Thomas Kuruvila vs State Of Kerala
2021 Latest Caselaw 1781 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                  &

             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

     MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                           WA.No.81 OF 2021

AGAINST THE ORDER/JUDGMENT IN WP(C) 18100/2020(J) OF HIGH COURT OF
                              KERALA

APPELLANT/PETITIONER:

             THOMAS KURUVILA
             AGED 68 YEARS
             S/O.KURUVILA, PLAKKATTU HOUSE, CEMENT PALAM,
             CHINNAKANALKARA, UDUMBANCHOLA TALUK, IDUKKI 685 618

             BY ADVS.
             SRI.DEEPU THANKAN
             SMT.UMMUL FIDA
             SMT.LAKSHMI SREEDHAR

RESPONDENTS/RESPONDENTS:

      1      STATE OF KERALA
             REP.BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT
             SECRETARIAT,
             THIRUVANANTHAPURAM - 695 033

      2      DISTRICT COLLECTOR
             COLLECTORATE, KUYILIMALA, PAINAV P.O.,
             IDUKKI - 685 603

      3      REVENUE DIVISIONAL OFFICER
             DEVIKULAM TALUK, KANNAN DEVAN HILLS,
             IDUKKI -685 613

      4      TAHSILDAR
             UDUMBANCHOLA, IDUKKI - 685 554

      5      ASSISTANT CARDAMOM SETTLEMENT OFFICER
             KUMILY, IDUKKI 685 554

             SRI.Y.JAFFER KHAN, GOVERNMENT PLEADER FOR RESPONDENTS
     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA.No.81 OF 2021                               2




                                    JUDGMENT

SHAJI P. CHALY, J.

Captioned writ appeal is preferred by the petitioner in W.P.(C)

No.18100/2020 challenging the judgment dated 25.11.2020. The writ petition

was filed by the appellant seeking the following reliefs:

(i) issue a writ of mandamus or appropriate writ, order or direction directing the respondents not to repossess the 6.75 Acres of land comprising Sy.No.12/1-B, 34/1 & 34/2 of Chinnakanl Village of Idukki district covered by Exhibit P-5 Kuthakapattom Lease.

(ii) issue a writ of mandamus or appropriate writ, order or direction directing the respondents to remove the Board to put up on the front side of the property of the petitioner 6.75 Acres of land comprised in Sy.No.12/1-B, 34/1 & 34/2 of Chinnakanl Village of Idukki district covered by Exhibit P-5 Kuthakapattom Lease forthwith.

(iii) issue a writ of mandamus or appropriate writ, order or direction directing declaring the property of the petitioner cannot be repossessed without notice and giving him opportunity to prove his title and claim over the property and

(iv) pass such other orders as this Hon'ble Court deems fit, proper and necessary in the circumstances of the case.

2. The basic material facts for the disposal of the appeal are as follows;

the appellant claims to be a resident and owner in possession of 6.75 Acres of

land in Sy.No.12/1-B, 34/2 and 34/1 of Chinnakanal Village of Idukki District.

According to the appellant, he had obtained 79 cents of property in

Sy.No.12/1-B and 34/2 of Chinnakanal Village from one Rajan as per registered

Sale Deed No.40/2007 dated 5.1.2007 of the Office of Sub Registrar,

Rajakumari. Exhibit P2 document is an agreement dated 5.1.2007 on a stamp

paper worth Rs.50/- in regard to an extent of 5.96 Acres of land which is

stated to be lying adjacent to the aforesaid 79 cents of property, entered into

between the appellant and certain persons, who are claiming to be the legal

heirs of Madaswamy of Chinnakanal Village, who is the father of the aforesaid

Rajan. Certain documents are produced to show that a building is constructed

in the property covered by Ext.P1 sale deed measuring 79 cents. According to

the appellant, so far as 79 cents of property is concerned, he has remitted the

tax evident from Ext.P4 tax receipt dated 2.6.2020. So also it was submitted

that Ext.P5 is a proceeding dated 9.6.2020 of Assistant Cardamom Settlement

Officer, Kumily, leasing out a certain extent of property for a period of 20

years, whereby the appellant was directed to pay a sum of Rs.11,130/-

towards the premium starting from 9.6.2020.

3. The grievance highlighted by the appellant in the writ petition was

that the District Collector, Idukki - the 2 nd respondent, without serving any

notice to the appellant, put up a board 100 meters away from his property

indicating that the property belongs to the Government. The paramount

contention raised by the appellant was that, the appellant came to know about

the same from Ext.P6 newspaper report appeared in a vernacular daily dated

23.8.2020. Therefore, according to the appellant, the action of the District

Collector interfering with the free enjoyment of the properties specified above

is arbitrary and illegal liable to be interfered with by the writ court and

therefore, sought the reliefs extracted above.

4. The Assistant Cardamom Settlement Officer, Kumily, Idukki District -

the 5th respondent, had filed a detailed counter affidavit refuting the claims

and demands raised by the appellant and submitted that the property in

question has no connection with survey numbers pointed out by the appellant

in the writ petition and that the appellant is claiming a large extent of valuable

Government land under the possession of the Kerala State Electricity Board

situated in Sy.Nos.48, 49, 20/1 and 12/1-A of Chinnakanal Village and the

same has been occupied by the Electricity Board for the catchment area of

Anayirankal Reservoir and as per the revenue records, the property situate in

Sy.No.20/1 is a puramboke land.

5. The sum and substance of the contention raised by the 5 th respondent

is that the appellant is making an illegal claim over the Government land with

the active support of then Deputy Tahsildar and Village Assistant and having

taken note of the role played by the officials, they were placed under

suspension as per Ext.R5(a) order dated 24.8.2020. Other serious allegations

are raised against the appellant and documents are also produced to show that

the contentions put forth by the appellant in the writ petition claiming rights

over the property is without any basis or foundation. It was also pointed out

that the Assistant Cardamom Settlement Officer has taken action against the

encroachers and has produced documents to substantiate the same.

6. To put it short, the Assistant Cardamom Settlement Officer has brought

the issue before the Tahsildar (LR), Udumbanchola, for fresh enquiry and as

per his report dated 21.7.2020 viz., Ext.R5(i), it was revealed that the land

occupied by the appellant is situate in Sy.Nos.48, 49, 12/1-A and 20/1 of

Chinnakanal Village. It was further significantly pointed out that on the basis of

the report of the Tahsildar, the Assistant Cardamom Settlement Officer has

initiated steps to cancel Ext.P5 proceedings of the Assistant Cardamom

Settlement Officer dated 9.6.2020 and accordingly a notice was issued to the

appellant dated 10.8.2020, to which the appellant has submitted a reply dated

nil produced as Ext.R5(j). Therefore, apparently from the judgment of the

learned single Judge it was submitted by the respondents that the allegations

made in the writ petition that the appellant was proceeded with

inappropriately and without issuing any notice, is not correct.

7. Anyhow on the date of the filing of the counter affidavit i.e.,

24.9.2020, a not pressed memo was filed by the appellant dated 22.9.2020

stating that, it is understood from the office of the District Collector that they

have not taken possession of the appellant's land or intends to proceed against

the property. Accordingly it was sought for permission to withdraw the writ

petition with liberty to the writ petitioner to move afresh whenever new cause

of action arises. Apparently learned single Judge directed the appellant to file

an affidavit in regard to the non disclosure of material facts on the basis of

notice issued by the Assistant Cardamom Settlement Officer dated 10.8.2020

and the reply filed by the appellant dated nil. Accordingly an affidavit was filed

stating that the writ petition was filed on 26.8.2020 on the basis of a

newspaper report dated 23.8.2020 stating that the revenue officers have

repossessed the property in question and put up a board in the property of the

appellant. It was further submitted that when the newspaper report appeared,

the appellant was at his daughter's place at Cherthala in connection with the

death of his son-in-law and thereby instructions were given to the Advocate

and the papers were handed over by the driver to file the writ petition. In

short the appellant submitted that the non-production of the above specified

notice and the reply of the appellant was due to the complex situation that had

taken place as above.

8. Evidently the learned single Judge found that there was material

suppression on the part of the appellant in regard to the notice issued by the

Assistant Cardamom Settlement Officer to the appellant dated 10.8.2020 and

the reply submitted by the appellant dated nil and has secured stay of the

proceedings of the respondents. After assimilating and understanding the

factual situations, learned single Judge had made a threadbare discussion

about the facts and circumstances of the case and arrived at the finding that

appellant has made material suppression so as to secure unmerited advantage

in the writ petition and accordingly, irrespective of the permission sought for

withdrawal of the writ petition, dismissed the writ petition imposing a cost of

Rs.50,000/-. It is thus challenging the legality and correctness of the same, the

appeal is preferred.

9.We have heard Sri.Deepu Thankan, appeared for the appellant and

Sri.Y.Jaffar Khan, learned Government Pleader, appeared for the respondents

and perused pleadings and materials on record.

10. The paramount contention advanced in the appeal is that the

learned single Judge was not justified in imposing cost on the appellant when

he has furnished sufficient reasons for not incorporating certain facts in the

writ petition and that the learned single Judge was not justified in entertaining

the counter affidavit and taking a decision relying upon the same after the

filing of a not pressed memo by the appellant. After appreciating the rival

contentions relying upon the judgments of the Apex Court in Prestige

Lights Limited v. State Bank of India [(2007)8 SCC 449], K.D.Sharma v.

Steel Authority of India Limited [(2008)12 SCC 481] and certain other

judgments, learned Single Judge had arrived at the conclusion that a party

approaching the High Court invoking the writ jurisdiction under Article 226 of

the Constitution of India has to approach the court by placing all the facts

without any reservation and if there is any suppression on the part of the

party, or twisted facts have been placed before the court, the writ court may

refuse to entertain the writ petition and dismiss it without entering into merits

of the matter. It was also culling out the legal principles evolved from the

judgments that the writ petition was dismissed without entering into the

merits by imposing a cost of Rs.50,000/-.

11. In our considered opinion, the sole question is whether any manner

of interference is required in the judgment of the learned single Judge

imposing the cost of Rs.50,000/- ? The sole reason assigned is that the

mistake of non- production of material documents had occurred since the

driver of the appellant had handed over the documents without verifying the

entire documents and there was no wilful intention on the part of the

appellant to suppress the receipt of the notice and the reply. However, on

verification of the memorandum of writ petition, we find that various

documents in support of the contentions advanced by the appellant were

produced. However, conveniently the proceedings initiated against the

appellant by issuing notice dated 10.8.2020 and the reply thereto were

suppressed.

12. That apart on a reading of the not pressed memo, it is clear that even

at that stage the counsel was informed that the respondents have not taken

possession of appellant's land or intends to proceed against the property

whereas actually the property was proceeded with and the appellant has

participated in the proceedings by submitting a reply dated nil produced as

Ext.R5(j). Thinking so, we are in absolute agreement with the learned single

Judge that there was material suppression on the part of the appellant and

thus, secured advantage by getting an interim order of stay against the

proceedings initiated by the respondents.

13. We are also satisfied that the proposition of law laid down by the

Apex Court and followed by the learned single Judge would justify the action of

the learned single Judge dismissing the writ petition without permitting the

appellant to withdraw the writ petition as sought for by imposing a cost of

Rs.50,000/-.

Upshot of the above discussion is that the appellant has not made out any

case in the appeal to interfere with the discretion exercised by the learned single

Judge under Article 226 of the Constitution of India, in an intra court appeal filed

under section 5 of the Kerala High Court Act, 1958.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

                                                    SHAJI P.CHALY

SMV                                                      JUDGE