Hamza T. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943** ## **WP(C).No.24667 OF 2020(G)** ## **PETITIONER :** **HAMZA T. AGED 63 YEARS S/O.MOIDU, ARAMKANDATHIL HOUSE, IRINGAL P.O., VADAKARA, KOZHIKODE DISTRICT, PIN-673 521** **BY ADVS. SRI.C.BHASKARAN SRI.NIKHEL K GOPINATH** ## **RESPONDENTS:** ||**1**|**STATE OF KERALA**| |---|---|---| |||**REP.BY SECRETARY TO HOME DEPARTMENT,**| |||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695**| |||**001**| ||**2**|**THE SUPERINTENDENT OF POLICE (RURAL)**| |||**VADAKARA, KOZHIKODE DISTRICT PIN-673 101**| ||**3**|**THE CIRCLE INSPECTOR OF POLICE**| |||**PAYYOLI, KOZHIKODE DISTRICT PIN-673 572**| ||**4**|**CHAIRMAN**| |||**LORRY THOZHILALY CO-ORDINATION COMMITTEE FCI**| |||**UNIT, THIKODI PIN-673 529**| |**ADDL. **|**R5**|**SRI.SRIJESH,**| |||**KRISHNASREE HOUSE, THARAKANDI PARAMBA POST,**| |||**VENGERI, CALICUT-673 010.**| -2- WP(C).No.24667 OF 2020(G) **ADDL. R6 FOOD CORPORATION OF INDIA, FOOD STORAGE DEPOT, THIKKODI, CALICUT DISTRICT, KEALA - 673 529 REPRESENTED BY ITS MANAGER. ADDL.R5 AND R6 IMPLEADED AS PER ORDER DATED 18-03-2021 IN IA 1/21.** **R1 TO 3 BY SRI SUNIL NATH N.B-GOVERNMENT PLEADER R4 BY ADV. SRI.P.P.HASHICK R4 BY ADV. SRI.M.P.SHAMEEM AHAMED R4 BY ADV. SHRI.THARIQ MAIDEEN R5 BY ADV. SRI.CYRIAC TOM R6 BY ADV. SMT.K.R.KRISHNAKUMARI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- WP(C).No.24667 OF 2020(G) ## **JUDGMENT** The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 2 and 3 to render necessary police protection to the petitioner to carry on his employment by having ingress and egress to the FCI godown at Thikkodi, without any interference from the 4[th] respondent or any other person or organisation. Going by the averments in the writ petition, lorries bearing registration Nos.KL-11/P-3004, KL13/N-500 and KL-08/AL-5392 covered by Exts.P3 to P5 certificates of registration owned by the petitioner's son Saheer are being engaged for transportation of ration articles from FCI godown. There is obstruction/threat from the side of the members of the 4[th] respondent Union in transportation of ration articles using the aforesaid vehicles. The petitioner submitted Ext.P9 complaint dated 12.12.2019 before the 2[nd] respondent and thereafter, moved this writ petition before this Court seeking the aforesaid relief. 2. On 13.11.2020, when this writ petition came up for admission, urgent notice before admission was ordered to the -4- WP(C).No.24667 OF 2020(G) 4[th] respondent by special messenger. 3. On 24.11.2020, when the writ petition came up for consideration, despite service of notice, none appeared for the 4[th] respondent. As an interim measure, this Court directed the 3[rd] respondent Circle Inspector to ensure that the petitioner has unhindered access to FCI godown at Thikkodi and no obstruction is caused by the 4[th] respondent or his men. 4. On 18.12.2020, the learned counsel for the petitioner sought time to produce the work orders given to the petitioner by the contractor. The learned counsel for the 4[th] respondent as well as the learned Government Pleader submitted that transportation contracts have been awarded to various contractors and it is the contractors who make requests for trucks to the 4[th] respondent. Based on such requests, it is the 4[th] respondent who allocates work to their members. Having considered the submissions advanced, this Court modified the interim order granted on 24.11.2020 to the extent of permitting the petitioner to enter the godown and carry out the transportation work, if he produces work order issued by the FCI, Civil Supplies Department or the Contractor -5- WP(C).No.24667 OF 2020(G) concerned. 5. On 18.03.2021, this Court allowed I.A.No.1 of 2021 filed by the petitioner, whereby additional respondents 5 and 6 were impleaded. 6. On 19.03.2021, when this writ petition came up for consideration, this Court passed the following order; “The petitioner had earlier filed W.P.(C)No.2569 of 2020 seeking similar relief, which ended in dismissal by the judgment dated 20.02.2020. Seeking review of that judgment, the petitioner filed R.P.No.699 of 2020, which ended in dismissal by the order dated 03.11.2020 with liberty to the petitioner to agitate his right to be engaged as he claimed, in accordance with law. Thereafter, on 10.11.2020, the petitioner filed the present writ petition, without disclosing the aforesaid judgment and order. In the affidavit filed in support of this writ petition, it is stated as follows; “There is no other previous writ petition filed by me or pending in this Court for the same relief.” 2. Rule 146 of the Rules of the High Court of Kerala, 1971, which deals with contents of the applications, reads thus; ## “ **146. Contents of the applications.-** Every application shall set out the provision of law under which it is made, the name and description of the petitioner and the -6- WP(C).No.24667 OF 2020(G) respondent, a clear and concise statement of facts, the grounds on which the relief is sought and shall be signed by petitioner and by his Advocate, if he has appointed one, as in Form No.10. Provided that no petition shall be entertained by the Registry unless it contains a statement as to whether the petitioner had filed any petition seeking similar reliefs in respect of the same subject matter earlier and if so, the result thereof.” 3. The petitioner has approached this Court in this writ petition with unclean hands, suppressing material facts from the notice of this Court. The conduct of the petitioner has to be viewed seriously.” 7. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 3, the respective counsel for respondents 4 and 5 and also the learned Standing Counsel for the additional 6[th] respondent FCI. 8. The petitioner had earlier approached this Court in W.P.(C)No.2569 of 2020 seeking police protection to operate from the premises of FCI at Thikkodi and that writ petition was dismissed by the judgment dated 20.02.2020. Paragraph 4 of the said judgment reads thus; -7- WP(C).No.24667 OF 2020(G) “4. Petitioner has no case that any contract has been awarded in his favour by the District Supply Officer. If the District Supply Officer has chosen to engage the members of the 4[th] respondent-Union, no one else can demand the work, unless they are also awarded such work. The remedy available to the petitioner is to approach the District Supply Officer for award of the contract for transportation.” 9. Seeking review of the judgment in W.P.(C)No.2569 of 2020, the petitioner filed R.P.No.699 of 2020, which ended in dismissal by the order dated 03.11.2020. The said order reads thus; “The review petition is filed against the judgment dated 20.02.2020 in the writ petition. The writ petition was filed for police protection. There was a dispute in regard to the entitlement of the petitioner. This Court declined the police protection for the reason that the drivers engaged by the Food Corporation of India have been chosen by the District Supply Officer. According to the petitioner, the FCI engages the drivers. It is to be noted that the essential prayer in the writ petition is for police protection. There is no prayer for seeking declaration of a right of the petitioner. In such view of the matter, the petitioner is free to workout his remedy, if the petitioner is of the view that he has the legal right to be engaged by the FCI or any District Supply Officer. I WP(C).No.24667 OF 2020(G) -8- do not find any scope for review in this matter arising out of police protection. Accordingly, the review petition is dismissed with liberty to the petitioner to agitate his right to be engaged as he claimed, in accordance with law.” 10. Without disclosing the filing of W.P.(C).No.2569 of 2020 and R.P.No.699 of 2020, the petitioner has filed this writ petition seeking similar relief. In the affidavit filed in support of the writ petition, it is stated that there is no other writ petitions filed or pending before this Court for the same relief. The conduct of the petitioner in filing this writ petition, immediately after the dismissal of R.P.No.699 of 2020, by engaging another counsel has to be viewed seriously. 11. The learned counsel for the petitioner seeks permission to withdraw this writ petition. 12. In **Dhananjay Sharma v. State of Haryana [(1995) 3 SCC 757]** the Apex Court held that filing of false affidavit, or making false statement on oath in courts aims at striking a blow at the Rule of Law and no court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions, because the very structure of an ordered life is put at stake. It would be a great -9- WP(C).No.24667 OF 2020(G) public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a court of law. 13. In **Muthu Karuppan, Commissioner of Police, Chennai v. Parithi Ilamvazhuthi [(2011) 5 SCC 496]** , the Apex Court expressed the view that filing of a false affidavit should be effectively curbed with a strong hand. In **Sciemed Overseas Inc. v. BOC India Limited [(2016) 3 SCC 70]** , the Apex Court held that the observations in **Muthu Karuppan** was made in the context of contempt of court proceedings, the view expressed must be generally endorsed to preserve the purity of judicial proceedings. 14. 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 may dismiss the action without adjudicating the matter. The rule -10- WP(C).No.24667 OF 2020(G) 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. 15. In **Prestige Lights** 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 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 -11- WP(C).No.24667 OF 2020(G) 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 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 make 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, -12- WP(C).No.24667 OF 2020(G) the Court will set aside, any action which it has taken on the faith of the imperfect statement." ## 16. In **Usha Nanthini v. Regional Transport Authority, Palakkad and another [2018 (2) KHC 89]** this Court held that, once it is found that the petitioner has approached this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution of India by suppressing material facts and making false statements, such an attempt made by the petitioner to abuse the process of this Court has to be dealt with appropriately. In such cases this Court has ample power to decline the permission sought for withdrawal of the writ petition. Dismissal of such writ petitions imposing exemplary costs is inevitable, in order to prevent abuse of process of this Court and to preserve purity of judicial proceedings. 17. The law laid down as above by this Court in **Usha Nanthini** was affirmed by a Division Bench of this Court in the judgment dated 21.02.2018 in W.A.No.455 of 2018 and paragraph 4 of the said judgment reads thus; “4. After going through the impugned judgment and the material in the writ appeal, we find that the -13- WP(C).No.24667 OF 2020(G) appellant faces a grave charge-suppressing the material facts and misleading the Court. In fact, Usha Nanthini herself, on the learned Single Judge's direction, filed an affidavit pleading that she may be pardoned “if any wrong information is made in the writ petition”. She pleaded with the Court to permit her to withdraw the writ petition. The learned Single Judge refused - rightly so.” 18. In view of the law laid down in the decisions referred to supra, conclusion is irresistible that this writ petition is liable to be dismissed imposing cost on the petitioner. 19. In the result, this writ petition is dismissed, imposing a cost of Rs.25,000/- (Rupees Twenty five thousand only), on the petitioner, which he shall pay to the Kerala State Legal Services Authority, an authority constituted under the Legal Services Authorities Act, 1987 providing free legal service to the weaker sections of the society. Such payment shall be made within a period of one month from the date of receipt of a certified copy of this judgment. In case the petitioner fails to pay the cost of Rs.25,000/- within the time limit specified as above, it would be open to the Kerala State Legal Services Authority to recover the said amount by -14- WP(C).No.24667 OF 2020(G) initiating revenue recovery proceedings, in terms of G.O. (Ms.)No.107/2011/RD dated 26.02.2011, whereby the provisions under the Revenue Recovery Act, 1968 were made applicable to the recovery of amounts due from any person or class of persons to the said Authority. Registry shall issue a copy of this judgment to the Member Secretary, Kerala State Legal Services Authority, Kochi. Sd/- ## **ANIL K.NARENDRAN, JUDGE** AV/25/3 -15- WP(C).No.24667 OF 2020(G) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DRIVING LICENCE NO.18/1007054/1979 DATED 11.6.2019** **EXHIBIT P2 TRUE COPY OF IDENTITY CARD CODE NO.KMT/11/GVW 002684 DATED 6.3.2012** **EXHIBIT P3 TRUE COPY OF THE R C CERTIFICATE OF LORRY NUMBERED KL-11-P-3004** **EXHIBIT P4 TRUE COPY OF THE R C CERTIFICATE OF LORRY NUMBERED KL-I3-N-500** - **EXHIBIT P5 TRUE COPY OF THE R C CERTIFICATE OF LORRY NUMBERED KL-08-AL-5392** - **EXHIBIT P6 TRUE COPY OF DETAILS OF LOADS VIA LORRIES FROM THE FOOD CORPORATION OF INDIA KOZHIKODE UNDER THE RIGHT TO INFORMATION DATED 2.7.2020** - **EXHIBIT P7 TRUE COPY OF RECEIPT DATED 23.3.2004 EXHIBIT P8 TRUE COPY OF THE RECEIPT DATED 25.11.2016** - **EXHIBIT P9 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 12.12.2019** - **EXHIBIT P10 TRUE COPY OF THE REPLY LETTER ISSUED BY THE 2ND RESPONDENT DATED 18.1.2020** - **EXHIBIT P11 TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER TO THE DISTRICT LABOUR OFFICER, KOZHIKODE DATED 2.5.2020** - **EXHIBIT P12 TRUE COPY OF THE ORDER DATED 17.8.2020 ISSUED BY THE DISTRICT LABOUR OFFICER, KOZHIKODE** -16- WP(C).No.24667 OF 2020(G) ## **EXHIBIT P13** **TRUE COPY OF THE PASS BOOK SHOWING THE PAYMENTS MADE BY SRI. SRIJESH TO THE SBI ACCOUNT OF THE DAUGHTER IN LAW OF THE PETITIONER.** ## **EXHIBIT P14** **TRUE COPY OF THE TRUCK CHIT REPORT OF THE FOOD CORPORATION OF INDIA DATED 10-12-2020.** ## **EXHIBIT P15** **TRUE COPY OF THE TOKEN DATED 18-122020 ISSUED BY THE FCI THIKKODI TO THE PETITIONER.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4(A) COPY OF THE LIST OF THE MEMBERS OF THE 4TH RESPONDENT COMMITTEE.** **EXHIBIT R4(B) A COPY OF THE LETTER DATED 01/10/2018 ISSUED BY K. SRIJESH, THE CONTRACTOR TO THE 4TH RESPONDENT.** **EXHIBIT R5(A)** **A COPY OF THE AGREEMENT DATED 1.12.2020 EXECUTED BETWEEN RESPONDENT NO.5 AND KERALA CIVIL SUPPLIES CORPORATION LIMITED**