HIGH COURT OF KERALA
ANIL K. NARENDRAN, J
SAJI PAUL – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/19/2021
Writ - Police Protection - Article 226 - Judiciary vs. Clean Hands - Ambiguity in Building Permits Summary: This writ decision addresses a request for police protection in construction activities without a valid building permit, reinforcing that petitioners must present full facts to the court to avoid dismissal.
Fact of the Case:
The petitioners sought police protection for constructing apartments on land they claimed to own. They had faced continuous obstruction from the 5th respondent, despite an existing court decree favoring them. The petitioners admitted to not having the necessary building permits.
Finding of the Court:
The court found the petitioners approached with unclean hands, failing to disclose essential facts regarding their lack of a valid building permit, disqualifying them from seeking relief under Article 226.
Issues: Whether the petitioners are entitled to police protection for construction activities given the absence of a valid building permit and their failure to disclose complete facts.
Ratio Decidendi: A party seeking extraordinary relief under Article 226 must come with clean hands and disclose all material facts. Failure to do so results in dismissal of the petition without consideration of merit.
Final Decision: Writ petition dismissed with costs.
The 1st petitioner is stated to be the owner of 2.46.909 acres of property comprised in Re.Sy.No.138/2 (old Sy.Nos.256 and 257) of Kureekadu Village, Kanayannur Taluk, covered by Sale Deed No.1959 of 1980 of Sub Registrar Office, Mulanthuruthy and the 2nd petitioner is a company engaged in the business of land development and construction of apartments and villas. The petitioners have filed this writ petition under Article 226 of the Constitution of India , seeking a writ of mandamus commanding respondents 3 and 4 to render adequate and effective police protection to them and persons claiming under them, for the construction of apartments in the property covered by Ext.P4 decree dated 31.01.2011 in O.S.No.429 of 2009 on the file of the Munsiff's Court, Ernakulam. The petitioners have also sought for a direction to respondents 3 and 4 to take appropriate action to Exts.P11 to P16 complaints filed by the petitioners.
2. Going by the averments in the writ petition, the petitioners have entered into a joint venture agreement to construct apartments in the land belonging to the 1st petitioner, in accordance with the terms and conditions in that agreement. There are certain disputes between the 1st petitioner and the 5th respondent. The 5th respondent filed O.S.No.1911 of 2004 before the Munsiff's Court, Ernakulam, seeking a decree for permanent prohibitory injunction against the 1st petitioner and his men, which ended in dismissal for non-prosecution. The 1st petitioner filed O.S.No.429 of 2009 before the Munsiff's Court, Ernakulam, against the 5th respondent, seeking a decree declaring his title over the plaint schedule property, recovery possession of the trespassed area based on his title and also for consequential injunction. That suit was decreed as prayed for by Ext.P3 judgment and Ext.P4 decree dated 31.01.2011. The 5th respondent filed A.S.No.59 of 2012 before the Sub Court, Ernakulam, which ended in dismissal with cost by the judgment dated 05.06.2014. The 1st petitioner filed W.P.(C)No.5461 of 2014, when the 5th respondent caused obstruction to the peaceful enjoyment of his property. That writ petition was disposed of by Ext.P5 judgment dated 26.02.2014 by directing the 1st petitioner to file execution petition to execute Ext.P4 decree. The 1st petitioner filed E.P.No.308 of 2013 before the Munsiff's Court, Ernakulam to execute Ext.P4 decree, in which delivery was effected on 08.08.2014, as evidenced by Ext.P6 delivery report dated 11.08.2014. Even after effecting delivery of the property, the 5th respondent continued to violate Ext.P4 decree.
The 1st petitioner lodged a complaint before the 4th respondent Station House Office, Chottanikkara Police Station, which has resulted in registration of Crime No.747/2014. The Execution Court, which conducted enquiry as to whether the 5th respondent had violated Ext.P4 decree, ordered his detention in civil prison for a period of three months from 24.11.2017. Even thereafter, the 5th respondent is trespassing into the decree schedule property. When the petitioners started measurement of the property for developing the land for constructing residential apartments and villas, the 5th respondent caused obstruction. The petitioners filed W.P. (C)No.8824 of 2017, in which this Court granted an interim order on 23.08.2017 to provide adequate police protection to carryout survey of the land situated in Re.Survey Nos.138/2, 18, 19, 21, 22 and 150/1, 5, 6, 7 of Kureekkad Village. Thus the survey was conducted with the assistance of police and thereafter, that writ petition was disposed of by Ext.P7 judgment dated 14.02.2018.
3. In paragraph 11 of the writ petition, it is stated that now the work for developing the land and construction of the apartments in accordance with the permission granted by the local authority and such other works are going on. On 22.11.2019, the 5th respondent and his men trespassed into the property and demolished a portion of the compound wall and caused
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