Muhammed Rafi vs State Of Kerala

Raja Vijayaraghavan V, J

The petitioner has approached this Court seeking a direction to the respondents 2 and 3 to grant effective protection to the petitioner to carry out

construction activities in the property owned by him and covered under Exts.P2 to P4 without any interference, threat or obstruction caused by the

party respondents.

Brief facts for deciding this Writ Petition is as under:-

On the cover of Ext.P2 sale deed, the petitioner purchased property having an extent of 5.75 ares in Re Sy.No.215/25-2 of Attipra village. Ext.P3 is the tax receipt and

Ext.P4 is the possession certificate issued to him by the revenue authorities.

Respondents 5 and 6 are running a Bar Hotel on the northern side of the petitioner’s property in the name and style as “B-Six Inn†and the 4th respondent

is managing the hotel for and on behalf of the 5th and 6th respondents.

The petitioner is employed overseas and taking advantage of his absence, the party respondents encroached into his property and put up a parking board to

facilitate parking of vehicles in the said property. When his request to the respondents to refrain from using his property as a parking area did not yield any result, he

approached the Court of Munsiff, Thiruvananthapuram and instituted a suit for mandatory injunction directing the defendants to remove the board and for incidental

reliefs.

As a counterblast, the respondents 5 and 6 instituted O.S.No.110/2019 before the Principal Sub Court, Thiruvananthapuram setting up an oral agreement entered

into between the previous owner and the respondents 5 and 6 and contending that the property which was purchased by the petitioner was one which was agreed to

be sold to the said respondents. In the light of the contentions set up by the respondents, the petitioner is stated to have withdrawn O.S.No.626/2019 and filed

I.A.No.1561/2019 in O.S.No.110/2019 to restrain the respondents 5 and 6 from trespassing into the properties and for incidental reliefs.

The learned Subordinate Judge, after a detailed evaluation of the materials, by Ext.P6 common order, allowed the application filed by the petitioner and the

respondents 5 and 6 were restrained by way of temporary injunction from trespassing into the plaint schedule property or from committing any act of waste upon the

property or from doing anything detrimental to the right, title and possession of the petitioner over the property.

An appeal has been preferred by respondents 5 and 6 but the order passed by the Civil Court has not been tinkered with by the appellate court.

The petitioner contends that later the respondents 5 and 6 filed O.S.No.85/2020 before the Sub Court, Thiruvananthapuram seeking

specific performance on the strength of the alleged oral agreement for sale. The learned Subordinate Judge passed an ex parte order of injunction restraining the

petitioner from alienating the property.

Petitioner contends that he then approached the Corporation of Thiruvananthapuram and filed an application for issuance of a building permit and Ext.P8 permit

was issued on 15.05.2020. When he attempted to unload rubble in the property certain persons employed by the 4th respondent caused obstruction. The petitioner

immediately approached the police and filed a representation seeking police protection. However, no assistance was granted. Later, Ext.P9 complaint was lodged

before the 3rd respondent and to the District Police Chief. The grievance of the petitioner is that respondents 2 and 3 are refusing to act on the complaint presumably

due to the influence of the party respondents. Despite the order of the civil court, the party respondents are continuously interfering with the rights of the petitioner

and have been raising threats on him, his men and employees.

It is in the afore circumstances that the petitioner has approached this Court seeking the following reliefs:

 9. to issue a writ of mandamus or any other appropriate writ order or direction commanding respondents 2 & 3 to grant adequate and effective police protection to the petitioner to

carry out construction activities in accordance with Ext.P8 building permit in the property belonging to the petitioner comprised in Re.Sy.No.215/25-2 of Attipra Village covered by

Exts.P2 to P4 from the threat and illegal activities of respondents 4 to 6 and their henchmen in the interest of justice.

A statement has been filed by the 3rd respondent wherein it is stated that on receipt of the complaint, an enquiry was conducted and it was

revealed that there exists a civil dispute between the parties. The rival parties were directed to ensure that their acts did not disturb the peace in the

area. The 3rd respondent has undertaken in the statement that if any information is received from any quarters about the commission of any act which

requires the involvement of the police, appropriate action shall be taken.

The respondents 4 to 6 have filed a counter-affidavit wherein they assert that the previous owner had entered into an oral agreement with

respondents 5 and 6 and as advance, a sum of Rs.10 lakhs was received by the vendor. Immediately thereafter, the possession of the premises was

also handed over to respondents 5 and 6 and they have been utilising the property for parking of the vehicles. It is contended that it was in the suit

instituted by respondents 5 and 6 that the petitioner filed an interlocutory application and obtained an order of injunction. The said order has been duly

challenged before the appellate court and the same is pending. According to the respondents 4 to 6, as the property is in their possession, there is no

meaning in contending that the right of the petitioner was obstructed. It is further stated that if the petitioner wants to carry out construction in the

property, they will have to approach the Civil Court and seek appropriate orders. It is further contended that the previous owner had sold the property

to the petitioner at a throw-away price in violation of the oral agreement entered into with the party respondents.

I have anxiously considered the submissions and have gone through the records produced by both sides.

Exhibit P2 is the sale deed executed in favour of the petitioner by the Managing Director of a company by name Vaikuntanatha Hotels and Resorts

Pvt Ltd. Absolute rights have been conferred on the petitioner and it is evident from Exhibit P3 that mutation has been affected in his favour and he

has been paying land tax. Exhibit P4 is the possession Certificate dated 08/04/2019 issued by the village officer in favour of the petitioner herein. The

above records would show that the property was purchased by the petitioner and that he has been in possession of the same. Exhibit P8 is the building

permit issued to the petitioner on 15/05/2020 by the Secretary of the Thiruvananthapuram Corporation permitting him to construct a commercial cum

residential building having a total area of 259.48 sq.m in the property which is the subject matter of the disputes between the parties.

The records reveal that M/s. Hotel-B6 and its partners instituted O.S. No.110/2019 before the Court of the Principal Subordinate Judge,

Thiruvananthapuram setting up an oral agreement for sale and for permanent injunction restraining the previous owner and the petitioner from

interfering with their rights over the property. The contention of the respondents 4 to 6 is that a sum of Rs.10 Lakhs was paid to M/s.Vaikuntanatha

Hotels and Resorts Pvt Ltd, the previous owner of the property and there was an oral agreement for sale. To a query put to the learned counsel

appearing for the party respondents as to the manner in which the amounts were transferred, it is submitted that the same was by way of cash. As

per Section 269SS of the Income Tax Act, 1961, if it is intended to take deposit or loan or any specific amount from any person and if the amount

involved is more than Rs.20,000/-, the transfer shall only be by way of account payee Bank Draft, Account Payee Cheque or through electronic

clearing system via Bank Account. It is difficult to comprehend that a partnership firm transferred a sum of Rs.10 lakhs to a company by way of cash

and entered into an oral arrangement to purchase a valuable piece of property. Prima facie, I am of the view that contentions of such nature are

advanced only to prevent the petitioner from utilising and enjoying the property purchased by him on the strength of Exhibit P2 deed. However, these

are all matters which are to be adjudicated by the Trial Court, untrammelled by any observations made by this Court while disposing of this petition. I

am of the considered opinion that the respondents 4 to 6 have no right whatsoever to interfere with the rights of the petitioner to carry out construction

activities in the property covered under Ext.P2 to P4 on the strength of Ext.P8 building permit issued by the Corporation or to threaten the petitioner or

his employees. If any threats of physical harm are made or if any act which may amount to the commission of an offence is committed, it is for the

petitioner to approach the concerned Station House Officer who is required to take appropriate action.

Resultantly, this writ petition is disposed of directing the petitioner to approach the 3rd respondent and lodge a complaint if any threat is made or if any

act which tantamounts to an offence is committed by the party respondents. On receipt of such complaint, the 3rd respondent shall afford effective

protection to the petitioner and his employees to carry out the construction activities on the strength of Ext.P8 permit. It is made clear that the

directions issued as aforesaid will be subject to the decision of the civil court.