IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 WP(C).No. 17084 of 2011(I) -------------------------------------- PETITIONER(S): ------------------------ 1. NISSAR AHAMMED, S/O.ABOOBAKKER, AGED 44 YEARS, SAMSAM NAGAR-59, THOPPIL HOUSE, KAYYALAYKAL CHERI, ERAVIPURAM, KOLLAM. 2. KAMALUDEEN.A., S/O.ABDUL KAREEM, AGED 55 YEARS, SAMSAM NAGAR-59,THOPPIL HOUSE, KAYYALAKAL CHERI, ERAVIPURAM, KOLLAM. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY HOME SECRETARY, SECRETARIAT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.PIN-695 001 2. THE DIRECTOR GENERAL OF POLICE, OFFICE OF THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM.PIN-695 014 3. THE COMMISSIONER OF POLICE, OFFICE OF THE COMMISSIONER OF POLICE, KOLLAM.691 001 4. THE ASSISTANT COMMISSIONER OF POLICE, KOLLAM.691 001 5. THE CIRCLE INSPECTOR OF POLICE, KOLLAM EAST POLICE STATION, KOLLAM.PIN-691 001 6. THE SUB INSPECTOR OF POLICE, KOLLAM EAST POLICE STATION, KOLLAM.PIN-691 001 7. RAJASUNDARAM, S/O.GOPALAKRISHNAN NAIR, PUTHEDATHU VEEDU, LAKSHMI NADA, KOLLAM.691 001 8. DINESHKUMAR, S/O.MOHANDAS, THALAYAR, KUTTOOR (PO), THIRUVALLA, PATHANAMTHITTA.PIN-689 101 R1 TO R6 BY SR GOVERNMENT PLEADER SRI.T.K.VIPINDAS R7 BY ADV. SRI.V.V.RAJA SRI.R.RANJITH R8 BY ADV.SRI.GEORGE POONTHOTTAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)NO.17084/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE CERTIFICATE OF REGISTRATION BEARING SERIAL NO.103285 DATED 28/05/2008 ISSUED BY THE SALES TAX AUTHORITIES, KOLLAM IN FAVOUR OF THE SECOND PETITIONER. P2 COPY OF THE RECEIPT EVIDENCING PAYMENT OF LICENSE FEE FOR THE YEAR 2008-09 TO THE KOLLAM CORPORATION. P3 COPY OF THE RECEIPT EVIDENCING PAYMENT OF LICENSE FEE FOR THE YEAR 2011-2012 TO THE KOLLAM CORPORATION. P4 COPY OF THE ACKNOWLEDGEMENT ISSUED BY THE SALES TAX AUTHORITIES FOR THE SALES TAX RETURNS SENT THROUGH ELECTRONICS MEANS BY THE PETITIONERS AS REGARDS THE BUSINESS BEING CONDUCTED IN THE TENANTED PREMISES FOR THE ASSESSMENT YEARS 2010-2011. P4(A) COPY OF THE ACKNOWLEDGEMENT ISSUED BY THE SALES TAX AUTHORITIES FOR THE SALES TAX RETURNS SENT THROUGH ELECTRONICS MEANS BY THE PETITIONERS AS REGARDS THE BUSINESS BEING CONDUCTED IN THE TENANTED PREMISES FOR THE ASSESSMENT YEARS 2010-2011. P5 COPY OF THE MEMBERSHIP CERTIFICATE NO.551186 ISSUED TO THE SECOND PETITIONER BY THE KOLLAM MERCHANTS ASSOCIATION,CONVENT ROAD JUNCTION, WITHIN WHOSE JURISDICTION LIMIT THE TENANTED PREMISES IS SITUATE. P6 COPY OF THE COMPLAINT DATED 20/06/2011 SUBMITTED BY THE PETITIONERS BEFORE THE THIRD RESPONDENT. P7 COPY OF THE COMPLAINT DATED 20/06/2011 SUBMITTED BY THE PETITIONERS BEFORE THE SECOND RESPONDENT. P8 COPY OF THE LETTER/CERTIFICATE DATED 23/06/2011 ISSUED BY THE KOLLAM MERCHANTS ASSOCIATION AFFILIATED TO THE KERALA VYAPARI VYAVASAYI EKOPANA SAMITHI. P9 COPY OF THE REGISTRATION APPLICATION ID NO.320208/D108/727/2011 SUBMITTED BEFORE THE SALES TAX AUTHORITY. P10 COPY OF THE VARIOUS RETAIL INVOICE BILLS EVIDENCING PURCHASE OF MATERIALS FOR THE MONTH OF APRIL 2011. P11 COPY OF THE RETAIL INVOICES EVIDENCING PURCHASE OF GOODS IN THE MONTH OF MAY 2011. P12 COPY OF THE RETAIL INVOICES EVIDENCING PURCHASE OF GOODS IN THE MONTH OF MAY 2011. P12(A) COPY OF THE RETAIL INVOICES EVIDENCING PURCHASE OF GOODS IN THE MONTH OF MAY 2011. P13 COPY OF THE NOTICE ISSUED BY THE INVESTIGATING OFFICER TO THE PETITIONERS PARCEL AGENT SOURASHTRA ROADWAYS. P14 COPY OF THE KOLLAM CORPORATION ASSESSMENT REGISTER. 2/- -2- WP(C)NO.17084/2011 P15 COPY OF THE NOTICE ISSUED BY THE INVESTIGATING OFFICER DATED 15/07/2011 REQUESTING THE PETITIONERS TO PRODUCE THE STOCK REGISTER REGARDING THE GOODS SEIZED FROM THEIR SHOP. RESPONDENT'S EXHIBITS: R7(A) COPY OF THE LEASE DEED EXECUTED BY THE 1ST PETITIONER ON 1/9/2006 IN FAVOUR OF RAJASUNDARAM. R7(B) COPY OF THE ADVERTISEMENT IN MALAYALA MANORAMA DAILY DATED 26/2/2011. R7(C) COPY OF THE CONSENT ISSUED BY RAJA SUNDRAMA AND SUJA RAJASUNDRAM TO DINESHKUMAR. R8(A) COPY OF THE SALES TAX REGISTRATION CERTIFICATE ISSUED UNDER THE VALUE ADDED TAX RULES ON 18/4/2011. R8(B) COPY OF THE RECEIPT NO.0062376 BEARING THE DATED 27/4/2011. R8(C) COPY OF THE FIRST INFORMATION REPORT DATED 18/6/2011 FILED BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT,KOLLAM. /TRUE COPY/ P.A.TO.JUDGE sts PIUS C.KURIAKOSE & C.K.ABDUL REHIM,JJ. ------------------------------- WP(C).NO. 17084 of 2011 --------------------------------- Dated this the 23rd day of August, 2011 JUDGMENT Abdul Rehim,J. This writ petition is filed seeking directions to respondents 4 to 6 to refrain from harassing the petitioners by interfering in their business activities which is carried out in building bearing No.MC. 17/2362 of Kollam Corporation, and also for directing not to prevent the petitioners from entering the said premises and conducting business therein. The petitioners inter alia seeks directions to respondents 4 to 6 to return the goods forcibly taken into custody from the above said premises. 2. The averments in brief are as follows: The petitioners are tenants occupying the above said building which is owned by 7th respondent, on payment of monthly rent @ Rs.12,000/- and rental advance to the tune of Rs.5 lakhs. The petitioners are conducting business in footwears in the said premises, under the name and style 'M/s.Khadams Club'. Ext.P1 sales tax registration certificate, WP(C) .17084/2011 2 Exts. P2 and P3 receipts evidencing payment of licence fee to the Corporation, Exts.P4 and P4(a) receipts issued by the tax authorities acknowledging filing of returns, Ext.P5 membership certificate issued by the 'Kollam Merchants Association' were produced in order to substantiate the above contentions. According to the petitioners, the 7th respondent demanded enhancement in the rental amount, for which negotiations were going on. While so, the petitioners consented to the landlord for effecting renovations in the front portion of the building, in order to give it a face lift, and for that purpose the display board of the petitioners was removed. But the petitioners were continuing business activities in the said premises. Allegation is that, while things remained like that, on 18.6.2011 at around 2.30 p.m., the 6th respondent along with policemen came to the shop and forcibly stopped the business activities by locking the premises. The 6th respondent requested the petitioners to be present before the 4th respondent, on the next day. No explanation whatsoever was given for such an highhanded action. On the other hand, it was informed that the 6th respondent is acting under instructions of the 4th respondent. On the next day the 1st petitioner went to WP(C) .17084/2011 3 the office of the 4th respondent in morning itself. But he could meet the 4th respondent only in the evening. The 4th respondent came down heavily upon the 1st petitioner and said that the petitioners have no right to continue in occupation of the building and should vacate the premises forthwith. Inspite of production of documents evidencing the tenancy and occupation the 4th respondent threatened that the petitioners should vacate the premises forthwith. The petitioners reasonably believe that respondents 4 to 6 are acting on the dictates of the 7th respondent. However on intervention of leaders of the 'Merchants Union', the records were returned to the petitioners. The 4th respondent promised that the matter will be deliberated further on the next day, in the presence of the 7th respondent. But before that, at around 11.00 p.m. On 19.6.2011, the respondents 4 and 5 came to the premises along with policemen and opened the lock and removed the entire stock of goods, worth around Rs.40 lakhs, in 4 lorry loads. The goods were taken to Kollam East Police Station in a clandestine manner. It is alleged that respondents 4 and 5 were acting in collusion with the 7th respondent on the basis of a planning and conspiracy, with a WP(C) .17084/2011 4 calculated motive of forcibly evicting the petitioners from the tenanted premises. Subsequently the petitioners and their staff were prevented from entering the tenanted premises and they were blocked by police officials and policemen. Policemen were posted in front of the shop with a view to prevent the petitioners from entering the shop and from conducting the business. Eventhough the petitioners submitted Exts.P6 and P7 complaints before the 3rd and 2nd respondents, no effective action was taken. In the meanwhile it is learned that as a prelude to the forcible eviction, the 7th respondent had lodged a complaint through the 8th respondent, before the 4th respondent, on the basis of which a criminal case has been registered against the petitioners, as crime No.696/11 of Kollam East Police Station, alleging offices punishable under sections 380 and 457 of the IPC. It is stated that the allegations in the complaint are that of trespass and theft committed by the petitioners to the extent of goods worth Rs.70 lakhs belonging to the 8th respondent . Attempts are made for arresting the petitioners in the said case. According to the petitioners, the entire actions are done in a clandestine manner and the respondents 4 and 5 were acting in WP(C) .17084/2011 5 collusion with the 7th respondent. Aggrieved by such highhanded action as well as the alleged inaction on the part of respondents 2 and 3 to take any steps on the basis of Exts.P6 and P7, this writ petition is filed. 3. In the counter affidavit of the 7th respondent it is admitted that the shop room No.MC 17/2362 was leased out to the 1st petitioner on 1.9.2006 by virtue of Ext.R7(a) stipulating the period of lease as 11 months and that the 1st petitioner was occupying the premises, till January, 2011. It is alleged that the 1st petitioner had then surrendered possession of the shop room and since then the room was in the possession and custody of the 7th respondent. It is further stated that the 7th respondent is conducting business in suitings and shirtings in the name and style ' Jiyajees' in a nearby shop room owned by the 7th respondent, bearing No.MC.17/2363. While so, in the month of February, 2011 the 7th respondent had leased out room No.MC/2364 to the 8th respondent on the basis of Ext.R7(b) newspaper advertisement, for starting footwear business under the name and style of “Ricco Footlines”. The lease was executed for a monthly rent of Rs.1,40,000/- on payment of WP(C) .17084/2011 6 security deposit to the tune of Rs.5 lakhs . The 7th respondent and his wife had given Ext.R7(c) consent to the 8th respondent for obtaining licence from the Corporation. The 8th respondent thereafter started interior works in the shop room. He had taken registration under the KVAT Act and Rules. It is stated that the 8th respondent was planning to open the shop by 3rd week of June 2011. It is further stated that when the petitioners came to know about the lease arrangement made with the 8th respondent, they have approached the 7th respondent requesting not to lease out the premises to the 8th respondent, for footwear business, on the basis of an apprehension that the 8th respondent will eat up the market share in footwear business being conducted by the 1st petitioner in Kollam, in 8 shops at various spots within the city. But the 7th respondent refused to accept such request. The petitioners thereupon severely threatened the 7th respondent. Thereafter the petitioners, with the assistance of some 'goondas', trespassed in the premises bearing No.2364 by breaking open the lock, on the early hours of 18.6.11 and managed to place some materials inside the premises. On the basis of information furnished by the 8th respondent, police came to the spot. On WP(C) .17084/2011 7 arrival of police party, the petitioners and their 'goondas' left the scene. Police had registered a crime on the basis of complaint of 8th respondent. It is further alleged that the petitioners are raising threat against the 8th respondent, demanding to terminate the business and to leave the place. All the allegations otherwise made by the petitioners are emphatically denied. 4. In a separate counter affidavit filed by 8th respondent, almost similar contentions are raised. The sales tax registration certificate obtained by the 8th respondent , receipt issued by the Municipal authorities acknowledging payment of licence fee etc. were also produced in order to show that the 8th respondent was taking all preparations for starting business. It is also mentioned that the 8th respondent got financial assistance sanctioned from Federal Bank, Chengannur Branch, by way of loan to the tune of Rs.90 lakhs for starting the business in question. It is mentioned that furnishing works were going on in the shop and considerable quantity of goods arrived were stocked in the first floor of the building. It is alleged that, while things stand like that, the petitioners have trespassed into the shop on 18.6.2011 and they attempted to mix up some of the goods of the respondent with WP(C) .17084/2011 8 certain goods brought by them, in order to create in order to create an impression that the petitioners are doing business therein. The 8th respondent rushed from Thiruvalla and lodged a complaint, on the basis of which the crime was registered. According to 8th respondent, the 1st respondent who wanted to command the entire sales of footwear in the city of Kollam had attempted a trespass into the building with a view to remove the 8th respondent from occupation and to refrain him from starting any business therein in footwears. According to 8th respondent, the alleged trespass was committed in building No. 17/2364, whereas the lease claimed by the petitioners was only with respect to room No. 2362. It is further alleged that the petitioners have committed criminal trespass and theft and the writ petition seeking police protection is filed as a clear abuse of the process of this court, in order to get rid of the liability of their criminal actions. 5. In a reply affidavit filed by the petitioners, the contentions of respondents 7 & 8 were stoutly denied. When the writ petition came up for consideration on 30.6.2011 this court passed an interim order, the relevant portion of which is WP(C) .17084/2011 9 extracted below. “ We would not like to express the apprehensions which are aroused in our mind. Suffice it to say that in the facts and circumstances of the case, we want the second respondent to ensure that a proper investigation is conducted at the earliest and a report made to this court of the true state of affairs. We want the second respondent to entrust the investigation under his personal supervision and monitoring to a police officer of a high rank of high reputation not below the rank of the Superintendent of Police to be chosen personally by the 2nd respondent. Such report to be filed personally by the 2nd respondent must be made available to this court by the next date of posting. The 2nd respondent shall take appropriate further action, if such investigation reveals complicity on the part of any subordinate police officer. We must say that we are not too convenient about the fairness in the role of the police in the whole episode and that is why we look forward to the State Police Chief to offer assistance to the court. We do expect that the 2nd respondent will rise to the occasion and offer sublime assistance to the court. All aspects of the matter including the dispute about the number of the building entrusted to the first petitioner under the lease deed must be subjected to the scrutiny of the investigator. Hand over a copy of this order to the learned Government Pleader for immediate communication to the 2nd respondent. We expect the 2nd respondent to WP(C) .17084/2011 10 truthfully address himself to the task and make the true facts available for the consideration of this court. Await report of the 2nd respondent.” 6. In compliance with the above direction a report was submitted to this court by the 2nd respondent on 17.7.2011, it is stated that the Superintendent of Police CBCID, Kollam was entrusted with the investigation of the case in question, and it which was monitored by the 2nd respondent. In the report it is mentioned that investigation conducted had revealed the following facts:- “a) On 1.9.2006, Sri. Rajasundaram (7th respondent) let out building No.XVII/2362 of Kollam Corporation to Sri.Nissar Ahammed, s/o. Aboobakker (1st petitioner) under a lease deed valid for 11 months. b) There is information that the building having No.XVII/2362 was used as a printing press by name Sreerama Vilasom press. A malayalam daily by name malayala Rajyam was printed from that press. There was a stair case from that press to the upstair hall of the adjacent building and that hall also was used as the part of press. Later this press building collapsed and was demolished. Hence the same building number was also assigned to the upstair hall by the 7th respondent. The 7th respondent purchased the building No.XVII/2362,2363 and 2364 during 1974. They are adjacent buildings with XVII/2362 being on the upper WP(C) .17084/2011 11 floor, with the lower portion under it parptially being XVII/2363. They all have separate entrances. The shop room in XVII/2364 was a textile shop by name cloth centre run by Balakrishna Reddiar upto 2001-02. Then that room was said to be remaining vacant upto 2006. The 7th respondent permitted the 1st petitioner to conduct temporary foot wear business in the building No.XVII/2364 and the building was in his possession upto 30.1.2011 and at that time the name of shop was Boots and Boots Khadams. c) Sri.kamaludeen (2nd petitioner) had also submitted a consent letter in 2006 purporting to be from the 7th respondent before the Kollam Corporation for procuring a shop license for conducting business in building No.XVII/2362. During the course of investigation the genuineness of the said document was verified. There is, prima facie, reason to believe that the document is a manipulated one. This aspect is being verified by the comparison of signature and handwriting. d) According to Sri.Rajasundaram, Sri.Nissar Ahammed vacated building No.XVII/2364 on 30.1.2011 after removing all articles belonging to him. Thereafter Sri.Rajasundaram gave an advertisement in Malayala Manorama daily dated 26.2.2011 stating “1500 sq.ft shop for rent at main Road Kollam 9447974913”. The fact of the advertisement is ascertained to be correct. e) Sri.Dineshkumar of Thiruvalla, Pathanamthitta (8th respondent) is seen to have WP(C) .17084/2011 12 responded to the advertisement and entered into an agreement with Sri.Rajasundaram on 18.4.2011 for leasing out building No.XVII/2364 for a monthly rent of Rs.1,40,000/-. f) Sri.Dineshkumar is seen to have applied for a business loan for the Kollam shop on 18.4.2011 and obtained a loan from Federal bank, Chengannoor Branch and SME Credit Hub Alleppey for Rs.71 lakhs on 6.5.2011 for carrying out his business. g) Sri. Dineshkumar is also seen to have applied for shop licence after submitting required documents to the Kollam Corporation after remitting the fee on 27.4.2011. h) Sri.Dineshkumar is also seen to have filed another application for sales tax registration and allied permissions at Kollam and to have procured it on 3.5.2011 from the authorities concerned. i) Sri.Dineshkumar had a sales tax registration vide No.TIN 32030596743C and in addition to that he has added the business proposed to be run in Kollam as another branch and submitted papers at Thiruvalla Commercial Tax Office. The papers were forwarded to Kollam Commercial Tax Office and they verified the application. 8th respondent already had TIN number in the business address D$ Enterprises, pulprasseril, VII/252C, Vanchimoottil Temple Junction, Kuttoor, Thalayar, Thiruvalla. j) Sri.Dineshkumar has also reported that from 20.5.2011 onwards he started transportation of goods from Thiruvalla and started furnishing the shop room WP(C) .17084/2011 13 to suit his business activities. Investigation by examining bills and delivery notes has revealed the purchase and transportation of goods from Delhi and Tiruvalla to the Kollam shop. k) On 18.6.2011 morning when the workers of Dineshkumar who had been doing the fabrication work in the shop room came there they noticed that the shutters were opened and that the sale of foot wear materials was being conducted by some persons. Immediately the matter was informed to Sri.Dineshkumar and he in turn reported the matter before Assistant Commissioner of Police, Kollam City. l) Kollam East Police registered Crime No.696/2011 u/s. 457 and 380 IPC in the matter. The Addl. Sub Inspector of Police went to the spot and at that time nobody was inside the shop, though the shutters were open. The articles seen inside the shop were seized under a mahazar and the shop room was closed under lock and key by the Police. The properties so seized were produced before the court concerned and the key was handed over to the 8th respondent. m) During the first day of investigation by Kollam Police, the investigating officer was convinced that no case of theft was made out and that only trespass and mischief had occurred. The matter was so reported to court. “ 7. It is further stated that during the course of further investigation by the Superintendent of police the following facts WP(C) .17084/2011 14 were also revealed. “ i) The building No.XVII/2364 of Kollam Corporation is having a KSEB Electric connection with consumer No.3422. The computer printout for consumption from year 2009 to 30.6.2011 was obtained and verified. In that printout it is shown that from 2009 December to December 2010 there is an average bimonthly current consumption of more than 800 units. But the energy meter shows that from 17.12.2010 to 15.2.2011, only 610 units are consumed and that from 15.2.2011 to 13.4.2011 only 2 units are consumed. From 13.4.2011 to 16.4.2011 zero units are consumed. From 16.4.2011 to 14.6.2011 only 23 units are consumed. From these data it is very clear that no commercial shop activity or active trading was functioning in building No.XVII/2364 from 15.2.2011 to 14.6.2011. This shortfall of energy consumption points to the fact that the shop run by the petitioners are closed from 3.1.2011 and the fact that the 7th respondent also had not conducted any business activity there. ii) Commercial Tax authorities have inspected the premises on 3.5.2011 and on that day also the premises were under renovation and there was no stock at the time of inspection. It is pertinent to mention that in the inspection report of Sales Tax Authorities, it is specifically mentioned that Sri.Dineshkumar was in possession of the shop at the time of inspection. A copy of the inspection report has been furnished to the staff of Sri.Dineshkumar and acknowledgment obtained for WP(C) .17084/2011 15 the receipt of the report. iii) The officials attached to Federal bank, Chengannoor branch also had scrutinised the facts in the loan application submitted by Sri.Dineshkumar for conducting business in the shop room in issue. They also were satisfied about the bonafides of the application and have sanctioned loan for '71 lakhs on 6.5.2011.” 8. The petitioners have also filed an additional reply affidavit refuting the facts narrated in the report of the 2nd respondent. 9. While considering the matter we should caution ourselves of the limited extent of jurisdiction which can be exercised in a writ petition seeking directions against the alleged police harassment, which is filed under Article 226 of the Constitution of India. The rival contentions revealed that there exists confusion regarding the number assigned to the building in question, as to whether it is 17/2362 or 17/2364. However it is revealed that the entire dispute pertains to one and the same shop room in which the 1st petitioner was a tenant, ownership of which belongs to the 7th respondent. It is also evident that the WP(C) .17084/2011 16 7th respondent had entered into a lease arrangement with the 8th respondent and that the 8th respondent had taken all sorts of preparations for starting a footwear business in the said premises owned by the 7th respondent. Further question remains as to whether the petitioners have actually surrendered the building to the 7th respondent and as to whether the premises was under the possession of the 8th respondent, and further as to whether the 8th respondent had stocked any goods therein. Disputed questions also arise as to whether the petitioners committed any trespass into the premises by breaking open the lock and as to whether they have brought any goods from outside. 9. Learned counsel for the petitioners Sri. Ram Mohan addressed vehement arguments raising allegations that the investigation done by the