Seena Mathew vs The State Of Kerala
2023 Latest Caselaw 3365 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                               &
            THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN

     FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
                       WA NO. 644 OF 2023
AGAINST THE JUDGMENT DATED 16.01.2023 IN WP(C) 38693/2022 OF HIGH
                         COURT OF KERALA

APPELLANTS/PETITIONERS :-

    1     SEENA MATHEW, AGED 44 YEARS
          W/O C.K. PRAKASHAN, CHERIYA NANTHANATH, MAYANAD,
          CHELAVOOR VILLAGE, KOZHIKODE TALUK,
          KOZHIKODE DISTRICT, PIN-673 008 (FROM AMRUTHAM,
          KAMMANA PARAMBIL, P.O. MAYANAD, KOZHIKODE
          DISTRICT)., PIN - 673008
    2     DHARMARAJAN V.K., AGED 65 YEARS, S/O CHOYIKKUTTY,
          VAPUNGARA, KUTTIKKATTOOR VILLAGE, KOZHIKODE TALUK,
          KOZHIKODE DISTRICT, PIN - 673008.
    3     PRAKASHAN C.K., AGED 52 YEARS, S/O GOPALAN, PUNATHIL
          MEETHAL, P.O. VELLIPARAMBA, KOZHIKODE DISTRICT.,
          PIN - 673008.
    4     DHEERAJ, AGED 32 YEARS, S/O DHARMARAJAN V.K,
          VAPUNGARA, KUTTIKKATTOOR VILLAGE, KOZHIKODE TALUK,
          KOZHIKODE DISTRICT, PIN - 673008.
          BY ADVS.
          V.N.SANKARJEE
          V.N.MADHUSUDANAN
          R.UDAYA JYOTHI
          M.M.VINOD
          M.SUSEELA
          KEERTHI B. CHANDRAN
          VIJAYAN PILLAI P.K.
          C.PURUSHOTHAMAN NAIR
          NITHEESH.M
          SUKANYA S.
RESPONDENTS/RESPONDENTS :-

    1     THE STATE OF KERALA
          REPRESENTED BY HOME SECRETARY, GOVERNMENT
          SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, KERALA,
          PIN - 695001
    2     THE DIRECTOR GENERAL OF POLICE
          STATE POLICE HEADQUARTERS, VELLAYAMBALAM, CITY-
          THIRUVANANTHAPURAM DISTRICT., PIN - 695010.
    3     THE DISTRICT POLICE CHIEF
          OFFICE OF THE DISTRICT POLICE CHIEF,
          PAVAMANI ROAD, TAZHAKKOD, KOZHIKODE DISTRICT.,
          PIN - 673004.
 Writ Appeal No.644/2023
                                   - 2 -


     4       THE CITY POLICE COMMISSIONER
             CITY POLICE COMMISSIONERATE, MANANCHIRA, KOZHIKODE
             DISTRICT, KERALA., PIN - 673001.
     5       THE ASSISTANT COMMISSIONER OF POLICE (NORTH),
             ASSISTANT COMMISSIONERATE, NADAKKAVU, KOZHIKODE
             DISTRICT, KERALA, PIN - 673001.
     6       THE STATION HOUSE OFFICER
             MEDICAL COLLEGE POLICE STATION, MEDICAL COLLEGE
             ENTRANCE ROAD, VELLIPARAMBA, KOZHIKODE DISTRICT,
             KERALA, PIN - 673008.
     7       SUDARSHANAN, AGED 50 YEARS
             FATHER'S NAME NOT KNOWN TO THE APPELLANTS, ASSISTANT
             POLICE COMMISSIONER (NORTH), NADAKKAVU, KOZHIKODE
             DISTRICT, KERALA,, PIN - 673001.
     8       BENNY LALU, AGED 50 YEARS
             FATHER'S NAME NOT KNOWN TO THE APPELLANTS, CIRCLE
             INSPECTOR OF POLICE, MEDICAL COLLEGE POLICE STATION,
             KOZHIKODE DISTRICT, KERALA, PIN - 673008.
     9       ANU S. NAIR, AGED 50 YEARS
             FATHER'S NAME NOT KNOWN TO THE APPELLANTS, AGED
             ABOUT 50, PROBATIONARY SUB INSPECTOR OF POLICE,
             MEDICAL COLLEGE POLICE STATION, KOZHIKODE DISTRICT,
             KERALA, PIN - 673008.
    10       THE SECRETARY
             KOZHIKODE MUNICIPAL CORPORATION, KOZHIKODE DISTRICT,
             PIN - 673032.
    11       BRIJILA T.P., AGED 36 YEARS
             D/O RAJAN, JASSVI HOUSE, GURUVAYOORAPPAN COLLEGE
             P.O., PANTHEERANKAVU, KOZHIKODE DISTRICT, PIN -
             673014
    12       REGI JOSEPH, AGED 52 YEARS
             S/O JOSEPH, OTTAPLAKKAL HOUSE, P.O. KOORACHUNDU,
             KOORACHUNDU VILLAGE, ATHYODI DESOM, KOYILANDY TALUK,
             KOZHIKODE DISTRICT, PIN - 673527.
    13       SELINE E., AGED 47 YEARS
             W/O REGI JOSEPH, OTTAPLAKKAL HOUSE, P.O.
             KOORACHUNDU, KOORACHUNDU VILLAGE, ATHYODI DESOM,
             KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673527.

             BY SRI.SHAJAHAN T.K, SR.GP
                SRI.V.KRISHNA MENON, SC
                NIRMAL S



      THIS    WRIT   APPEAL   HAVING   COME   UP   FOR   ADMISSION   ON
24.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Writ Appeal No.644/2023
                                      - 3 -



     K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
      -----------------------------------------------------------
                Writ Appeal No. 644 of 2023
       ---------------------------------------------------------
          Dated this the 24th day of March, 2023

                               JUDGMENT

K.Vinod Chandran, J.

The appeal is by the writ petitioners, who claimed that

at the instance of the landlord, the Police are

perpetrating harassment on them, thus effectively

hampering the business conducted in the building

bearing Door Nos.605-C, 605-C1, 605-C2, 605-C3 &

605-C4 of the Corporation of Kozhikode. Respondents 2

to 9, Police Officers by name have been impleaded and

are accused of having acted beyond their authority to

favour respondents 11 to 13.

2. The learned Single Judge rejected the prayer

finding that though the petitioners seek peaceful

conduct of business in all the premises having Door

Nos.605-C to 605-C4, they are admittedly not in Writ Appeal No.644/2023

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possession of the entire shop rooms, especially when

they have filed a suit for restoration of possession. It

was also found that the licence held by the petitioners

were cancelled as per Ext.P16 against which a writ

petition is pending before this Court. The learned

Single Judge found that the petitioners cannot seek an

order of mandatory injunction for recovery of possession

in a writ petition under Article 226 of the Constitution of

India and the question whether the petitioners are

entitled to the possession of the ground and first floors

of the building can be ascertained only after taking

evidence.

3. Admittedly, petitioners 1 to 3 and one

P.P.Mukundan had entered into an oral tenancy

agreement with the 11th respondent and were also

carrying on their business in the property with the

consent of the landlord and the licence issued by the

Corporation. It is not very clear as to the number of

rooms actually entrusted with the petitioners which we

would not venture to decide in this writ appeal. Writ Appeal No.644/2023

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However, what is very clear is that a suit for restoration

of possession has been filed by the tenants which is

exhibited as Ext.R13(f), wherein two shop rooms one in

the second floor and one in the third floor of the

building are sought to be restored. Definitely the

tenants/appellants are not in possession of these rooms

and it is the contention of the landlords that the said

rooms were entrusted to the respondents 12 & 13

where they are carrying on their business.

4. The petitioners, claim that they were carrying

on their businesses of a vegetable vending and a tea

shop on the ground floor and the first floor. There were

disputes with respect to the renewal of the license

pending before the Corporation. The present landlords,

respondents 12 and 13, who are assigned the property

by the 11th respondent claimed that the renewal of

license was obtained after forging the signature of the

11th respondent. The order of the Corporation was

challenged by the tenants before this Court, in which

Ext.P15 order was passed directing the Corporation to Writ Appeal No.644/2023

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consider and pass orders with notice to the tenants as

well as the landlords. A writ petition was filed by the

landlords alleging forgery which too was disposed of by

Ext.P17, wherein also similar direction was issued to the

Corporation to consider the same. In compliance of the

judgments of this Court, the Corporation issued notice

to the tenants and the landlords, heard them and passed

Ext.P16 order cancelling the license issued to the

tenants. As of now, a Writ Petition is filed against the

cancellation in which Ext.P20 order has been passed

staying Ext.P16 cancellation.

5. In the interregnum on information of a law and

order situation having arisen for reason of the disputes

between the tenants and the landlords, the Police came

to the scene and closed down both the shops of the

tenants/petitioners. The learned Government Pleader

submits that it was only to avert the friction between

the parties; who threatened to go physical, that the

same was done and that the keys are with the Police.

The learned Government Pleader submits that the keys Writ Appeal No.644/2023

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would be handed over back to the tenants/petitioners, if

the Court so orders.

6. We cannot but notice that the learned Single

Judge omitted to reckon the stay order passed by this

Court as seen from Ext.P20, which in effect permits

further conduct of the business by the tenants on the

strength of the license. The tenants, if at all, as of now

are in possession of only two shop rooms one on the

ground floor and one on the first floor. Though the

injunction order has not been produced, there is stated

to be an order in O.S.No.184/2021 (Ext.P11), wherein an

injunction has been obtained against Prakashan C.K, the

3rd appellant herein from interfering with the business

conducted by the respondents 12 and 13, which

business is conducted in those shop rooms which are

sought to be restored in the suit filed by the tenants

(Ext.R13(f)). There is also said to be a criminal

complaint filed by the landlords pending before the

Judicial First Class Magistrate Court, Kunnamangalam.

7. We do not intend to enter into any such Writ Appeal No.644/2023

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controversies which are now pending before the Civil

Court and the Criminal Court. We would also not make

any observation on merits regarding the subject matter

of the pending Writ Petition, W.P.(C) No.38096/2022, in

which as of now Ext.P20 order is passed. The

tenants/the appellants herein claim to have been in

occupation of two shop rooms one on the ground floor

and the other on the first floor, now locked by the Police;

which the respondent's landlords claim, had been

abandoned by the tenants and even the electric

connection is dismantled. The learned Government

Pleader on instruction submits that the

tenants/appellants herein, were in possession when the

rooms were locked by the Police. As of now, Ext.P20

order staying cancellation of license ordered by the

Corporation is also in force. In such circumstances, we

direct the Police to hand over the keys of the two shop

rooms aforementioned, one on the ground floor and

other on the first floor (Room No.605-C & 605-C1) to the

tenants/appellants. We also direct the Police to ensure Writ Appeal No.644/2023

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that neither the tenants/appellants interfere with the

businesses conducted by the respondents 12 and 13, nor

the respondents 11 to 13 interfere with the business

conducted by the tenants/appellants in the specified

rooms. The Police shall ensure that they cause no

interference to the separate possession unless directed

by a competent court or a law and order situation

arises. We make it clear that we have not made any

observation regarding the possession, abandonment or

conduct of business of both the parties, since those are

pending consideration before various forums. The

parties shall abide by the orders passed by the Civil

Court and this Court in the pending Writ Petition.

The appeal stands disposed of, leaving the parties

to suffer their respective costs.

Sd/-

K.VINOD CHANDRAN, JUDGE

Sd/-

C.JAYACHANDRAN, JUDGE

SMA