IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 WP(C).No. 25536 of 2011(N) --------------------------------------- PETITIONER: ------------------- ABDULLA SHAFI PERIYA, S/O. LATE P.MOHAMMED KUNHI, AGED 38 YEARS, BUSINESS, RESIDING AT PERIYA CEMENT AGENCIES BUILDING, PERIYA VILLAGE, PERIYA BAZAR, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SMT.RUKHIYABI MOHAMMED KUNHI. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DISTRICT SUPERINTENDENT OF POLICE, KASARAGOD DISTRICT, CIVIL STATION, KASARAGOD, PIN-671 121. 3. THE STATION HOUSE OFFICER, BEKAL POLICE STATION, BEKAL, HOSDURG TALUK, KASARAGOD DISTRICT, PIN -671 121. 4. ABDURAHIMAN PERIYA, S/O. LATE P.MOHAMMED KUNHI, AGED 48 YEARS, BUSINESS, RESIDING AT HOUSE NO.P.P.W. XIV 75, PERIYA VILLAGE, PERIYA BAZAR, HOSDURG TALUK, KASARAGOD DISTRICT, PIN -671 121. 5. ABDUL LATHEEF. P., S/O. LATE P.MOHAMMED KUNHI, AGED 41 YEARS, BUSINESS, RESIDING AT HOUSE NO.P.P.W. XIV 73, PERIYA VILLAGE, PERIYA BAZAR, HOSDURG TALUK, KASARAGOD DISTRICT, PIN-671 121. W.P.(C).NO.25536/2011-N: 6. JUNAID, S/O. SAFIYA PERIYA, AGED 22 YEARS, BUSINESS, RESIDING AT HOUSE NO.P.P.W. XIV 75, PERIYA VILLAGE, PERIYA BAZAR, HOSDURG TALUK, KASARAGOD DISTRICT-671 121. R1 TO R3 BY GOVT. PLEADER SMT. C.M. CHARISMA, R4 TO R6 BY ADV. SRI.T.MADHU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.25536/2011-N: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE CERTIFICATE OF REGN. UNDER KVAT FOR CONDUCTING CEMENT BUSINESS DTD. 21/05/2007. EXT.P.2: COPY OF THE RECEIPT FOR LICENCE FEE ISSUED BY PULLOOR - PERIYA PANCHAYATH DTD. 05/09/2011. EXT.P.3: COPY OF THE PETITION FILED BEFORE THE R.3. DTD. 20/09/2011. EXT.P.4: COPY OF THE RECEIPT FOR EXT.P.3. EXT.P.5: COPY OF THE PETITION FILED BEFORE R.2. DTD. 20/09/2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE Prv. PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- WP(C). No. 25536 of 2011 ----------------------------------------------- Dated this the 3rd day of October, 2011 J U D G M E N T Abdul Rehim, J. Petitioner is conducting business under the name and style 'Periya Cement Agencies' at Periya Bazar in Hosdurg Taluk of Kasaragod District. According to the petitioner, when he was abroad in connection with employment, his father was conducting the business as power of attorney holder. After the death of his father, petitioner took over the business and is conducting the same. The building in which the business is conducted stands in the name of the deceased father and the petitioner is one among the co- owners of the building along with other legal heirs of the deceased father. The respondents 4 and 5 are the brothers of the petitioner and the 6th respondent is his sister's son. Averments in the writ petition reveals that there exists dispute between the petitioner and the party respondents WP(C).25536/11 -2- regarding partition of the properties belonging to the deceased father. Grievance voiced in this writ petition is that, under the guise of such dispute the respondents 4 to 6 are now creating physical obstructions to the conduct of the business of the petitioner. According to the petitioner, inspite of submitting Exts. P3 and P5 the respondents 2 and 3 are not taking any effective steps to remove such obstructions and to afford protection. Hence this writ petition is filed. 2. Respondents 4 to 6 entered appearance through counsel and filed counter affidavit. To a specific question posed, it is answered by learned counsel for respondents 4 to 6 that the business is in question belongs to the petitioner, even though it is conducted in a building belonging to the deceased father. It is further answered that the respondents 4 to 6 have no intention to cause any sort of obstructions to the business activities. WP(C).25536/11 -3- 3. Smt. C.M. Charisma, learned Government Pleader, on the basis of instructions received from the 3rd respondent submitted that, the dispute between the parties pertains to partition of property belonging to their common ancestor. It is stated that on receipt of complaint lodged by the petitioner, the parties were advised to resort to appropriate civil remedy before competent court and that the parties were advised not to create any breach of peace or violence. 4. From the facts and circumstances as narrated above and the submissions made by either side, we are of the opinion that the parties should resort to appropriate civil remedy for partition of the common property by approaching competent civil court. At any rate, the dispute cannot be permitted to lead to a situation where breach of peace or violence takes place. 5. Therefore we direct the 3rd respondent to keep vigil WP(C).25536/11 -4- over the situation and to ensure that no breach of peace or violence is created out of the dispute in question between the petitioner and the party respondents. It is also to be ensured that the petitioner is permitted to conduct the business in a peaceful manner, without being obstructed in any manner by the respondents 4 to 6 or anybody claiming under them. Necessary steps in this regard shall be taken if intimation is received regarding any physical obstruction caused, forthwith. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) ksv/-