Rafiquabeevi vs The State Of Kerala
2021 Latest Caselaw 7522 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

    THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942

                       W.P.(C)No.3530 OF 2021(M)

PETITIONER:
               RAFIQUABEEVI,
               AGED 71 YEARS, W/O.HAMEED,
               PADIPPURA VEEDU,
               THEKKEVILA, ERAVIPURAM,
               KOLLAM-691 011.

               BY ADVS.
               SRI.V.JAYAPRADEEP
               SMT.ANN SUSAN GEORGE
               SMT.O.A.NURIYA
               SRI.D.S.LOKANATHAN
               SRI.ALAN PRIYADARSHI DEV
RESPONDENTS:
       1     THE STATE OF KERALA
             REPRESENTED BY ITS SECRETARY,
             DEPARTMENT OF REVENUE, SECRETARIAT,
             THIRUVANANTHAPURAM-695 001.

      2        THE DISTRICT COLELCTOR,
               CIVIL STATION, KOLLAM-691 013.

      3        THE LAND ACQUISITION OFFICER
               AND SPECIAL TAHSILDAR LA NO.1,
               CIVIL STATION, KOLLAM-691 013.

    * 4        THE INDIAN RAILWAYS
               REPRESENTED BY THE AREA MANAGER,
               SOUTHERN RAILWAYS, CHENNAI-600 003.

          *    CORRECTED
               THE ADDRESS OF THE 4TH RESPONDENT IN THE CAUSE
               TITLE IS CORRECTED AS
               "THE DIVISIONAL RAILWAY MANAGER,
               SOUTHERN RAILWAY, THYCAUD,
               THIRUVANANTHAPURAM-695 014."
               AS PER ORDER DATED 12.02.2021 IN I.A.1/2021 IN
               W.P.(C)NO.3530/2021.

       R2    BY SRI.K.V.SOHAN, STATE ATTORNEY
       R4    BY SRI.A.DINESH RAO, SC, RAILWAYS
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.3530 of 2021(M)
                                 -2-


                            JUDGMENT

The petitioner, who is residing in a house situated in the

property comprised in Re.Sy.Nos.453/10 and 453/11, Block No.25

of Mundakkal Village, covered by Ext.P1 partition deed dated

09.02.1987, has filed this writ petition seeking a writ of mandamus

or any other writ, order or direction restraining the respondents

from forcefully evicting her and her family from her residence in

the said property. The petitioner has also sought for an order

directing the 2nd respondent District Collector to pass appropriate

orders in compliance with the provisions of law, with regard to

acquisition of her land covered by Ext.P1 partition deed.

2. On 11.02.2021, when this writ petition came up for

admission, the learned counsel for the petitioner sought time to

file application to correct the description of the 4 th respondent

appropriately. The petitioner filed I.A.No.1 of 2021 for correction,

which was allowed on 12.02.2021. The learned Government

Pleader, who sought time to file statement, pointed out that the

compensation amount has already been deposited before the

Additional District and Sessions Court, Kollam.

3. On 19.02.2021, the learned State Attorney has filed a W.P.(C)No.3530 of 2021(M)

statement on behalf of the 2nd respondent, producing therewith

Annexure R2(a) sketch showing the lie of the acquired property,

Annexure R2(b) award of the 3rd respondent Land Acquisition

Officer awarding a total compensation of Rs.21,04,668/- to the

petitioner, along with notice of award, and Annexure R2(c)

proceedings of the 3rd respondent Land Acquisition Officer

awarding rehabilitation and resettlement compensation at the rate

of Rs.2,00,000/- to petitioner's sons, namely, Nizam and Saji,

along with 21 others.

4. On 24.02.2021, the petitioner has filed reply affidavit to

the statement filed on behalf of the 2nd respondent.

5. Heard the learned counsel for the petitioner, the learned

State Attorney for respondents 1 to 3 and also the learned

Standing Counsel for Southern Railway, representing the 4th

respondent.

6. The property having an extent of 0.85 Ares (2.10

Cents) in Re.Sy.Nos.453/10 and 453/11, Block No.25 of Mundakkal

Village, covered by Ext.P1 partition deed was acquired for the

construction of Eravipuram Railway Over Bridge, as shown in

Annexure R2(a) sketch. After acquisition, the petitioner is in W.P.(C)No.3530 of 2021(M)

possession of remaining land having an extent of 3.21 Ares (7.93

Cents) along with the house. In the acquired property, there were

two temporary shops in which the petitioner's sons Nizam and Saji

were conducting petty business, who were awarded rehabilitation

and resettlement compensation at the rate of Rs.2,00,000/-, vide

Annexure R2(c) proceedings of the 3 rd respondent. For those

temporary shops, an amount of Rs.3,31,883.57 was awarded to

the petitioner, towards value of improvements, together with

100% solatium. Towards market value of the acquired land having

an extent of 0.75 Ares in Re.Sy.Nos.453/10, an amount of

Rs.9,03,195.82 was awarded, together with 100% solatium and

increase on market value at the rate of 12% per annum. Towards

market value of the acquired land having an extent of 0.10 Ares in

Re.Sy.Nos.453/11, an amount of Rs.76,148.30 was awarded,

together with 100% solatium and increase on market value at the

rate of 12% per annum. Accordingly, the total compensation

payable was fixed as Rs.21,04,667.65, which was rounded off to

Rs.21,04,668/-. On the ground that the petitioner could not

produce original documents to prove her ownership over the land

under acquisition, the 3rd respondent, who passed Annexure R2(b) W.P.(C)No.3530 of 2021(M)

award, deposited the award amount before the Additional District

and Sessions Court, Kollam, under sub-section (2) of Section 77 of

the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013.

7. The 3rd respondent Land Acquisition Officer issued

Ext.P8 notice in Form No.2(a), dated 08.01.2021, whereby the

petitioner was informed that the award amount of Rs.21,04,668/-

has been deposited in the account of the Additional District and

Sessions Court, Kollam, and also issued notice of taking over

possession of the land in Form No.4, dated 08.01.2021, whereby

the petitioner was informed that the property having an extent of

0.75 Ares in Re.Sy.Nos.453/10 and 0.10 Ares in Re.Sy.Nos.453/11

of Mundakkal Village has been acquired by the Government under

the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act and that, she

should vacate and deliver vacant possession of the said land

before the evening of 15.01.2021 to the Valuation

Assistant/Special Revenue Inspector, who has received necessary

instructions in the matter. If the petitioner fails to do so, the

District Magistrate will be addressed to enforce the surrender of W.P.(C)No.3530 of 2021(M)

the property to the Department, under Section 91 of the Right to

Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act. The petitioner submitted

Ext.P9 representation dated 05.02.2021 before the 2nd respondent

District Collector to take necessary steps to ensure that she is paid

compensation for the acquired land and also rehabilitation and

resettlement compensation before she is evicted from her house.

8. The specific stand taken in the statement filed on behalf

of the 2nd respondent is that, the petitioner is in possession of the

remaining property having an extent of 3.21 Ares (7.93 Cents)

along with the house. In the acquired property, there were two

temporary shops in which the petitioner's sons Nizam and Saji

were conducting petty business, who were awarded rehabilitation

and resettlement compensation at the rate of Rs.2,00,000/-, vide

Annexure R2(c) proceedings of the 3rd respondent Land Acquisition

Officer. In addition to the market value of the acquired land,

together with 100% solatium and increase on market value at the

rate of 12% per annum, the petitioner was awarded an amount of

Rs.3,31,883.57 for those temporary shops, towards value of

improvements, together with 100% solatium.

W.P.(C)No.3530 of 2021(M)

9. Pursuant to Exts.P4 and P5 notices dated 17.08.2020

issued under sub-sections (1) and (3) of Section 21 of the Right to

Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, the petitioner appeared

before the 3rd respondent Land Acquisition Officer and submitted

Ext.P6 statement, on 25.09.2020. As evident from Ext.P6, the

petitioner could not produce the original of Ext.P1 partition deed.

Therefore, the 3rd respondent Land Acquisition Officer, who passed

Annexure R2(b) award, deposited the award amount before the

Additional District and Sessions Court, Kollam, under sub-section

(2) of Section 77 of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement

Act, and the said fact was informed to the petitioner vide Ext.P8

notice in Form No.2(a). The said fact is not disclosed in the writ

petition. The fact that the petitioner's two sons Nizam and Saji,

who were conducting petty business in two temporary shops in the

acquired property were awarded and paid rehabilitation and

resettlement compensation at the rate of Rs.2,00,000/-, vide

Annexure R2(c) proceedings of the 3rd respondent Land Acquisition

Officer, is also not disclosed in the writ petition. W.P.(C)No.3530 of 2021(M)

10. The learned counsel for the petitioner would submit

that, since the petitioner's two sons are residing elsewhere, the

petitioner was unaware of the receipt of rehabilitation and

resettlement compensation by her sons. The said submission of

the learned counsel for the petitioner is absolutely without any

bona fide, since the specific case of the petitioner in paragraph 1

of the writ petition is that, she is residing in the house, namely,

Padippura Veedu, situated in the property in question, along with

her five children and five grandchildren. Moreover, as per Annexure

R2(c) proceedings of the 3rd respondent Land Acquisition Officer,

awarding rehabilitation and resettlement compensation

compensation, the petitioner's two sons Nizam and Saji are also

residing in Padippura Veedu, Eravipuram.

11. As per clause (c) of Section 3 of the Right to Fair

Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Act, 'affected family' includes - (i) a family

whose land or other immovable property has been acquired; (ii) a

family which does not own any land but a member or members of

such family may be agricultural labourers, tenants including any

form of tenancy or holding of usufruct right, share-croppers or W.P.(C)No.3530 of 2021(M)

artisans or who may be working in the affected area for three

years prior to the acquisition of the land, whose primary source of

livelihood stand affected by the acquisition of land; (iii) the

Scheduled Tribes and other traditional forest dwellers who have

lost any of their forest rights recognised under the Scheduled

Tribes and Other Traditional Forest Dwellers (Recognition of Forest

Rights) Act, 2006 (2 of 2007) due to acquisition of land; (iv) family

whose primary source of livelihood for three years prior to the

acquisition of the land is dependent on forests or water bodies and

includes gatherers of forest produce, hunters, fisher folk and

boatmen and such livelihood is affected due to acquisition of land;

(v) a member of the family who has been assigned land by the

State Government or the Central Government under any of its

schemes and such land is under acquisition; (vi) a family residing

on any land in the urban areas for preceding three years or more

prior to the acquisition of the land or whose primary source of

livelihood for three years prior to the acquisition of the land is

affected by the acquisition of such land.

12. Section 31 of the Act deals with Rehabilitation and

Resettlement award for affected families by Collector. As per sub- W.P.(C)No.3530 of 2021(M)

section (1) of Section 31, the Collector shall pass rehabilitation and

resettlement awards for each affected family in terms of the

entitlements provided in the Second Schedule. The Second

Schedule to the Act deals with elements of rehabilitation and

resettlement entitlements for all the affected families (both land

owners and the families whose livelihood is primarily dependent on

land acquired) in addition to those provided in the First Schedule.

Sl.No.1 of the Second Schedule deals with provision of housing

units in case of displacement; Sl.No.2 deals with land for land;

Sl.No.3 deals with offer for developed land; Sl.No.4 deals with

choice of annuity or employment; Sl.No.5 deals with subsistence

grant for displaced families for a period of one year; Sl.No.6 deals

with transportation cost for displaced families; Sl.No.7 deals with

cattle shed/petty shops cost; Sl.No.8 deals with one time grant to

artisan, small traders and certain others; Sl.No.9 deals with fishing

rights; Sl.No.10 deals with one-time resettlement allowance; and

Sl.No.11 deals with Stamp duty and registration fee. Column No.

(2) of the Second Schedule deals with elements of rehabilitation

and resettlement and column No.(3) deals with

entitlement/provision.

W.P.(C)No.3530 of 2021(M)

13. As per sub-section (2) of Section 31, the rehabilitation

and resettlement award shall include all of the following, namely:-

(a) rehabilitation and resettlement amount payable to the family;

(b) bank account number of the person to which the rehabilitation

and resettlement award amount is to be transferred; (c)

particulars of house site and house to be allotted, in case of

displaced families; (d) particulars of land allotted to the displaced

families; (e) particulars of one time subsistence allowance and

transportation allowance in case of displaced families; (f)

particulars of payment for cattle shed and petty shops; (g)

particulars of one-time amount to artisans and small traders; (h)

details of mandatory employment to be provided to the members

of the affected families; (i) particulars of any fishing rights that

may be involved; (j) particulars of annuity and other entitlements

to be provided; (k) particulars of special provisions for the

Scheduled Castes and the Scheduled Tribes to be provided. As per

the first proviso to sub-section (2) of Section 31, in case any of the

matters specified under clauses (a) to (k) are not applicable to any

affected family the same shall be indicated as 'not applicable'. As

per the second proviso to sub-section (2) of Section 31, the W.P.(C)No.3530 of 2021(M)

appropriate Government may, by notification increase the rate of

rehabilitation and resettlement amount payable to the affected

families, taking into account the rise in the price index.

14. Section 38 of the Act deals with power to take

possession of land to be acquired. As per sub-section (1) of

Section 38, the Collector shall take possession of land after

ensuring that full payment of compensation as well as

rehabilitation and resettlement entitlements are paid or tendered

to the entitled persons within a period of three months for the

compensation and a period of six months for the monetary part of

rehabilitation and resettlement entitlements listed in the Second

Schedule commencing from the date of the award made under

Section 30. As per the first proviso to sub-section (1), the

components of the Rehabilitation and Resettlement Package in the

Second and Third Schedules that relate to infrastructural

entitlements shall be provided within a period of eighteen months

from the date of the award. As per the second proviso to sub-

section (1), in case of acquisition of land for irrigation or hydel

project, being a public purpose, the rehabilitation and resettlement

shall be completed six months prior to submergence of the lands W.P.(C)No.3530 of 2021(M)

acquired. As per sub-Section (2) of Section 38, the Collector shall

be responsible for ensuring that the rehabilitation and resettlement

process is completed in all its aspects before displacing the

affected families.

15. In Annexure R2(b) award, as provided under the first

proviso to sub-section (2) of Section 31 of the Act, the 3 rd

respondent Land Acquisition Officer has stated that rehabilitation

and resettlement amount under clauses (a) to (k) are not

applicable to the petitioner. In view of the provisions under sub-

section (1) of Section 64 of the Act, in case the petitioner is

dissatisfied with the award passed by the 3 rd respondent Land

Acquisition Officer, she can require a reference to the appropriate

authority. The dissatisfaction of the petitioner in the amount of

compensation awarded by the Land Acquisition Officer and the

action of the Land Acquisition Officer in depositing the amount

before the Additional District and Sessions Court, under sub-

section (2) of Section 77 of the Act, are not valid grounds for not

giving vacant possession of the acquired land, on receipt of notice

issued by the Land Acquisition Officer in Form No.4.

16. As already noticed hereinbefore, the specific stand W.P.(C)No.3530 of 2021(M)

taken in the statement filed on behalf of the 2 nd respondent is that,

after acquisition, the petitioner is in possession of the remaining

land having an extent of 3.21 Ares (7.93 cents), along with the

house. In the acquired property, there were only two temporary

shops, for which the petitioner was awarded compensation towards

value of improvements and the petitioner's two sons were awarded

rehabilitation and resettlement compensation. Though the

petitioner has filed a reply affidavit dated 20.02.2021, the specific

stand taken as above in the statement filed on behalf of the 2 nd

respondent stands uncontroverted. Therefore, conclusion is

irresistible that, the present writ petition is nothing an attempt

made by the petitioner, with unclean hands and objects to stall

further proceedings pursuant to Ext.P8 notice in Form No.4.

17. 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 W.P.(C)No.3530 of 2021(M)

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.

18. In Prestige Lights 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 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 W.P.(C)No.3530 of 2021(M)

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 make 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."

W.P.(C)No.3530 of 2021(M)

19. In Ramjas Foundation v. Union of India [(2010)

14 SCC 38] the Apex Court held that the principle that a person

who does not come to the court with clean hands is not entitled to

be heard on the merits of his grievance and, in any case, such

person is not entitled to any relief is applicable not only to the

petitions filed under Article 32, Article 226 and Article 136 of the

Constitution of India but also to the cases instituted in others

courts and judicial forums. The object underlying the principle is

that every court is not only entitled but is duty bound to protect

itself from unscrupulous litigants who do not have any respect for

truth and who try to pollute the stream of justice by resorting to

falsehood or by making misstatement or by suppressing facts

which have bearing on adjudication of the issues arising in the

case.

20. Therefore, 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 W.P.(C)No.3530 of 2021(M)

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 to any reliefs.

21. In the instant case, the petitioner has made an attempt

to secure orders from this Court without disclosing true, complete

and correct facts. The learned counsel for the petitioner has also

made an attempt to mislead this Court by submitting that, since

the petitioner's two sons are residing elsewhere, the petitioner was

unaware of the receipt of rehabilitation and resettlement of

compensation by her sons. The conduct of the learned counsel for

the petitioner in making such submission, when the specific case

of the petitioner in paragraph 1 of the writ petition is that, she is

residing in her house along with her five children and five

grandchildren, has to be deprecated in the strongest words and I

do so.

22. For the aforesaid reasons, the petitioner is not entitled

for any of the reliefs sought for in this writ petition. In the result,

this writ petition fails and the same is accordingly dismissed. W.P.(C)No.3530 of 2021(M)

Though this is a fit case in which the petitioner has to be

mulcted with cost for approaching this Court with unclean hands

and objects, considering the fact that she is a senior citizen aged

71 years, this Court refrain itself from imposing cost on the

petitioner.

Sd/-

ANIL K. NARENDRAN JUDGE bpr W.P.(C)No.3530 of 2021(M)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 THE COPY OF THE TITLE DEED DATED 09.02.1987 OF THE PETITIONER.

EXHIBIT P2            THE COPY OF THE TAX RECEIPT OF THE
                      PETITIONER DATED 23.07.2020.

EXHIBIT P3            THE COPY OF THE RATION CARD OF THE
                      PETITIONER DATED 15.03.2017.

EXHIBIT P4            NOTICE ISSUED TO THE PETITIONER DATED
                      17.8.2020 UNDER SECTION 21(10 (3) OF THE
                      ACT IN SY.NO.453/10.

EXHIBIT P5            NOTICE ISSUED TO THE PETITIONER DATED
                      17.08.2020 UNDER SECTION 2191) (3) OF THE
                      ACT IN SY.NO.453/11.

EXHIBIT P6            THE COPY OF THE STATEMENT COLLECTED FROM
                      THE PETITIONER BY THE LAND ACQUISITION

AUTHORITY DATED 25.09.2020 IN SY.NO.453/10.

EXHIBIT P7 THE COPY OF THE STATEMENT COLLECTED FROM THE PETITIONER BY THE LAND ACQUISITION AUTHORITY DATED 25.09.2020 IN SY.NO.453/11.

EXHIBIT P8 THE COPY OF THE NOTICE OF TAKING OVER POSSESSION OF THE LAND OF THE PETITIONER DATED 08.01.2021.

EXHIBIT P9 THE COPY OF THE REPRESENTATION DATED 05.02.2021 TO THE 2ND RESPONDENT.

RESPONDENTS' EXHIBITS:

ANNEXURE R2(A) TRUE COPY OF THE SKETCH SHOWING THE LIE OF THE ACQUIRED PROPERTY.

ANNEXURE R2(B) TRUE COPY OF THE AWARD PASSED BY THE LAND ACQUISITION OFFICER.

ANNEXURE R2(C) TRUE COPY OF THE ORDER PASSED BY THE SPECIAL TAHSILDAR GRANTING REHABILITATION AMOUNT AWARDED TO SRI.NIZAM AND SRI.SAJI ALONG WITH OTHERS.