IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 WP(C).No. 30360 of 2008(L) -------------------------- PETITIONER: --------------- E.SUBAIR, S/O IBRAHIM, AGED 48 YEARS, CHALAYIL HOUSE, KORANGATTUPARAMBU, MALIAKKAPADYROAD, EDATHALA P.O., ALUVA. BY ADV. SRI.JOHN JOSEPH(ROY) RESPONDENTS: --------------- 1. THE SUPERINTENDENT OF POLICE (RURAL), ALUVA. 2. THE DEPUTY SUPERINTENDENT OF POLICE, ALUVA. 3. CONFIDENT PROJECT INDIA LTD., 308/2, S.A. ROAD, VYTTILA, KOCHI -19, REPRESENTED BY GENERAL MANAGER K.V. VARGHESE. 4. THE STATION HOUSE OFFICER, ALUVA POLICE STATION, ALUVA. 5. MR.ALI, S/O AHAMMED, VADAKKEDATHU, HOUSE, MALIAKKAPPADY ROAD, EDATHALA P.O., ALUVA. ADV. SRI.P.N.RAMAKRISHNAN NAIR FOR R3 SRI.P.VISWANATHAN FOR R3 SRI.T.K.VENUGOPALAN FOR R5 SRI.SHIBU JOSEPH FOR R5 GOVERNMENT PLEADER, SRI.BENJAMIN PAUL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30360/2008 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE 3RD RESPONDENT ON 28.11.2007. EXT.P2: COPY OF THE COMPLAINT DT.8.10.2008 SUBMITTED TO THE 2ND RESPONDENT. EXT.P3: COPY OF THE COMPLAINT DT.10.10.2008 SUBMITTED TO THE I.G. OF POLICE, ERNAKULAM. EXT.P4: COPY OF THE COMPLAINT DT.11.10.2008. RESPONDENT'S EXTS: EXT.R3(a): COPY OF THE PLAINT IN O.S.NO.415/2008, ON THE FILE OF THE MUNSIFF'S COURT, ALUVA. EXT.R3(b): COPY OF THE INJUNCTION PETITION FILED IN O.S.NO.415/2008. EXT.R3(c): COPY OF THE OBJECTION FILED IN THE INJUNCTION PETITION. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ---------------------------------------- W.P.(C) No.30360 OF 2008 ---------------------------------------- Dated this the 28th day of November, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The petitioner claims ownership and title over 10.75 cents of land with a residential building therein comprised in Re- survey No.417/15 in Block No.36 of Aluva East Village. The 3rd respondent purchased a property in the neighbourhood. There is a pathway having a width of 3 metres, which is passing through the eastern side of the petitioner's property. As per Ext.P1, he agreed to surrender about 4 cents of land for widening the road, so that, the width of the said pathway will come to 10 metres, for a consideration of Rs.24 lakhs. Rs.4 lakhs was paid in advance, at the time of execution of agreement itself. The petitioner submits without complying the conditions in Ext.P1 and without paying the consideration, the 3rd respondent took steps to widen the road. Apprehending, forceable demolition of his compound wall and old house and laying of the road without complying with the conditions in W.P.(C) No.30360/2008 2 Ext.P1, he filed Ext.P2 representation before the Deputy Superintendent of Police, which was forwarded to the Circle Inspector of Police. The Circle Inspector called all the parties to his office on 9.10.2008. But, in the mean time, at 8.30 a.m. on 9.10.2008, the 3rd respondent encroached into the petitioners property and widened the road. This was done in the presence of an Additional Sub Inspector of Police, Mr.Abdul Rahman. Though the petitioner frantically informed all police authorities, no one came forward to help him. The petitioner further submits, about 25 'goondas' were assembled in the house of the 5th respondent on 9.10.2008 to give necessary protection to the illegal widening of the road undertaken by the 3rd respondent. On 10.10.2008, the petitioner filed Ext.P3 complaint before the Inspector General of Police. Again, on 11.10.2008, he filed Ext.P4 representation before the said officer. Alleging that, the police did not take any action, this writ petition is filed, seeking the following reliefs. i) Issue a writ of mandamus or other appropriate writ commanding respondents 1 and 2 to provide effective and adequate protection to the life and property of the petitioner and his family members from all illegal encroachment and threat from respondents 3 to 5 and their men. W.P.(C) No.30360/2008 3 ii) Issue a direction to respondents 1 and 2, not to allow anybody to do any activities without legal concurrence in the properties of the petitioner and to take action on Exts.P2 to P4. 2. The 3rd respondent has filed a counter affidavit and along with that the said respondent has produced a copy of the plaint in O.S.No.415/2008 filed by the petitioner before the Munsiff's Court, Aluva, on 10.10.2008, seeking reliefs against the alleged encroachment into his property. The said plaint would show that on 10.10.2008, the balance amount due to the petitioner was only Rs.2 lakhs. In the writ petition filed by him on 14.10.2008, which was signed on 13.10.2008, he has not mentioned about the filing of the above suit on 10.10.2008, it is pointed out. The 3rd respondent would further submit that the petitioner has not fully surrendered the extent of land agreed as per Ext.P1. Therefore, he is not entitled to get any further amounts over and above Rs.22 lakhs already paid. In fact, he is liable to refund some amount from the amount already paid to him, it is submitted. W.P.(C) No.30360/2008 4 3. The 5th respondent submitted that he is one of the neighbouring land owners, who surrendered land for widening the road. He has nothing to do with the incident alleged by the petitioner. 4. The petitioner has filed a reply affidavit dealing with the averments in the counter affidavit of the 3rd respondent. The learned Government Pleader, upon instructions, submitted that the petitioner wants some more amount from the 3rd respondent and for that unfounded allegations are made and petitions are filed against the said respondent, it is submitted. 5. Paragraph 3 of the writ petition reads as follows: “3. It is submitted that the house in which the petitioner was residing is on the portion marked for the proposed Road and hence obtained necessary building permit for new house and other sanctions and started the construction. The 3 rd respondent did not complied (sic - comply) with the conditions in Ext.P1 and did not paid (sic - pay) the consideration and started to threaten the petitioner. The 3rd respondent with money and power had attempted to demolish the old house and to forcibly cut open the Road. Some of the local supporters like the 5th respondent also encouraged the 3rd respondent to take law into the hands of the 3rd respondent and their goondas. Petitioner and his family was under fear and threat against their life.” (emphasis supplied) W.P.(C) No.30360/2008 5 6. A reading of the above paragraph would indicate that after the execution of Ext.P1, no amount has been paid to the petitioner. But, the fact remains that, even according to him, only Rs.2 lakhs remains to be paid, i.e., between the execution of P1 and the filing of suit on 10.10.2008, the petitioner has received Rs.18 lakhs. This crucial fact has been suppressed by the petitioner. He has also suppressed the filing of the suit before the Munsiff's Court, Aluva, while this writ petition was filed. We view the above suppression, seriously, and therefore decline jurisdiction in this case. The petitioner, who has suppressed material facts, cannot claim any relief from this Court. Accordingly, this writ petition is dismissed. The dismissal of the writ petition will not affect the contentions of the petitioner in the civil suit filed by him. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) ps