K. K. Abdul Rasheed v. Deputy Superintendent of Police, Tirur, Veliyamcode Grama Panchayat & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942** ## **WP(C).No.22560 OF 2020(T)** ## **PETITIONER:** **K. K. ABDUL RASHEED AGED 64 YEARS S/O. P. P. KUNHAHAMMED, KALATHIPARAMBIL HOUSE, GRAMAM P. O., VIA VELIYAMCODE, PONNANI TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI. C. M. MOHAMMED IQUABAL** ## **RESPONDENTS:** - **1 THE DEPUTY SUPERINTENDENT OF POLICE, TIRUR, TIRUR P. O., MALAPPURAM DISTRICT – 676 101.** - **2 THE SUB INSPECTOR OF POLICE, PERUMBADAPPU POLICE STATION, PERUMBADAPPU P. O., MALAPPURAM DISTRICT – 679 580.** - **3 THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, PONNANI, PONNANI P. O., MALAPPURAM DISTRICT – 679 577.** - **4 THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, PERUMBADAPPU, PERUMBADAPPU P. O., MALAPPURAM DISTRICT – 679 580.** - **5 VELIYAMCODE GRAMA PANCHAYATH, ERAMANGALAM P. O., MALAPPURAM DISTRICT – 679 587, REPRESENTED BY ITS SECRETARY.** - **6 COMMUNIST PARTY OF INDIA (MARXIST), CHEKKUMUKKU BRANCH COMMITTEE, GRAMAM P. O., PONNANI TALUK, MALAPPURAM DISTRICT – 679 579.** **WP(C).No.22560 OF 2020** **2** **7 GIRIVASAN T., S/O. GOPI, THATTUKATH HOUSE, GRAMAM P. O., PONNANI TALUK, MALAPPURAM DISTRICT – 679 579.** **8 ASOKAN, S/O. RASUMUTHALALI, MEMBER OF 12TH WARD IN VELIYAMCODE GRAMA PANCHAYATH, PARIYARATH HOUSE, ERAMANGALAM P. O., PONNANI TALUK, MALAPPURAM DISTRICT – 679 587.** - **9 MANJESH DAS G. M., S/O. MOHANAN, GRAMATHIL HOUSE, PERUMBADAPPU P. O., PONNANI TALUK, MALAPPURAM DISTRICT – 679 580.** - **10 KAPIL DAS P., S/O. HARIDASAN, PANTHAYIL HOUSE, VELIYAMCODE, GRAMAM P. O., PONNANI TALUK, MALAPPURAM DISTRICT – 679 579.** **R5 - SRI. T. K. SAIDALIKUTTY(KUTTIPPURAM) R6 - R10 – SRI. C. V. MANUVILSAN GP - SMT. VIDHYA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.22560 OF 2020** **3** ## **JUDGMENT** The petitioner, who is the owner in possession of 0.8253 Hectares of land in Survey No.335/5 of Veliyamcode Village in Ponnani Taluk, covered by Ext.P1 purchase certificate dated 13.03.1978 issued by the Land Tribunal, Andathodu has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 2 to provide necessary and adequate police protection to the life of the petitioner to remove the unwanted 'stupas' from the property belonging to him. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent to take appropriate action on Ext.P9 complaint filed by the petitioner, within a time limit to be stipulated by this Court. 2. On 23.10.2020, when this writ petition came up for admission, this Court issued notice before admission to respondents. The learned Government Pleader took notice for respondents 1 to 4. The learned Standing Counsel took notice for the 5[th] respondent Veliyamcod Grama Panchayat. Urgent notice by speed post was ordered to respondents 6 to 10. 3. Along with I.A.No.1 of 2020, the petitioner has placed **WP(C).No.22560 OF 2020** **4** on record Ext.P10 FIR dated 09.11.2020 in Crime No.371/2020 of Perumbadappu Police Station, which is one registered in connection with an incident, which occurred on 09.11.2020. In the affidavit filed in support of that interlocutory application, it is stated that, on 09.11.2020, one Balan, who is also a politician, questioned the illegal activities of respondents 7 to 10, who was brutally attacked by the said respondents. 4. On 15.01.2021, when this writ petition came up for consideration, the petitioner was directed to place on record the building plan and site plan which form part of Ext.P5 building permit. The respondents were directed to file counter affidavit within one week. 5. On 19.01.2021, along with I.A.No.1 of 2021, the petitioner has placed on record Ext.P11 approved plan, which forms part of Ext.P5 building permit. 6. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 4, the learned Standing Counsel appearing for the 5[th] respondent and the learned counsel appearing for respondents 6 to 10. 7. Going by the averments in the writ petition, the **WP(C).No.22560 OF 2020** **5** petitioner constructed a residential building in the property covered by Ext.P1 purchase certificate. On eastern side of the property, there is a PWD road and on its southern side, there is a Panchayat road. The petitioner surrendered land for the construction of PWD road and also for the panchayat road. In order to protect the property with a compound wall, the petitioner obtained Ext.P4 consent dated 18.01.2012 from the Secretary of the 5[th] respondent Grama Panchayat. Thereafter, the petitioner was issued with Ext.P1 building permit dated 21.05.2012 for constructing the compound wall. The document marked as Ext.P6 is a receipt dated 21.05.2012 regarding payment of permit fee for compound wall. Immediately after obtaining Ext.P4 consent and Ext.P5 building permit, the petitioner laid the foundation for the compound wall, but he has not completed the construction. In the meanwhile, political parties put their banners and posts in the property. The Congress Committee of Valiyamcode Grama Panchayat and the 6[th] respondent Communist Party of India (Marxist) constructed two stupas in the property, abutting the PWD road. According to the petitioner, there is no puramboke between the PWD road and his property. The document marked as **WP(C).No.22560 OF 2020** **6** Ext.P7 is the survey sketch of the petitioner's property and Ext.P8 is the photographs of the 'stupas'. In paragraph 4 of the writ petition, it is averred that, both political parties constructed 'stupas' encroaching into the petitioner's property. In order to complete the construction of the compound wall, the petitioner approached the leaders of both political parties and they agreed to remove the 'stupas' from the property. Respondents 7 to 10 are workers of the 6[th] respondent political party, who are neither removing the 'stupa' nor permitting the petitioner to remove the same. The petitioner submitted Ext.P9 complaint dated 15.10.2020 before the 1[st] respondent Deputy Superintendent of Police, Tirur, seeking police protection to the life of the petitioner to remove the unauthorised 'stupa' from his property. In the said complaint, it is stated that, in order to construct a compound wall, the petitioner obtained building permit from the Grama Panchayat. Though the petitioner started the construction, respondents 7 to 10 are not permitting him to remove the 'stupa' from his property. 8. During the course of arguments, the learned Standing Counsel for the 4[th] respondent Grama Panchayat pointed out that the validity of Ext.P5 building permit was only upto 20.05.2013. **WP(C).No.22560 OF 2020** **7** Then the learned counsel for the petitioner submitted that the petitioner will construct compound wall only after obtaining building permit from the 5[th] respondent Grama Panchayat. 9. Though the validity of Ext.P5 building permit was only upto 20.05.2013, the petitioner has produced the same along with this writ petition, which is one filed on 20.10.2020. Pursuant to the order of this Court dated 15.01.2021, the petitioner produced Ext.P11 approved plan, which forms part of Ext.P5 building permit. The validity of Ext.P11 approved plan was upto 20.05.2013. The petitioner has chosen to file this writ petition, seeking police protection on the strength of Ext.P5 building permit, which was valid only upto 20.05.2013, with an allegation that, when he started to complete the construction of the compound wall, respondents 7 to 10 threatened him, while he attempted to remove the 'stupa'. Along with I.A.No.1 of 2021, the petitioner produced Ext.P11 approved building plan, as if he can complete the construction of the compound wall on the strength of Ext.P5 building permit. The conduct of the petitioner in not disclosing the true and correct facts before this Court has to be deprecated in the strongest words. **WP(C).No.22560 OF 2020** **8** 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 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 **WP(C).No.22560 OF 2020** **9** 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 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 **WP(C).No.22560 OF 2020** **10** 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 on the faith of the imperfect statement." (Emphasis supplied) 12. It is well settled that, a litigant who invokes the extraordinary jurisdiction of this Court under Article 226 of the Constitution must come with clean hands and clean objects. The judicial proceedings are sacrosanct, and no person would be allowed to abuse the judicial process, particularly, in public law remedy. In writ proceedings, the court places implicit faith on the parties and their pleadings, as it does not indulge in any fact finding or roving enquiry of what has been asserted. Since Article 226 of the Constitution of India espouses equity jurisprudence, a litigant who has approached the Court with unclean hands, without disclosing full facts, is not entitled for any reliefs. 13. In the result, this writ petition fails and the same is **WP(C).No.22560 OF 2020** **11** accordingly dismissed, imposing a cost of Rs.5,000/- payable by the petitioner to the 5[th] respondent Grama Panchayat, within a period of one month from the date of receipt of a certified copy of this judgment. It would be open to the petitioner to move this Court afresh, after obtaining a valid building permit for constructing the compound wall, in case there is any threat from the side of respondents 6 to 10 for completing the construction of the compound wall or for removing the 'stupa'. **Sd/-** **ANIL K. NARENDRAN JUDGE** SPR **12** ## **WP(C).No.22560 OF 2020** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE PURCHASE CERTIFICATE NO.639/1978 ISSUED BY THE ANDATHODU LAND TRIBUNAL DATED 13/03/1978.** **EXHIBIT P2 THE TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY VELIYAMCODE VILLAGE OFFICE DATED 27/05/2020.** **EXHIBIT P3 THE TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VELIYAMCODE VILLAGE OFFICE DATED 01/06/2020. EXHIBIT P4 THE TRUE COPY OF THE CONSENT ISSUED BY THE PETITIONER FROM THE VELIYAMCODE GRAMA PANCHAYATH DATED 18/01/2012. EXHIBIT P5 THE TRUE COPY OF THE BUILDING PERMIT ISSUED BY VELIYAMCODE GRAMA PANCHAYATH DATED 21/05/2012. EXHIBIT P6 THE TRUE COPY OF THE RECEIPT ISSUED BY THE VELIYAMCODE GRAMA PANCHAYATH DATED 21/05/2012.** **EXHIBIT P7 THE TRUE COPY OF THE SURVEY SKETCH OF THE PROPERTY OF THE PETITIONER. EXHIBIT P8 THE TRUE COPY OF THE PHOTOGRAPHS OF THE STUPAS.** **EXHIBIT P9 THE TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 15/10/2020.** **EXHIBIT P10 THE TRUE COPY OF THE FIR IN CRIME NO.371/2020 OF PERUMBADAPPU POLICE STATION DATED 09.11.2020.** **EXHIBIT P11 THE TRUE COPY OF THE APPROVED PLAN IN PERMIT NO.10803/2011 OF VELIYAMCODE GRAMA PANCHAYATH DATED 20.05.2013. RESPONDENT'S EXHIBITS: NIL.**