MOHANAN Vs. THE DISTRICT COLLECTOR AND ORS.

JUDGEMENT

(1.) THIS Writ Appeal has been preferred by the 5th Respondent in the Original Petition. The Petitioner in the writ petition is the Respondent No. 6 in the present appeal. He is a purchaser of 1 cent of land contiguous to the house constructed by the Appellant. From the facts of this case, it appears that the 6th Respondent -the Original Petitioner, was determined to put all kinds of objections against the valid right of the Appellant in the construction of his house. Not only that a suit was filed before the Court of Munsiff, Kannur, by the Original Petitioner and his sister, which is still pending, even the services of the criminals were obtained to put obstruction in the valid exercise of the right of the Appellant over the construction of his house. Having failed to obtain a temporary injunction from the Court of the learned Munsiff, Anr. circuitous method was adopted to harass the Appellant by influencing the police authorities and the Appellant was dragged to the Police Station which gave an earlier occasion to the Appellant to come to this Court by filing O.P. 6091/96 asking for a direction to the Police authorities restraining them from interfering with the civil disputes. Pending that Original Petition filed by the Appellant, the direction was given in the C.M.P. 110491/96 restraining the Police Officers from interfering with the civil disputes. The interim direction of this Court is contained in the order dated 26th April 1996. The notice of the same was accepted by the 6th Respondent. The matter did not end there. The 6th Respondent, namely, Sri Tajudin being the Original Petitioner in O.P. 8474/96, persuaded his remedy further by seeking an appointment of Advocate Commissioner on the ground of violation of Kerala Building Rules. The appointment of the Commissioner was sought with a view to obtain report about the nature and the situation of the constructed building and other particulars to be gathered by taking its measurements. But for the reasons best known to them, it was not pursued and was dismissed as not pressed. The ground relating to violation of the Building Rules remained undecided. The First Information Report lodged by the Appellant alleging trespass at the hands of the 6th Respondent -the Original Petitioner is pending with the Police authorities without any progress. It was alleged that the Original Petitioner Sri Tajudin had taken law in his own hands and a posse of miscreants trespassed into the Appellant's property and caused damages to the construction by demolishing it. They were alleged to be the agents of Sri Tajudin. The First Information Report was therefore lodged for offences under Sections 447, 427, 379, 506(ii) read with Section 34 of the Indian Penal Code. It is pointed out by the counsel that a complaint was also filed by the Appellant before the Police which has been registered as Crime No. 163/96 of Valapattanam Police Station. It is also pointed out that the 6th Respondent has lodged a complaint before the Police as against the Appellant which is registered as Crime No. 95/96 of Valapattanam Police Station under Sections 143, 147, 447, 323 read with Section 149 of the Indian Penal Code.

(2.) WE are now to consider the question raised in the writ petition and the appeal in the background of these facts and now we proceed to consider the question raised in this appeal.

(3.) IN the O.P. 8474/96 filed by Tajudin, the Appellant before us had filed the counter -affidavit. He has specifically pointed out that the aforesaid material facts were suppressed from the Court and that the Petitioner sought discretionary remedy approaching this Court with unclean hands and this was not gone into and considered by the learned Single Judge. The Appellant, therefore, first in time, raised the contention that the petition under Article 226 of the Constitution filed by Sri Tajudin should have been dismissed on that count alone. We find force in this contention and we are in agreement with the Appellant 'in accepting the contention that in the facts of the present case the appropriate remedy and the nature of the reliefs sought in the case could have been suitably determined by the learned Munsiff when the suit was pending. The question as to the power of the District Collector to review could have also been raised and determined by the learned Munsiff. In fact, while making an application for appointment of Advocate Commissioner and the proceedings relating to that under Ext. R -5(a) and R -5(b) were taken up on behalf of Tajudin and the main allegation in the petition was the violation of Kerala Building Rules. But then Respondent No. 6, Tajudin, did not press it for the reasons best known to him and the said proceeding under Exts. R -5(a) and R -5(b) in the Munsiff's Court was dismissed as not pressed. If the same would have been pursued, the violation of Kerala Building Rules by the District Collector on any ground whatsoever including his own jurisdiction and power to review could have been gone into and finally determined. But then the remedy was not pursued and the point relating to the violation of Kerala Building Rules was not placed at all. The agony was kept continued against the Appellant. It thus appears that since they did not succeed in getting temporary interim injunction from the Munsiff's Court, O.P. 8474/96 was filed on behalf of Tajudin the 6th Respondent in the appeal. Thus the litigation was continued causing harassment to the Appellant and he was dragged to this proceeding under Article 226 by suppressing the relevant facts. On this ground alone, Tajudin -the original Petitioner, did not deserve the discretionary remedy of this Court.