Thomas Kuruvila vs State Of Kerala And Ors

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.

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.

The grievance highlighted by the appellant in the writ petition was that the District Collector, Idukki â€" the 2nd 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.

The Assistant Cardamom Settlement Officer, Kumily, Idukki District â€" 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.

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

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.

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.

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.

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.

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/-.

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.

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.

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.