Rafiquabeevi v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942** ## **W.P.(C)No.3530 OF 2021(M)** ## **PETITIONER:** **RAFIQUABEEVI, AGED 71 YEARS, W/O.HAMEED, PADIPPURA VEEDU, THEKKEVILA, ERAVIPURAM, KOLLAM-691 011.** **BY ADVS. SRI.V.JAYAPRADEEP SMT.ANN SUSAN GEORGE SMT.O.A.NURIYA SRI.D.S.LOKANATHAN SRI.ALAN PRIYADARSHI DEV** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2 THE DISTRICT COLELCTOR, CIVIL STATION, KOLLAM-691 013. 3 THE LAND ACQUISITION OFFICER AND SPECIAL TAHSILDAR LA NO.1, CIVIL STATION, KOLLAM-691 013. * 4 THE INDIAN RAILWAYS REPRESENTED BY THE AREA MANAGER, SOUTHERN RAILWAYS, CHENNAI-600 003. * CORRECTED THE ADDRESS OF THE 4TH RESPONDENT IN THE CAUSE TITLE IS CORRECTED AS “THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, THYCAUD, THIRUVANANTHAPURAM-695 014.” AS PER ORDER DATED 12.02.2021 IN I.A.1/2021 IN W.P.(C)NO.3530/2021. R2 BY SRI.K.V.SOHAN, STATE ATTORNEY R4 BY SRI.A.DINESH RAO, SC, RAILWAYS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.3530 of 2021(M) -2- ## **JUDGMENT** The petitioner, who is residing in a house situated in the property comprised in Re.Sy.Nos.453/10 and 453/11, Block No.25 of Mundakkal Village, covered by Ext.P1 partition deed dated 09.02.1987, has filed this writ petition seeking a writ of mandamus or any other writ, order or direction restraining the respondents from forcefully evicting her and her family from her residence in the said property. The petitioner has also sought for an order directing the 2[nd] respondent District Collector to pass appropriate orders in compliance with the provisions of law, with regard to acquisition of her land covered by Ext.P1 partition deed. 2. On 11.02.2021, when this writ petition came up for admission, the learned counsel for the petitioner sought time to file application to correct the description of the 4[th] respondent appropriately. The petitioner filed I.A.No.1 of 2021 for correction, which was allowed on 12.02.2021. The learned Government Pleader, who sought time to file statement, pointed out that the compensation amount has already been deposited before the Additional District and Sessions Court, Kollam. 3. On 19.02.2021, the learned State Attorney has filed a W.P.(C)No.3530 of 2021(M) -3- statement on behalf of the 2[nd] respondent, producing therewith Annexure R2(a) sketch showing the lie of the acquired property, Annexure R2(b) award of the 3[rd] respondent Land Acquisition Officer awarding a total compensation of Rs.21,04,668/- to the petitioner, along with notice of award, and Annexure R2(c) proceedings of the 3[rd] respondent Land Acquisition Officer awarding rehabilitation and resettlement compensation at the rate of Rs.2,00,000/- to petitioner's sons, namely, Nizam and Saji, along with 21 others. 4. On 24.02.2021, the petitioner has filed reply affidavit to the statement filed on behalf of the 2[nd] respondent. 5. Heard the learned counsel for the petitioner, the learned State Attorney for respondents 1 to 3 and also the learned Standing Counsel for Southern Railway, representing the 4[th] respondent. 6. The property having an extent of 0.85 Ares (2.10 Cents) in Re.Sy.Nos.453/10 and 453/11, Block No.25 of Mundakkal Village, covered by Ext.P1 partition deed was acquired for the construction of Eravipuram Railway Over Bridge, as shown in Annexure R2(a) sketch. After acquisition, the petitioner is in W.P.(C)No.3530 of 2021(M) -4- possession of remaining land having an extent of 3.21 Ares (7.93 Cents) along with the house. In the acquired property, there were two temporary shops in which the petitioner's sons Nizam and Saji were conducting petty business, who were awarded rehabilitation and resettlement compensation at the rate of Rs.2,00,000/-, vide Annexure R2(c) proceedings of the 3[rd] respondent. For those temporary shops, an amount of Rs.3,31,883.57 was awarded to the petitioner, towards value of improvements, together with 100% solatium. Towards market value of the acquired land having an extent of 0.75 Ares in Re.Sy.Nos.453/10, an amount of Rs.9,03,195.82 was awarded, together with 100% solatium and increase on market value at the rate of 12% per annum. Towards market value of the acquired land having an extent of 0.10 Ares in Re.Sy.Nos.453/11, an amount of Rs.76,148.30 was awarded, together with 100% solatium and increase on market value at the rate of 12% per annum. Accordingly, the total compensation payable was fixed as Rs.21,04,667.65, which was rounded off to Rs.21,04,668/-. On the ground that the petitioner could not produce original documents to prove her ownership over the land under acquisition, the 3[rd] respondent, who passed Annexure R2(b) W.P.(C)No.3530 of 2021(M) -5- award, deposited the award amount before the Additional District and Sessions Court, Kollam, under sub-section (2) of Section 77 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 7. The 3[rd] respondent Land Acquisition Officer issued Ext.P8 notice in Form No.2(a), dated 08.01.2021, whereby the petitioner was informed that the award amount of Rs.21,04,668/has been deposited in the account of the Additional District and Sessions Court, Kollam, and also issued notice of taking over possession of the land in Form No.4, dated 08.01.2021, whereby the petitioner was informed that the property having an extent of 0.75 Ares in Re.Sy.Nos.453/10 and 0.10 Ares in Re.Sy.Nos.453/11 of Mundakkal Village has been acquired by the Government under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act and that, she should vacate and deliver vacant possession of the said land before the evening of 15.01.2021 to the Valuation Assistant/Special Revenue Inspector, who has received necessary instructions in the matter. If the petitioner fails to do so, the District Magistrate will be addressed to enforce the surrender of W.P.(C)No.3530 of 2021(M) -6- the property to the Department, under Section 91 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act. The petitioner submitted Ext.P9 representation dated 05.02.2021 before the 2[nd] respondent District Collector to take necessary steps to ensure that she is paid compensation for the acquired land and also rehabilitation and resettlement compensation before she is evicted from her house. 8. The specific stand taken in the statement filed on behalf of the 2[nd] respondent is that, the petitioner is in possession of the remaining property having an extent of 3.21 Ares (7.93 Cents) along with the house. In the acquired property, there were two temporary shops in which the petitioner's sons Nizam and Saji were conducting petty business, who were awarded rehabilitation and resettlement compensation at the rate of Rs.2,00,000/-, vide Annexure R2(c) proceedings of the 3[rd] respondent Land Acquisition Officer. In addition to the market value of the acquired land, together with 100% solatium and increase on market value at the rate of 12% per annum, the petitioner was awarded an amount of Rs.3,31,883.57 for those temporary shops, towards value of improvements, together with 100% solatium. W.P.(C)No.3530 of 2021(M) -7- 9. Pursuant to Exts.P4 and P5 notices dated 17.08.2020 issued under sub-sections (1) and (3) of Section 21 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, the petitioner appeared before the 3[rd] respondent Land Acquisition Officer and submitted Ext.P6 statement, on 25.09.2020. As evident from Ext.P6, the petitioner could not produce the original of Ext.P1 partition deed. Therefore, the 3[rd] respondent Land Acquisition Officer, who passed Annexure R2(b) award, deposited the award amount before the Additional District and Sessions Court, Kollam, under sub-section (2) of Section 77 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, and the said fact was informed to the petitioner vide Ext.P8 notice in Form No.2(a). The said fact is not disclosed in the writ petition. The fact that the petitioner's two sons Nizam and Saji, who were conducting petty business in two temporary shops in the acquired property were awarded and paid rehabilitation and resettlement compensation at the rate of Rs.2,00,000/-, vide Annexure R2(c) proceedings of the 3[rd] respondent Land Acquisition Officer, is also not disclosed in the writ petition. W.P.(C)No.3530 of 2021(M) -8- 10. The learned counsel for the petitioner would submit that, since the petitioner's two sons are residing elsewhere, the petitioner was unaware of the receipt of rehabilitation and resettlement compensation by her sons. The said submission of the learned counsel for the petitioner is absolutely without any bona fide, since the specific case of the petitioner in paragraph 1 of the writ petition is that, she is residing in the house, namely, Padippura Veedu, situated in the property in question, along with her five children and five grandchildren. Moreover, as per Annexure R2(c) proceedings of the 3[rd] respondent Land Acquisition Officer, awarding rehabilitation and resettlement compensation compensation, the petitioner's two sons Nizam and Saji are also residing in Padippura Veedu, Eravipuram. 11. As per clause (c) of Section 3 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 'affected family' includes - (i) a family whose land or other immovable property has been acquired; (ii) a family which does not own any land but a member or members of such family may be agricultural labourers, tenants including any form of tenancy or holding of usufruct right, share-croppers or W.P.(C)No.3530 of 2021(M) -9- artisans or who may be working in the affected area for three years prior to the acquisition of the land, whose primary source of livelihood stand affected by the acquisition of land; (iii) the Scheduled Tribes and other traditional forest dwellers who have lost any of their forest rights recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007) due to acquisition of land; (iv) family whose primary source of livelihood for three years prior to the acquisition of the land is dependent on forests or water bodies and includes gatherers of forest produce, hunters, fisher folk and boatmen and such livelihood is affected due to acquisition of land; (v) a member of the family who has been assigned land by the State Government or the Central Government under any of its schemes and such land is under acquisition; (vi) a family residing on any land in the urban areas for preceding three years or more prior to the acquisition of the land or whose primary source of livelihood for three years prior to the acquisition of the land is affected by the acquisition of such land. 12. Section 31 of the Act deals with Rehabilitation and Resettlement award for affected families by Collector. As per sub- W.P.(C)No.3530 of 2021(M) -10- section (1) of Section 31, the Collector shall pass rehabilitation and resettlement awards for each affected family in terms of the entitlements provided in the Second Schedule. The Second Schedule to the Act deals with elements of rehabilitation and resettlement entitlements for all the affected families (both land owners and the families whose livelihood is primarily dependent on land acquired) in addition to those provided in the First Schedule. Sl.No.1 of the Second Schedule deals with provision of housing units in case of displacement; Sl.No.2 deals with land for land; Sl.No.3 deals with offer for developed land; Sl.No.4 deals with choice of annuity or employment; Sl.No.5 deals with subsistence grant for displaced families for a period of one year; Sl.No.6 deals with transportation cost for displaced families; Sl.No.7 deals with cattle shed/petty shops cost; Sl.No.8 deals with one time grant to artisan, small traders and certain others; Sl.No.9 deals with fishing rights; Sl.No.10 deals with one-time resettlement allowance; and Sl.No.11 deals with Stamp duty and registration fee. Column No. (2) of the Second Schedule deals with e lements of rehabilitation and resettlement and column No.(3) deals with entitlement/provision. W.P.(C)No.3530 of 2021(M) -11- 13. As per sub-section (2) of Section 31, the rehabilitation and resettlement award shall include all of the following, namely:(a) rehabilitation and resettlement amount payable to the family; (b) bank account number of the person to which the rehabilitation and resettlement award amount is to be transferred; (c) particulars of house site and house to be allotted, in case of displaced families; (d) particulars of land allotted to the displaced families; (e) particulars of one time subsistence allowance and transportation allowance in case of displaced families; (f) particulars of payment for cattle shed and petty shops; (g) particulars of one-time amount to artisans and small traders; (h) details of mandatory employment to be provided to the members of the affected families; (i) particulars of any fishing rights that may be involved; (j) particulars of annuity and other entitlements to be provided; (k) particulars of special provisions for the Scheduled Castes and the Scheduled Tribes to be provided. As per the first proviso to sub-section (2) of Section 31, in case any of the matters specified under clauses (a) to (k) are not applicable to any affected family the same shall be indicated as 'not applicable'. As per the second proviso to sub-section (2) of Section 31, the W.P.(C)No.3530 of 2021(M) -12- appropriate Government may, by notification increase the rate of rehabilitation and resettlement amount payable to the affected families, taking into account the rise in the price index. 14. Section 38 of the Act deals with power to take possession of land to be acquired. As per sub-section (1) of Section 38, the Collector shall take possession of land after ensuring that full payment of compensation as well as rehabilitation and resettlement entitlements are paid or tendered to the entitled persons within a period of three months for the compensation and a period of six months for the monetary part of rehabilitation and resettlement entitlements listed in the Second Schedule commencing from the date of the award made under Section 30. As per the first proviso to sub-section (1), the components of the Rehabilitation and Resettlement Package in the Second and Third Schedules that relate to infrastructural entitlements shall be provided within a period of eighteen months from the date of the award. As per the second proviso to subsection (1), in case of acquisition of land for irrigation or hydel project, being a public purpose, the rehabilitation and resettlement shall be completed six months prior to submergence of the lands W.P.(C)No.3530 of 2021(M) -13- acquired. As per sub-Section (2) of Section 38, the Collector shall be responsible for ensuring that the rehabilitation and resettlement process is completed in all its aspects before displacing the affected families. 15. In Annexure R2(b) award, as provided under the first proviso to sub-section (2) of Section 31 of the Act, the 3[rd] respondent Land Acquisition Officer has stated that rehabilitation and resettlement amount under clauses (a) to (k) are not applicable to the petitioner. In view of the provisions under subsection (1) of Section 64 of the Act, in case the petitioner is dissatisfied with the award passed by the 3[rd] respondent Land Acquisition Officer, she can require a reference to the appropriate authority. The dissatisfaction of the petitioner in the amount of compensation awarded by the Land Acquisition Officer and the action of the Land Acquisition Officer in depositing the amount before the Additional District and Sessions Court, under subsection (2) of Section 77 of the Act, are not valid grounds for not giving vacant possession of the acquired land, on receipt of notice issued by the Land Acquisition Officer in Form No.4. 16. As already noticed hereinbefore, the specific stand W.P.(C)No.3530 of 2021(M) -14- taken in the statement filed on behalf of the 2[nd] respondent is that, after acquisition, the petitioner is in possession of the remaining land having an extent of 3.21 Ares (7.93 cents), along with the house. In the acquired property, there were only two temporary shops, for which the petitioner was awarded compensation towards value of improvements and the petitioner's two sons were awarded rehabilitation and resettlement compensation. Though the petitioner has filed a reply affidavit dated 20.02.2021, the specific stand taken as above in the statement filed on behalf of the 2[nd] respondent stands uncontroverted. Therefore, conclusion is irresistible that, the present writ petition is nothing an attempt made by the petitioner, with unclean hands and objects to stall further proceedings pursuant to Ext.P8 notice in Form No.4. 17. 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.3530 of 2021(M) -15- 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. 18. 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 W.P.(C)No.3530 of 2021(M) -16- 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 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, the Court will set aside, any action which it has taken on the faith of the imperfect statement." W.P.(C)No.3530 of 2021(M) -17- 19. In **Ramjas Foundation v. Union of India [(2010) 14 SCC 38]** the Apex Court held that the principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Article 32, Article 226 and Article 136 of the Constitution of India but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issues arising in the case. 20. Therefore, 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 W.P.(C)No.3530 of 2021(M) -18- 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 to any reliefs. 21. In the instant case, the petitioner has made an attempt to secure orders from this Court without disclosing true, complete and correct facts. The learned counsel for the petitioner has also made an attempt to mislead this Court by submitting that, since the petitioner's two sons are residing elsewhere, the petitioner was unaware of the receipt of rehabilitation and resettlement of compensation by her sons. The conduct of the learned counsel for the petitioner in making such submission, when the specific case of the petitioner in paragraph 1 of the writ petition is that, she is residing in her house along with her five children and five grandchildren, has to be deprecated in the strongest words and I do so. 22. For the aforesaid reasons, the petitioner is not entitled for any of the reliefs sought for in this writ petition. In the result, this writ petition fails and the same is accordingly dismissed. W.P.(C)No.3530 of 2021(M) -19- Though this is a fit case in which the petitioner has to be mulcted with cost for approaching this Court with unclean hands and objects, considering the fact that she is a senior citizen aged 71 years, this Court refrain itself from imposing cost on the petitioner. Sd/- **ANIL K. NARENDRAN JUDGE** bpr -20- W.P.(C)No.3530 of 2021(M) ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 THE COPY OF THE TITLE DEED DATED 09.02.1987 OF THE PETITIONER.** - **EXHIBIT P2 THE COPY OF THE TAX RECEIPT OF THE PETITIONER DATED 23.07.2020.** - **EXHIBIT P3 THE COPY OF THE RATION CARD OF THE PETITIONER DATED 15.03.2017.** - **EXHIBIT P4 NOTICE ISSUED TO THE PETITIONER DATED 17.8.2020 UNDER SECTION 21(10 (3) OF THE ACT IN SY.NO.453/10.** - **EXHIBIT P5 NOTICE ISSUED TO THE PETITIONER DATED 17.08.2020 UNDER SECTION 2191) (3) OF THE ACT IN SY.NO.453/11.** - **EXHIBIT P6 THE COPY OF THE STATEMENT COLLECTED FROM THE PETITIONER BY THE LAND ACQUISITION AUTHORITY DATED 25.09.2020 IN SY.NO.453/10.** - **EXHIBIT P7 THE COPY OF THE STATEMENT COLLECTED FROM THE PETITIONER BY THE LAND ACQUISITION AUTHORITY DATED 25.09.2020 IN SY.NO.453/11.** - **EXHIBIT P8 THE COPY OF THE NOTICE OF TAKING OVER POSSESSION OF THE LAND OF THE PETITIONER DATED 08.01.2021.** - **EXHIBIT P9 THE COPY OF THE REPRESENTATION DATED 05.02.2021 TO THE 2ND RESPONDENT.** **RESPONDENTS' EXHIBITS:** - **ANNEXURE R2(A) TRUE COPY OF THE SKETCH SHOWING THE LIE OF THE ACQUIRED PROPERTY.** - **ANNEXURE R2(B) TRUE COPY OF THE AWARD PASSED BY THE LAND ACQUISITION OFFICER.** - **ANNEXURE R2(C) TRUE COPY OF THE ORDER PASSED BY THE SPECIAL TAHSILDAR GRANTING REHABILITATION AMOUNT AWARDED TO SRI.NIZAM AND SRI.SAJI ALONG WITH OTHERS.**