IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 25808 of 2006(V)
1. SULEKHA BEEVI, W/O.KHAHAR MEERA RAWTHER,
... Petitioner
2. KHADHAR MEERA RAWTHER,
Vs
1. THE DISTRICT COLLECTOR, KOTTAYAM.
... Respondent
2. THE TAHSILDAR, CHANGANACCHERRY.
3. THE TALUK SURVEYOR, CHENGANACHERRY.
4. THE VILLAGE OFFICER, CHANGANACHERRY.
5. THE CHANGANACHERY MUNCIPALITY
For Petitioner :SRI.P.KURUVILLA JACOB
For Respondent :SRI.SIBY MATHEW
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :20/12/2006
O R D E R
S. Siri Jagan, J.
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W.P (C). Nos. 25808 & 28788 of 2006
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Dated this, the 20th December, 2006.
J U D G M E N T
Petitioners in W.P(C) No. 25808/2006 approached this Court
seeking the following reliefs:
“i) To issue a writ of mandamus or any other appropriate
writ, order of direction to first respondent directing him to
dispose of Ext. P5 petition in accordance with law and
within a specified period of time, that may be fixed by this
Hon’ble Court;
ii) to declare that the illegal acts took place in the
residential property of petitioners in the presence of 3rd
respondent with the support of 5th respondent as revealed
from Ext. P4 series are highly illegal, arbitrary, unjust and
without the authority of law.”
2. I am inclined to dismiss this writ petition with exemplary
costs since I am of the opinion that the petitioners did not approach
this Court with clean hands and tried to mislead this Court by not
stating the entire facts of the case and without impleading the
necessary parties. The facts relating to the case are as follows.
3. In the writ petition, the 1st petitioner stated that she is the
owner of 19 cents of land comprised in re-survey no. 7 in Block 173 of
Changanacherry village as per sale deed no. 535/71 of
Changanacherry Sub Registrar’s Office. 2nd petitioner is the husband
of the 1st petitioner. One Muhammed Kani @ Mammu, an adjacent
property owner of the petitioners, filed a complaint before the
authorities under the Kerala Land Conservancy Act (for short ‘the
Act’) complaining that on the northern boundary of the petitioners’
property, he has encroached into Government land and constructed a
compound wall enclosing a public road. The authorities under the
Act took up the matter as L.C. No. 1/1993, against which the
petitioners filed O.S.No. 119/1993 before the Munsiff’s Court,
Changannacherry. Against another neighbour, namely, one Abdul
W.P.C. Nos. 25808 & 28788/2006 -: 2 :-
Azeez also, proceedings were initiated under the Act, which was
taken up as L.C. No. 2/1993. The petitioners, together with the said
Abdul Azeez, filed O.S.No. 127/94 before the Munsiff’s Court,
Changanacherry and obtained interim relief. Finally, both the suits
O.S.Nos. 119/93 and 127/94, were dismissed by judgment dated 30-
1-1999. Appeals preferred against those original suits, namely,
A.S.Nos. 37 & 38 of 1999 before the District Court, Kottayam were
also dismissed by a common judgment dated 31-3-2006. The
petitioners submitted that they had filed second appeal against the
same. When the 3rd respondent issued Ext. P1 notice dated 11-9-
2006, informing the 1st petitioner that boundaries of her residential
property would be re-fixed on 225-9-2006 and she should be present
at the site, although, by Ext. P2 letter dated 23-9-2006, the
petitioners informed the 3rd respondent that second appeal has been
filed before this Court, the officers of the 3rd respondent with help of
the field staff of the 5th respondent-Municipality, demolished a portion
of the petitioners’ compound wall. In the circumstances, the 1st the
petitioner filed Ext. P5 petition dated 27-9-2006 before the District
Collector to set aside the proceedings for re-fixation of the boundary
of the petitioners’ property. Thereafter, on 29-9-2006, the petitioners
have approached this Court seeking the above said reliefs.
4. On 29-9-2006, when the matter was moved as ‘today
moving’, while admitting the same, I directed that status quo shall be
maintained. Thereafter, on 25-10-2006, the petitioners again sought
permission of this Court to re-construct the demolished portion of the
compound wall of the petitioners’ residential property and to fix the
entrance gate in the compound wall at its original position and to
W.P.C. Nos. 25808 & 28788/2006 -: 3 :-
direct the 5th respondent to reimburse the expenses for the above said
construction works. I had, by order dated 25-10-2006, permitted the
petitioners to re-construct the compound wall at its original position
at their own risk and cost subject to the condition that if, ultimately,
the writ petition is dismissed, they would be liable to demolish the
same at their own costs. Thereafter, the petitioner in W.P(C) No.
28788/2006 filed that writ petition producing a copy of my order
seeking a direction to respondents 1 to 6 to take all measures under
law, to restore the road and poramboke land, which is subject matter
of W.P(C) No. 25808/2006. In the same, the petitioners produced the
lower court judgments in O.S.Nos. 119/1993 and 127/1994. When
that matter came up for admission before me on 2-11-2006, I directed
that the same be posted along with W.P(C) No. 25808/2006. On 6-11-
2006, the two writ petitions came up together. It was then that I
noticed that the petitioners in W.P(C) No. 25808/2006 have cleverly
hoodwinked this Court by not stating that in the said original suits,
there was a specific finding by the lower court that the land in
question was a poramboke land. The petitioners although mentioned
the fact that those original suits were dismissed, they had cleverly not
said the fact that there was a specific finding in the suit that the land
in question was poramboke land and that it was pursuant to the same
that the land conservancy proceedings were proceeded with and the
3rd respondent in W.P(C) No. 25808/2006 initiated proceedings for re-
fixation of the boundary of the petitioners’ property in that writ
petition. According to me, in order to prevent this Court from
knowing these details, the petitioners deliberately did not implead
the legal heirs of deceased 3rd defendant in O.S.No.37/1999, who are
W.P.C. Nos. 25808 & 28788/2006 -: 4 :-
the petitioners in W.P(C) No. 28788/2006. The real facts came to
light only from W.P(C) No. 28788/2006. In the above circumstances, I
dictated judgment in W.P(C) No. 25808/2006 on 6-11-2006 dismissing
the writ petition with costs of Rs. 15,000/-, directing that it would be
open to the respondents to take appropriate proceedings on the basis
of the interim order dated 25-10-2006. I also observed that the
petitioners would be liable to demolish the re-constructed portion and
the respondents would be free to demolish the same at the cost of the
petitioners if the petitioners do not demolish the same. At that time,
the petitioners in W.P(C) No.25808/2006 sought time to file a counter
affidavit in W.P(C) No. 28788/2006. In the above circumstances, I
thought it fit to postpone signing of the judgment in W.P(C) No.
25808/2006 and posted the same for “to be spoken to” on 8-11-2006.
The same was adjourned to 22-11-2006 and was being adjourned
from time to time at the instance of counsel for the petitioners.
Ultimately, the petitioners in that writ petition submitted that on 1-12-
2006, another learned Judge of this Court had passed an interim
order in I.A.No. 2631/2006 in R.S.A.No. 1097/2006. From the
pleadings in W.P(C) No. 28788/2006, I came to understand that the
said R.S.A was in fact filed on 26-9-2006 and it is after filing that
R.S.A that this writ petition was moved. Although the petitioners had
stated that a second appeal was filed against the judgments
dismissing their Appeal Suits, they did not either state the date of
filing of the R.S.A or the number of the same in the writ petition which
was filed on 29-9-2006, i.e three days later. In fact, it was after filing
that R.S.A that Ext. P5 has been filed before the District Collector, on
27-9-2006.
W.P.C. Nos. 25808 & 28788/2006 -: 5 :-
5. From the same, it is evident that after filing R.S.A on 26-9-
2006, without moving for interim orders in that R.S.A, the petitioners
have filed W.P(C) No.25808/2006 for the above said reliefs. I am of
opinion that this is an abuse of the process of Court. When there was
a specific finding in the lower court judgment that the land in
question was a poramboke land and when the 3rd respondent initiated
proceedings in accordance with the findings in the said judgment
without moving that R.S.A, the petitioners have filed another petition
before the District Collector and filed this writ petition seeking a
direction to the District Collector to dispose of Ext. P5 which the
District Collector could not have, since the matter was covered by
judgments of the lower court. The petitioners have also deliberately
did not implead the petitioners in W.P(C) No. 28788/2006 in W.P(C)
No. 25808/2006, although they were necessary parties to the writ
petition in view of the fact that it was in a judgment in a civil suit in
which they were also parties that the finding that the land in question
was a poramboke pathway was entered. For all these reasons, I am of
opinion that the petitioners did not disclose the entire facts in the writ
petition and obtained orders from this Court on false pretensions.
Therefore, I am of opinion that the status quo ante as obtaining prior
to my order dated 25-10-2006 has to be restored in this case.
6. I also notice that in R.S.A.No. 1097/2006, the petitioners
have obtained an order dated 1-12-2006 to the following effect:
“There will be an interim order that no pathway will be cut
open by respondents for a period of one week.”
Thereafter, the said order was extended by one month on 7-12-2006.
In view of the above, I further direct that although status quo ante
should be restored, respondents shall not cut open a pathway as
W.P.C. Nos. 25808 & 28788/2006 -: 6 :-
directed in I.A.No. 2631/2006 in R.S.A. No. 1097/2006. With the
above directions, the writ petition is dismissed. I also direct the
petitioners to pay costs of Rs. 10,000/- to the respondents in W.P(C)
No. 25808/2006. The judgment dictated on 6-11-2006 is recalled.
In W.P(C) No. 28788/2006, after arguing for some time, when it
was pointed out that the petitioners’ remedy lies in getting the
interim order in R.S.A.No.1097/2006 vacated, learned counsel for the
petitioners seeks permission to withdraw the same. Accordingly, the
said writ petition is dismissed as withdrawn.
Sd/- S. Siri Jagan, Judge.
Tds/