Kerala HC Deprecates Invocation Of Writ Jurisdiction Alleging 'Breach Of Duty' By Police To Register Complaint When The Dispute Is Civil In Nature

The Kerala High Court on Tuesday held that a threat of illegal eviction/ trespass can be remedied by approaching a civil court. It added that High Court's writ jurisdiction cannot be invoked in such cases seeking police protection, when even the basic facts are disputed and the rights claimed cannot be established in summary proceeding under Article 226 of the Constitution. 

A Division Bench comprising Justice K. Vinod Chandran and Justice C. Jayachandran was dealing with a writ appeal preferred by a Landlord, against the Singhe Judge's order in a writ petition preferred by the tenant alleging trespass and seeking police protection against illegal eviction.

In his plea, the tenant had also sought a direction to the Police Chief to act on his complaint and register a criminal case against the landlord. Setting aside the relief in this regard granted by the single bench, the High Court observed,

"Once the issue at hand is of a civil nature - pure and simple - its nature and character cannot be altered by preferring a complaint before the police and alleging inaction on their part, so as to canvass a breach of duty for the purpose of issuance of a writ of mandamus. Furthermore, if the grievance of the petitioner is the inaction of the police to put the criminal law in motion by registering an FIR, on the ground of commission of an offence against him by the 5th respondent, then his remedy is under Section 156(3) or Section 190 of the Cr.P.C. In any event, an alleged trespass cannot be removed with police aid, without recourse to a civil court, especially when there are disputed questions on whether it is a trespass at all". 

The tenant (1st respondent herein) was conducting a restaurant in the building taken on rent from the 5th respondent (appellant herein). The petitioner also possessed a license issued by the Corporation, as well as the consent to operate issued by the Kerala State Pollution Control Board.

He claimed that while he was sick and could not operate the restaurant, the 5th respondent trespassed into the tenanted premises and removed the furniture, and other valuable fittings. The petitioner claimed that when he went to the premises, upon coming to know about the same, he was assaulted by the landlord.

The 5th respondent on his part, in the counter affidavit, had submitted that the petitioner had cancelled the rent agreement himself since he was not in a position to afford payment of rent. The letter issued by the petitioner/tenant to the Secretary of the 4th respondent Corporation seeking cancellation of license was also produced in this regard, and it was claimed that a sum of Rs.3,00,000/- was due from the petitioner towards arrears  of rent, in security of which, a few fixtures of the petitioner's hotel was kept with the landlord.

Single Judge Decision

The Single Judge had found that as long as the tenancy continued, a landlord could seek eviction only by an order duly passed by the competent authority under Section 11 of the Kerala Buildings (Lease and Rent Control) Act. The petition was thus allowed by the Single Judge, finding that a summary eviction, without taking recourse to law was untenable. 

Findings of the Division Bench

It was argued by Advocates C. Dheeraj Rajan, and Anand Kalyanakrishnan on behalf of the landlord that the impugned judgment of the Single Judge was bad since where the facts are disputed, an order for police protection could not be sought for by invoking Article 226 of the Constitution, but that the said remedy would lie before the civil court. 

On the other hand, it was argued by Advocate Alexander Joseph on behalf of the petitioner tenant that the Single Judge had only given protection from the high-handed actions of the appellant/5th respondent, as against the legal remedies open before him. It was further pointed out that neither the District Police Chief nor the Inspector of Police (Respondents 3 and 4 respectively) had taken appropriate action on the complaints that had been preferred before them by the petitioner, and hence the issuance of mandamus was justified. 

The Court herein perused the decision in K.S.Rashid and son v. The Income Tax Investigation Commission (1954) which was reiterated in Director of Settlements, A.P. & Others v. M. R. Appa Rao & Anr (2002), and in which it had been held by the Apex Court that the power under Article 226 of the Constitution was discretionary, and had to be exercised judicially. The Court also noted upon Union of India v. Ghaus Muhammed (1961) which had held that, "a disputed question of fact is not liable to be investigated in a proceeding under Article 226, especially when an alternative remedy is available". 

In the instant case, the Court discerned that the pleadings before the Single Judge revealed disputed questions of facts.

"A special statute is enacted to regulate lease of buildings and to check excessive demands of rent , that is to say, the Kerala Buildings (Lease and Rent Control) Act, 1965, which stipulates various provisions regulating tenancy rights of the landlord and also of the tenant. Besides, if there is a threat of an illegal eviction, the jurisdiction of a civil court can well nigh be invoked and so could an illegal trespass be thwarted by a civil court and remedied by a mandatory injunction. It is in such state of affairs that the 1st respondent/tenant rushed to the High Court seeking police protection against the landlord alleging trespass and mischief, both the causes of action squarely falling within the jurisdictional scope of a civil court". 

The Court added that the petitioner had approached the Single Judge under Article 226, as an attempt to circumvent the caveat that had been lodged by the 5th respondent landlord/appellant. 

The Court also did not find any merit in the argument raised before it that the complaints had not been acted upon by the police. 

The Court thus set aside the order of the Single Judge, and reserved liberty for both parties to seek appropriate remedy before the civil court or the Rent Control Court. 

Standing Counsel of Thrissur Corporation Santhosh P. Poduval, and Senior Government Pleader T.K. Vipindas also appeared in the instant case

Case Title: Santhosh Kumar Nair v. Suresh P. Sreedharan & Ors. 

Citation: 2022 LiveLaw (Ker) 599

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