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Section 9 in THE ARBITRATION AND CONCILIATION ACT, 1996
THE ARBITRATION AND CONCILIATION ACT, 1996
The Code Of Criminal Procedure, 1973
Section 36 in THE ARBITRATION AND CONCILIATION ACT, 1996
Article 226 in The Constitution Of India 1949
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Saju Thomas vs Station House Officer on 5 August, 2008
D. Seethamma Panicker @ Seethamma vs The District Superintendent Of ... on 3 September, 2008
Sr.Jessy vs Commissioner Of Police on 3 November, 2008
Fr. Jacob Kathanar vs The State Of Kerala on 30 April, 2010

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Kerala High Court
T.V.Sadananda Bai vs C.M.Ravi on 30 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 17400 of 2008(U)


1. T.V.SADANANDA BAI, PARTNER, BLISSOTEL,
                      ...  Petitioner

                        Vs



1. C.M.RAVI, MANAGING PARTNER, BLISSOTEL,
                       ...       Respondent

2. THE CIRCLE INSPECTOR OF POLICE, VALAPAD,

3. THE SUB INSPECTOR OF POLICE,

                For Petitioner  :SRI.GEORGE POONTHOTTAM

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :30/06/2008

 O R D E R
                        K.BALAKRISHNAN NAIR &

                            M.C.HARI RANI, JJ.

                     -----------------------------------------

                      W.P.(C) NO. 17400 OF 2008-U

                     -----------------------------------------

                          Dated 30th June, 2008.

                                 JUDGMENT

Balakrishnan Nair, J.

The petitioner has approached this Court, seeking a direction to the police to give her necessary protection to assume charge as receiver of a firm, on the strength of Ext.P10 order passed by the District Court, Thrissur and also to continue to discharge the functions of the receiver.

2. The brief facts of the case are the following: The petitioner is one of the partners of a firm called "Blissotel" at Thrissur. The said firm is running a hotel, which is having a bar licence, issued in the name of its Managing Partner. Disputes arose between her and the Managing Partner. The dispute between them concerning the sharing of the profits of the firm was referred for arbitration under the provisions of the Arbitration and Conciliation Act, 1996. The arbitrators, by a majority, passed Ext.P8 award on 4.12.2007, permitting the petitioner to realise an amount of Rs.3,49,440/- from the 1st respondent Managing Partner and his assets, as share of profits WPC 17400/08 2 from the bar hotel for the years 2005-06 and 2006-07. The amount was to carry interest at the rate of 10% per annum from the date of award till realisation. A correction was made in the award as per Ext.P9 dated 24.3.2008. During the pendency of the arbitration proceedings, the petitioner moved the District Court, Thrissur, by filing Arb.(O.P.) No.188/2007, praying to appoint a receiver to manage the bar hotel. The said application was allowed by Ext.P10 order dated 25.3.2008, by appointing the petitioner and the 1st respondent as joint receivers for running the business of the partnership firm called "Blissotel", till the valid dissolution of the firm or till the arbitration award is enforced under Section 36 of the Arbitration and Conciliation Act, 1996, whichever is earlier.

3. The petitioner submits, on the strength of Ext.P10 order, she went to the hotel to take charge as joint receiver. But, she was prevented from taking charge by the employees of the hotel and the 1st respondent abstained from the hotel whenever she went there as the receiver appointed by the court. Under the above circumstances, the petitioner sought the assistance of the police to assume charge and enforce Ext.P10 order of the court. Ext.P11 is the petition filed by her on 9.4.2008, requesting police assistance.

4. Challenging Ext.P10 order, the 1st respondent filed Arb.Appeal No.12/2008 before this Court. Though, the appeal was admitted, no interim WPC 17400/08 3 order was passed by this Court in the said appeal. Challenging the award of the arbitrators, Arb.O.P. No.32/2008 was filed by the 1st respondent before the District Court, Thrissur. In the said Arb.O.P., the District Court has passed an interim order, staying the realisation of the amount awarded to the petitioner in the arbitration award. The petitioner submits, she has no remedy for enforcement of Ext.P10 under the Arbitration and Conciliation Act.. So, she submits, she is entitled to get the assistance of the police to enforce that order.

5. We heard the learned counsel Mr.George Poonthottam for the petitioner. The petitioner has tried to advance a new proposition in law that as she has no other remedy under law, this Court must order the police to help her, so that Ext.P10 can be enforced. This Court, in this "police protection jurisdiction", is exercising the power of this Court to issue a writ of mandamus. When the police have a duty under the provisions of the Criminal Procedure Code or the Kerala Police Act or any other statute and they do not discharge the same, this Court will step in and ask the police to discharge their duty, provided the motion before this Court is made by a person having a legal right to the performance of that duty by the police. In this case, the petitioner submits, she has no other remedy under law to enforce Ext.P10. Therefore, she has decided to walk into the nearby Police WPC 17400/08 4 Station, seeking their help.

6. No statutory provision has been brought to our notice which authorises the police to help the petitioner to enforce Ext.P10. The police have no statutory power or duty to meddle in civil disputes or to enforce the interim or final orders of the civil court. The dispute as to whether an interim or final order of a civil court is violated, is itself a civil dispute, which has to be adjudicated by the competent civil court and remedial action has to be taken by that court. In that process, the said court has the power under Section 151 of the C.P.C., to address the police to render assistance to the plaintiff/petitioner/decree holder. If the police are conceded power to decide whether an interim order or final decree of a civil court is violated and render assistance to the aggrieved party, based on the finding entered by them, the same will have disastrous consequences on the administration of justice in this country. The power to take decision as to whether an order of the civil court has been violated or not, is a judicial power. The police can never be conceded any inherent power to enquire into such matters and render a decision. The reason is obvious. The police are acting under the control of the executive Government of the day. The police, amenable to external pressures of political functionaries and influence of official superiors, cannot, normally, function independently. WPC 17400/08 5 The independence of judiciary is one of the basic features of our Constitution. Separation of judiciary from the executive is one of the cardinal principles governing our constitutional scheme of Government. One of the essential principles of rule of law is the existence of an independent judiciary as an impartial arbitrator to decide the disputes between citizens and citizens and between citizens and the State. On this aspect H.W.R.Wade and C.F. Forsyth in their Administrative Law (9th Edition) stated as follows:

"A third meaning of the rule of law, though it is a corollary of the first meaning, is that disputes as to the legality of acts of government are to be decided by judges who are independent of the executive. ................ The right to carry a dispute with the government before the ordinary courts, manned by judges of the highest independence, is an important element in the Anglo- American concept of the rule of law."

The police, under the shackles of various influences, cannot be conceded any inherent judicial power to decide on disputes concerning violation of judicial orders or to flex their muscles to enforce such orders.

7. On the role of police in civil disputes, T.L.Viswanatha Iyer, J., a learned Judge of this Court in Georce Mirante v. State of Kerala [1990(2) KLT 89] held as follows:

"In matters involving civil rights, or disputes regarding title and possession over property, it is not proper for this court to interfere under Art.226 of the Constitution with an order for WPC 17400/08 6 police protection. Police cannot be made the adjudicators of such disputes inter se between the parties, either regarding possession of property or regarding boundaries or regarding easements or the like. These are matters essentially within the domain of the civil courts on which the parties should approach those courts and seek redress. Police does not have the right to decide on such disputes, nor is it proper or competent for them to do so. They do not also have the machinery for the purpose.

It is outside the limits of the duties which are cast on them, which is to prevent breach of peace or commission of cognizable offences, and to preserve law and order. It will be totally against the rule of law, if the right of the police is to be used in favour of one party against another without an adjudication by any appropriate authority of the rights of either side. In all such cases, the proper remedy, for a party feeling aggrieved, is to approach the civil court for the establishment of his rights, and seek appropriate injunctive reliefs against the offending party, and if any such orders are attempted to be violated to seek their enforcement by the civil court itself."(Emphasis supplied) We respectfully endorse the above statement of law made by the learned Judge.

8. Recently, the "police protection jurisdiction" is being converted into a special original jurisdiction, not conferred by the Constitution. Under the guise of seeking police protection, civil disputes are raised before this Court, calling upon it to make a prima facie adjudication and based on that finding, ask the police to render assistance to the party, whose right has been, prima facie, found by this Court to be infringed. This Court has no such power to follow the above procedure under the Constitution. The High WPC 17400/08 7 Court has no power to adjudicate the disputes between private parties, while exercising its power of judicial review. The powers of this Court to issue writs under Article 226 of the Constitution of India are well settled. This Court can issue a mandamus to the police to perform their duty enjoined upon them by the statutes. So, on the ground that the petitioner has got no other remedy against the actions of a private party, she cannot walk into this Court, seeking adjudication of her rights and for a further direction to the police to enforce her rights.

9. These days, the "police protection jurisdiction" is being invoked even for enforcing ad interim orders of the civil court, though the proposition that for enforcing an ad interim order of the civil court, police protection cannot be ordered, is settled by several decisions of this Court. A learned Single Judge of this Court in Kochupennu Ambujakshi v. Veluthakunju Vasu Channar [AIR 1993 Kerala 62] held that police assistance cannot be sought to enforce ex parte interim orders of civil courts. In the said decision it was held as follows:

"15. A question arises whether the assistance of the police can be requested for to enforce an ad interim order of injunction. It has to be made clear that such an order is only an ex parte order passed by the Court on satisfaction that the purpose of the injunction order would be defeated in case notice is directed to be issued to the opposite party. The WPC 17400/08 8 position is different in the case of a final order passed in an injunction petition. As observed by Viswanatha Iyer, J., in George Mirante's case (supra) it would be premature and dangerous to enforce the ex parte order of injunction when its continuance is opposed. Such orders are issued on the basis of the averments contained in the plaint and affidavit of the plaintiff. The true picture emerges only after hearing both sides. It is for these reasons that was held that it is imperative that police should not be allowed to intervene or interfere at this stage in matters of possession which entail civil disputes, especially when the matter is one at the interlocutory stage of proceedings. I am in respectful agreement with the views expressed by Viswanatha Iyer, J., and hold that the Court shall not interfere in the matter of an interim ex parte order with a direction for police aid. Only a final order passed under R.1 or R.2 of O.39 can be enforced with the assistance of the police."

The above quoted decision has been referred to with approval by a Division Bench of this Court in Kunhumuhammed v. Bava Haji [1999(2) KLT 816]. In the said decision, it was held as follows:

"9. We are of the view that this Court shall not interfere in matters involving civil rights with an order of police protection on the basis of an ad-interim ex parte order of the civil court and that only a final order passed under R.1 or R.2 of O.39 of the Code of Civil Procedure can be enforced with the assistance of the police. We, therefore, hold that the judgment of the learned single Judge ordering police protection in case of violation of the ex parte injunction order is not in order and by the impugned judgment police authorities are given the right to decide whether there is a violation of the injunction order passed by the civil court. We also feel that courts should be reluctant to grant police protection on the basis of ex parte injunction orders, which would only pave the way for further litigation between parties, since the parties, on the basis of the police protection order and with the connivance of the police, complete constructions or commit waste or do other acts which WPC 17400/08 9 they would not be able to do even after final orders are passed by the civil court. This court has come across many such instances earlier."

10. It is true that Ext.P10 is not an ad interim order. A decision is an authority for what it decides and not for what flows from it by implication. The words in a decision cannot be interpreted as if it is an Act of Parliament. When this Court says, police protection cannot be ordered to enforce ad interim orders, it does not mean that it can be ordered to enforce final orders/decrees. We are of the view that the police cannot be permitted to enquire into the alleged violation of Ext.P10 order and take consequential remedial action, based on their finding, for the reasons already explained above.

11. In this case, we notice that the claim of the petitioner that she has no other remedy under law, is also not correct. Section 9 of the Arbitration and Conciliation Act, 1996 reads as follows:

"9. Interim measures by Court:-- A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a Court-
(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure of protection to respect of any of the following matters, namely;-
WPC 17400/08 10
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;

(e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of and in relation to, any proceedings before it." (Emphasis supplied) It is the case of the petitioner that Ext.P8 award of the arbitrators is already under challenge before the District Court. So, it is not, so far, enforced under Section 36. The District Court is not denuded of the power under Section 9 to issue interim orders, once it passes an order in an arbitration matter. It can pass fresh or consequential orders in the same matter. Therefore, the petitioner can again move the District Court for appropriate interim orders, including injunction against the 1st respondent to remove the WPC 17400/08 11 obstruction caused to her functioning as receiver. She can also move for removing the 1st respondent from the office as joint receiver and seek her appointment as the sole receiver. Other appropriate interim reliefs can also be sought.

12. The Apex Court, though not finally decided, in Arvind Constructions Co. (P) Ltd. v. Kalinga Mining Corporation [(2007)6 SCC 798], has observed as follows:

"The power under Section 9 is conferred on the District Court. No special procedure is prescribed by the Act in that behalf. It is also clarified that the court entertaining an application under Section 9 of the Act shall have the same power for making orders as it has for the purpose and in relation to any proceedings before it. Prima facie, it appears that the general rules that governed the court while considering the grant of an interim injunction at the threshold are attracted even while dealing with an application under Section 9 of the Act. There is also the principle that when a power is conferred under a special statute and it is conferred on an ordinary court of the land, without laying down any special condition for exercise of that power, the general rules of procedure of that court would apply."

We are of the view that the above observation lays down the correct legal position. So, the provisions of the C.P.C will apply to the District Court, while dealing with a matter under Section 9 of the Act. If that be so, the District Court can address the police also, if found necessary, to render assistance to the petitioner, in view of its inherent power under Section 151 WPC 17400/08 12 of the C.P.C. If the police, even thereafter, do not render any assistance to the petitioner, this Court can step in and issue appropriate directions to them.

13. In the result, it is held that in exercise of the "police protection jurisdiction" we can direct the police to render assistance to the petitioner, if only the police have a duty to peruse the claim of the petitioner, including the documents produced by her, render a finding in her favour and thereafter go for her assistance. The police have, as held by us earlier, no such power or authority. The power of this Court to issue directions to the police is co- terminus with the statutory powers/duties of the police. This Court cannot confer any power or duty on the police where none exists. Therefore, the prayer for directions to the police has to be declined.

14. Even assuming the petitioner has no remedy under the provisions of the Arbitration and Conciliation Act, 1996, she cannot rush to the neighbouring Police Station. Then, she can invoke the remedy available to her under the provisions of the C.P.C. The civil court has definitely the power to injunct the 1st respondent from interfering with the functioning of the petitioner as the joint receiver, if she has no remedy under the above Act.

15. But, the learned counsel for the petitioner tried to sustain his WPC 17400/08 13 claim for police protection, relying on the observation of the Apex Court in P.R.Muralidharan v. Sawmi Dharmananda Theertha Padar [(2006)4 SCC 501]. Special reference was made to para 19 of the judgment, which reads as follows:

"19. A writ for 'police protection' so-called, has only a limited scope, as, when the court is approached for protection of rights declared by a decree or by an order passed by a civil court. It cannot be extended to cases where rights have not been determined either finally by the civil court or, at least at an interlocutory stage in an unambiguous manner, and then too in furtherance of the decree or order."

The above case was concerning the right of a Madathipathi to administer his office without his claim being considered or adjudicated by the civil court. Reversing the judgment of this Court, the Apex Court held that when there is a dispute regarding the right to hold an office, the venture made by this Court to adjudicate that dispute and thereafter, to order protection, was untenable. The relevant portion of the judgment reads as follows:

"11. The question is a contentious one. Construction of the said trust and the rights and obligations thereunder were in question. The first respondent filed a suit in that behalf. The said suit was dismissed. In terms of Order 9 Rule 9 of the Code of Civil Procedure another suit would not be maintainable at his instance. We have noticed hereinbefore that another suit being OS No. 30 of 2002 is pending in the Court of Munsiff. The High Court, despite noticing the said fact, sought to usurp the jurisdiction of the civil court. It, as noticed hereinbefore, determined the contentious issues which were required to be proved in terms of the provisions of the Evidence Act.

WPC 17400/08 14

12. It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person could not approach the High Court for the purpose of determining such disputed questions of fact which were beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact. Respondent 1 who sought to claim a status was required to establish the same in a court of law in an appropriate proceeding. He for one reason or the other, failed to do so. The provisions of Order 9 Rule 9 of the Code of Civil Procedure stare on his face. He, therefore, could not have filed a writ petition for getting the selfsame issues determined in his favour which he could not do even by filing a suit. Indeed the jurisdiction of the writ court is wide while granting relief to a citizen of India so as to protect his life and liberty as adumbrated under Article 21 of the Constitution, but while doing so it could not collaterally go into that question, determination whereof would undoubtedly be beyond its domain. What was necessary for determination of the question arising in the writ petition was not the interpretation of the documents alone, but it required adduction of oral evidence as well. Such evidence was necessary for the purpose of explaining the true nature of the deed of trust, as also the practice followed by this trust. In any event, the impleading applicant herein, as noticed hereinbefore, has raised a contention that he alone was ordained to hold the said office as per the bye-laws of the trust. The qualification of the first respondent to hold the office was also in question. In this view of the matter, we are of the opinion that such disputed questions could not have been gone into by the High Court in a writ proceeding." (S.B.Sinha, J.) Concurring with the above view in the main judgment, the above quoted observation in para 19 of the judgment of the Apex Court has been made by WPC 17400/08 15 P.K.Balasubramanyan, J. The above observation is only an obiter dicta, as the question whether police protection can be granted by the High Court to enforce a decree or order of a civil court did not arise for decision in that case. Further, the said observation can have no application to the facts of this case, where a receiver, who is an officer of the court, is allegedly obstructed by another receiver. The said observation does not say that the police can act at the first instance to remedy the violation of final orders of the civil court, nor does that observation run counter to the well settled practice of moving the very same civil court for appropriate further orders for police assistance. The police may act suo motu without any direction from the civil court, when the rights of the owner over a property is undisputed, either by the decision of the civil court or otherwise and persons who claim no semblance of right or interest over the property trespass into it, obstruct the owner and commit waste, as in the case of M/s.Harrisons Malayalam Ltd. v. State of Kerala [2007(4) KLT 540]. In such a case, the trespassers will be committing the offences under Sections 447, 341 and 427 of the I.P.C., two of which are cognizable offences and the police can, therefore, act suo motu. In such a case, the police can render protection to the owner, in exercise of the power conferred on them under Section 149 of the Cr.P.C., which reads as follows: WPC 17400/08 16

"149. Police to prevent cognizable offences -- Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence."

This power is a "power coupled with a duty" to act when called upon by a person interested. So, the observation of the Apex Court has to be understood in the light of the statutory powers of the police.

16. We make it clear that we have not said anything on the merits of the claim of the petitioner. It is also clarified that if the petitioner makes any motion before the District Court or before the Munsiff's Court concerned to redress her grievance, the said court will be free to take a decision on the matter, based on the pleadings and contentions of the parties.

In the result, the Writ Petition fails and it is accordingly dismissed in limine.

K.BALAKRISHNAN NAIR, JUDGE.

M.C.HARI RANI, JUDGE.

Nm/