Varghese M.S. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942** ## **W.P.(C)No.12098 OF 2015(J)** ## **PETITIONER :** **VARGHESE M.S AGED 68 YEARS, S/O.SAMUEL, KAVUMANNIL HOUSE, VALIYAKAVU, RANNI-ANGADI VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.V.SETHUNATH SRI.V.R.MANORANJAN (MUVATTUPUZHA)** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO REVENUE DEPARTMENT, THIRUVANANTHAPURAM, PIN-695 001.** - **2 THE DISTRICT COLLECTOR PATHANAMTHITTA, PIN-695 645.** - **3 THE REVENUE DIVISIONAL OFFICER THIRUVALLA, PIN-689 701.** - **4 THE TAHSILDAR OFFICE OF THE TAHSILDAR, RANNI, PIN-689 672.** - **5 THE VILLAGE OFFICER, ANGADI VILLAGE RANNI PIN-689 672.** - **6 DISTRICT SURVEY SUPDT. OFFICE OF THE SURVEY & LAND RECORDS, COLLECTORATE, PATHANAMTHITTA, PIN-689 645.** **R BY SMT A.C.VIDHYA- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C)No.12098 OF 2015(J) ## **JUDGMENT** The petitioner, who is a senior citizen aged 68 years, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P5 proceedings dated 26.03.2015 of the 4[th] respondent Tahsildar. The petitioner has also sought for a writ of mandamus commanding the respondents to demarcate and measure out his property as per Ext.P1 basic tax receipt issued by the 5[th] respondent Village Officer dated 05.06.2014, before implementing Ext.P5 proceedings of the 4[th] respondent Tahsildar. 2. Going by the averments in paragraph 1 of the writ petition, the petitioner is in ownership, possession and enjoyment of 2 acre and 81 cents of land (1 hector and 14 ares) comprised in Re.Sy. No.16/6 of Angadi Village, as per Thandaper No.8/169 of Angadi Village. Ext.P1 is the basic tax receipt issued by the 5[th] respondent Village Officer, dated 05.06.2014. As per Ext.P1 tax receipt, the petitioner is in ownership, possession and enjoyment of 2 acre and 81 cents of land (1 hector and 14 ares) comprised in Re-Survey W.P.(C)No.12098 OF 2015(J) -3- No.16/6 of Angadi Village, as per Thandaper No.8/169 of Angadi Village. 3. According to the petitioner, his father was holding 8.10 ares of puramboke land comprised in Re.Sy.No.16/9 Block No.8 of Angadi Village, on kuthakapattam, as per Thandaper No.A2-10607/04. After his death, on receipt of notice for renewal of kuthakapattam, the petitioner remitted lease rent for the said property, vide Ext.P2 receipt issued by the 5[th] respondent. Though the petitioner had remitted lease rent, he is not in possession of the land having an area of 8.10 ares comprised in Re.Sy.No.16/9 Block No.8 of Angadi Village, as per Thandaper No.A2-10607/04. The petitioner was issued with Ext.P3 notice dated 17.03.2015 of the 4[th] respondent Tahsildar, whereby he was informed that, the lease period of 8.10 ares of land had expired and that land is included in 'Zero Landless Project' for allotment to landless persons. By Ext.P3, the petitioner was required to submit objections, if any, within 15 days. The petitioner submitted Ext.P4 objection dated 20.03.2015, wherein it is stated that, though kuttakapattom in respect of 8.10 ares of puramboke land comprised in Re.Sy.No.16/9 Block No.8 of Angadi Village was -4- ## W.P.(C)No.12098 OF 2015(J) renewed in his name, on the death of his father, he was not in possession of that land. The petitioner is in ownership, possession and enjoyment of 2 acre and 81 cents of land (1 hector and 14 ares) comprised in Re.Sy. No.16/6 of Angadi Village, as per Thandaper No.8/169 of Angadi Village, which has to be measured out and identified before including 8.10 ares of puramboke land comprised Re.Sy.No.16/9 Block No.8 of Angadi Village, in 'Zero Landless Project', for allotment to landless persons. The 4[th] respondent Tahsildar by Ext.P5 proceedings dated 26.03.2015 terminated kuthakapattom in respect of 8.10 ares of puramboke land comprised in Re.Sy.No.16/9 Block No.8 of Angadi Village and directed the 5[th] respondent Village Officer to take possession of the said land and report the said fact to the 4[th] respondent. Feeling aggrieved by Ext.P5 proceedings of the 4[th] respondent, the petitioner has filed this writ petition before this Court, seeking the reliefs stated hereinbefore. 4. On 12.06.2015, when this writ petition came up for admission, this Court admitted the matter on file and the learned Government Pleader took notice for the respondents. 5. A counter affidavit has been filed by the 4[th] -5- ## W.P.(C)No.12098 OF 2015(J) respondent Tahsildar, opposing the relief sought for in this writ petition. Paragraphs 4 to 6 of the counter affidavit read thus; “4. To the contention in para 1, it is submitted that Government land of 8.10 ares which the petitioner hold under kuthakappattam was included in Resurvey No.16/6 due to a Resurvey mistake. The said mistake was rectified by Survey Superintendent No.1, Pathanamthitta, vide order No.SA 9/01. As such the petitioner is in enjoyment of only 1.04.10 H land as per Village records. 5. To the averments in para 2, it is submitted that the Kuthakappattam enjoyed by Sri.Samuel Varghese, father of the petitioner was renewed in favour of the - petitioner vide order No.A2 10607/04 dated 10.02.2005 and he was paying rent regularly since then. A210607/04 is the lease order – not a Thandaper account. 6. Tahsildar Ranni terminated the lease of 8.10 Ares in Resurvey No.16/9 after giving notice to the petitioner. The petitioner's contention, that the lease land which is wrongly included in his Thandaper in Resurvey record is his own is baseless. The mistake which crept in the Resurvey records is corrected vide order No.SA 9/01 dated 10.07.2002 of Resurvey Superintendent. Thereafter the lease was renewed in favour of the petitioner at his request. At no stage, did the petitioner make any claim or objection over this land. The petitioner and his father were well aware that they are holding lease land. Now, objections are levelled only for -6- ## W.P.(C)No.12098 OF 2015(J) the purpose of taking Government land in his own name.” (underline supplied) 6. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 7. The specific case of the petitioner, as stated in paragraph 1 of this writ petition, is that he is in ownership, possession and enjoyment of 2 acre and 81 cents of land (1 hector and 14 ares) comprised in Re.Sy. No.16/6 of Angadi Village, as per Thandaper No.8/169 of Angadi Village. As per Ext.P1 basic tax receipt issued by the 5[th] respondent Village Officer, he is in ownership, possession and enjoyment of 2 acre and 81 cents of land (1 hector and 14 ares) comprised in Re-Survey No.16/6 of Angadi Village, as per Thandaper No.8/169 of Angadi Village. 8. The extent of land in Ext.P1 basic tax receipt issued by the 5[th] respondent Village Officer is only 01.04.10 hector and not 1 hector and 14 ares (1.14 hector), as stated in the writ petition. The specific stand taken in the counter affidavit filed by the 4[th] respondent Tahsildar is that puramboke land having an extent of 8.10 ares, which the petitioner held under -7- ## W.P.(C)No.12098 OF 2015(J) kuthakappattam, was included in Re.Sy.No.16/6 due to resurvey mistake. The mistake which crept in the resurvey records was corrected vide order No.SA 9/01 dated 10.07.2002 of the Resurvey Superintendent. Thereafter the lease was renewed in favour of the petitioner, at his request. As such the petitioner is in enjoyment of only 1.04.10 hectors of land as per Village records. For reasons best known to the petitioner, he has not chosen to produce the title deed of his registered holding. The extent of land in Ext.P1 basic tax receipt is only 01.04.10 hectors, though it is averred in paragraph 1 of the writ petition that the said receipt is in respect of 1 hector and 14 ares (1.14 hector). 9. The petitioner's father was holding 8.10 ares of puramboke land comprised in Re.Sy.No.16/9, Block No.8 of Angadi Village, on kuthakapattam. After his death, kuthakapattom was renewed in the name of the petitioner. According to the petitioner, though he had remitted lease rent, as evident from Ext.P2 receipt issued by the 5[th] respondent Village Officer, he is not in possession of the said land having an area of 8.10 ares. The specific stand taken in the counter -8- ## W.P.(C)No.12098 OF 2015(J) affidavit filed by the 4[th] respondent Tahsildar is that Kuthakappattam enjoyed by the petitioner's father, late Samuel Varghese, was renewed in favour of the petitioner, vide order No.A2-10607/04 dated 10.02.2005, for a period of one year, at an annual rent of Rs.135/-, and he was paying rent regularly since then. 'A2-10607/04' referred in Ext.P2 receipt is the number of the said order and not a Thandaper account. 10. Admittedly, the petitioner owns large extent of land Re.Sy.No.16/6 of Angadi Village. The land referred to in Ext.P5 proceedings dated 26.03.2015 of the 4[th] respondent Tahsildar, having an extent of 8.10 ares, comprised in Re.Sy.No.16/9, Block No.8 of Angadi Village, is a puramboke land leased out to the petitioner on kuthakapattam. By Ext.P5 proceedings, the 4[th] respondent terminated kuthakapattom in respect of the said puramboke land, since it is required for a public purpose, i.e., for allotment to landless persons under 'Zero Landless Project'. When termination of kuthakapattom in respect of the said land is for a public purpose, no interference is warranted on Ext.P5 proceedings of the 4[th] -9- ## W.P.(C)No.12098 OF 2015(J) respondent, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. 11. By Ext.P5 proceedings of the 4[th] respondent Tahsildar, the 5[th] respondent Village Officer was directed to take possession of 8.10 ares of puramboke land comprised in Re.Sy.No.16/9, Block No.8 of Angadi Village land, which was leased out to the petitioner vide order No.A2-10607/04 dated 10.02.2005, for a period of one year, at an annual rent of Rs.135/-. As stated in the counter affidavit filed by the 4[th] respondent Tahsildar, puramboke land having an extent of 8.10 ares, which the petitioner held under kuthakappattam, was included in Re.Sy.No.16/6 due to resurvey mistake. The said mistake was corrected vide order No.SA 9/01 dated 10.07.2002 of the Resurvey Superintendent. Thereafter the lease was renewed in favour of the petitioner, at his request. The petitioner has not chosen to disclose the said fact in the writ petition, which amounts to suppression of material facts from the notice of this Court. 12. In **Prestige Lights Limited v. State Bank of India [(2007) 8 SCC 449]** the Apex Court held that a -10- ## W.P.(C)No.12098 OF 2015(J) 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. 13. In **Prestige Light** 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 -11- W.P.(C)No.12098 OF 2015(J) 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. 14. In **K.D. Sharma v. Steel Authority of India Ltd. [(2008) 12 SCC 481]** the Apex Court held that the party who invokes the extraordinary jurisdiction of the Apex Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play 'hide and seek' or to 'pick and choose' the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts". W.P.(C)No.12098 OF 2015(J) -12- 15. In **K.D. Sharma** _'_ the Apex Court held further that, if the primary object as highlighted in **R. v. Kensington Income Tax Commissioners [1917 (1) KB 486]** is kept in mind, an applicant who does not come with candid facts and 'clean breast' cannot hold a writ of the Court with 'soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for Contempt of Court for abusing the process of the Court. 16. Therefore, it is well settled that, a litigant who invokes the extraordinary jurisdiction of this Court under -13- ## W.P.(C)No.12098 OF 2015(J) 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. 17. For terminating kuthakapattom and taking over puramboke land having an extent of 8.10 ares comprised in Re.Sy.No.16/9, Block No.8 of Angadi Village, covered by order No.A2-10607/04 dated 10.02.2005, it is not necessary to measure out and identify the registered holding of the petitioner in Re.Sy. No.16/6 of Angadi Village. 18. In the result, the petitioner is not entitled for any of the reliefs sought for in this writ petition. The writ petition fails and the same is accordingly dismissed. Though this is a fit case in which costs could be imposed -14- ## W.P.(C)No.12098 OF 2015(J) on the petitioner, for suppression of materials facts, considering the fact that the petitioner is a senior citizen aged 68 years, this Court refrain from imposing any costs. Sd/- **ANIL K. NARENDRAN, JUDGE** AV -15- W.P.(C)No.12098 OF 2015(J) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE BASIC TAX RECEIPT ISSUED BY THE 5TH RESPONDENT VILLAGE OFFICER** **EXHIBIT P2 THE TRUE COPY OF THE KUTHAKAPATTAM RECEIPT ISSUED BY THE 5TH RESPONDENT VILLAGE OFFICER** **EXHIBIT P3 THE TRUE COPY OF THE NOTICE NO.D3A2198/00 EXHIBIT P4 THE TRUE COPY OF THE REPLY FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 20.3.2015 EXHIBIT P5 THE TRUE COPY OF THE ORDER NO.D3198/2000 DATED 26.3.2015 ISSUED BY THE 4TH RESPONDENT THASILDAR**