Kerala High Court
Sasikuttan C K vs The District Collector on 6 September, 2024
Author: Anil K. Narendran
Bench: Anil K. Narendran
1
W.P.(C)No.24946 of 2024
2024:KER:68054
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 6TH DAY OF SEPTEMBER 2024 / 15TH BHADRA, 1946
W.P.(C)NO.24946 OF 2024
PETITIONER:
SASIKUTTAN C K
AGED 72 YEARS
S/O KUTTAN CHOVALEKUDIYIL, THALUNKANDAM, MANKULAM P.O
MANKULAM, IDUKKI, KERALA, PIN - 685565
BY ADVS.E.D.GEORGE
BRISONE T. MATHEW
ARCHANA VIJAYAN
RESPONDENTS:
1 THE DISTRICT COLLECTOR, CIVIL STATION, KUYILIMALA P.O
PAINAVU, IDUKKI, PIN - 685603
2 THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR
DEVIKULAM, IDUKKI, PIN - 685613
3 THE TAHSILDHAR, TALUK OFFICE COMPLEX DEVIKULAM,
IDUKKI, PIN - 685613
BY SHRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL()
SR GP SRI JAFFAR KHAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
W.P.(C)No.24946 of 2024
2024:KER:68054
JUDGMENT
Anil K. Narendran, J.
The petitioner, who is stated to be the owner in possession
land having an extent of 17 Ares 87 sq.mtr, comprising of 8
Ares 50 sq.mtr in Survey No.696/3-1 and 9 Ares 37 sq.mtr in
Survey No.696/3-2 of Mankulam Village, Idukki District,
covered by Ext.P1 patta No.LA-42/2020 dated 15.01.2021
issued by the 3rd respondent Tahsildar, Devikulam Taluk, in
Form No.6, under Rule 16 of the Kannan Devan Hills
(Reservation and Assignment of Vested Lands) Rules, 1977, has
filed this writ petition under Article 226 of the Constitution of
India, seeking a writ of mandamus commanding the 2 nd
respondent Sub Registrar, Devikulam, to execute the document
for transfer of the property mentioned in Ext.P1 patta dated
15.01.2021, issued in Form No.6, under Rule 16 of Kannan
Devan Hills (Reservation and Assignment of Vested Lands)
Rules, 1977, and Ext.P2 order of assignment on registry dated
01.04.1980, issued by the 1st respondent District Collector,
Idukki, in Form No.5, under Rule 13 of the said Rules.
2. In the writ petition, it is averred that the petitioner is
in possession of the property in question since 2006 and he
2024:KER:68054
obtained patta in his name in the year 2021. The land was
originally assigned in the year 1980 in the name of one
Augusthy Varkey, who transferred it to another person and
finally, the petitioner obtained the same from one Kuriakose
Appachan. After obtaining Ext.P1 patta, the mutation of the
property was effected in the name of the petitioner and he is
paying land tax, as evident from Ext.P3 tax receipt dated
01.07.2024. As per the terms of the assignment order of the
year 1980, the property shall not be alienated for a period of a
12 years from the date of assignment. Now 44 years is over
from the date of assignment and the petitioner wants to dispose
of the property. On enquiry, the 2nd respondent Sub Registrar
and the 3rd respondent Tahsildar have informed that transfer of
property will not be allowed for a period of 12 years from 2021,
which is legally unsustainable. In support of that contention,
the petitioner would rely on Ext.P4 judgment dated 31.05.2022
of a learned Single Judge of this Court in W.P.(C)No.10068 of
2022.
3. On 18.08.2024, when this writ petition came up for
admission, the learned Senior Government Pleader sought time
to get instructions and to file counter affidavit.
2024:KER:68054
rd
4. The 3 respondent Tahsildar, Devikulam, has filed a
counter affidavit dated 02.09.2024. Paragraphs 3 and 4 of that
counter affidavit read thus;
"3. On 01.04.1980, authority had issued Exhibit-P2 order
of Assignment in respect of the land comprised in Survey
No.75 of KDH Village, in favour of Sri. Augusthy Varkey.
However, no Patta was issued in favour of Sri. Augusthy
Varkey. Later, the petitioner, after the occupation of the
land mentioned above, submitted an application for
assignment on 18.12.2019. The true copy of the
application submitted by the petitioner dated 18.12.2019,
is produced herewith and may be marked as Exhibit-
R3(a). Later, on 25.10.2020, the respondent issued an
'Order of Assignment' in favour of the petitioner. A copy
of the form of Order of Assignment dated 25.10.2020 is
produced herewith and may be marked as Exhibit R3(b).
4. In accordance with the terms and conditions in Exhibit
R3(b), petitioner remitted an amount of Rs.445/- (Rupees
Four Hundred and Forty Five Only), as land value. Later,
on 15.01.2021, 3rd respondent issued Exhibit-P1 Patta, to
the petitioner. It is respectfully submitted that the Order
of Assignment was issued to the petitioner only on
25.10.2020 and specifically incorporated in the order,
regarding the condition for transfer of the property. This
Hon'ble Court in Shekkaba Beary V. State of Kerala
and others [2021 (5) KHC 545], held as follows;
"Prohibition from alienation When does it commence
Held, from the date of Registry, beneficiary cannot sell
the property for a period of 25 years - Provisions do not,
2024:KER:68054
in any manner, even refer to issuance of Purchase
Certificate or date on which it is done, but specifically and
unequivocally only to the date of Registry". Therefore, it
is respectfully submitted that the petitioner cannot violate
the terms and conditions referred in the Order of
Assignment. Hence, there is no substance in the
contention of the petitioner and the same liable to be
dismissed."
5. Heard the learned counsel for the petitioner and also
the learned Senior Government Pleader for the respondents.
6. The relief sought for in this writ petition is a writ of
mandamus commanding the 2nd respondent Sub Registrar,
Devikulam, to execute the document for transfer of the
property mentioned in Exts.P1 and P2. On a query made by this
Court as to the documents referred to in the said relief, the
learned counsel for the petitioner would submit that it does not
form part of the pleadings.
7. The document marked as Ext.P1 is a copy of the
patta issued in Form No.6, under Rule 16 of Kannan Devan Hills
(Reservation and Assignment of Vested Lands) Rules, 1977, in
favour of the petitioner, by the 3rd respondent Tahsildar,
Devikulam. The document marked as Ext.P2 is a copy of order
of assignment on Registry issued in Form No.5, under Rule 13
2024:KER:68054
of the aforesaid Rules, in favour of one Augusthy Varkey, by the
1st respondent District Collector, Idukki.
8. Along with the counter affidavit filed by the 3rd
respondent, Ext.R3(a) application dated 18.12.2019 made by
the petitioner in Form No.2, under sub-rule (4) of Rule 10 of
Kannan Devan Hills (Reservation and Assignment of Vested
Lands) Rules, 1977, is placed on record. Based on that
application made in the year 2019, the petitioner was issued
with Ext.R3(b) order of assignment on Registry dated
25.10.2020, in Form No.5, under Rule 13 of the said Rules, by
the 1st respondent District Collector, Idukki. Condition No.1 of
Ext.R2(a) order of assignment on Registry make it expressly
clear that though the land granted on Registry shall be
heritable, it shall not be alienated otherwise than as provided in
sub-rules (2) and (3) of Rule 8, for a period of 12 years from
the date of assignment. Such a condition has been imposed in
Ext.R3(b) order of assignment on Registry, in view of the
restrictions contained in sub-rule (1) of Rule 8. Sub-rule (2) of
Rule 8 enables the assignee to mortgage the land in the
manner specified therein, as security for obtaining loans for
agricultural or land improvement purposes or for construction of
2024:KER:68054
houses under any of the housing schemes sponsored by the
Government or Housing Board. Sub-rule (3) of Rule 8 enables
the institutions referred to in sub-rule (2) to alienate the land
mortgaged to them or as a security for the loan, in satisfaction
of the terms and conditions of the loan. The petitioner, who has
been issued with Ext.P1 patta dated 15.01.2021, based on
Ext.R3(b) order of assignment on Registry dated 25.10.2020,
has chosen to file this writ petition, producing therewith Ext.P2
order of assignment on Registry issued in favour of one
Augusthy Varkey. In Ext.P3 judgment dated 31.05.2022 in
W.P.(C)No.10068 of 2022, relied on by the petitioner, the
learned Single Judge was dealing with a case in which the order
of assignment on Registry (Ext.P1) was issued on 01.04.1980 in
favour of the writ petitioner, who has been issued with patta
(Ext.P2) only on 17.12.2019.
9. The specific stand taken in the counter affidavit filed
by the 3rd respondent is that though the 1st respondent District
Collector, Idukki, has issued Ext.P2 order of assignment, in
favour of one Augusthy Varkey, no patta in Form No.6 was
issued in his favour. In view of the prohibition contained in sub-
rule (1) of Rule 8 of Kannan Devan Hills (Reservation and
2024:KER:68054
Assignment of Vested Lands) Rules, 1977, the petitioner is not
entitled for alienation of the property covered by Ext.P1 patta,
for a period of 12 years from the date of assignment. Therefore,
the petitioner is not entitled to the relief sought for in this writ
petition.
10. It is also noticed that the petitioner has made a
calculated attempt to secure orders from this Court,
suppressing material facts from the notice of this Court. The
petitioner sought relief with respect of the property mentioned
in Exts.P1 and P2. It is not based on Ext.P2 order of assignment
on Registry that the petitioner has been issued with Ext.P1
patta. The order of assignment on Registry in respect of Ext.P2
patta is Ext.R3(b) order dated 25.10.2020, which is one issued
in favour of the petitioner, based on Ext.R3(a) application dated
18.12.2019 made by the petitioner. The conduct of the
petitioner in invoking the extraordinary jurisdiction of this Court
under Article 226 of the Constitution of India with unclean hand
has to be deprecated in the strongest words and we do so.
11. 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
2024:KER:68054
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.
12. 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 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.
13. In Prestige Lights Limited the Apex Court held
2024:KER:68054
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.
14. In the above circumstances, the petitioner is not
entitled to the relief sought for in this writ petition, in view of
the restrictions contained in sub-rule (1) of Rule 8 of Kannan
Devan Hills (Reservation and Assignment of Vested Lands)
Rules, 1977, against alienation of the property covered by
Ext.R3(b) order of assignment on Registry dated 25.10.2020
and Ext.P1 Form of patta dated 15.01.2021, for a period of 12
years from the date of assignment.
In the result, this writ petition fails on the above grounds,
and the same is accordingly dismissed, after deprecating in the
strongest words the conduct of the petitioner in approaching
2024:KER:68054
the Court in this writ petition, suppressing material facts from
the notice of this Court.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
AV/11/9
2024:KER:68054
APPENDIX OF WP(C) 24946/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PATTA NO. LA-42/2020
ISSUED TO THE PETITIONER DATED 15/01/2021
Exhibit P2 TRUE COPY OF THE ASSIGNMENT ORDER DATED
01.04.1980
Exhibit P3 TRUE COPY OF THE TAX RECEIPT DATED
01.07.2024
Exhibit P4 TRUE COPY OF THE JUDGEMENT IN WP( C ) NO.
10068 OF 2022 OF THIS HON'BLE COURT DATED
31/05/2022
RESPONDENT EXHIBITS
EXHIBIT R3(a) True copy of the application submitted by
the petitioner dated 18.12.2019,
EXHIBIT R2(b) True copy of the form of Order of
Assignment dated 25.10.2020.
