Dismissed

Albert Augustine K.J v. State of Kerala

Kerala HC2 Aug 2021WP(C)/12392/2021

Case brief

AI extract

What is this about?

The court dismissed the writ petition filed by the petitioner seeking police protection against forcible dispossession. It held the dispute arising from an alleged sale agreement to be purely civil and a clear case of abuse of process.

What did the court decide?

The writ petition is dismissed. The petitioners are relegated to approach the jurisdictional Civil Court.

Albert Augustine K.J Vs State of Kerala — Property and Title | Kerala HC (2021)

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WP(C) NO. 12392 OF 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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MONDAY, THE 2^ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943 WP(C) NO. 12392 OF 2021

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PETITIONER/S:

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ALBERT AUGUSTINE K.J., AGED 73 YEARS, S/O. JOSEPH, PENSIONER, HOUSE NO. XII/642, IN KOTTAPADY GRAMA PANCHAYATH, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 692.

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BY ADV LIJOY P.VARGHESE

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RESPONDENT/S:

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1 STATE OF KERALA REP. BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2 THE SUB INSPECTOR OF POLICE, KOTTAPPADY POLICE STATION, KOTTAPADY GRAMA PANCHAYATH, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 686 692.

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3 THE SUPERINTENDENT OF POLICE, ERNAKULAM (RURAL), POWER HOUSE JUNCTION, SUB JAIL ROAD, PERIYAR NAGAR, ALUVA, ERNAKULAM DISTRICT 683 101.

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4 SUB REGISTRAR,

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OFFICE OF THE SUB REGISTRAR, KOTHAMANGALAM, ERNAKULAM 686 691.

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5 KOTTAPPADY SERVICE CO OPERATIVE BANK LTD., NO. E 155, REPRESENTED BY ITS SECRETARY, KOTTAPPADY 686 692.

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6 VALSALA THAMPAN, AGED 63 YEARS,

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W/O. LATE C.N. THAMPAN, CHERUVALLIPADY KOTTAPPADY GRAMA PANCHAYATH, KOTHAMANGALAM, TALUK, ERNAKULAM DISTRICT 686 695.

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WP(C) NO. 12392 OF 2021

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7 BABU, AGED 41 YEARS, DRIVER, S/O. LATE C.N. THAMPAN, CHERUVALLIPADY KOTTAPPADY GRAMA PANCHAYATH, KOTHAMANGALAM, TALUK, ERNAKULAM DISTRICT 686 695. 8 BABY, AGED 39 YEARS, TEACHER, D/O. LATE C.N. THAMPAN, CHERUVALLIPADY KOTTAPPADY GRAMA PANCHAYATH, KOTHAMANGALAM, TALUK, ERNAKULAM DISTRICT 686 695. 9 BHAVANI THANKAPPAN, AGED ABOUT 70 YEARS, RELATIVE OF LATE C.N. THAMPAN, PARAMBY, KOTTAPPADY GRAMA PANCHAYATH, KOTHAMANGALAM, TALUK, ERNAKULAM DISTRICT 686 695.

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SMT K AMMINIKUTTY, SR GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 12392 OF 2021

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JUDGMENT

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This writ petition is filed seeking a direction to the respondents 1 to 3 to afford adequate protection to the life and property of the petitioner and his family and also to protect them from any forcible dispossession from House No.XII/642 in Kottappadi Grama panchayat and for incidental reliefs.

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The petitioner contends that late Sri. C.N.Thampan was the owner of the building bearing No. XII/642 situated in 8 cents of property at Kottappadi Village. He is stated to have agreed to sell the building along with the property to the petitioner for a total consideration of Rs.10.75 lakhs. An agreement was entered into on 24.5.2019 on which day, a sum of Rs.1001/was paid by way of advance. The balance amount was to be paid in two instalments. According to the petitioner, late Sri. Thampan, undertook that he would clear the dues to the bank and hand over the original records on or before 30.4.2020. The possession of the property was handed over to the petitioner and he has been residing there since then. The petitioner states that the house was built under the EMS Housing Scheme and there is a restriction in assigning the property for a period of ten years. These facts were not brought to his notice when the agreement was entered into. On receiving the said information, the petitioner instructed his bank to stop the payment of the cheque issued by him for a sum of Rs.4 lakhs towards the

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WP(C) NO. 12392 OF 2021

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first instalment. He contends that the aforesaid Thampan and his men attempted to forcibly dispossess the petitioner from the building by using physical force. In the said circumstances, he approached this Court and filed W.P.(C) No.9648/2020 seeking police protection. This court, by Ext.P1 judgment dated 18.1.2021, disposed of the writ petition after concluding that the dispute was purely civil in nature and relegated the petitioner to approach the civil court. The petitioner contends that Sri. Thampan expired thereafter and his legal heirs and their men, the respondents 6 to 9 herein have started creating problems. In the afore circumstances, the petitioner submitted Exts.P3 to P5 complaints before the police. His grievance is that no action has been taken. It is in the aforesaid circumstances that he has approached this Court seeking directions.

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I have heard Sri.Lijoy Parackal Varghese, the learned counsel appearing for the petitioner and Smt. K. Amminikutty, the learned senior Government Pleader.

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I find that the very same contentions were raised by the petitioner against late C.N.Thampan, the husband of the 6th respondent and after hearing both sides as well as the learned Government Pleader, this Court had relegated the parties to the civil court. It would be profitable to extract paragraph Nos. 5 to 8 of the judgment.

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‘5. The learned counsel appearing for the petitioner submits that the party respondent has no authority to dispossess the petitioner except as

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WP(C) NO. 12392 OF 2021

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per the procedure established by law.

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Sri. Dinesh Mathew Murickan, the learned counsel appearing for the party respondent submitted that the entire transactions are disputed by the party respondent. According to the learned counsel, even according to the petitioner, all that he has paid is Rs.1001/-. He would further contend that the possession of the property has not been granted to the petitioner. The agreement is not even registered and hence, the petitioner cannot contend that the possession has been handed over. Instead of approaching the Civil Court for establishing his rights, the petitioner has approached this Court by narrating falsehood and has secured an interim order, contends the learned counsel.

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The learned Senior Government Pleader, on instructions, submitted that the dispute has arisen pursuant to an alleged agreement for sale entered into between the parties. He would contend that the parties be relegated to the Civil Court for appropriate reliefs and the police may not be ordered to interfere in such matters.

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I have considered the submissions advanced. As rightly submitted by the learned Government Pleader, the dispute between the petitioner and the party respondent is purely a civil dispute and it is for the petitioner to approach the jurisdictional Civil Court and establish his civil rights. When the entire transactions are disputed, it would not be proper for this Court to conclude that either the petitioner or the party respondent is in possession of the property. In that view of the matter, reserving the right of the petitioner to move the Civil Court, this writ petition is disposed of. Needless to say, if any complaint is lodged alleging breach of peace, its genuineness shall be ascertained and appropriate action shall be taken by the 1st respondent.’

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WP(C) NO. 12392 OF 2021

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Except for arraying respondents 6 to 9 instead of late C.N.Thampan, the very same contentions are raised in this writ petition. Nowhere in the writ petition has it been stated that the petitioner has approached the civil court for redressal of his grievance. This Court, after considering all aspects, was not inclined to grant the relief sought for in the previous occasion as the materials and records suggested that the dispute was purely civil in nature. I find no reason to take a different view now. This is a clear case of abuse of process of this Court. I refrain from imposing exemplary costs in view of the fervent submissions of the learned counsel.

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This writ petition will stand dismissed.

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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WP(C) NO. 12392 OF 2021 7

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APPENDIX OF WP(C) 12392/2021

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PETITIONER(S) EXHIBITS :

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Exhibit P1	THE TRUE COPY OF THE JUDGMENT IN WPC NO. 9648/2020 (E) PASSED ON 18.01.2021.
Exhibit P2	THE TRUE COPY OF THE COMPLAINT FILED BEFORE THE IST CLASS MAGISTRATE, KURUPPAMPADY AS C.M.P. NO. 384/2021.
Exhibit P3	THE TRUE COPY OF THE COMPLAINT FILED BEFORE THE SUB INSPECTOR OF POLICE, KOTTAPADY POLICE STATION, DTD. 22.01.2020.
Exhibit P4	THE TRUE COPY OF THE COMPLAINT FILED BEFORE THE SUPERINTENDENT OF POLICE, ERNAKULAM, (RURAL) DTD. 05.02.2020.
Exhibit P5	THE TRUE COPY OF THE COMPLAINT FILED BEFORE THE INSPECTOR GENERAL OF POLICE, ERNAKULAM, RANGE, DTD. 28.02.2020.
Exhibit P6	THE TRUE COPY OF THE AGREEMENT FOR SALE ENTERED INTO BETWEEN THE PETITIONER AND THE 6TH RESPONDENT DTD. 24.05.2019.

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RESPONDENT(S) EXHIBITS : NIL

Albert Augustine K.J v. State of Kerala

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Albert Augustine K.J v. State of Kerala

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