VEERANKUTTY v. STATE OF KERALA

SRI S.RAJMOHAN -SR GOVERNMENT PLEADER; SRI K.P. SUDHEER - STANDING COUNSEL- COCHIN DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.7229 of 2024 3 JUDGMENT Anil K. Narendran, J. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2nd respondent Executive Engineer, Public Works Department (Roads Section) to implement Ext.P8 order dated

11.08.2023 of the 8th respondent Revenue Divisional Officer and remove the illegal construction referred to therein, in a time- bound manner.

2. On 23.02.2024, when this writ petition came up for admission, this Court noticed that the averments in paragraph 8 of the writ petition (at page No.8) would indicate that an appeal filed by the 5th respondent Cochin Devaswom Board against Ext.P8 order dated 11.08.2023 of the 8th respondent Revenue Divisional Officer is pending before the 7th respondent District Collector.

3. On 23.02.2024, the learned counsel for the petitioner submitted that there is no statutory provision to challenge Ext.P8 order dated 11.08.2023 of the 8th respondent, before the 7th respondent. The learned Standing Counsel for Cochin Devaswom Board submitted that Ext.P8 order of the 8th respondent is under challenge before the 7th respondent in a statutory appeal, in which W.P.(C)No.7229 of 2024 4 there is already an order of status quo. The learned Senior Government Pleader sought time to get instructions as to whether notice had already been issued to the petitioner in that proceedings.

4. On 05.3.2024, when this writ petition came up for consideration along with the connected matter, i.e., W.P.(C) No.20578 of 2023, on a query made by this Court as to whether the petitioner received any notice from the 7th respondent, in the appeal filed by the 5th respondent Cochin Devaswom Board, against Ext.P8 order dated 11.08.2023 of the 8th respondent, the learned counsel for the petitioner submitted that the petitioner was intimated about the pendency of such an appeal from the Village Office. However, he is yet to be served with a copy of the memorandum of appeal and no hearing was conducted by the 7th respondent. The learned Senior Government Pleader sought time to get instructions.

5. On 07.03.2024, when this writ petition came up for consideration along with the connected matter, the learned Government Pleader has made available for the perusal of this Court a copy of the attendance sheet of the meeting held on

19.10.2023, to show that the petitioner appeared in person before W.P.(C)No.7229 of 2024 5 the 7th respondent District Collector, in the hearing conducted on

19.10.2023. The learned Senior Government Pleader has made available for the perusal of this Court a copy of the hearing notice of the meeting held on 19.10.2023. The learned Senior Government Pleader was directed to place on record the aforesaid documents along with an affidavit of the 7th respondent, by

15.03.2024. On receipt of that affidavit, the petitioner was directed to file an affidavit in reply on or before 22.03.2024.

6. The 7th respondent has sworn to an affidavit dated

21.03.2024 producing therewith Annexure R7(a) hearing notice dated 26.09.2023 and Annexure R7(b) attendance sheet of the meeting held on 19.10.2023. In the said affidavit, it is stated that, in the appeal filed by the Cochin Devaswom Board against Ext.P8 order of the 8th respondent, the 7th respondent has given a direction to the 2nd respondent Executive Engineer, PWD Roads Division to maintain status quo as per letter No.DCTSR/9360/2023/B4 dated 05.09.2023. Thereafter, the petitioner submitted a complaint on 07.09.2023, stating that the appeal filed by the Cochin Devaswom Board was to mislead the 7th respondent and that the stop memo issued to the 2nd respondent Executive Engineer to maintain status quo was obtained by W.P.(C)No.7229 of 2024 6 misleading the 7th respondent. In order to decide the appeal filed by the Cochin Devaswom Board, the 7th respondent conducted a hearing on 19.10.2023, after issuing Annexure R7(a) hearing notice dated 26.09.2023. On 19.10.2023, the petitioner, the officers of Cochin Devaswom Board, Revenue Divisional Office, Tahsildar, Talappilly and the Executive Engineer, PWD (Roads), Talappilly were present for the hearing. Annexure R7(b) is the attendance sheet of the meeting held on 19.10.2023. In the statement submitted vide letter No.R.1384/2020 dated

17.10.2023, the Cochin Devaswom Board has stated that the ‘Thara’ is the ‘Moolastanam’ of Vettakkarankavu Temple. Believers of the Hindu religion are worshipping and lighting lamps there as per their rites and custom. ‘Thara’ situated on puramboke road is there from time immemorial and all puramboke lands including roads are the property of Devaswom as per order No.Dis 21/08/98 dated 06.11.1922 of Cochin Diwan Peshkar. Even now, some of the puramboke lands are not changed in the revenue records and remain puramboke lands in BTR. On the other hand, the Tahsildar, Thalappilly submitted a report, vide letter No.TLKPY 2742022-A5 dated 04.10.2023, that ‘Thara’ is situated on the side of Pazhayannur-Elanadu PWD Road, comprised in Sy. No.1085/1 and W.P.(C)No.7229 of 2024 7 1085/2 of Pazhayannur Village in Thalappilly Taluk, having an area of 01m2 in Sy.No.1085/1 (puramboke) and 01m2 in 1085/2 (purayidam). The land of the petitioner is included in Sy. No.1085/2 of Pazhayannur Village. In the affidavit, the 7th respondent has stated that the proceedings pursuant to the hearing are not finalised and it will be issued soon.

7. Today, when this matter was taken up for consideration in the forenoon, Adv.A.Rajasimhan, the learned counsel for the petitioner submitted that, since he has relinquished the vakalat, the petitioner will appear in person. In the afternoon session, the petitioner appeared in person.

8. We heard the arguments of the petitioner, who appeared in person, and also the arguments of the learned Senior Government Pleader for respondents 1 to 4, 7 and 8 and the learned Standing Counsel for the Cochin Devaswom Board for respondents 5 and 6.

9. The petitioner has filed this writ petition, on 21.02.2024, seeking a writ of mandamus commanding the 2nd respondent Executive Engineer, Public Works Department (Roads Section) to implement Ext.P8 order dated 11.08.2023 of the 8th respondent Revenue Divisional Officer and remove the illegal construction W.P.(C)No.7229 of 2024 8 referred to therein, in a time-bound manner. In paragraph 8 of the writ petition, at page No.8, after marking Ext.P8 order, the petitioner has stated as follows; “8. …… But, till date the above order is not complied with citing an appeal filed by the 7th respondent to the District Collector, Thrissur [sic: an appeal filed before the 7th respondent District Collector, Thrissur] for which there is no statutory provision.”

10. In the order dated 23.02.2024, this Court noticed the submission made by the learned Standing Counsel for Cochin Devaswom Board that Ext.P8 order of the 8th respondent is under challenge before the 7th respondent in a statutory appeal, in which there is already an order of status quo.

11. In the affidavit dated 21.03.2024 sworn to by the 7th respondent District Collector, it is stated that in the appeal filed against Ext.P8 order of the 8th respondent, the 7th respondent has given a direction on 05.09.2023 to the 2nd respondent Executive Engineer, PWD Roads Division to maintain status quo. Thereafter, the petitioner submitted a complaint on 07.09.2023, stating that the appeal filed by the Cochin Devaswom Board was to mislead the 7th respondent and that the order issued to the 2nd respondent Executive Engineer to maintain status quo was obtained by misleading the 7th respondent. W.P.(C)No.7229 of 2024 9

12. During the course of arguments, the petitioner, who appeared in person, submitted that he did not attend any hearing before the 7th respondent District Collector in connection with the appeal filed by the 5th respondent Cochin Devaswom Board challenging Ext.P8 order of the Revenue Divisional Officer.

13. Along with the affidavit dated 21.03.2024, the 7th respondent District Collector has placed on record Annexure R7(a) hearing notice dated 26.09.2023 and Annexure R7(b) attendance sheet of the meeting held on 19.10.2023. The learned Senior Government Pleader would point out the specific stand taken in the affidavit dated 21.03.2024 sworn to by the 7th respondent District Collector that, on 19.10.2023, the petitioner, the officers of Cochin Devaswom Board, Revenue Divisional Office, Tahsildar, Talappilly and the Executive Engineer, PWD (Roads), Talappilly were present for the hearing.

14. The learned Standing Counsel the Cochin Devaswom Board has made available for the perusal of the petitioner, who appeared in person, Annexure R7(b) attendance sheet of the meeting held on 19.10.2023, pursuant to Annexure R7(a) hearing noticed in the appeal filed by the Board against Ext.P8 order of the 8th respondent Revenue Divisional Officer, W.P.(C)No.7229 of 2024 10 placed on record along with the affidavit dated 21.03.2024 sworn to by the 7th respondent District Collector. After perusing that document, the petitioner, who appeared in person, admitted his signature in Annexure R7(b) attendance sheet.

15. The petitioner is arrayed as a respondent in W.P.(C) No.20578 of 2023, who is represented in that proceedings through another counsel. During the pendency of that writ petition, the petitioner has chosen to file this writ petition, on 21.02.2024, seeking implementation of Ext.P8 order dated 11.08.2023 of the 8th respondent Revenue Divisional Officer, which is under challenge in an appeal filed by the Cochin Devaswom Board, before the 7th respondent District Collector.

16. Though, in this writ petition filed on 21.02.2024, the petitioner would plead ignorance of the order of status quo granted by the 7th respondent on 05.09.2023, the specific stand taken in the affidavit dated 21.03.2024 sworn to by the 7th respondent is that the petitioner submitted a complaint before the 7th respondent on 07.09.2023, stating that the appeal filed by the Cochin Devaswom Board was to mislead the 7th respondent and that the order issued to the 2nd respondent Executive Engineer to maintain status quo was obtained by misleading the 7th W.P.(C)No.7229 of 2024 respondent. 11

17. As stated by Scrutton, L.J, in R. v. Kensington Income Tax Commissioners [[1917] 1 K.B. 486], 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, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction.

18. 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 facts or suppress relevant materials or is otherwise guilty of misleading the court, the Court may dismiss the action without adjudicating the matter. This rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of the court by deceiving it. The very basis of the writ jurisdiction rests in the disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the W.P.(C)No.7229 of 2024 12 very functioning of the writ courts would become impossible.

19. In Prestige Lights Limited [(2007) 8 SCC 449] 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 the merits of the matter.

20. In view of the law laid down in the decisions referred to supra, this writ petition filed with twisted facts and also suppressing material facts from the notice of this Court is nothing but an abuse of the process of law and the court. Today, the learned counsel who filed this writ petition has relinquished vakalat and the petitioner appeared in person.

21. In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145] a Three- Judge Bench of the Apex Court held that a writ of mandamus can W.P.(C)No.7229 of 2024 13 be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel the performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction.

22. In Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280] the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed the principles on which a writ of mandamus can be issued have been stated as under in ‘The Law of Extraordinary Legal Remedies’ by F.G. Ferris and F.G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. W.P.(C)No.7229 of 2024 14

23. In the instant case, in the appeal filed against Ext.P8 order of the 8th respondent Revenue Divisional Officer, the 7th respondent District Collector has given a direction on 05.09.2023 to the 2nd respondent Executive Engineer, PWD Roads Division to maintain status quo. In view of the order of status quo granted by the 7th respondent on 05.09.2023, the petitioner cannot seek a writ of mandamus commanding the 2nd respondent Executive Engineer to implement Ext.P8 order dated 11.08.2023 of the 8th respondent Revenue Divisional Officer and remove the illegal construction referred to therein, in a time-bound manner, since, in view of the order of status quo issued by the 7th respondent, it cannot be said that there is any refusal or neglect on the part of the 2nd respondent to perform any duty imposed by law.

24. The learned Senior Government Pleader, on instructions from the 7th respondent District Collector, would submit that in the appeal filed by the 5th respondent Cochin Devaswom Board, the District Collector has already called for a survey report from the Taluk Surveyor. The survey has already been conducted and the report is awaited.

25. The petitioner, who appeared in person, submitted that he is in receipt of a copy of the survey report. W.P.(C)No.7229 of 2024 15

26. Having considered the pleadings and materials on record and also the submissions made by both sides, we deem it appropriate to dispose of this writ petition with the following directions; (i) In case the survey report of the Taluk Surveyor is yet to be received, the 7th respondent District Collector shall take necessary steps to ensure that the report by the Taluk Surveyor is submitted within a period of 10 days. (ii) On receipt of the survey report of the Taluk Surveyor, a copy of the same shall be furnished to both sides in the appeal filed by Cochin Devaswom Board against Ext.P8 order of the 8th respondent Revenue Divisional Officer, which is now pending before the 7th respondent District Collector. (iii) On receipt of a copy of the survey report of the Taluk Surveyor, both sides shall submit their written submissions before the 7th respondent District Collector, on or before

22.04.2024, raising appropriate legal and factual contentions. (iv) Since the 7th respondent District Collector is presently on election duty, he shall conduct a personal hearing on

29.04.2023 at 11.00 a.m. and thereafter take an appropriate decision in the appeal filed by Cochin Devaswom Board against Ext.P8 order of the 8th respondent Revenue Divisional Officer, as expeditiously as possible, at any rate, within a further period of 10 days. The legal and factual contentions raised by both sides are left open to be raised before the 7th respondent District Collector at the appropriate stage. The order to be passed by the District Collector W.P.(C)No.7229 of 2024 16 shall be a ‘reasoned order’ after adverting to the legal and factual contentions raised by both sides. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- HARISANKAR V. MENON, JUDGE Skk//03.04.2024 W.P.(C)No.7229 of 2024 17 APPENDIX OF WP(C) NO.7229/2024 PETITIONER’S EXHIBITS: EXHIBIT P1 EXHIBIT P2 TRUE COPY OF THE FINAL REPORT IN CC NO. 01/2023 IN CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR TRUE COPY OF THE LAND TAX RECEIPT ISSUED FROM PAZHAYANNUR VILLAGE OFFICE ON 24/6/2023 EXHIBIT P3 PHOTOGRAPH OF THE PETITIONER’S BUILDING IN THE YEAR 2011 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 PHOTGRAGH CONSTRUCTION UNAUTHORIZED RELIGIOUS TRUE COPY OF THE LETTER DATED 3-1-2020 ISSUED BY THE 3RD RESPONDENT TRUE COPY OF THE LETTER DATED 15-1-2020 ISSUED BY THE 4TH RESPONDENT TO THE 6TH RESPONDENT TRUE COPY OF THE JUDGMENT DATED 16-1-2023 IN WP(C) NO. 11675 OF 2021 AND IN WP(C)NO. 25576 OF 2021 OF THIS HON’BLE COURT EXHIBIT P8 TRUE COPY OF THE ORDER NO. 529/23/A2 DATED 11-8-2023 ISSUED BY THE 8TH RESPONDENT RESPONDENTS’ ANNEXURES: ANNEXURE R7(A) TRUE COPY OF THE HEARING NOTICE BEARING NO.DCTSR/9360/2023/B4 DATED 26.09.2023 ANNEXURE R7(B) TRUE COPY OF THE ATTENDANCE SHEET OF THE MEETING CONDUCTED ON 19/10/2023