Chacko P.O. v. The Puthanvelikara Grama Panchayat & The Secretary, Puthenvelikara Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY,THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941** ## **WP(C).No. 40112 of 2018** ## **PETITIONER:** **CHACKO P.O AGED 51 YEARS** **PADAYATTI HOUSE, WARD NO.12, PUTHENVELIKKARA, ERNAKULAM DISTRICT.** **BY ADV. SRI.B.RAMACHANDRAN, CGC** ## **RESPONDENTS:** **1 THE PUTHANVELIKKARA GRAMA PANCHAYAT PUTHANVELIKKARA, REPRESENTED BY ITS SECRETARY PIN-683594. 2 THE SECRETARY, PUTHENVELIKKARA GRAMA PANCHAYAT, PUTHANVELIKKARA, ERNAKULAM-683594. BY ADVS. SRI.JOHN JOSEPH VETTIKAD, STANDING COUNSEL SRI.C.JOSEPH JOHNY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.40112 of 2018** ## **:-2-:** ## **J U D G M E N T** The petitioner, who is stated to be the absolute owner in possession of building with rooms bearing Nos.12/707, 12/708 and 12/709 within the 1[st] respondent Grama Panchayat, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 stop memo dated 24.11.2018 issued by the 2[nd] respondent directing him to stop the unauthorised reconstruction of the shop rooms. 2. On 10.12.2018 when this writ petition came up for admission, this Court issued urgent notice by speed post to the respondents, returnable in two weeks. While ordering the writ petition to be listed after service is complete, this Court has ordered that if any repair works are carried out by the petitioner, permitted under Rule 10 of the Kerala Panchayat Building Rules, 2011, the stop ## **W.P.(C)No.40112 of 2018** ## **:-3-:** memo will not stand in the way, as it is challenged in the writ petition. The said order was operative for a period of one month. The said interim order which was extended from time to time, was extended by two weeks on 20.3.2019. 3. A counter affidavit has been filed by the respondents, opposing the reliefs sought for in this writ petition. Along with the said counter affidavit, the respondents have filed I.A.No.1/2019 seeking an order to vacate the interim order. 4. Heard the learned counsel for the petitioner and also the learned Standing Counsel appearing for the respondent Grama Panchayat. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P4 stop memo dated 24.11.2018 issued by the 2[nd] respondent, who is the Secretary of the 1[st] ## **W.P.(C)No.40112 of 2018** ## **:-4-:** respondent Grama Panchayat. 6. A reading of Ext.P4 stop memo would show that it is one issued on the ground that the petitioner is reconstructing building bearing Nos.12/707, 12/708 and 12/709, without obtaining any permission from the Grama Panchayat. Challenging Ext.P4 stop memo, the petitioner has moved this writ petition and secured an interim order. Paragraph 3 of the writ petition contains an averment to the effect that he has not made any structural change nor changed the character of the building in any manner, but only carried out a repair work in the building. Paragraph 3 of the writ petition reads thus; “3. The office of the 1[st] respondent had noted the building and the damage occurred to the said building and the adjacent buildings in connection with the assessment after flood. In the circumstances the tenants of the building demanded for some minor repairing works and they ## **W.P.(C)No.40112 of 2018** ## **:-5-:** were prepared to install a truss. The petitioner has not made any structural change nor changed the character of the building in any manner but only carried out some repairing works in the building. The works done by the petitioner is covered by the provisions of Rule 10 of the KPBR, 2011.” (Underline supplied) 7. It was after considering the aforesaid averments in the writ petition that this Court has issued an interim order dated 10.12.2018, whereby it has been made clear that, if any repair works are carried out by the petitioner, permitted under Rule 10 of the Kerala Panchayat Building Rules, 2011, the stop memo will not stand in the way, as it is challenged in the writ petition. The said order was operative for a period of one month. 8. Now, as can be seen from the counter affidavit filed by the 2[nd] respondent, the petitioner has admittedly reconstructed the building without obtaining necessary permission ## **W.P.(C)No.40112 of 2018** ## **:-6-:** from the Grama Panchayat. Along with the counter affidavit, a copy of Ext.R1(A) provisional order dated 22.12.2018 issued under Section 235W(1) of the Kerala Panchayat Raj Act is placed on record, wherein it has been stated that the petitioner has reconstructed the building without obtaining necessary permission and while reconstructing the buildings, the petitioner has made certain structural changes and increased the plinth area of the buildings. The petitioner was issued with Ext.R1(A) notice asking him to show cause. On receipt of Ext.R1(A) notice, the petitioner submitted Ext.R1(B) explanation dated 28.12.2018, wherein he has admitted the fact that the shop rooms in question have been reconstructed. However, the petitioner would contend that such a reconstruction was without changing the original measurement. ## **W.P.(C)No.40112 of 2018** ## **:-7-:** 9. The explanation offered by the petitioner in Ext.R1(B) would make it explicitly clear that what has done by the petitioner is not a repair work as stated in the writ petition, but reconstruction of the buildings, without obtaining necessary permission from the Grama Panchayat. It was without disclosing the aforesaid facts that the petitioner secured the interim order from this Court. 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 suppresses relevant materials or is otherwise guilty of misleading the court, the court ## **W.P.(C)No.40112 of 2018** **:-8-:** 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. 11. In **Prestige Lights' case (supra)** 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 ## **W.P.(C)No.40112 of 2018** ## **:-9-:** 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 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 ## **W.P.(C)No.40112 of 2018** ## **:-10-:** 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 made 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 ## **W.P.(C)No.40112 of 2018** ## **:-11-:** on the faith of the imperfect statement." (Emphasis supplied) 12. Having considered the submissions made by the learned counsel on both sides, this Court finds that the facts borne out from Ext.R1(B) explanation offered by the petitioner to Ext.R1(A) notice would make it explicitly clear that no interference is warranted on Ext.P4 stop memo dated 24.11.2018 issued by the 2[nd] respondent, who is the Secretary of the 1[st] respondent Grama Panchayat. In such circumstances, the challenge made in this writ petition against Ext.P4 stop memo fails and the writ petition is accordingly dismissed. The learned counsel for the petitioner would submit that the petitioner has already submitted Ext.R1(B) explanation to Ext.R1(A) notice issued by the 2[nd] respondent, which is now pending consideration. The learned Standing Counsel for the Grama Panchayat would submit that the 2[nd] respondent ## **W.P.(C)No.40112 of 2018** **:-12-:** shall consider that objection and take an appropriate decision as to the further course to be taken in the matter, with notice to the petitioner, and after affording him an opportunity of being heard, within one month from the date of receipt of a certified copy of this judgment. The said submission is recorded. Sd/- **ANIL K.NARENDRAN JUDGE** ami/ ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF BASIC TAX RECEIPT DATED 13.7.2011. EXHIBIT P2 TRUE COPY OF THE PROPERTY TAX RECEIPT ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3 TRUE COPY OF THE LOCATION SKETCH. EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 24.11.2018. EXHIBIT P5 TRUE COPY OF THE EXPLANATION DATED 30.11.2018 OFFERED BY THE PETITIONER.** ## **W.P.(C)No.40112 of 2018** ## **:-13-:** **EXHIBIT P6** **TRUE COPY OF THE RECEIPT EVIDENCING THE ACCEPTANCE OF EXHIBIT P5.** **EXHIBIT P7** **PHOTOGRAPHS OF THE BUILDING SHOWING THE PRESENT CONDITION ALONG WITH ADJACENT BUILDINGS OF THE SAME NATURE.** **EXHIBIT R1(A)** **TRUE COPY OF THE ORDER NO.A2-7275/18 DATED 22/12/2018 ISSUED BY 2ND RESPONDENT.** **EXHIBIT R1(B) TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 28.12.2018 BEFORE THE 2ND RESPONDENT** **EXHIBIT R1(C)** **TRUE COPY OF THE REPORT OF THE ASSISTANT ENGINEER (LSGD) DATED 22.12.2018**