Kerala High Court
E.K.Abul Rahim vs B.H.Jamal
Author: A. Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 12TH DAY OF APRIL 2017/22ND CHAITHRA, 1939
OP(C).No. 1070 of 2017 (O)
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OS NO.84/2017 OF PRINCIPAL MUNSIFF'S COURT, KOCHI
PETITIONER(S)/2ND ADDITIONAL RESPONDENT:
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E.K.ABUL RAHIM, S/O.KUNJUMUHAMMAD, AGED 43 YEARS,
CC V/379, BANGLOWEU PARAMBU,
MATTANCHERRY, KOCHI-2, PROPRIETOR, LITTLE MAXIMS,
FOOD COURT NO.1/464 H, OPPOSITE DELTA SCHOOL FORT KOCHI
BY ADVS.SRI.K.RAMAKUMAR (SR.)
SRI.SHAIJAN C.GEORGE
SRI.P.J.JOSEPH
SRI.M.T.AJITH
SMT.C.S.SUJAMMA
SMT.SAJITHA GEORGE
RESPONDENT(S)/PETITIONERS:
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1. B.H.JAMAL, S/O.HAMSA, ABOUT 45 YEARS,
C.C.4/285, PUTHUVASSERRY PARAMBU,
MATTANCHERRY, KOCHI-682002
2. P.M.ANWAR,
S/O.MOIDEENKUTTY, ABOUT 43 YEARS, 5/358, ELANJIMUKKU,
MATTANCHERRY, KOCHI-682002
3. COCHIN HERITAGE ZONE CONSERVATION SOCIETY,
REPRESENTED BY ITS SECRETARY/DISTRICT COLLECTOR,
1ST FLOOR, TOURIST AMENITY CENTRE, AND FORTCOCHI-682001
BY SENIOR GOVERNMENT PLEADER S.GOPINATHAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD AND RESERVED ON
12-04-2017 ALONG WITH OP(C) 1193/2017, THE COURT ON 12.04.2017
DELIVERED THE FOLLOWING:
OP(C).No. 1070 of 2017 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED TO THE
PETITIONER BY DISTRICT MEDICAL BOARD ERNAKULAM , DATED 13.12.12
EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 10.11.2008 ISSUED BY
THE SECRETARY, COCHIN HERITAGE ZONE CONSERVATION SOCIETY
EXHIBIT P3 TRUE COPY OF THE LEASE AGREEMENT DATED 20.11.2016
ISSUED BY THE SECRETARY, COCHIN HERITAGE ZONE CONSERVATIVE SOCIETY,
ERNAKULAM
EXHIBIT P4 TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY
CHIEF FOOD SAFETY OFFICER MOBILE VIGILANCE SQUAD, ERNAKULAM
EXHIBIT P5 THE TRUE COPY OF THE IDENTITY CARD ISSUED TO THE
PETITIONER BY CHIEF FOOD SAFETY OFFICER MOBILE VIGILANCE SQUAD
ERNAKULAM
EXHIBIT P6 TRUE COPY OF THE LETTER NO.CH.165/2015/CHZCS,
10.2.2015 ISSUED BY DISTRICT COLLECTOR/SECRETARY COCHIN HERITAGE ZONE
CONSERVATIVE SOCIETY, ERNAKULAM
EXHIBIT P7 TRUE COPY OF THE COMPLAINT FILED BEFORE THE ASST.
POLICE COMMISSIONER, MATTANCHERRY DATED 6.1.2016
EXHIBIT P8 TRUE COPY OF THE DISCHARGE SUMMARY DATED 28.4.2016
ISSUED BY THE MEDICAL TRUST HOSPITAL
EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 12.5.2016 FILED
BEFORE THE COCHIN HERITAGE ZONE CONSERVATIVE SOCIETY, ERNAKULAM
EXHIBIT P10 TRUE COPY OF LETTER NO.CH 165/2015/CHZCS/EKM DATED
6.5.2016 ISSUED BY THE COCHIN HERITAGE ZONE CONSERVATIVE SOCIETY,
ERNAKULAM
EXHIBIT P11 TRUE COPY OF THE COMPLAINT DATED 11.8.2016 FILED
BEFORE CIRCLE INSPECTOR, FORT KOCHI AND THE RECEIPT DATED 11.8.2016
EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN WPC 27608/16 DATED
6.10.16
EXHIBIT P13 TRUE COPY OF THE COMPLAINT NO.90512/16 DATED 2.11.2016
EXHIBIT P14 TRUE COPY OF THE ORDER OF DISMISSAL
NO.REG.C.H.214/2016
EXHIBIT P15 TRUE COPY OF THE COMPLAINT DATED 19.12.2016
EXHIBIT P16 TRUE COPY OF THE PETITION DATED 28.12.2016
EXHIBIT P17 TRUE COPY OF THE NOTICE DATED 19.12.2016
EXHIBIT P18 TRUE COPY OF THE ORDER NO.CH 214/2016/CHZCS/EKM DATED
28.1.2017
OP(C).No. 1070 of 2017 (O)
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EXHIBIT P19 THE TRUE COPY OF THE FIR DATED 24.12.2016 IN CRIME
1761/2016 OF FORT KOCHI POLICE STATION
EXHIBIT P20 A TRUE COPY OF THE PLAINT IN O.S.NO.68/2017 AND THE
ACCOMPANIED INTERLOCUTORY APPLICATIONS
EXHIBIT P21 TRUE COPY OF THE OBJECTION FILED BY THE LEARNED
ADDITIONAL GOVERNMENT PLEADER DATED 21.2.2017
EXHIBIT P22 TRUE COPY OF THE DETAILED OBJECTION FILED BY THE
ADDITIONAL GOVERNMENT PLEADER DATED 27.2.2017
EXHIBIT P23 TRUE COPY OF THE IMPLEADING PETITION I.A.565/2017
DATED 23.2.2017 IN I.A.460/2017, IN O.S.68/2017
EXHIBIT P24 TRUE COPY OF THE ORDER IN I.A.460/2017 DATED 23.2.2017
EXHIBIT P25 TRUE COPY OF THE PLAINT IN O.S.NO.84/2017 FILED BY THE
PETITIONER
EXHIBIT P26 TRUE COPY OF THE COMPLAINT DATED 26.2.2017 BEFORE SUB
INSPECTOR OF POLICE
EXHIBIT P27 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT DATED
26.2.2017
EXHIBIT P28 TRUE COPY OF THE RELEVANT PAGE OF MATHRUBHUMI NEWS
PAPER DATED 4.3.2017
EXHIBIT P29 SERIES -THE TRUE COPIES OF THE RENT
RECEIPTS FOR THE PETITION SCHEDULE SHOP
EXHIBIT P30 THE TRUE COPY OF B DIARY PROCEEDINGS IN O.S.68/2017
EXHIBIT P31 TRUE COPY OF THE COMMON ORDER DATED 9.3.2017 IN
I.A.460/2017, I.A.549/2017, I A 584/2017 IN O.S.68/2017, I.A.567/2017
AND I.A.568/2017 IN O.S.84/2017
RESPONDENT(S)' EXHIBITS NIL
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//TRUE COPY//
PA TO JUDGE
bka/-
A. MUHAMED MUSTAQUE, J.
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O.P.(C) Nos. 1070 & 1193 of 2017
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Dated this the 12th day of April, 2017
J U D G M E N T
1.These original petitions are related to a shop room holds by Cochin Heritage Zone Conservation Society (for short, "the society"). The District Collector is the Secretary of the society.
2.The shop room, which is the subject matter of the civil suit on the file of the Principal Munsiff's Court, Kochi, was allotted to one E.K.Abdul Rahim, the petitioner in OP(C) No.1070/2017. As seen from his complaint before the District Collector, he had entrusted the shop room to his friends, Sri.B.H.Jamal and Sri.P.M.Anwar, the petitioners in OP(C) No.1193/2017. According to Sri.Abdul Rahim, he entrusted the shop room to run a restaurant as agents while he was undergoing a treatment. Dispute arose when Sri.Abdul Rahim wanted to run the restaurant after his treatment was O.P.(C) Nos. 1070 & 1193 of 2017 ..2..
over. Sri.Abdul Rahim had approached this Court seeking police protection. This Court was of the opinion that the dispute has to be decided by the civil court and it cannot be decided in a writ petition for police protection as the question involved is related to right, title and interest in respect of the shop room.
3.Sri.Jamal and Sri.Anwar filed OS No.68/2017 before the Principal Munsiff's Court, Kochi for injunction. A commission was taken out in the matter. The commission report indicates that Sri.Jamal and Sri.Anwar are in occupation of the building.
4.It is to be noted that original entrustment of the shop room to Sri.Abdul Rahim by the society is based on a licence scheme. Therefore, none can claim any right of possession over the shop room. Sri.Abdul Rahim can only claim right on the shop room as a licensee. Therefore, any right given to Sri.Jamal and Sri.Anwar can only be that of licensees and nothing else and question of possession does not arise in a dispute as above. O.P.(C) Nos. 1070 & 1193 of 2017 ..3..
5.As seen from the records produced by the society before this Court, acting upon a complaint of Sri.Abdul Rahim, the District Collector ordered that Sri.Jamal and Sri.Anwar shall be evicted and the shop room shall be handed over to the lessee. The Circle Inspector of Police, based on the direction of the District Collector, closed the shop room and then, handed over the same to Sri.Abdul Rahim. It is seen from the records that the District Collector, on 02.01.2017, noted in the file as follows;
"If the labourers, who are not legally entitled to run the shop, cannot be evicted, why can't the shop be closed?"
Thereafter, again on 19.01.2017, the District Collector ordered to close the shop room and to make the situation favourable to the lessee. This direction was given to the Circle Inspector of Police.
6.It is to be noted that another suit as OS No.84/2017 was filed by Sri.Abdul Rahim for injunction, restraining Sri.Jamal and Sri.Anwar from entering into the shop O.P.(C) Nos. 1070 & 1193 of 2017 ..4..
room. This suit appears to have been filed on 23.02.2017. OS No.68/2017 was filed by Sri.Jamal and Anwar on 09.02.2017. In the suit, Sri.Abdul Rahim entered appearance on 21.02.2017. A commission report was filed on time. The case of Sri.Jamal and Sri.Anwar is that on 21.02.2017, Sri.Abdul Rahim sought time for filing counter in the temporary injunction petition and thereafter, on the same day, with the assistance of police, the building was closed.
7.Both parties approached this Court with separate original petitions, challenging the common order passed in both suits. The plaintiffs in OS No.68/2017 filed an application for mandatory injunction to remove the lock and key put by the society based on the complaint of Sri.Abdul Rahim. The common order was passed in the interlocutory applications including the applications for mandatory injunction, interim injunction etc. filed by both parties in both suits. The court below, by common order, ordered that none of the O.P.(C) Nos. 1070 & 1193 of 2017 ..5..
parties shall run the hotel, which was being carried out in the shop room in question until the disputes are finally resolved in the judgment. Accordingly, the parties are directed to surrender the keys before the court below. The court below further ordered that the society is free to initiate action for recovery in accordance with law.
8.On analyze of the facts and perusal of the records placed before this Court by the learned Government Pleader on behalf of the society, the following facts are emerged;
(a)The building in question is a public building.
(b)The building was in occupation of Sri.Abdul Rahim based on a licence scheme.
(c)Licence conditions prohibit transfer of licence.
9.Sri.Abdul Rahim, in his complaint before the District Collector, stated that he entrusted the business to Sri.Jamal and Sri.Anwar and they are running it as agents. The District Collector, on the other hand, O.P.(C) Nos. 1070 & 1193 of 2017 ..6..
ordered the police to remove the labourers and to hand over the building to Sri.Abdul Rahim. It is not known on what basis, the District Collector came to the conclusion that Sri.Jamal and Sri.Anwar are labourers even though Sri.Abdul Rahim has no such case. The action on the part of the District Collector, ordering the police to close down the shop to make a situation favourable to the lessee is per se illegal. The District Collector can only resort to the Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, if any other person is found in occupation. Facts show that Sri.Jamal and Sri.Anwar are in exclusive occupation as referable from the commission report.
10.Injunction is an equitable remedy. The fight between a licensee and a stranger is based on an illegal arrangement between them. The court cannot be a party to such illegal activities by clothing one of the parties any benefit. Equity cannot be used to perpetuate, especially, when illegality is being O.P.(C) Nos. 1070 & 1193 of 2017 ..7..
committed against a public building. Therefore, if any injunction order is granted in favour of either of the parties, that will amount to clothing legal cover to an illegal action. Sri.Abdul Rahim, prima facie, had violated licence conditions as seen from various directions issued by the District Collector to aid restoration of occupational right to him. In such circumstances, the court below is perfectly justified in declining jurisdiction. This Court, under Article 227 of the Constitution, need not upset such fact findings.
11.However, the question looms large in this case, whether a public building should be kept under lock and key for a long till the dispute is resolved, is not against the public interest. In the light of the facts emerged as above, this Court is of the view that the District Collector shall invoke the provisions of the Kerala Public Buildings (Eviction of Unauthorised Occupants) Act for eviction in accordance with law. This shall be done within a period of three months. O.P.(C) Nos. 1070 & 1193 of 2017 ..8..
However, in the meanwhile, if the parties settle the dispute and the District Collector is of the view that the acts of the parties can be condoned, nothing prevents the District Collector to permit continuation of the occupation by anyone of the parties. The action of the District Collector in closing down the shop and handing over keys to Sri.Abdul Rahim amounts to removal of an occupant without recourse to the law. If at all remedy, as available to Sri.Abdul Rahim, is to seek a relief of mandatory injunction before the civil court, he cannot obtain the aid of any other machineries without recourse to civil court.
12.Therefore, leaving the issues as above, the original petitions are dismissed. No costs.
Return the file produced before this Court to the learned Government Pleader.
Sd/-
A. MUHAMED MUSTAQUE JUDGE bka/-