Bhanumathy Chandravally v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942** ## **W.P.(C)No.31940 OF 2015(N)** ## **PETITIONER:** **BHANUMATHY CHANDRAVALLY, AGED 65, RESIDING AT THOPPIL, PATTATHIL MURI, MEL THONNAKKAL, THIRUVANANTHAPURAM.** **BY ADV. SRI.S.VISHNU** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, INFORMATION TECHNOLOGY(A), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** - **2 THE LAND ACQUISITION OFFICER AND SPECIAL TAHSILDAR SREEPANDARAVAKA LAND NO.III, CIVIL STATION, THIRUVANANTHAPURAM, PIN-695 001.** - **3 THE TECHNOCITY REPRESENTED BY CHIEF EXECUTIVE OFFICER TECHNOPARK, KAZHAKOOTTAM P.O., THIRUVANANTHAPURAM-695 582.** - **R1 & R2 BY ADV.A.C.VIDYA, GOVERNMENT PLEADER R3 BY SMT.K.V.RASHMI, SC, TECHNOPARK** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.31940 OF 2015(N) 2 ## **JUDGMENT** The petitioner owned 32 Ares of property in Survey No.512/8 (Re-Survey No.512/1, Block No.4) of Melthonnakkal Village. By G.O.(Ms.)No.25/2005/ITD dated 19.12.2005, the 1[st] respondent accorded sanction for acquisition of 732 Acres of land in various Survey numbers of Pallipuram, Andoorkkonam, Veiloor and Melthonnakkal villages, for setting up 'Technocity – Phase IV development of Technopark'. By Ext.P1 Government order dated 21.02.2006, the 1[st] respondent issued revised administrative sanction for the acquisition of land for the said purpose, limiting the total extent to 507 Acres, invoking urgency clause under Section 17 of the Land Acquisition Act, 1894. The land owned by the petitioner in Re-Survey No.512/1 Block No.4 of Melthonnakkal Village was also included in 507 Acres covered by Ext.P1 order. The District Collector, Thiruvananthapuram, convened the meeting of the District Level Purchase Committee. The land value recommended by the District Level Purchase Committee was approved by the State Level Empowered Committee in its meeting held on 26.11.2009. The 1[st] respondent by Ext.P2 Government order dated 31.12.2009 approved the price of 245.89 acres of land in all the categories of land in Andoorkonam, Melthonnakkal, W.P.(C)No.31940 OF 2015(N) 3 Veiloor and Pallipuram villages, as per the Annexure to that order. 2. The 2[nd] respondent Special Tahsildar issued Ext.P3 notice of taking possession in LAC No.279/09 dated 08.04.2010, whereby the petitioner was informed that the Government acquired her property having an extent of 23.50 Ares in Re-Survey No.512/1 Block No.4 of Melthonnakkal Village as per notification in Extra Ordinary Gazette No.1002 dated 01.06.2007 and she should be present at the site, vacate and deliver possession of the property on 22.04.2010 at 10.00 am to the Revenue Inspector in the office of the 2[nd] respondent Special Tahsildar. According to the petitioner, she received no such notice, and actually no possession of her property was taken by the Government. The 2[nd] respondent passed an award for the acquisition of the petitioner's property and issued an award for Rs.16,68,683/- and she was required to appear, either in person or by an authorised agent, before the 2[nd] respondent on 26.04.2010 and receive the award amount. 3. The petitioner received compensation under protest, on 18.05.2010, and filed reference application under Section 18 of the Land Acquisition Act, which has been referred to the Sub Court Attingal. Relying on Ext.P5 and P5(a) photographs, the petitioner would contend that after acquisition the land in question is lying W.P.(C)No.31940 OF 2015(N) 4 unutilised for the public purpose. The petitioner has filed this writ petition under Article 226 of the constitution of India seeking a writ of certiorari to quash Ext.P1 notification dated 21.02.2006 and Ext.P4 award dated 27.01.2010, holding that since the property has not been taken possession 5 years prior to the commencement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 on 01.01.2014, the entire proceedings are lapsed. The petitioner has also sought for a writ of mandamus commanding the respondents to surrender the land as per Ext.P4 award to her, after receiving the award amount in Rs.16,68,683/- with interest at the bank rate, as the property is not required for public purpose as notified by Ext.P1 notification. 4. On 02.03.2016, when this writ petition came up for admission, this Court admitted the matter on file. 5. Respondents 1 and 2 have filed separate counter affidavits through the learned Government Pleader, opposing the reliefs sought for in this writ petition. Along with the counter affidavit of the 2[nd] respondent the 2[nd] respondent has placed on record Ext.R2(a) mahazar dated 22.04.2010, as per which Sri.S.Sreekumar, son of the petitioner, who was present at the site W.P.(C)No.31940 OF 2015(N) 5 on 22.04.2020 on behalf of the petitioner, handed over possession of the land to the Revenue Inspector. On 12.05.2010, the petitioner submitted Ext.R2(b) request before the 2[nd] respondent for disbursement of the award amount. Based on that request, the petitioner received the cheque towards award amount, on 18.05.2010, under protest. The petitioner has made an endorsement to that effect on Ext.R2(b) request. 6. The 3[rd] respondent has also filed a statement, opposing the reliefs sought for. The petitioner has filed a reply affidavit, pointing out the pendency of W.P.(C)No.18175 of 2009 filed by one Thoufeek challenging the land acquisition proceedings . 7. Heard the learned counsel for the petitioner, the learned counsel for the petitioner, the learned Government Pleader for respondents 1 and 2 and also the learned counsel for the 3[rd] respondent. 8. In paragraph 3 of the writ petition the case of the petitioner is that the petitioner never received Ext.P3 notice issued by the 2[nd] respondent and that possession of the property was also not taken by the Government. As borne out from Ext.R2(a) mahazar dated 22.04.2010, the Revenue Inspector took possession of the petitioner's property, on 22.04.2010, pursuant W.P.(C)No.31940 OF 2015(N) 6 to Ext.P3 notice dated 08.04.2010, from Sri.S.Sreekumar, son of the petitioner, who was present at the site on 22.04.2020 on behalf of the petitioner. Thereafter, on 12.05.2010, the petitioner submitted Ext.R2(b) request before the 2[nd] respondent for disbursement of the award amount. Based on that request, the petitioner received the cheque towards award amount, on 18.05.2010, under protest, after making an endorsement to that effect on Ext.R2(b) request. In the reply affidavit, the petitioner would contend that she never instructed her son Sri.S.Sreekumar to give possession of the property on her behalf. Since the petitioner's son was present at the site on 22.04.2020, in terms of Ext.P3 notice, petitioner cannot now contend that she never received Ext.P3 notice. The petitioner suppressed the said fact from the notice of this Court. Having received the award amount under protest, on 18.05.2010, based on Ext.R2(b) request dated 12.08.2010, the petitioner cannot now contend that possession of the property was not taken by the Government. 9. As stated by Scrutton, L.J., in **R. v. Kensington Income Tax Commissioners [(1917) 1 KB 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 W.P.(C)No.31940 OF 2015(N) 7 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. 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 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. 11. In **Prestige Light** 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 W.P.(C)No.31940 OF 2015(N) 8 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. 12. During the course of arguments, it is pointed out that, the challenge made against the land acquisition proceedings in question, on various grounds, in W.P.(C)No.18175 of 2009 filed by one Thoufeek (referred to in the reply affidavit filed by the petitioner) and connected matters, ended in dismissal by the judgment of a learned Single Judge. That judgment was under challenge before the Division Bench, which also ended in dismissal by the decision reported in **Thoufeeq and others v. State of Kerala and others [2018 (3) KHC 690]** . For the aforesaid reasons, the petitioner is not entitled for any of the reliefs sought for in this writ petition. The writ petition fails and the same is accordingly dismissed. **Sd/-** ## **ANIL K. NARENDRAN** JV **JUDGE** W.P.(C)No.31940 OF 2015(N) 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE PHOTOCOPY OF THE NOTIFICATION GO(MS) NO.25/2005/ITD DATED 21.02.2006 ISSUED BY THE GOVERNMENT.** **EXHIBIT P2 THE 1ST RESPONDENT HAD PASSED AN ORDER GO(MS)NO.38/2009/ITD DATED 31.12.2009 AND THE TRUE PHOTOCOPY OF THE ORDER.** **EXHIBIT P3 THE TRUE PHOTOCOPY OF THE NOTICE IN FORM NO.12 ISSUED BY THE NOTICE NO.LA NO.279/09.** **EXHIBIT P4 THE TRUE PHOTOCOPY OF THE NOTICE NO.LAC279/09 DATED 27.1.2010 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT.** **EXHIBIT P5 & P5(A) THE TRUE PHOTOGRAPHS SHOWING THE LAND IS WITH SHRUBS AND OTHER TREES AS ON TODAY NOT BEING UTILIZED FOR PUBLIC PURPOSE.**