Asokan Vasu vs The Rural Superintendent Of ...
2021 Latest Caselaw 20604 Ker

               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

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

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

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

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

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

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