K. K. Abdul Rasheed vs The Deputy Superintendent Of ...
2021 Latest Caselaw 2725 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

      MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942

                       WP(C).No.22560 OF 2020(T)

PETITIONER:

               K. K. ABDUL RASHEED
               AGED 64 YEARS
               S/O. P. P. KUNHAHAMMED,
               KALATHIPARAMBIL HOUSE,
               GRAMAM P. O., VIA VELIYAMCODE,
               PONNANI TALUK, MALAPPURAM DISTRICT.

               BY ADV. SRI. C. M. MOHAMMED IQUABAL

RESPONDENTS:

      1        THE DEPUTY SUPERINTENDENT OF POLICE,
               TIRUR, TIRUR P. O.,
               MALAPPURAM DISTRICT - 676 101.

      2        THE SUB INSPECTOR OF POLICE,
               PERUMBADAPPU POLICE STATION,
               PERUMBADAPPU P. O.,
               MALAPPURAM DISTRICT - 679 580.

      3        THE EXECUTIVE ENGINEER,
               PUBLIC WORKS DEPARTMENT,
               PONNANI, PONNANI P. O.,
               MALAPPURAM DISTRICT - 679 577.

      4        THE ASSISTANT EXECUTIVE ENGINEER,
               KERALA STATE ELECTRICITY BOARD,
               PERUMBADAPPU, PERUMBADAPPU P. O.,
               MALAPPURAM DISTRICT - 679 580.

      5        VELIYAMCODE GRAMA PANCHAYATH,
               ERAMANGALAM P. O.,
               MALAPPURAM DISTRICT - 679 587,
               REPRESENTED BY ITS SECRETARY.

      6        COMMUNIST PARTY OF INDIA (MARXIST),
               CHEKKUMUKKU BRANCH COMMITTEE,
               GRAMAM P. O., PONNANI TALUK,
               MALAPPURAM DISTRICT - 679 579.
 WP(C).No.22560 OF 2020

                             2

      7     GIRIVASAN T.,
            S/O. GOPI, THATTUKATH HOUSE,
            GRAMAM P. O., PONNANI TALUK,
            MALAPPURAM DISTRICT - 679 579.

      8     ASOKAN,
            S/O. RASUMUTHALALI,
            MEMBER OF 12TH WARD IN VELIYAMCODE GRAMA
            PANCHAYATH, PARIYARATH HOUSE,
            ERAMANGALAM P. O.,
            PONNANI TALUK,
            MALAPPURAM DISTRICT - 679 587.

      9     MANJESH DAS G. M.,
            S/O. MOHANAN, GRAMATHIL HOUSE,
            PERUMBADAPPU P. O.,
            PONNANI TALUK,
            MALAPPURAM DISTRICT - 679 580.

      10    KAPIL DAS P.,
            S/O. HARIDASAN, PANTHAYIL HOUSE,
            VELIYAMCODE, GRAMAM P. O.,
            PONNANI TALUK,
            MALAPPURAM DISTRICT - 679 579.

            R5 - SRI. T. K. SAIDALIKUTTY(KUTTIPPURAM)
            R6 - R10 - SRI. C. V. MANUVILSAN
            GP - SMT. VIDHYA



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 25.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C).No.22560 OF 2020

                                   3

                              JUDGMENT

The petitioner, who is the owner in possession of 0.8253

Hectares of land in Survey No.335/5 of Veliyamcode Village in

Ponnani Taluk, covered by Ext.P1 purchase certificate dated

13.03.1978 issued by the Land Tribunal, Andathodu has filed this

writ petition under Article 226 of the Constitution of India, seeking

a writ of mandamus commanding respondents 1 and 2 to provide

necessary and adequate police protection to the life of the

petitioner to remove the unwanted 'stupas' from the property

belonging to him. The petitioner has also sought for a writ of

mandamus commanding the 2nd respondent to take appropriate

action on Ext.P9 complaint filed by the petitioner, within a time

limit to be stipulated by this Court.

2. On 23.10.2020, when this writ petition came up for

admission, this Court issued notice before admission to

respondents. The learned Government Pleader took notice for

respondents 1 to 4. The learned Standing Counsel took notice for

the 5th respondent Veliyamcod Grama Panchayat. Urgent notice by

speed post was ordered to respondents 6 to 10.

3. Along with I.A.No.1 of 2020, the petitioner has placed WP(C).No.22560 OF 2020

on record Ext.P10 FIR dated 09.11.2020 in Crime No.371/2020 of

Perumbadappu Police Station, which is one registered in

connection with an incident, which occurred on 09.11.2020. In the

affidavit filed in support of that interlocutory application, it is

stated that, on 09.11.2020, one Balan, who is also a politician,

questioned the illegal activities of respondents 7 to 10, who was

brutally attacked by the said respondents.

4. On 15.01.2021, when this writ petition came up for

consideration, the petitioner was directed to place on record the

building plan and site plan which form part of Ext.P5 building

permit. The respondents were directed to file counter affidavit

within one week.

5. On 19.01.2021, along with I.A.No.1 of 2021, the

petitioner has placed on record Ext.P11 approved plan, which

forms part of Ext.P5 building permit.

6. Heard the learned counsel for the petitioner, the

learned Government Pleader appearing for respondents 1 to 4,

the learned Standing Counsel appearing for the 5th respondent and

the learned counsel appearing for respondents 6 to 10.

7. Going by the averments in the writ petition, the WP(C).No.22560 OF 2020

petitioner constructed a residential building in the property

covered by Ext.P1 purchase certificate. On eastern side of the

property, there is a PWD road and on its southern side, there is a

Panchayat road. The petitioner surrendered land for the

construction of PWD road and also for the panchayat road. In

order to protect the property with a compound wall, the petitioner

obtained Ext.P4 consent dated 18.01.2012 from the Secretary of

the 5th respondent Grama Panchayat. Thereafter, the petitioner

was issued with Ext.P1 building permit dated 21.05.2012 for

constructing the compound wall. The document marked as Ext.P6

is a receipt dated 21.05.2012 regarding payment of permit fee for

compound wall. Immediately after obtaining Ext.P4 consent and

Ext.P5 building permit, the petitioner laid the foundation for the

compound wall, but he has not completed the construction. In the

meanwhile, political parties put their banners and posts in the

property. The Congress Committee of Valiyamcode Grama

Panchayat and the 6th respondent Communist Party of India

(Marxist) constructed two stupas in the property, abutting the

PWD road. According to the petitioner, there is no puramboke

between the PWD road and his property. The document marked as WP(C).No.22560 OF 2020

Ext.P7 is the survey sketch of the petitioner's property and Ext.P8

is the photographs of the 'stupas'. In paragraph 4 of the writ

petition, it is averred that, both political parties constructed

'stupas' encroaching into the petitioner's property. In order to

complete the construction of the compound wall, the petitioner

approached the leaders of both political parties and they agreed to

remove the 'stupas' from the property. Respondents 7 to 10 are

workers of the 6th respondent political party, who are neither

removing the 'stupa' nor permitting the petitioner to remove the

same. The petitioner submitted Ext.P9 complaint dated

15.10.2020 before the 1st respondent Deputy Superintendent of

Police, Tirur, seeking police protection to the life of the petitioner

to remove the unauthorised 'stupa' from his property. In the said

complaint, it is stated that, in order to construct a compound wall,

the petitioner obtained building permit from the Grama Panchayat.

Though the petitioner started the construction, respondents 7 to

10 are not permitting him to remove the 'stupa' from his property.

8. During the course of arguments, the learned Standing

Counsel for the 4th respondent Grama Panchayat pointed out that

the validity of Ext.P5 building permit was only upto 20.05.2013. WP(C).No.22560 OF 2020

Then the learned counsel for the petitioner submitted that the

petitioner will construct compound wall only after obtaining

building permit from the 5th respondent Grama Panchayat.

9. Though the validity of Ext.P5 building permit was only

upto 20.05.2013, the petitioner has produced the same along with

this writ petition, which is one filed on 20.10.2020. Pursuant to

the order of this Court dated 15.01.2021, the petitioner produced

Ext.P11 approved plan, which forms part of Ext.P5 building permit.

The validity of Ext.P11 approved plan was upto 20.05.2013. The

petitioner has chosen to file this writ petition, seeking police

protection on the strength of Ext.P5 building permit, which was

valid only upto 20.05.2013, with an allegation that, when he

started to complete the construction of the compound wall,

respondents 7 to 10 threatened him, while he attempted to

remove the 'stupa'. Along with I.A.No.1 of 2021, the petitioner

produced Ext.P11 approved building plan, as if he can complete

the construction of the compound wall on the strength of Ext.P5

building permit. The conduct of the petitioner in not disclosing the

true and correct facts before this Court has to be deprecated in

the strongest words.

WP(C).No.22560 OF 2020

10. In Prestige Lights Limited v. State Bank of India

[(2007) 8 SCC 449] the Apex Court reiterated that a prerogative

remedy is not a matter of course. Therefore, in exercising

extraordinary power, a writ court will indeed bear in mind the

conduct of the party who is invoking such jurisdiction. If the

applicant does not disclose full facts or suppresses relevant

materials or is otherwise guilty of misleading the court, the court

may dismiss the action without adjudicating the matter. The rule

has been evolved in larger public interest to deter unscrupulous

litigants from abusing the process of court by deceiving it. The

very basis of the writ jurisdiction rests in disclosure of true,

complete and correct facts. If the material facts are not candidly

stated or are suppressed or are distorted, the very functioning of

the writ courts would become impossible.

11. In Prestige Lights' case (supra) the Apex Court held

further that, under Article 226 of the Constitution of India, the

High Court is exercising discretionary and extraordinary

jurisdiction. Over and above, a Court of Law is also a Court of

Equity. It is, therefore, of utmost necessity that when a party

approaches a High Court, he must place all the facts before the WP(C).No.22560 OF 2020

Court without any reservation. If there is suppression of material

facts on the part of the applicant or twisted facts have been placed

before the court, the writ court may refuse to entertain the

petition and dismiss it without entering into merits of the matter.

Paragraphs 33 and 34 of the said judgment read thus:

"33. It is thus clear that though the appellant-Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.

34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioners, [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136 (CA)], in the following words:

"It has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should WP(C).No.22560 OF 2020

made a full and fair disclosure of all the material facts - facts, not law. He must not misstate the law if he can help it - the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has taken on the faith of the imperfect statement."

(Emphasis supplied)

12. It is well settled that, a litigant who invokes the

extraordinary jurisdiction of this Court under Article 226 of the

Constitution must come with clean hands and clean objects. The

judicial proceedings are sacrosanct, and no person would be

allowed to abuse the judicial process, particularly, in public law

remedy. In writ proceedings, the court places implicit faith on the

parties and their pleadings, as it does not indulge in any fact

finding or roving enquiry of what has been asserted. Since Article

226 of the Constitution of India espouses equity jurisprudence, a

litigant who has approached the Court with unclean hands, without

disclosing full facts, is not entitled for any reliefs.

13. In the result, this writ petition fails and the same is WP(C).No.22560 OF 2020

accordingly dismissed, imposing a cost of Rs.5,000/- payable by

the petitioner to the 5th respondent Grama Panchayat, within a

period of one month from the date of receipt of a certified copy of

this judgment.

It would be open to the petitioner to move this Court afresh,

after obtaining a valid building permit for constructing the

compound wall, in case there is any threat from the side of

respondents 6 to 10 for completing the construction of the

compound wall or for removing the 'stupa'.

Sd/-

ANIL K. NARENDRAN JUDGE

SPR WP(C).No.22560 OF 2020

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1          THE TRUE COPY OF THE PURCHASE
                    CERTIFICATE NO.639/1978 ISSUED BY THE
                    ANDATHODU LAND TRIBUNAL DATED
                    13/03/1978.

EXHIBIT P2          THE TRUE COPY OF THE LAND TAX RECEIPT
                    ISSUED BY VELIYAMCODE VILLAGE OFFICE
                    DATED 27/05/2020.

EXHIBIT P3          THE TRUE COPY OF THE POSSESSION
                    CERTIFICATE ISSUED BY THE VELIYAMCODE
                    VILLAGE OFFICE DATED 01/06/2020.

EXHIBIT P4          THE TRUE COPY OF THE CONSENT ISSUED BY
                    THE PETITIONER FROM THE VELIYAMCODE
                    GRAMA PANCHAYATH DATED 18/01/2012.

EXHIBIT P5          THE TRUE COPY OF THE BUILDING PERMIT
                    ISSUED BY VELIYAMCODE GRAMA PANCHAYATH
                    DATED 21/05/2012.

EXHIBIT P6          THE TRUE COPY OF THE RECEIPT ISSUED BY
                    THE VELIYAMCODE GRAMA PANCHAYATH DATED
                    21/05/2012.

EXHIBIT P7          THE TRUE COPY OF THE SURVEY SKETCH OF
                    THE PROPERTY OF THE PETITIONER.

EXHIBIT P8          THE TRUE COPY OF THE PHOTOGRAPHS OF THE
                    STUPAS.

EXHIBIT P9          THE TRUE COPY OF THE COMPLAINT SUBMITTED
                    BY THE PETITIONER BEFORE THE 1ST
                    RESPONDENT DATED 15/10/2020.

EXHIBIT P10         THE TRUE COPY OF THE FIR IN CRIME
                    NO.371/2020 OF PERUMBADAPPU POLICE
                    STATION DATED 09.11.2020.

EXHIBIT P11         THE TRUE COPY OF THE APPROVED PLAN IN

PERMIT NO.10803/2011 OF VELIYAMCODE GRAMA PANCHAYATH DATED 20.05.2013.

RESPONDENT'S EXHIBITS: NIL.