Dismissed

Thomas Kuruvila v. State of Kerala

Kerala HC18 Jan 2021WA/81/2021

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the writ appeal challenging a Single Judge's order. The appeal questioned the validity of dismissing a petition and imposing costs due to the appellant's alleged failure to disclose material proceedings. The Court upheld the Single Judge's decision, finding material suppression by the appellant.

What did the court decide?

Court refused to interfere with the single Judge's discretion to dismiss the writ petition and impose costs for material suppression.

Thomas Kuruvila Vs State of Kerala — Property and Title | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

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WA.No.81 OF 2021

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AGAINST THE ORDER/JUDGMENT IN WP(C) 18100/2020(J) OF HIGH COURT OF KERALA

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APPELLANT/PETITIONER:

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THOMAS KURUVILA

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AGED 68 YEARS

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S/O.KURUVILA, PLAKKATTU HOUSE, CEMENT PALAM, CHINNAKANALKARA, UDUMBANCHOLA TALUK, IDUKKI 685 618

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BY ADVS.

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SRI.DEEPU THANKAN SMT.UMMUL FIDA SMT.LAKSHMI SREEDHAR

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA REP.BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,

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THIRUVANANTHAPURAM - 695 033

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2 DISTRICT COLLECTOR COLLECTORATE, KUYILIMALA, PAINAV P.O., IDUKKI - 685 603

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3 REVENUE DIVISIONAL OFFICER DEVIKULAM TALUK, KANNAN DEVAN HILLS, IDUKKI -685 613

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4 TAHSILDAR UDUMBANCHOLA, IDUKKI - 685 554

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5 ASSISTANT CARDAMOM SETTLEMENT OFFICER KUMILY, IDUKKI 685 554

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SRI.Y.JAFFER KHAN, GOVERNMENT PLEADER FOR RESPONDENTS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA.No.81 OF 2021

JUDGMENT

SHAJI P. CHALY, J.

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Captioned writ appeal is preferred by the petitioner in W.P.(C) No.18100/2020 challenging the judgment dated 25.11.2020. The writ petition was filed by the appellant seeking the following reliefs:

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(i) issue a writ of mandamus or appropriate writ, order or direction directing the respondents not to repossess the 6.75 Acres of land comprising Sy.No.12/1-B, 34/1 & 34/2 of Chinnakanl Village of Idukki district covered by Exhibit P-5 Kuthakapattom Lease.

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(ii) issue a writ of mandamus or appropriate writ, order or direction directing the respondents to remove the Board to put up on the front side of the property of the petitioner 6.75 Acres of land comprised in Sy.No.12/1-B, 34/1 & 34/2 of Chinnakanl Village of Idukki district covered by Exhibit P-5 Kuthakapattom Lease forthwith.

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(iii) issue a writ of mandamus or appropriate writ, order or direction directing declaring the property of the petitioner cannot be repossessed without notice and giving him opportunity to prove his title and claim over the property and

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(iv) pass such other orders as this Hon'ble Court deems fit, proper and necessary in the circumstances of the case.

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The basic material facts for the disposal of the appeal are as follows; the appellant claims to be a resident and owner in possession of 6.75 Acres of land in Sy.No.12/1-B, 34/2 and 34/1 of Chinnakanal Village of Idukki District. According to the appellant, he had obtained 79 cents of property in

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Sy.No.12/1-B and 34/2 of Chinnakanal Village from one Rajan as per registered Sale Deed No.40/2007 dated 5.1.2007 of the Office of Sub Registrar, Rajakumari. Exhibit P2 document is an agreement dated 5.1.2007 on a stamp paper worth Rs.50/- in regard to an extent of 5.96 Acres of land which is stated to be lying adjacent to the aforesaid 79 cents of property, entered into between the appellant and certain persons, who are claiming to be the legal heirs of Madaswamy of Chinnakanal Village, who is the father of the aforesaid Rajan. Certain documents are produced to show that a building is constructed in the property covered by Ext.P1 sale deed measuring 79 cents. According to the appellant, so far as 79 cents of property is concerned, he has remitted the tax evident from Ext.P4 tax receipt dated 2.6.2020. So also it was submitted that Ext.P5 is a proceeding dated 9.6.2020 of Assistant Cardamom Settlement Officer, Kumily, leasing out a certain extent of property for a period of 20 years, whereby the appellant was directed to pay a sum of Rs.11,130/towards the premium starting from 9.6.2020.

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The grievance highlighted by the appellant in the writ petition was that the District Collector, Idukki – the 2^nd respondent, without serving any notice to the appellant, put up a board 100 meters away from his property indicating that the property belongs to the Government. The paramount contention raised by the appellant was that, the appellant came to know about the same from Ext.P6 newspaper report appeared in a vernacular daily dated 23.8.2020. Therefore, according to the appellant, the action of the District

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Collector interfering with the free enjoyment of the properties specified above is arbitrary and illegal liable to be interfered with by the writ court and therefore, sought the reliefs extracted above.

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The Assistant Cardamom Settlement Officer, Kumily, Idukki District – the 5^th respondent, had filed a detailed counter affidavit refuting the claims and demands raised by the appellant and submitted that the property in question has no connection with survey numbers pointed out by the appellant in the writ petition and that the appellant is claiming a large extent of valuable Government land under the possession of the Kerala State Electricity Board situated in Sy.Nos.48, 49, 20/1 and 12/1-A of Chinnakanal Village and the same has been occupied by the Electricity Board for the catchment area of Anayirankal Reservoir and as per the revenue records, the property situate in Sy.No.20/1 is a puramboke land.

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The sum and substance of the contention raised by the 5^th respondent is that the appellant is making an illegal claim over the Government land with the active support of then Deputy Tahsildar and Village Assistant and having taken note of the role played by the officials, they were placed under suspension as per Ext.R5(a) order dated 24.8.2020. Other serious allegations are raised against the appellant and documents are also produced to show that the contentions put forth by the appellant in the writ petition claiming rights over the property is without any basis or foundation. It was also pointed out that the Assistant Cardamom Settlement Officer has taken action against the

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encroachers and has produced documents to substantiate the same.

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To put it short, the Assistant Cardamom Settlement Officer has brought the issue before the Tahsildar (LR), Udumbanchola, for fresh enquiry and as per his report dated 21.7.2020 viz., Ext.R5(i), it was revealed that the land occupied by the appellant is situate in Sy.Nos.48, 49, 12/1-A and 20/1 of Chinnakanal Village. It was further significantly pointed out that on the basis of the report of the Tahsildar, the Assistant Cardamom Settlement Officer has initiated steps to cancel Ext.P5 proceedings of the Assistant Cardamom Settlement Officer dated 9.6.2020 and accordingly a notice was issued to the appellant dated 10.8.2020, to which the appellant has submitted a reply dated nil produced as Ext.R5(j). Therefore, apparently from the judgment of the learned single Judge it was submitted by the respondents that the allegations made in the writ petition that the appellant was proceeded with inappropriately and without issuing any notice, is not correct.

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Anyhow on the date of the filing of the counter affidavit i.e., 24.9.2020, a not pressed memo was filed by the appellant dated 22.9.2020 stating that, it is understood from the office of the District Collector that they have not taken possession of the appellant's land or intends to proceed against the property. Accordingly it was sought for permission to withdraw the writ petition with liberty to the writ petitioner to move afresh whenever new cause of action arises. Apparently learned single Judge directed the appellant to file an affidavit in regard to the non disclosure of material facts on the basis of

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notice issued by the Assistant Cardamom Settlement Officer dated 10.8.2020 and the reply filed by the appellant dated nil. Accordingly an affidavit was filed stating that the writ petition was filed on 26.8.2020 on the basis of a newspaper report dated 23.8.2020 stating that the revenue officers have repossessed the property in question and put up a board in the property of the appellant. It was further submitted that when the newspaper report appeared, the appellant was at his daughter's place at Cherthala in connection with the death of his son-in-law and thereby instructions were given to the Advocate and the papers were handed over by the driver to file the writ petition. In short the appellant submitted that the non-production of the above specified notice and the reply of the appellant was due to the complex situation that had taken place as above.

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Evidently the learned single Judge found that there was material suppression on the part of the appellant in regard to the notice issued by the Assistant Cardamom Settlement Officer to the appellant dated 10.8.2020 and the reply submitted by the appellant dated nil and has secured stay of the proceedings of the respondents. After assimilating and understanding the factual situations, learned single Judge had made a threadbare discussion about the facts and circumstances of the case and arrived at the finding that appellant has made material suppression so as to secure unmerited advantage in the writ petition and accordingly, irrespective of the permission sought for withdrawal of the writ petition, dismissed the writ petition imposing a cost of

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Rs.50,000/-. It is thus challenging the legality and correctness of the same, the appeal is preferred.

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9.We have heard Sri.Deepu Thankan, appeared for the appellant and Sri.Y.Jaffar Khan, learned Government Pleader, appeared for the respondents and perused pleadings and materials on record.

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The paramount contention advanced in the appeal is that the learned single Judge was not justified in imposing cost on the appellant when he has furnished sufficient reasons for not incorporating certain facts in the writ petition and that the learned single Judge was not justified in entertaining the counter affidavit and taking a decision relying upon the same after the filing of a not pressed memo by the appellant. After appreciating the rival contentions relying upon the judgments of the Apex Court in Prestige Lights Limited v. State Bank of India [(2007)8 SCC 449], K.D.Sharma v. Steel Authority of India Limited [(2008)12 SCC 481] and certain other judgments, learned Single Judge had arrived at the conclusion that a party approaching the High Court invoking the writ jurisdiction under Article 226 of the Constitution of India has to approach the court by placing all the facts without any reservation and if there is any suppression on the part of the party, or twisted facts have been placed before the court, the writ court may refuse to entertain the writ petition and dismiss it without entering into merits of the matter. It was also culling out the legal principles evolved from the judgments that the writ petition was dismissed without entering into the

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merits by imposing a cost of Rs.50,000/-.

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In our considered opinion, the sole question is whether any manner of interference is required in the judgment of the learned single Judge imposing the cost of Rs.50,000/- ? The sole reason assigned is that the mistake of non- production of material documents had occurred since the driver of the appellant had handed over the documents without verifying the entire documents and there was no wilful intention on the part of the appellant to suppress the receipt of the notice and the reply. However, on verification of the memorandum of writ petition, we find that various documents in support of the contentions advanced by the appellant were produced. However, conveniently the proceedings initiated against the appellant by issuing notice dated 10.8.2020 and the reply thereto were suppressed.

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That apart on a reading of the not pressed memo, it is clear that even at that stage the counsel was informed that the respondents have not taken possession of appellant's land or intends to proceed against the property whereas actually the property was proceeded with and the appellant has participated in the proceedings by submitting a reply dated nil produced as Ext.R5(j). Thinking so, we are in absolute agreement with the learned single Judge that there was material suppression on the part of the appellant and thus, secured advantage by getting an interim order of stay against the proceedings initiated by the respondents.

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We are also satisfied that the proposition of law laid down by the Apex Court and followed by the learned single Judge would justify the action of the learned single Judge dismissing the writ petition without permitting the appellant to withdraw the writ petition as sought for by imposing a cost of Rs.50,000/-.

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Upshot of the above discussion is that the appellant has not made out any case in the appeal to interfere with the discretion exercised by the learned single Judge under Article 226 of the Constitution of India, in an intra court appeal filed under section 5 of the Kerala High Court Act, 1958.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

JUDGE