Kerala High Court
Veerankutty vs State Of Kerala on 3 April, 2024
Author: Anil K. Narendran
Bench: Anil K. Narendran
1
W.P.(C)No.7229 of 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR.JUSTICE HARISANKAR V. MENON
WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946
WP(C)NO.7229 OF 2024
PETITIONER:
VEERANKUTTY
AGED 60 YEARS, S/O MOIDEENKUTTY,
THOPPILTHODI HOUSE, PAZHAYANNUR.P.O.,
THRISSUR, PIN - 680587.
SRI VEERANKUTTY - PARTY IN PERSON
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF PUBLIC WORKS, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
2 EXECUTIVE ENGINEER,
PWD ROAD SECTION, CHEMBUKAVU P.O.,
THRISSUR, PIN - 680020.
3 ASSISTANT EXECUTIVE ENGINEER,
PWD ROAD SECTION, KUMARANELLOOR P.O.,
THRISSUR, PIN - 680590
4 ASSISTANT ENGINEER,
PWD ROAD SECTION, MINI CIVIL STATION,
CHELAKKARA P.O., THRISSUR, PIN - 680586.
5 COCHIN DEVASWOM BOARD,
REPRESENTED BY ITS SECRETARY, COCHIN DEVASWOM
BOARD, ROUND NORTH P.O., THRISSUR, PIN - 680001.
6 DEVASWOM OFFICER,
PAZHAYANNUR DEVASWOM, COCHIN DEVASWOM BOARD,
2
W.P.(C)No.7229 of 2024
PAZHAYANNUR P.O., THRISSUR, PIN - 680587.
7 DISTRICT COLLECTOR
COLLECTORATE, CIVIL STATION, CIVIL STATION P.O.,
THRISSUR, PIN - 680003.
8 REVENUE DIVISIONAL OFFICER
OFFICE OF THE REVENUE DIVISIONAL OFFICER,
CIVIL STATION, CIVIL STATION P.O.,
THRISSUR, PIN - 680003.
OTHER PRESENT:
SRI S.RAJMOHAN -SR GOVERNMENT PLEADER;
SRI K.P. SUDHEER - STANDING COUNSEL- COCHIN
DEVASWOM BOARD
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
3
W.P.(C)No.7229 of 2024
JUDGMENT
Anil K. Narendran, J.
The petitioner has filed this writ petition under Article 226 of
the Constitution of India, seeking a writ of mandamus
commanding the 2nd respondent Executive Engineer, Public Works
Department (Roads Section) to implement Ext.P8 order dated
11.08.2023 of the 8th respondent Revenue Divisional Officer and
remove the illegal construction referred to therein, in a time-
bound manner.
2. On 23.02.2024, when this writ petition came up for
admission, this Court noticed that the averments in paragraph 8
of the writ petition (at page No.8) would indicate that an appeal
filed by the 5th respondent Cochin Devaswom Board against Ext.P8
order dated 11.08.2023 of the 8th respondent Revenue Divisional
Officer is pending before the 7th respondent District Collector.
3. On 23.02.2024, the learned counsel for the petitioner
submitted that there is no statutory provision to challenge Ext.P8
order dated 11.08.2023 of the 8th respondent, before the 7th
respondent. The learned Standing Counsel for Cochin Devaswom
Board submitted that Ext.P8 order of the 8th respondent is under
challenge before the 7th respondent in a statutory appeal, in which
there is already an order of status quo. The learned Senior
Government Pleader sought time to get instructions as to whether
notice had already been issued to the petitioner in that
proceedings.
4. On 05.3.2024, when this writ petition came up for
consideration along with the connected matter, i.e., W.P.(C)
No.20578 of 2023, on a query made by this Court as to whether
the petitioner received any notice from the 7th respondent, in the
appeal filed by the 5th respondent Cochin Devaswom Board,
against Ext.P8 order dated 11.08.2023 of the 8th respondent, the
learned counsel for the petitioner submitted that the petitioner
was intimated about the pendency of such an appeal from the
Village Office. However, he is yet to be served with a copy of the
memorandum of appeal and no hearing was conducted by the 7th
respondent. The learned Senior Government Pleader sought time
to get instructions.
5. On 07.03.2024, when this writ petition came up for
consideration along with the connected matter, the learned
Government Pleader has made available for the perusal of this
Court a copy of the attendance sheet of the meeting held on
19.10.2023, to show that the petitioner appeared in person before
the 7th respondent District Collector, in the hearing conducted on
19.10.2023. The learned Senior Government Pleader has made
available for the perusal of this Court a copy of the hearing notice
of the meeting held on 19.10.2023. The learned Senior
Government Pleader was directed to place on record the aforesaid
documents along with an affidavit of the 7th respondent, by
15.03.2024. On receipt of that affidavit, the petitioner was
directed to file an affidavit in reply on or before 22.03.2024.
6. The 7th respondent has sworn to an affidavit dated
21.03.2024 producing therewith Annexure R7(a) hearing notice
dated 26.09.2023 and Annexure R7(b) attendance sheet of the
meeting held on 19.10.2023. In the said affidavit, it is stated that,
in the appeal filed by the Cochin Devaswom Board against Ext.P8
order of the 8th respondent, the 7th respondent has given a
direction to the 2nd respondent Executive Engineer, PWD Roads
Division to maintain the status quo as per letter
No.DCTSR/9360/2023/B4 dated 05.09.2023. Thereafter, the
petitioner submitted a complaint on 07.09.2023, stating that the
appeal filed by the Cochin Devaswom Board was to mislead the 7th
respondent and that the stop memo issued to the 2nd respondent
Executive Engineer to maintain status quo was obtained by
misleading the 7th respondent. In order to decide the appeal filed
by the Cochin Devaswom Board, the 7th respondent conducted a
hearing on 19.10.2023, after issuing Annexure R7(a) hearing
notice dated 26.09.2023. On 19.10.2023, the petitioner, the
officers of Cochin Devaswom Board, Revenue Divisional Office,
Tahsildar, Talappilly and the Executive Engineer, PWD (Roads),
Talappilly were present for the hearing. Annexure R7(b) is the
attendance sheet of the meeting held on 19.10.2023. In the
statement submitted vide letter No.R.1384/2020 dated
17.10.2023, the Cochin Devaswom Board has stated that the
'Thara' is the 'Moolastanam' of Vettakkarankavu Temple. Believers
of the Hindu religion are worshipping and lighting lamps there as
per their rites and custom. 'Thara' situated on puramboke road is
there from time immemorial and all puramboke lands including
roads are the property of Devaswom as per order No.Dis 21/08/98
dated 06.11.1922 of Cochin Diwan Peshkar. Even now, some of
the puramboke lands are not changed in the revenue records and
remain puramboke lands in BTR. On the other hand, the Tahsildar,
Thalappilly submitted a report, vide letter No.TLKPY 2742022-A5
dated 04.10.2023, that 'Thara' is situated on the side of
Pazhayannur-Elanadu PWD Road, comprised in Sy. No.1085/1 and
1085/2 of Pazhayannur Village in Thalappilly Taluk, having an area
of 01m2 in Sy.No.1085/1 (puramboke) and 01m2 in 1085/2
(purayidam). The land of the petitioner is included in Sy.
No.1085/2 of Pazhayannur Village. In the affidavit, the 7th
respondent has stated that the proceedings pursuant to the
hearing are not finalised and it will be issued soon.
7. Today, when this matter was taken up for consideration
in the forenoon, Adv.A.Rajasimhan, the learned counsel for the
petitioner submitted that, since he has relinquished the vakalat,
the petitioner will appear in person. In the afternoon session, the
petitioner appeared in person.
8. We heard the arguments of the petitioner, who
appeared in person, and also the arguments of the learned Senior
Government Pleader for respondents 1 to 4, 7 and 8 and the
learned Standing Counsel for the Cochin Devaswom Board for
respondents 5 and 6.
9. The petitioner has filed this writ petition, on 21.02.2024,
seeking a writ of mandamus commanding the 2nd respondent
Executive Engineer, Public Works Department (Roads Section) to
implement Ext.P8 order dated 11.08.2023 of the 8th respondent
Revenue Divisional Officer and remove the illegal construction
referred to therein, in a time-bound manner. In paragraph 8 of the
writ petition, at page No.8, after marking Ext.P8 order, the
petitioner has stated as follows;
"8. ...... But, till date the above order is not complied with
citing an appeal filed by the 7th respondent to the District
Collector, Thrissur [sic: an appeal filed before the 7th
respondent District Collector, Thrissur] for which there is no
statutory provision."
10. In the order dated 23.02.2024, this Court noticed the
submission made by the learned Standing Counsel for Cochin
Devaswom Board that Ext.P8 order of the 8th respondent is under
challenge before the 7th respondent in a statutory appeal, in which
there is already an order of status quo.
11. In the affidavit dated 21.03.2024 sworn to by the 7th
respondent District Collector, it is stated that in the appeal filed
against Ext.P8 order of the 8th respondent, the 7th respondent has
given a direction on 05.09.2023 to the 2nd respondent Executive
Engineer, PWD Roads Division to maintain status quo. Thereafter,
the petitioner submitted a complaint on 07.09.2023, stating that
the appeal filed by the Cochin Devaswom Board was to mislead
the 7th respondent and that the order issued to the 2nd respondent
Executive Engineer to maintain status quo was obtained by
misleading the 7th respondent.
12. During the course of arguments, the petitioner, who
appeared in person, submitted that he did not attend any hearing
before the 7th respondent District Collector in connection with the
appeal filed by the 5th respondent Cochin Devaswom Board
challenging Ext.P8 order of the Revenue Divisional Officer.
13. Along with the affidavit dated 21.03.2024, the 7th
respondent District Collector has placed on record Annexure R7(a)
hearing notice dated 26.09.2023 and Annexure R7(b) attendance
sheet of the meeting held on 19.10.2023. The learned Senior
Government Pleader would point out the specific stand taken in
the affidavit dated 21.03.2024 sworn to by the 7th respondent
District Collector that, on 19.10.2023, the petitioner, the officers
of Cochin Devaswom Board, Revenue Divisional Office, Tahsildar,
Talappilly and the Executive Engineer, PWD (Roads), Talappilly
were present for the hearing.
14. The learned Standing Counsel for the Cochin
Devaswom Board has made available for the perusal of the
petitioner, who appeared in person, Annexure R7(b) attendance
sheet of the meeting held on 19.10.2023, pursuant to Annexure
R7(a) hearing noticed in the appeal filed by the Board against
Ext.P8 order of the 8th respondent Revenue Divisional Officer,
placed on record along with the affidavit dated 21.03.2024 sworn
to by the 7th respondent District Collector. After perusing that
document, the petitioner, who appeared in person, admitted his
signature in Annexure R7(b) attendance sheet.
15. The petitioner is arrayed as a respondent in W.P.(C)
No.20578 of 2023, who is represented in that proceedings through
another counsel. During the pendency of that writ petition, the
petitioner has chosen to file this writ petition, on 21.02.2024,
seeking implementation of Ext.P8 order dated 11.08.2023 of the
8th respondent Revenue Divisional Officer, which is under
challenge in an appeal filed by the Cochin Devaswom Board,
before the 7th respondent District Collector.
16. Though, in this writ petition filed on 21.02.2024, the
petitioner would plead ignorance of the order of status quo granted
by the 7th respondent on 05.09.2023, the specific stand taken in
the affidavit dated 21.03.2024 sworn to by the 7th respondent is
that the petitioner submitted a complaint before the 7th
respondent on 07.09.2023, stating that the appeal filed by the
Cochin Devaswom Board was to mislead the 7th respondent and
that the order issued to the 2nd respondent Executive Engineer to
maintain status quo was obtained by misleading the 7th
respondent.
17. As stated by Scrutton, L.J, in R. v. Kensington
Income Tax Commissioners [[1917] 1 K.B. 486], an
applicant who does not come with candid facts and 'clean breast'
cannot hold a writ of the court with 'soiled hands'. Suppression or
concealment of material facts is not an advocacy. It is a jugglery,
manipulation, manoeuvring or misrepresentation, which has no
place in equitable and prerogative jurisdiction.
18. 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 suppress relevant
materials or is otherwise guilty of misleading the court, the Court
may dismiss the action without adjudicating the matter. This rule
has been evolved in the larger public interest to deter
unscrupulous litigants from abusing the process of the court by
deceiving it. The very basis of the writ jurisdiction rests in the
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.
19. In Prestige Lights Limited [(2007) 8 SCC 449] 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 the
merits of the matter.
20. In view of the law laid down in the decisions referred to
supra, this writ petition filed with twisted facts and also
suppressing material facts from the notice of this Court is nothing
but an abuse of the process of law and the court. Today, the
learned counsel who filed this writ petition has relinquished
vakalat and the petitioner appeared in person.
21. In Bihar Eastern Gangetic Fishermen Cooperative
Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145] a Three-
Judge Bench of the Apex Court held that a writ of mandamus can
be granted only in a case where there is a statutory duty imposed
upon the officer concerned and there is a failure on the part of
that officer to discharge the statutory obligation. The chief
function of a writ is to compel the performance of public duties
prescribed by statute and to keep subordinate tribunals and
officers exercising public functions within the limit of their
jurisdiction.
22. In Oriental Bank of Commerce v. Sunder Lal
Jain [(2008) 2 SCC 280] the Apex Court held that, in order that
a writ of mandamus may be issued, there must be a legal right
with the party asking for the writ to compel the performance of
some statutory duty cast upon the authorities. In the said decision,
the Apex Court noticed the principles on which a writ of mandamus
can be issued have been stated as under in 'The Law of
Extraordinary Legal Remedies' by F.G. Ferris and F.G. Ferris, Jr.
that, mandamus is, subject to the exercise of a sound judicial
discretion, the appropriate remedy to enforce a plain, positive,
specific and ministerial duty presently existing and imposed by law
upon officers and others who refuse or neglect to perform such
duty, when there is no other adequate and specific legal remedy
and without which there would be a failure of justice.
23. In the instant case, in the appeal filed against Ext.P8
order of the 8th respondent Revenue Divisional Officer, the 7th
respondent District Collector has given a direction on 05.09.2023
to the 2nd respondent Executive Engineer, PWD Roads Division to
maintain status quo. In view of the order of status quo granted by
the 7th respondent on 05.09.2023, the petitioner cannot seek a
writ of mandamus commanding the 2nd respondent Executive
Engineer to implement Ext.P8 order dated 11.08.2023 of the 8 th
respondent Revenue Divisional Officer and remove the illegal
construction referred to therein, in a time-bound manner, since, in
view of the order of status quo issued by the 7th respondent, it
cannot be said that there is any refusal or neglect on the part of
the 2nd respondent to perform any duty imposed by law.
24. The learned Senior Government Pleader, on
instructions from the 7th respondent District Collector, would
submit that in the appeal filed by the 5th respondent Cochin
Devaswom Board, the District Collector has already called for a
survey report from the Taluk Surveyor. The survey has already
been conducted and the report is awaited.
25. The petitioner, who appeared in person, submitted that
he is in receipt of a copy of the survey report.
26. Having considered the pleadings and materials on
record and also the submissions made by both sides, we deem it
appropriate to dispose of this writ petition with the following
directions;
(i) In case the survey report of the Taluk Surveyor is yet to
be received, the 7th respondent District Collector shall take
necessary steps to ensure that the report by the Taluk
Surveyor is submitted within a period of 10 days.
(ii) On receipt of the survey report of the Taluk Surveyor, a
copy of the same shall be furnished to both sides in the
appeal filed by Cochin Devaswom Board against Ext.P8
order of the 8th respondent Revenue Divisional Officer, which
is now pending before the 7th respondent District Collector.
(iii) On receipt of a copy of the survey report of the Taluk
Surveyor, both sides shall submit their written submissions
before the 7th respondent District Collector, on or before
22.04.2024, raising appropriate legal and factual
contentions.
(iv) Since the 7th respondent District Collector is presently
on election duty, he shall conduct a personal hearing on
29.04.2023 at 11.00 a.m. and thereafter take an
appropriate decision in the appeal filed by Cochin Devaswom
Board against Ext.P8 order of the 8th respondent Revenue
Divisional Officer, as expeditiously as possible, at any rate,
within a further period of 10 days.
The legal and factual contentions raised by both sides are left open
to be raised before the 7th respondent District Collector at the
appropriate stage. The order to be passed by the District Collector
shall be a 'reasoned order' after adverting to the legal and factual
contentions raised by both sides.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
HARISANKAR V. MENON, JUDGE
Skk//03.04.2024
APPENDIX OF WP(C) NO.7229/2024
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE FINAL REPORT IN CC NO.
01/2023 IN CHIEF JUDICIAL MAGISTRATE
COURT, THRISSUR
EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT ISSUED
FROM PAZHAYANNUR VILLAGE OFFICE ON
24/6/2023
EXHIBIT P3 PHOTOGRAPH OF THE PETITIONER'S BUILDING
IN THE YEAR 2011
EXHIBIT P4 PHOTGRAGH UNAUTHORIZED RELIGIOUS
CONSTRUCTION
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 3-1-2020
ISSUED BY THE 3RD RESPONDENT
EXHIBIT P6 TRUE COPY OF THE LETTER DATED 15-1-2020
ISSUED BY THE 4TH RESPONDENT TO THE 6TH
RESPONDENT
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 16-1-2023
IN WP(C) NO. 11675 OF 2021 AND IN WP(C)NO.
25576 OF 2021 OF THIS HON'BLE COURT
EXHIBIT P8 TRUE COPY OF THE ORDER NO. 529/23/A2 DATED
11-8-2023 ISSUED BY THE 8TH RESPONDENT
RESPONDENTS' ANNEXURES:
ANNEXURE R7(A) TRUE COPY OF THE HEARING NOTICE BEARING
NO.DCTSR/9360/2023/B4 DATED 26.09.2023
ANNEXURE R7(B) TRUE COPY OF THE ATTENDANCE SHEET OF THE
MEETING CONDUCTED ON 19/10/2023
