IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 WP(C).No. 24903 of 2010(K) -------------------------- PETITIONER(S): --------------- MUHAMMED RIYAS, AGED 33, S/O.MUHAMMED RAWTHER, MAIN ROAD, UTHAMAPALAYAM TOWN, THENNI, TAMIL NADU. BY ADV. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH RESPONDENT(S): --------------- 1. SUB INSPECTOR OF POLICE, KUMILY 685509 2. CIRCLE INSPECTOR OF POLICE, KUMILY 685 509. 3. JOHN JOSEPH, S/O.JOSEPH, VALIPLAKKAL HOUSE (JJ BUILDINGS) KALEKETTY PO, KANJIRAPALLY TALUK 686508 4. LALY JOHN, W/O.JOHN JOSEPH, VALIPLAKKAL HOUSE (JJ BUILDINGS) KALEKETTY PO, KANJIRAPALLY TALUK 686508 5. P.D.JOSEPH, S/O.DEVASIA, PULIMOOTTIL HOUSE, ELAMPALLY KARA, ANILLAD VILLAGE, KOTTAYAM TALUK 686 503 6. JOSE MATHEW, S/O.MATHEW, EDAYODI HOUSE, KOCHUMULLAKKANAM KARA, RAJAKKAD VILLAGE 685 666 7. ELSY JOSE, W/O. JOSE MATHEW EDAYODI HOUSE, KOCHUMULLAKKANAM KARA, RAJAKKAD VILLAGE 685 666 ADV. SRI.T.A.UNNIKRISHNAN FOR R3 SRI.P.P.BIJU FOR R3 R1 & R2 by Govt. Pleader sri.T.K.Vipindas. HIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer & C.T.Ravikumar, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - I.A.No. 9397 of 2010 in WP(C).No.20081 of 2009 & WP(C).No.24903 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of August, 2010 Judgment Basheer, J: These proceedings are a classic example of how orders passed by this Court granting Police protection is being misused, either wittingly or unwittingly. 2. The main contestants are hereinafter referred to as petitioner and respondent, for the sake of convenience. 3. WP(C).No.20081 of 2009 was instituted by the petitioner on July 15, 2009 with a prayer to issue a writ in the nature of mandamus or such other appropriate writ, order or direction to respondents 1 and 2, viz., the Sub Inspector and Circle Inspector of Police, Kumily respectively, to afford sufficient and meaningful protection to him and his workers for their life and property as against respondents 3 and 4. 4. It may at once be noticed that respondent was also impleaded in the said writ petition as respondent No.5. However no relief was sought against him and no specific IA.9397/10 in WP.20081/2009 & WPC.24903/10. 2 allegation of any unlawful act by him was also alleged. 5. When the above writ petition came up for consideration before the Bench on November 10, 2009 an interim direction was issued to respondent No.1, the Sub Inspector of Police, to afford sufficient and meaningful protection to the life and property of the petitioner and his workers against any unlawful action of respondents 3 and 4. Subsequently the writ petition was disposed of by judgment dated November 13, 2009 making the interim order absolute. However it was made clear that the judgment shall not be taken and understood as determination of any of the civil rights of the parties since they are issues to be settled before the civil court. 6. Later the respondent filed a Review Petition contending that the petitioner may misuse the order issued by this Court in the writ petition as against him. The apprehension of the respondent was that on the strength of the judgment, he may be thrown out of the property of which he is in exclusive possession. The Review Petition was disposed of by order dated June 8, 2010 making it clear that the right of the review petitioner, if any, would not be affected by the judgment, and the issues if any relating to those rights have to be settled only through a civil court. IA.9397/10 in WP.20081/2009 & WPC.24903/10. 3 7. Before we deal with the subsequent developments that unfurled, the short history which led to these litigations may be briefly noticed. 8. Petitioner, along with other co-owners had admittedly entered into an agreement for sale of 14.50 acres of cardamom plantation to the respondent on August 8, 2008 for a total consideration of Rs.1,01,50,000/- (Rs. One Crore One Lakh and Fifty Thousand only). A sum of Rs.11,10,000/- was paid as advance on the day of execution of the agreement.However it is the admitted position that some dispute arose between the parties. Mediation followed. Later, a fresh agreement was executed on August 3, 2009. It was agreed that a total consideration of Rs.1,11,50,000/- ( Rs. One Crore Eleven Lakhs and Fifty Thousand) at the rate of Rs.7 lakhs per acre shall be paid by the respondent to the petitioner towards sale consideration. To make a long story short, it is admitted by the petitioner himself that he received a total sum of Rs.1,15,61,154/- (Rs. One Crore Fifteen Lakhs Sixty One Thousand One Hundred and Fifty Four only) directly and through Bank, towards the sale consideration. In other words, it is the admitted position that the petitioner has till date received Rs.4,11,154/- over and above the sale IA.9397/10 in WP.20081/2009 & WPC.24903/10. 4 consideration agreed upon. 9. But according to the petitioner, the respondent had not made the payments within the time stipulated and thus he has incurred heavy loss in the transaction. The further case of the petitioner is that he was constrained to file the writ petition (WP.20081/2009) because respondents 3 and 4 named in the said writ petition had tried to cause obstruction to his peaceful enjoyment of the property at the behest of the respondent. As mentioned earlier, the above writ petition was disposed of by this Court making it clear that the judgment shall not be taken and understood as a final adjudication of any of the civil rights of the parties and the disputes shall have to be settled before a civil court. 10. After the disposal of the above writ petition, the present Interlocutory Application was filed by the Circle Inspector and Sub Inspector of Police, Kumily seeking certain clarifications. In this petition the Circle Inspector has stated that the averment made by the petitioner in the writ petition that his wife, sister and brothers-in-law are joint owners of 15.07 acres of cardamom plantation is not entirely correct. Petitioner owns only 1.12 acres, his wife owns 01.1879 hectares and his sister and brothers-in-law own still lesser extents. In short, the Officer has asserted in the IA.9397/10 in WP.20081/2009 & WPC.24903/10. 5 application that these so called owners do not own the lands jointly and they are in fact separate and distinct plots. A copy of the certificate issued by the Village Officer on June 24, 2009 has been produced along with the application and marked as Ext.R1(a). According to the Officer the respondent herein had been put in possession of the property pursuant to a sale agreement dated August 3, 2009 (which has been referred to by us earlier) and that the petitioner is causing obstruction to his possession on the strength of the judgment of this Court in W.P.No. 20081/2009 affording him police protection. The Officer therefore prayed for necessary clarification since, according to him, the situation was likely to develop into a law and order problem. 11. When this Interlocutory Application came up for consideration before us on August 11, 2010, it was brought to our notice that the respondent has instituted WP.No.24903/2010 seeking Police protection for his life and property, apart from his workers against the illegal actions of respondents 3 to 7 who are the petitioner, his wife, brothers- in-law etc. The Officer who was present in Court informed us that the situation in that area is really volatile and there is every likelihood of a breach of peace because of involvement of two groups of people who have gathered IA.9397/10 in WP.20081/2009 & WPC.24903/10. 6 there supporting the two persons. Keeping in view the submissions made by the Police Officer we directed that both sides shall not be permitted to enter the property for the time being and that the Police shall provide adequate protection to prevent any loss or damage to the property. The writ petition filed by the respondent was also tagged on to the earlier case. 12. Today when the two cases are taken up for consideration, we have elaborately heard learned counsel for the parties. 13. As has been noticed already, the petitioner has admitted that he has received Rs.1,15,61,154/- towards sale consideration from the respondent as against the amount of Rs.1,11,50,000/- agreed to be paid in the sale agreement. In other words he admits that he has received an amount of Rs.4,11,154/- in excess of the sale consideration. The case of the respondent is that pursuant to the payment made by him he was put in possession of the property with the promise that a registered assignment deed will be executed very soon. But according to him, the petitioner and his other relatives and supporters started causing obstruction to his peaceful possession and enjoyment of the property, particularly on the strength of the judgment in W.P.No.20081/09. IA.9397/10 in WP.20081/2009 & WPC.24903/10. 7 14. The respondent has filed W.P.No.24903/2010 on August 6, 2010 alleging inaction on the part of the Police. The Circle Inspector of Police who is present in Court is apparently in a “predicament” as stated by him because he submits that writ petitioner has obtained an order from this Court which directs the Police to afford protection to him and his workers to enjoy the property. 15. Learned Government Pleader submits that the respondent, who was found to be in possession , had approached the Superintendent of Police on June 17, 2010 complaining that the writ petitioner and his workers were causing obstruction to his peaceful enjoyment of the property in respect of which he had paid the entire sale consideration consequent to which he was put in possession also. Three days prior to this viz., on June 14, 2010, the petitioner had also approached the Superintendent of Police alleging failure on the part of the Police to comply with the direction issued by this Court in the judgment in WP.20081/2009. 16. Learned counsel for the petitioner submits that the respondent is not entitled to get possession of the property nor has he ever been put in possession as alleged by him. He invites our attention to Section 53A of the Transfer of Property Act and also Section 17 of the Registration Act. It is IA.9397/10 in WP.20081/2009 & WPC.24903/10. 8 contended by the learned counsel that the respondent can never aspire to get possession unless and until a registered conveyance is executed by the petitioner in his favour. It is also the case of the petitioner that Section 53A of the Transfer of Property Act will disentitle the respondent to get any relief from this Court in exercise of its power under Article 226 of the Constitution. The respondent has to necessarily approach the civil court and get the conveyance executed in his favour through the process of law. It is the further contended that the respondent has not obtained any legal right, since the agreement executed between him and the writ petitioner was unregistered. Therefore no legal right has flowed by virtue of the said agreement. 17. We do not propose to express any view or make any observation on the above contention at this stage. Suffice it to say that the law will have to necessarily take its own course. However, we reiterate the observation made by this Court in the judgment in WP.No.20081/2009 as early as on November 13, 2009 that the determination of the civil rights of the parties and other issues will have to be settled before the appropriate civil court. At the time of institution of the above writ petition petitioner admitted that he had received Rs.65.50 lakhs from the respondent. IA.9397/10 in WP.20081/2009 & WPC.24903/10. 9 18. The above Writ Petition was filed on July 15, 2009. Indisputably, the fresh agreement referred to earlier was executed between the parties on August 3, 2009 during the pendency of the above Writ Petition. Pursuant to the said agreement, the petitioner had received not only the entire sale consideration but also a sum of Rs.4,11,154/- in excess of the same. Respondent No.5 had not entered appearance in the said Writ Petition though he was served with notice. But the petitioner had not revealed the factum of execution of a fresh agreement with respondent No.5 at the time when the Writ Petition was disposed of by this Court. 19. But there is yet another aspect of the matter. The case of the respondent is that he had been put in possession of the property by the petitioner on receipt of Rs.1,15,61,154/- from him. According to him he was assured while being put in possession that the document of conveyance will be executed very soon. According to him he had taken possession and his workers were deployed in the property. The Circle Inspector of Police who appeared before us has also stated that the respondent was in possession and his workers had been carrying out work in the estate till he was dispossessed. IA.9397/10 in WP.20081/2009 & WPC.24903/10. 10 20. Learned Govt.Pleader still maintains that till June 16, 2010 the respondent was found in possession of the estate, though on that day on receipt of the complaint from the petitioner on June 14, 2010, the respondent and his workers were sent out of the property. Therefore there is material available on record that the respondent was in possession of the property till June 16, 2010. Thereafter he has been dispossessed. 21. At the risk of repetition, we may state that the petitioner has admittedly received the entire sale consideration, if not more. In that view of the matter, we are satisfied that in exercise of the power conferred on this Court under Article 226 of the Constitution of India the Police has to be directed to maintain status quo ante as on June 16, 2010 and put the respondent in possession of the property. We do so. We hasten to add that this order is only by way of an interim arrangement till such time a civil court passes appropriate orders. 22. Coming to the prayer made in W.P.No.24903/2010 for police protection, we are satisfied that the respondent is entitled to get the relief prayed for. Ordered accordingly. Respondents 1 and 2 shall ensure that adequate protection is afforded to the respondent and his workers to keep IA.9397/10 in WP.20081/2009 & WPC.24903/10. 11 possession and deal with the property peacefully and without any interference and obstruction from the petitioner, his men, supporters etc. The Writ Petition and the Interlocutory Application are disposed of in the above terms. A.K. Basheer Judge. C.T. Ravikumar Judge. an.