IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 WP(C).No. 18058 of 2007(Y) -------------------------------------- PETITIONER: ------------------- MR.VIJU P.V., AGED 31 YEARS, S/O. P.R.VIKRAMAN, PUTHUSSERIL HOUSE, EDACOCHI VILLAGE, KOCHI-6, ERNAKULAM DISTRICT. BY ADV. SRI.ALIAS M.CHERIAN RESPONDENTS: ----------------------- 1. DEPUTY INSPECTOR GENERAL OF POLICE, CENTRAL ZONE, ERNAKULAM. 2. COMMISSIONER OF POLICE, KOCHI CITY, OFFICE OF THE COMMISSIONER OF POLICE, ERNAKULAM. 3. ASSISTANT COMMISSIONER OF POLICE, ERNAKULAM. 4. ASSISTANT COMMISSIONER OF POLICE, SPECIAL BRANCH, ERNAKULAM. 5. SUB INSPECTOR OF POLICE, PALARIVATTOM POLICE STATION, INTERNATIONAL STADIUM PALARIVATTOM, ERNAKULAM. 6. MR.K.KRISHNANKUTTY PANICKER, AGED 61 YEARS, S/O.N.KESAVA PANICKER, VATTAKATTETH KIZHAKETHIL HOUSE, CHETTIKULANGARA VILLAGE, MAVELIKARA. 7. MRS.BEENA KRISHNANKUTTY PANICKER, AGED 54 YEARS, W/O. KRISHNAKUTTY PANICKER, VATTAKATTETH KIZHAKETHIL HOUSE, CHETTIKULANGARA VILLAGE, MAVELIKARA. W.P.(C) NO.18058/2007 8. MR.T.R.GOPINATH, AGED 53 YEARS, S/O. LATE T.RAMAN, THANDASSERIL HOUSE, KUMBALANGHI, KOCHI, ERNAKULAM DISTRICT. 9. MR.SHABI MOHAN, AGED 38 YEARS, S/O.MOHAN DAS, KOTTARATHIL HOUSE,NEAR KURISHUPALLY VADUTHALA P.O., ERNAKULAM. 10. MRS. ANITHA K.B., AGED 38 YEARS, W/O.SHABI MOHAN, KOTTARATHIL HOUSE, NEAR KURISHUPALLY, VADUTHALA P.O., ERNAKULAM. *ADDL. R11 IMPLEADED. MR.P.SREEJITH, SUPERINTENDENT OF POLICE, KOTTAYAM. *R11 IS IMPLEADED AS PER ORDER DT. 20.6.2007 IN IA. 8330/2007. BY ADV. SRI.M.C.SEN (SR) SRI.P.A.AUGUSTINE(AREEKATTEL) R8 SRI.C.VARGHESE KURIAKOSE - R1 SRI.K.V.SOHAN - R6 - 11 SRI. G.P.SHINOD SRI.RAMMOHAN G. BY SR. GOVERNMENT PLEADER SRI.BENJAMIN PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.18058/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE SALE DEED NO.3278/1998. EXT.P2:- COPY OF THE POWER OF ATTORNEY NO.394/1997. EXT.P3:- COPY OF THE LEASE DEED DT. 30.10.2004. EXT.P4:- COPY OF THE LEASE ARRANGEMENT DT. 6.6.2006. EXT.P5:- COPY OF THE SALE DEED NO.3156/1998. EXT.P6:- COPY OF THE SALE DEED NO.1173/1998. EXT.P7:- COPY OF THE SALE DEED NO.1172/1998. EXT.P8:- COPY OF THE SALE DEED NO.4634/1997. EXT.P9:- COPY OF THE SALE DEED NO.4633/1997. EXT.P10:- COPY OF THE SALE DEED NO.4214/1997. EXT.P11:- COPY OF THE AGREEMENT DT. 6.1.2007. EXT.P12:- COPY OF THE COMMON JUDGMENT DT. 30.11.2007 IN CMA. NO.111/2007 AND CMA. 112/2007. RESPONDENT'S EXHIBITS EXT.R11(a):- COPY OF THE LEASE DEED DT. 8.6.07. EXT.R11(b):- COPY OF THE POWER OF ATTORNEY DT. 18.5.07 ATTESTED BY A NOTARY PUBLIC. EXT.R11(c):- COPY OF THE CRIME NO.369/2007 ON THE FILES OF PALARIVATTOM POLICE STATION. EXT.R11(d):- COPY OF THE O.S. NO.753/07 BEFORE THE HONOURABLE MUNSIFF'S COURT , ERNAKULAM. EXT.R11(e):- COPY OF THE IA. NO.4706/2007 IN OS. NO.753/2007 BEFORE THE HONOURABLE MUNSIFF'S COURT, ERNAKULAM. /TRUE COPY/ P.A. TO JUDGE tss K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. --------------------------------------------------- W.P.(C) No.18058 OF 2007 ------------------------------------ Dated this the 18th day of June, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The petitioner submits, he is the owner of a property, with a house therein, having an extent of 12 cents. He got it as per Ext.P1 sale deed dated 9.9.1998. The 7th respondent, who is the power of attorney holder of the 6th respondent assigned the property in favour of the petitioner as per Ext.P1. The 6th respondent, who was the owner of the property, is the husband of the 7th respondent. The 7th respondent executed the sale deed on the strength of Ext.P2 registered power of attorney executed in 1997. Pursuant to Ext.P1, mutation in the revenue records was carried out in favour of the petitioner. The petitioner, who is a businessman, was in need of money. So, he gave the property to the 8th respondent on lease for a period of three years, by accepting Rs.10 lakhs. The possession of the building was also given to the said respondent. Ext.P3 is the lease deed executed on 30.10.2004, giving the property on lease to the said respondent. On the strength of the conditions in Ext.P3, the 8th respondent, with the consent of the petitioner put W.P.(C) No.18058/2007 2 respondents 9 and 10 as sub tenants in the building. Copy of sub lease agreement dated 6.6.2004 is Ext.P4. On the strength of Ext.P4, respondents 9 and 10 were in occupation of the building and property. On 5.6.2007, the 4th respondent, Assistant Commissioner of Police, Special Branch asked the petitioner to appear before him. He was informed that a complaint has been received from the 6th respondent that Ext.P2 power of attorney is forged and the transactions made pursuant to it were void. The petitioner pointed out that Ext.P2 is a registered power of attorney. He also furnished copies of various documents executed by the 7th respondent, on the strength of the power of attorney, concerning the said property. The 7th respondent had taken loans from financiers after executing sale deeds using Ext.P2 and the property was reconveyed on clearing the loan amount. The details of such transactions were also brought to the notice of the 4th respondent. Thereupon, the said respondent received the copies of those documents from the petitioner. Again, the petitioner was asked to appear before the 3rd respondent on 10.6.2007. The petitioner told the 3rd respondent that he has already entered into an agreement for sale of the property with third parties and the copy of the agreement is Ext.P11. He also W.P.(C) No.18058/2007 3 pointed out that he has mortgaged the said property along with his other properties to the Canara Bank, Overseas Branch, Ernakulam for raising a loan for his business. The proposed purchasers also appeared before the 3rd respondent and apprised about the above facts. 2. In the meantime, the petitioner came to know that the building was in occupation of some police personnel. When the petitioner and the proposed purchasers visited the said building on 10.6.2007, they were told by some police personnel, who were present there, that they were occupying the building on the instruction of respondents 2 to 4. When they went back, they were accosted by the 5th respondent and a number of police personnel and they were taken to the Palarivatom Police Station and illegally detained there. Later, they were released on charging a petty case against them. The petitioner was told by the police officers to take the consideration paid by him in 1998 to the 7th respondent and give back the property. Since the petitioner was not agreeable to the said proposal, the police started harassing him and the proposed purchasers. In the meantime, the police personnel continued their occupation of the building. In W.P.(C) No.18058/2007 4 the above background, this writ petition was filed on 12.6.2007 seeking the following reliefs. 1) To issue a writ of mandamus or any other appropriate writs, directions or orders directing the respondents 2 to 5 Police Officers not to harass the petitioner and interfere in the matter of ownership, possession and occupation of 12 cents of land comprised in Sy.No.96/8/1 in Edappally South Village and the residential building bearing No.33/3319 situated therein, upon the complaint allegedly given by the 6th respondent. 2) To issue a writ of mandamus or any other appropriate writs, direction or orders directing the 1st respondent to see that respondents No.2 to 5 are not harassing the petitioner and shall not interfere with the civil dispute allegedly raised by the 6th respondent in respect of 12 cents of land comprised in Sy.No.96/8/1 in Edappally South Village and the residential building bearing No.33/3319 situated therein. 3) To direct respondents 2 to 5 to direct the police personnel to vacate the residential building bearing No.33/3319 situated in Sy.No.96/8/1 in Edappally South Village immediately. 4) To grant such other reliefs which are just and proper in the nature of this case. 5) To grant the cost of the proceeding of the petitioner from the respondents 2 to 5. 3. During the pendency of the writ petition the petitioner came to understand that Mr.P.Sreejith, who was the W.P.(C) No.18058/2007 5 Superintendent of Police, Kottayam at the relevant time, and who is the nephew of the 6th respondent, was behind the harassment. Therefore, the said officer was impleaded as additional 11th respondent in the writ petition. He came forward with a power of attorney executed by the 6th respondent on 18.5.2007. The petitioner points out that the said power of attorney, a copy of which is produced as R11(b) along with I.A.No.8686/2007, does not give the details of the building or the survey number of the property. It only says the 11th respondent is authorised to deal with the 6th respondent's property which is located behind the Medical Centre Hospital. On the strength of that power of attorney, the 11th respondent, using the police might, has driven out the sub tenants under his tenant and has put respondents 12 and 13 in possession of the building, after the receipt of notice in this writ petition. It is also pointed the special messenger sent from this Court has reported about the presence of police in the building. The above facts disclose a clear case of police harassment and therefore this Court may pass appropriate orders for remedying the same, submitted the petitioner. W.P.(C) No.18058/2007 6 4. As directed by this Court, the DIG of Police, Ernakulam has filed a statement, which would show that at present the building is occupied by Sri.Krishnakumar and Sri.Shanavas of Magna Music Company, who are impleaded as additional respondents 12 and 13 in this writ petition. As per that statement, the sub tenants (respondents 9 and 10) voluntary surrendered the building in favour of the present power of attorney holder (11th respondent), who in turn put the respondents 12 and 13 in possession on 9.6.2007 under lease agreement executed by him. 5. The learned counsel appearing for 6th and 11th respondents submitted that those respondents have filed a counter affidavit. But we do not find it as part of the records. A photocopy of the counter affidavit filed by them was handed over to us. In the counter, the stand of the said respondent is that the 6th respondent has never executed any power of attorney in favour of the 7th respondent. The power of attorney based on which 7th respondent entered into various transactions, is a forged one. Somebody impersonated the 6th respondent, executed and registered the power of attorney. Now, recently, the 6th respondent, who is the paternal uncle of the 11th respondent, W.P.(C) No.18058/2007 7 has executed a power of attorney in favour of the latter to deal with the property. On the strength of that power of attorney, when the 11th respondent approached the sub tenants of the petitioner's tenant, they vacated the premises voluntarily and handed over possession of the same to him. On getting possession of the building from the subtenants, he put the respondents 12 and 13 in possession as tenants. It is also submitted that the sub tenants have moved the Munsiff's Court, Ernakulam by filing O.S.No.753/2007 on 16.6.2007 and obtained an injunction against the petitioner against forcible eviction. Though the said interim order is reversed by the District Court in C.M.A.No.111/2007 on 30.11.2007, the plaintiffs therein have taken steps to challenge the same before this Court in appropriate proceedings. It is also pointed out that the 11th respondent, as the power of attorney holder of the 6th respondent, has filed a suit for setting aside the transactions made by the 7th respondent on the strength of Ext.P2. It is also submitted that the said suit is pending before the trial court. 6. The petitioner has filed a reply affidavit, dealing with the averments in the counter affidavit filed by the 11th respondent. W.P.(C) No.18058/2007 8 He has also made available for our perusal a copy of the order of the District Court vacating the interim order passed by the Munsiff's Court in favour of respondents 12 and 13 in the suit filed by them. 7. We heard the learned counsel on both sides. Going by the materials on record, it is evident that the petitioner was in possession of the building and land. Later, under him the 8th respondent tenant was in possession and as inducted by the tenant, two sub tenants, viz., respondents 9 and 10 were in possession of the building. The 11th respondent claims that on his apprising the correct facts regarding the building, the said sub tenants vacated the building and handed over possession of the same to him. We feel that the said claim of the 11th respondent lacks credence. Even credulous fools may not believe that story. The claim of the petitioner is that using police might, the 11th respondent occupied the building. In view of the abundant materials on record to show the possession of the property by the petitioner on the strength of Ext.P1, we agree with the said contention of the petitioner. As pointed out by the petitioner, we notice that Ext.R11(b) power of attorney executed W.P.(C) No.18058/2007 9 by the 6th respondent in favour of the 11th respondent does not contain any description of the property, except the following: “WHEREAS I own immovable property behind the Medical Centre Hospital, Bye-pass road, Palarivattom, Ernakulam.” In the counter affidavit of the 11th respondent, he has described how he came into possession of the building, in para 10 of it. The said para reads as follows: “On my visit to the property, I found the 9th respondent occupying the residential building. When he was apprised of the fact that he had been put in possession by someone who had no right and that the true owner is the 6th respondent, he volunteered to vacate the premises, as he did not want to get involved in any dispute. I took possession of the building. I entered into a lease agreement with Shanavas, Proprietor of Magna Music Company on 8.6.2007 and handed over possession of the building to the said 'company'.” In the 1st respondent's statement regarding the surrender of the building to the 11th respondent, it is stated as follows: “Earlier the building was occupied by respondents 9 and 10, but his sub-lease agreement expired on 5.6.07 and he has not extended the sub-lease. Also when he learnt that there was some forgery and cheating in the transaction of property, he has voluntarily surrendered the property to the present power of attorney holder.” W.P.(C) No.18058/2007 10 The above materials would show that respondents 9 and 10 were actually in occupation of the building and the 11th respondent got it surrendered on the strength of the aforementioned power of attorney. So, the 6th respondent who lost possession of the property nine years ago, got it back by waving a power of attorney at the occupants by the 11th respondent. No man in his senses will believe the version of the 11th respondent that possession of the property was obtained without threat or coercion, but by voluntary surrender. Further, the sub tenant in occupation of the building has no power or authority to surrender possession of the building, which is in the possession of the petitioner, to the 11th respondent. The above action of the 11th respondent in occupying the building is plainly harassment from the part of the police. The police officers of Cochin city have supported the 11th respondent, otherwise he could not have occupied the building, as was done in this case. So, the allegation of the petitioner regarding police harassment stands proved. Now, it is submitted by both sides that the Canara Bank has taken symbolic possession of the building under the provisions of the Securitisation Act. For regaining possession of the building, the petitioner may workout his remedy before the competent Civil Court. We order that the police W.P.(C) No.18058/2007 11 officers shall not interfere in the civil dispute any more. They can interfere, if only ordered by the civil court. 8. The Director General of Police is directed to look into the commissions and omissions of the 11th respondent in occupying the building covered by Ext.P1 and the induction of two tenants, respondents 12 and 13. If it appears to the DGP that those matters disclose materials for taking disciplinary action against the 11th respondent, he shall bring it to the notice of the disciplinary authority to take appropriate action against 11th respondent in accordance with law. The DGP shall also enquire into the complicity of the police officers stationed in Cochin city in the occupation of the building in question by the 11th respondent. If they have acted contrary to law, appropriate action shall be taken against the officers concerned also. The petitioner is entitled to get costs, which is quantified as Rs.25,000/-. This shall be paid by the 11th respondent . The writ petition is disposed of as above. However, the suit filed by the 6th respondent through the 11th respondent for setting aside the documents executed by the 7th respondent on the strength of Ext.P2, shall be decided by the court concerned based W.P.(C) No.18058/2007 12 on the evidence on record. In other words, the said court shall not be influenced by anything said by us in this judgment. The Registry shall forward a copy of this judgment along with a copy of the writ petition to the Director General of Police, Kerala, so that the directions issued by this Court can be complied within six months. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) ps