Saji Paul & M/s Varma Homes Pvt. Ltd. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942** ## **WP(C).No.19 OF 2021(B)** ## **PETITIONERS:** - **1 SAJI PAUL, AGED 60, S/O.T.P.PAUL,THUKULAN HOUSE, KUREEKADU,THIRUVANKULAM, KANAYANNUR TALUK, ERNAKULAM DISTRICT,REPRESENTD BY HIS POWER OF ATTORNEY HOLDER,GEORGE SIMON, AGED 47,S/O.SIMON.T.GEORGE, KILIYAMANGALATH HOUSE, MANEED VILLAGE, KANAYANNUR TALUK,PIN CODE-686664.** - **2 M/S.VARMA HOMES PVT.LTD.G-129, 55/938(A), 3RD CROSS ROAD,PANAMPILLY NAGAR, PIN CODE-682036,REPRESENTED BY ITS MANAGE, PUBLIC RELATIONS AND AUTHORISED SIGNATORY, SYAMKUMAR P.S.** **BY ADVS. SRI.AJITH VISWANATHAN SRI.SHIBU JOSEPH SHRI. SAYED MANSOOR BAFAKHY THANGAL SHRI.V.C. XAVIER SRI.P.VISWANATHAN (SR.)** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM,PIN CODE-695001.** - **2 DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS,VAZHUTHACADU, THIRUVANANTHAPURAM,PIN CODE-695010.** |**3**|**SUPERINTENDENT OF POLICE,**| |---|---| ||**ERNAKULAM (RURAL),OFFICE OF THE SUPERINTENDENT OF**| ||**POLICE,ALUVA, PIN CODE-683101.**| |**4**|**THE STATION HOUSE OFFICER,**| ||**CHOTTANIKKARA POLICE STATION,CHOTTANIKKARA .P.O,**| ||**PIN CODE-682312.**| 2 W.P.(C)No.19 OF 2021(B) **5 UNNIKRISHNAN, AGED 62 YEARS S/O.KRISHNAN,KANICHIRA HOUSE, KUREEKADU VILLAGE,THIRUVANKULAM,KANAYANNUR TALUK, ERNAKULAM DISTRICT,PIN-682305.** **R1-R4 BY GOVERNMENT PLEADER SRI SUNIL NATH N.B R5 BY ADV. SMT.VIDYA KURIAKOSE R5 BY ADV. SRI.V.SREEJITH (K/1398/2000) R5 BY ADV. SRI.BASIL KURIAKOSE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 W.P.(C)No.19 OF 2021(B) ## **JUDGMENT** The 1[st] petitioner is stated to be the owner of 2.46.909 acres of property comprised in Re.Sy.No.138/2 (old Sy.Nos.256 and 257) of Kureekadu Village, Kanayannur Taluk, covered by Sale Deed No.1959 of 1980 of Sub Registrar Office, Mulanthuruthy and the 2[nd] petitioner is a company engaged in the business of land development and construction of apartments and villas. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 3 and 4 to render adequate and effective police protection to them and persons claiming under them, for the construction of apartments in the property covered by Ext.P4 decree dated 31.01.2011 in O.S.No.429 of 2009 on the file of the ' Munsiff s Court, Ernakulam. The petitioners have also sought for a direction to respondents 3 and 4 to take appropriate action to Exts.P11 to P16 complaints filed by the petitioners. 2. Going by the averments in the writ petition, the petitioners have entered into a joint venture agreement to construct apartments in the land belonging to the 1[st] petitioner, in accordance with the terms and conditions in that agreement. There are certain disputes between the 1[st] petitioner and the 5[th] 4 W.P.(C)No.19 OF 2021(B) respondent. The 5[th] respondent filed O.S.No.1911 of 2004 before the Munsiff's Court, Ernakulam, seeking a decree for permanent prohibitory injunction against the 1[st] petitioner and his men, which ended in dismissal for non-prosecution. The 1[st] petitioner filed O.S.No.429 of 2009 before the Munsiff's Court, Ernakulam, against the 5[th] respondent, seeking a decree declaring his title over the plaint schedule property, recovery possession of the trespassed area based on his title and also for consequential injunction. That suit was decreed as prayed for by Ext.P3 judgment and Ext.P4 decree dated 31.01.2011. The 5[th] respondent filed A.S.No.59 of 2012 before the Sub Court, Ernakulam, which ended in dismissal with cost by the judgment dated 05.06.2014. The 1[st] petitioner filed W.P.(C)No.5461 of 2014, when the 5[th] respondent caused obstruction to the peaceful enjoyment of his property. That writ petition was disposed of by Ext.P5 judgment dated 26.02.2014 by directing the 1[st] petitioner to file execution petition to execute Ext.P4 decree. The 1[st] petitioner filed E.P.No.308 of 2013 before the Munsiff's Court, Ernakulam to execute Ext.P4 decree, in which delivery was effected on 08.08.2014, as evidenced by Ext.P6 delivery report dated 11.08.2014. Even after effecting delivery of the property, the 5[th] respondent continued to violate Ext.P4 decree. 5 W.P.(C)No.19 OF 2021(B) The 1[st] petitioner lodged a complaint before the 4[th] respondent Station House Office, Chottanikkara Police Station, which has resulted in registration of Crime No.747/2014. The Execution Court, which conducted enquiry as to whether the 5[th] respondent had violated Ext.P4 decree, ordered his detention in civil prison for a period of three months from 24.11.2017. Even thereafter, the 5[th] respondent is trespassing into the decree schedule property. When the petitioners started measurement of the property for developing the land for constructing residential apartments and villas, the 5[th] respondent caused obstruction. The petitioners filed W.P. (C)No.8824 of 2017, in which this Court granted an interim order on 23.08.2017 to provide adequate police protection to carryout survey of the land situated in Re.Survey Nos.138/2, 18, 19, 21, 22 and 150/1, 5, 6, 7 of Kureekkad Village. Thus the survey was conducted with the assistance of police and thereafter, that writ petition was disposed of by Ext.P7 judgment dated 14.02.2018. 3. In paragraph 11 of the writ petition, it is stated that now the work for developing the land and construction of the apartments in accordance with the permission granted by the local authority and such other works are going on. On 22.11.2019, the 5[th] respondent and his men trespassed into the property and 6 W.P.(C)No.19 OF 2021(B) demolished a portion of the compound wall and caused damage by cutting and removing the trees in the property. The Manager of the 2[nd] petitioner filed compliant before the 4[th] respondent Station House Officer, which had resulted in registration of Ext.P8 Crime No.89/2020 of Chottanikkara Police Station. The 1[st] petitioner filed E.P.No.155 of 2020 before the Munsiff's Court, Ernakulam alleging violation of Ext.P4 decree by the 5[th] respondent, in which he was issued with notice. On 14.07.2020, when the Amin deputed by the execution court went to serve notice in the execution petition, the 5[th] respondent and his sister abused the Amin and the Manager of the 2[nd] petitioner. The said fact was reported by submitting Ext.P9 report of the Amin dated 21.07.2020. 4. In paragraphs 12 and 13 of the writ petition, the petitioners have stated various incidents alleged to have occurred during the period from 15.07.2020 till 20.11.2020. It is alleged that despite Ext.P11 complaint dated 27.07.2020, Ext.P12 complaint dated 25.08.2020, Ext.P13 complaint dated 08.10.2020, Ext.P14 complaint dated 08.10.2020, Ext.P15 complaint dated 16.10.2020 and Ext.P16 complaint dated 20.11.2020, the 5[th] respondent and his men continued to obstruct the construction of the apartment by the 2[nd] petitioner. 7 W.P.(C)No.19 OF 2021(B) 5. On 05.01.2021, when this writ petition came up for admission, the learned Government Pleader took notice on admission for respondents 1 to 4. Urgent notice on admission by special messenger was ordered to the 5[th] respondent. The learned Government Pleader was directed to get instructions from the 4[th] respondent. 6. Along with the memo filed by the learned Government Pleader dated 11.01.2021, the report of the 4[th] respondent Station House Officer is placed on record. 7. The 5[th] respondent has filed counter affidavit, opposing the reliefs sought for in this writ petition. 8. The petitioners have filed reply affidavit to the counter affidavit filed by the 5[th] respondent, producing therewith Ext.P17 application dated 29.04.2019 submitted before Chottanikkara Grama Panchayat for development permit. 9. The petitioners have also filed I.A.No.2 of 2021, seeking an order to substitute relief No.A as follows: “Issue a writ of mandamus or any other appropriate writ or order directing respondents 3 and 4 to render police protection to the petitioners and the persons claiming under them, to carry out preparatory works for the developmental activities to be carried out and also for the developmental or construction activities to be carried out 8 W.P.(C)No.19 OF 2021(B) upon obtaining the necessary permits from the competent authorities in the property covered as per Ext.P4.” 10. The 5[th] respondent filed counter affidavit dated 26.01.2021 to that interlocutory application, which is followed by an additional counter affidavit dated 26.01.2021. 11. Heard the learned counsel for the petitioners, the learned Government Pleader appearing for respondents 1 to 4 and also the learned counsel for the 5[th] respondent. 12. The issue that arises for consideration in this writ petition is as to whether the petitioners are entitled to seek a writ of mandamus commanding respondents 3 and 4 to render adequate and effective police protection to the petitioners and persons claiming under them for the construction of apartments in the property covered by Ext.P4 decree in O.S.No.429 of 2009 on the file of the Munsiff's Court, Ernakulam, as originally sought for in this writ petition. 13. In the counter affidavit filed by the 5[th] respondent, it is stated that the petitioners are not issued with any building permit, as claimed by them, for the construction of apartments in the property covered by Ext.P4 decree. Along with the writ petition, the petitioners have also not produced the building permit issued in their favour for the construction of apartments. The petitioners 9 W.P.(C)No.19 OF 2021(B) cannot construct any apartment in the property in question without a building permit issued by Chottanikkara Grama Panchayat. In the counter affidavit filed by the 5[th] respondent, the specific stand taken is that, the intention of the petitioners are to harass the 5[th] respondent by any means. Along with the counter affidavit, the 5[th] respondent has produced Ext.R5(a) building permit issued to Ms.Neena George and Ms.Geetha George for construction of a building in the property in Sy.No.230/11 and Re.Sy.No.105/1 of Kureekkadu Village. 14. The petitioners have filed a reply affidavit dated 18.01.2021, producing there with Ext.P17 application dated 29.04.2019 for development permit in respect of the property owned by the 1[st] petitioner and others having a total extent of 8.43 Acres, which is under process by Chottanikkara Grama Panchayat. They have also filed I.A.No.2 of 2021 seeking an order to substitute relief No.A, as sought for in that application. In I.A.No.2 of 2021, the 5[th] respondent filed a counter affidavit dated 26.01.2021, which is followed by an additional counter affidavit dated 26.01.2021. 15. Though it is averred in the writ petition that the petitioners are undertaking development of the land and 10 W.P.(C)No.19 OF 2021(B) construction of the apartments in accordance with the permission granted by the local authority and the 5[th] respondent and his men caused obstructions to such construction undertaken in the property covered by Ext.P4 decree, in the reply affidavit filed by the petitioner, it is admitted that the petitioners are yet to obtain development permit or building permit for the construction of apartment in that property. Ext.R5(a) building permit issued by Chottanikkara Grama Panchayat, produced along with the counter affidavit filed by the 5[th] respondent, is in respect of the property owned by the 1[st] petitioner's sisters, namely, Neena George and Geetha George, having an extent of 25.9 Ares in Sy.No.230/11 (Re.Sy.No.150/1) of Kureekkad Village. They have entered into a joint venture agreement with the 2[nd] petitioner for the construction of residential apartments, which is being undertaken on the strength of Ext.R5(a) building permit. 16. Along with the reply affidavit filed by the petitioners, Ext.P17 application made by the 1[st] petitioner, along with his mother, Susy Paul, and his brother, Lalji Paul, seeking development permit in respect of the property having a total extent of 8.43 Acres in various survey numbers in Kureekkad Village is produced. In the reply affidavit, it is stated that, as the 2[nd] W.P.(C)No.19 OF 2021(B) 11 petitioner expressed its desire to extent the project to A and C schedule properties in Ext.P4 decree, such an application for development permit was filed before Chottanikkara Grama Panchayat, which is under process. 17. In the counter affidavit filed by the 5[th] respondent in I.A.No.2 of 2021, it is pointed out that the subject matter of Ext.P4 decree is 2.46 Acres of land comprised in Re.Sy.No.138/2 (Sy.No.256 and 257) of Kureekkad Village, covered by sale deed No.1959 of 1980 of the Sub Registrar Office, Mulanthuruthy. The said property is not included in Ext.P17 application for development permit, though another property having an extent of 102.61 Ares in Re.Sy.No.138/2 (Sy.No.230) of Kureekkad Village, covered by gift deed No.961 of 1980 of the Sub Registrar Office, Mulanthuruthy, is included in that application. As per Ext.P4 decree, the 5[th] respondent herein and his men are restrained by a permanent prohibitory injunction from trespassing into plaint A schedule property, which include plaint C schedule property, and from committing any waste therein. When plaint A schedule property is not included in Ext.P17 application for development permit made by the 1[st] petitioner along with others, the attempt made by the petitioners in approaching this Court seeking police 12 W.P.(C)No.19 OF 2021(B) protection to carry out the construction of apartments in the property covered by Ext.P4 decree, from the obstruction alleged to have been caused by the 5[th] respondent and his men, is vitiated by ulterior motive. 18. Admittedly, the petitioners are not having any building permit issued by Chottanikkara Grama Panchayat for carrying out any construction of the apartments in plaint A schedule property in Ext.P4 decree. Despite the said fact, the petitioners have chosen to file this writ petition before this Court seeking police protection, alleging that the construction of the apartments undertaken by the petitioners in the said property, with the permission granted by the local authority, is being obstructed by the 5[th] respondent and his men. 19. 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 13 W.P.(C)No.19 OF 2021(B) 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. 20. 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 and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court 14 W.P.(C)No.19 OF 2021(B) 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." ## 21. 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 15 W.P.(C)No.19 OF 2021(B) 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. 22. 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 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 16 W.P.(C)No.19 OF 2021(B) disclosing full facts, is not entitled to any reliefs. 23. After the filing of I.A.No.1 of 2021 for accepting Ext.P17 application for development permit, as an additional document, the petitioners filed I.A.No.2 of 2021 seeking an order to amend the writ petition by substituting relief No.A, as sought for in that interlocutory application, seeking police protection to carry out preparatory works for the developmental activities and also for the developmental and construction activities to be carried out upon obtaining necessary permits from the competent authorities in the property covered by Ext.P4 decree, though plaint A schedule property in Ext.P4 decree is not included in Ext.P17 application for development permit. At any rate, the petitioners cannot seek such a relief in this writ petition anticipating grant of development permit or building permit by Chottanikkara Grama Panchayat, for the construction of apartments. In such circumstances, I.A.No.2 of 2021 can only be dismissed and I do so. 24. The conduct of the petitioners in approaching this Court in this writ petition with unclean hands and objects, without disclosing true, complete and correct facts, has to be deprecated in the strongest words and I do so. Such a conduct of the petitioners, dis-entitle them from seeking any reliefs from this Court, in W.P.(C)No.19 OF 2021(B) 17 exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. Therefore, this writ petition is liable to be dismissed imposing cost on the petitioners. In the result, this writ petition is dismissed with a cost of Rs.50,000/- (Rupees Fifty Thousand only), payable by the petitioners to the 5[th] respondent, within one month from the date of receipt of a certified copy of this judgment. Sd/- ## **ANIL K.NARENDRAN** JV **JUDGE** 18 W.P.(C)No.19 OF 2021(B) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE PHOTOSTAT COPY OF THE POWER OF ATTORNEY EXECUTED BY THE 1ST PETITIONER.** **EXHIBIT P2 THE LETTER OF AUTHORIZATION DATED 26-112020 ISSUED BY THE 2ND PETITIONER COMPANY TO ITS AUTHORIZED PERSON.** **EXHIBIT P3 THE TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 31.01.2011.PASSED BY THE MUNSIFF'S COURT,ERNAKULAM IN O.S.429 OF 2009.** - **EXHIBIT P4 THE TRUE PHOTOSTAT COPY OF THE DECREE DATED 31.01.2011 PASSED BY THE MUNSIFF'S COURT,ERNAKULAM IN O.S.NO.429 OF 2009** **EXHIBIT P5 THE TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 26.02.2014 PASSED IN W.P(C)NO.5461 OF 2014** **EXHIBIT P6 THE TRUE PHOTOSTAT COPY OF THE DELIVERY REPORT DATED 08.08.2014 IN E.P.NO.308 OF 2013,ON THE FILES OF THE MUNSIFF'S COURT,ERNAKULAM.** - **EXHIBIT P7 THE TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 14.02.2018 PASSED BY THIS HON'BLE COURT IN W.P(C)NO.8824 0F 2017.** **EXHIBIT P8 THE TRUE PHOTOSTAT COPY OF THE FIR ALONG WITH THE FIS DATED 14.02.2020.** **EXHIBIT P9 THE TRUE PHOTOSTAT COPY OF THE REPORT DATED 21.07.2020 OF THE AMIN.** **EXHIBIT P10 THE TRUE PHOTOSTAT COPY OF THE RELEVANT PAGES OF THE MATHRUBHUMI DAILY DATED 25.07.2020.** **EXHIBIT P11 THE TRUE PHOTOSTAT COPY OF THE COMPLAINT DATED 27.07.2020 FILED BY THE MANAGER OF THE 2ND PETITIONER.** **EXHIBIT P11(A) THE TRUE PHOTOSTAT COPY OF THE RECEIPT** 19 W.P.(C)No.19 OF 2021(B) **DATED 27.07.2020 PASSED BY THE 4TH RESPONDENT** **EXHIBIT P12 THE TRUE PHOTOSTAT COPY OF THE COMPLAINT DATED 25.08.2020.** **EXHIBIT P12(A) THE TRUE PHOTOSTAT COPY OF THE RECEIPT DATED 25.08.2020 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P13 THE TRUE PHOTOSTAT COPY OF THE COMPLAINT DATED 08.10.2020.** - **EXHIBIT P13(A) THE TRUE PHOTOSTAT COPY OF THE RECEIPT DATED 09.10.2020 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P14 THE TRUE PHOTOSTAT OF THE SAID COMPLAINT DATED 08-10-2020 SUBMITTED BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P14(A) THE TRUE PHOTOSTAT COPYOF THE RECEIPT DATED 09-10-2020 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P15 THE TRUE PHOTOSTAT COPY OF THE SAID COMPLAINT DATED 16.10.2020.** - **EXHIBIT P15(A) THE TRUE PHOTOSTAT COPY OF THE RECEIPT DATED 16.10.2020 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P16 THE TRUE PHOTOSTAT COPY OF THE COMPLAINT DATED 20.11.2020 SUBMITTED BY THE 1ST PETITIONER.** - **EXHIBIT P17: THE TRUE PHOTOSTAT COPY OF THE APPLICATION DATED 29/04/2019, SUBMITTED BEFORE THE CHOTTANIKKARA GRAMA PANCHAYAT.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R5(A) THE TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE CHOTTANIKARA GRAMA PANCHAYAT IN FAVOUR OF MRS. NEENA GEORGE AND ANOTHER** W.P.(C)No.19 OF 2021(B) 20 **EXHIBIT R5(B)** **TRUE COPY OF HTE FIRE SAFETY CLEARANCE ISSUED BY THE DEPARTMENT OF FIRE AND RESCUE SERVICES DATED 08.04.2019.**