
           S/O. LATE C.N. THAMPAN, CHERUVALLIPADY KOTTAPPADY GRAMA
           PANCHAYATH, KOTHAMANGALAM, TALUK, ERNAKULAM DISTRICT 686
           695.

    8      BABY,
           AGED 39 YEARS,
           TEACHER,
           D/O. LATE C.N. THAMPAN, CHERUVALLIPADY KOTTAPPADY GRAMA
           PANCHAYATH, KOTHAMANGALAM, TALUK, ERNAKULAM DISTRICT 686
           695.

    9      BHAVANI THANKAPPAN,
           AGED ABOUT 70 YEARS,
           RELATIVE OF LATE C.N. THAMPAN, PARAMBY, KOTTAPPADY GRAMA
           PANCHAYATH, KOTHAMANGALAM, TALUK, ERNAKULAM DISTRICT 686
           695.




           SMT K AMMINIKUTTY, SR GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 12392 OF 2021              3

                                    JUDGMENT

This writ petition is filed seeking a direction to the respondents 1 to 3 to

afford adequate protection to the life and property of the petitioner and his

family and also to protect them from any forcible dispossession from House

No.XII/642 in Kottappadi Grama panchayat and for incidental reliefs.

2. The petitioner contends that late Sri. C.N.Thampan was the

owner of the building bearing No. XII/642 situated in 8 cents of property at

Kottappadi Village. He is stated to have agreed to sell the building along with

the property to the petitioner for a total consideration of Rs.10.75 lakhs. An

agreement was entered into on 24.5.2019 on which day, a sum of Rs.1001/-

was paid by way of advance. The balance amount was to be paid in two

instalments. According to the petitioner, late Sri. Thampan, undertook that

he would clear the dues to the bank and hand over the original records on or

before 30.4.2020. The possession of the property was handed over to the

petitioner and he has been residing there since then. The petitioner states

that the house was built under the EMS Housing Scheme and there is a

restriction in assigning the property for a period of ten years. These facts

were not brought to his notice when the agreement was entered into. On

receiving the said information, the petitioner instructed his bank to stop the

payment of the cheque issued by him for a sum of Rs.4 lakhs towards the

first instalment. He contends that the aforesaid Thampan and his men

attempted to forcibly dispossess the petitioner from the building by using

physical force. In the said circumstances, he approached this Court and

filed W.P.(C) No.9648/2020 seeking police protection. This court, by Ext.P1

judgment dated 18.1.2021, disposed of the writ petition after concluding that

the dispute was purely civil in nature and relegated the petitioner to

approach the civil court. The petitioner contends that Sri. Thampan expired

thereafter and his legal heirs and their men, the respondents 6 to 9 herein

have started creating problems. In the afore circumstances, the petitioner

submitted Exts.P3 to P5 complaints before the police. His grievance is that

no action has been taken. It is in the aforesaid circumstances that he has

approached this Court seeking directions.

3. I have heard Sri.Lijoy Parackal Varghese, the learned counsel

appearing for the petitioner and Smt. K. Amminikutty, the learned senior

Government Pleader.

4. I find that the very same contentions were raised by the

petitioner against late C.N.Thampan, the husband of the 6th respondent and

after hearing both sides as well as the learned Government Pleader, this

Court had relegated the parties to the civil court. It would be profitable to

extract paragraph Nos. 5 to 8 of the judgment.

'5. The learned counsel appearing for the petitioner submits that the

party respondent has no authority to dispossess the petitioner except as

per the procedure established by law.

6. Sri. Dinesh Mathew Murickan, the learned counsel appearing for the

party respondent submitted that the entire transactions are disputed by

the party respondent. According to the learned counsel, even according

to the petitioner, all that he has paid is Rs.1001/-. He would further

contend that the possession of the property has not been granted to the

petitioner. The agreement is not even registered and hence, the

petitioner cannot contend that the possession has been handed over.

Instead of approaching the Civil Court for establishing his rights, the

petitioner has approached this Court by narrating falsehood and has

secured an interim order, contends the learned counsel.

7. The learned Senior Government Pleader, on instructions, submitted

that the dispute has arisen pursuant to an alleged agreement for sale

entered into between the parties. He would contend that the parties be

relegated to the Civil Court for appropriate reliefs and the police may not

be ordered to interfere in such matters.

8. I have considered the submissions advanced. As rightly submitted by

the learned Government Pleader, the dispute between the petitioner and

the party respondent is purely a civil dispute and it is for the petitioner

to approach the jurisdictional Civil Court and establish his civil rights.

When the entire transactions are disputed, it would not be proper for

this Court to conclude that either the petitioner or the party respondent

is in possession of the property. In that view of the matter, reserving

the right of the petitioner to move the Civil Court, this writ petition is

disposed of. Needless to say, if any complaint is lodged alleging breach

of peace, its genuineness shall be ascertained and appropriate action

shall be taken by the 1st respondent.'

5. Except for arraying respondents 6 to 9 instead of late

C.N.Thampan, the very same contentions are raised in this writ petition.

Nowhere in the writ petition has it been stated that the petitioner has

approached the civil court for redressal of his grievance. This Court, after

considering all aspects, was not inclined to grant the relief sought for in the

previous occasion as the materials and records suggested that the dispute

was purely civil in nature. I find no reason to take a different view now.

This is a clear case of abuse of process of this Court. I refrain from imposing

exemplary costs in view of the fervent submissions of the learned counsel.

This writ petition will stand dismissed.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE ps

APPENDIX OF WP(C) 12392/2021

PETITIONER(S) EXHIBITS :

Exhibit P1 THE TRUE COPY OF THE JUDGMENT IN WPC NO.

9648/2020 (E) PASSED ON 18.01.2021.

Exhibit P2 THE TRUE COPY OF THE COMPLAINT FILED BEFORE THE IST CLASS MAGISTRATE, KURUPPAMPADY AS C.M.P. NO. 384/2021.

Exhibit P3 THE TRUE COPY OF THE COMPLAINT FILED BEFORE THE SUB INSPECTOR OF POLICE, KOTTAPADY POLICE STATION, DTD. 22.01.2020.

Exhibit P4 THE TRUE COPY OF THE COMPLAINT FILED BEFORE THE SUPERINTENDENT OF POLICE, ERNAKULAM, (RURAL) DTD. 05.02.2020.

Exhibit P5 THE TRUE COPY OF THE COMPLAINT FILED BEFORE THE INSPECTOR GENERAL OF POLICE, ERNAKULAM, RANGE, DTD. 28.02.2020.

Exhibit P6 THE TRUE COPY OF THE AGREEMENT FOR SALE ENTERED INTO BETWEEN THE PETITIONER AND THE 6TH RESPONDENT DTD. 24.05.2019.

RESPONDENT(S) EXHIBITS : NIL