N.A. Shareefa Vs State of Kerala

4/3/2014
Kerala Law: N.A. Shareefa Vs. State of Kerala
IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID FRIDAY, THE 28TH DAY OF MARCH 2014/7TH CHAITHRA, 1936 WP(C).No. 19431 of 2013 (D) ---------------------------PETITIONERS: ---------------------1. N.A. SHAREEFA, 24/203, W/O. LATE KADER PILLA, ANJIKKATHU HOUSE, V MB ROAD, PATHADIPPALAM, COCHIN-33. 2. A.K. NAZER, 24/201B, S/O.KADER PILLA, ANJIKKATHU HOUSE, V MB ROAD, PATHADIPPALAM, COCHIN-33. 3. NOUSHAD. A.K., S/O.KADER PILLA, ANJIKKATHU HOUSE, V MB ROAD, PATHADIPPALAM, COCHIN-33. 4. SHIMITHA, W/O. NOUSHAD, ANJIKKATHU HOUSE, V MB ROAD, PATHADIPPALAM, COCHIN-33. BY ADV S.SRI.DINESH R.SHENOY, SRI.G.HARIKRISHNAN (TRIPUNITHURA), SRI.BEPIN PAUL. RESPONDENTS: ------------------------1. STATE OF KERALA, REP.BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOV ERNMENT SECRETARIAT, THIRUV ANANTHAPURAM, PIN:695 001. 2. THE LAND REV ENUE COMMISSIONER, O/O. LAND REV ENUE COMMISSIONER, PUBLIC OFFICE BUILDING, PIN:695 033.
3. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, COCHIN-682 030. 4. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM, PIN:695 014. 5. THE ADDITIONAL DIRECTOR GENERAL OF POLICE, (INTELLIGENCE) POLICE HEAD QUARTERS, THYKKAD, THIRUVANANTHAPURAM-695 014. WP(C).No. 19431 of 2013 (D) 6. THE INSPECTOR GENERAL OF POLICE, KOCHI RANGE, O/O. INSPECTOR GENERAL OF POLICE, SHANMUGHAM ROAD, KOCHI-682 031. 7. THE DIRECTOR, VIGILANCE & ANTI CORRUPTION BUREAU, VIKAS BHAVAN P.O., PIN:695 033. 8. SHRI K.H. ABDUL MAJEED, 24/147, ILLICKAL HOUSE, NEAR V.P.MARACKAR SMARAKA LIBRARY, ILLICKAL MOIDEEN ROAD, PATHADIPPALAM-682 033.
http://kerala.supremelaw.in/2014/03/na-shareefa-vs-state-of-kerala.html#.Uz14y_ldU2Y
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9. NOORJAHAN, W/O. ABDUL MAJEED, 24/147, ILLICKAL HOUSE, NEAR V.P.MARACKAR SMARAKA LIBRARY, ILLICKAL MOIDEEN ROAD, PATHADIPPALAM-682 033. 10. K.H. MUHAMMADALI, S/O. HASSAN, NOW RESIDING AT 24/143, ILLIKKAL HOUSE, NEAR V.P.MARACKAR SMARAKA LIBRARY, ILLIKKAL MOIDEEN ROAD, PATHADIPPALAM P.O., CHANGAMPUZHA NAGAR-682 033. 11. K.H. ABDUL SALAM, S/O. CHANGAMPUZHA NAGAR-682 033. HASSAN, KAVUNGAPPADATH, VMB ROAD, PATHADIPPALAM,
12. K.H. LAILA (ASYA), W/O. KUNJUMUHAMMED (KUNJAMI), KANDAYATH MADOM, OPPOSITE SALAFI MASJID, ANIKKAD JUNCTION, NEAR SUPREME STEEL COMPANY, KUTTAMASSERY, THOTTUMUGHAM, ALUVA-683 105. 13. K.H. SOUDA, W/O. HAMEED, CHENNAMPILLY HOUSE, P.K.B. NAGAR, COCHIN UNIVERSITY, PIN:682 033. 14. SABU, VILLAGE OFFICER, THRIKKAKARA NORTH VILLAGE, PIN:682 024. 15. MURAD, SPECIAL VILLAGE OFFICER, NOW IN KANAYANNUR TALUK OFFICE, BUILDING TAX SESSION, KOCHI-682 011. 16. SUNILLAL, NEW TAHSILDAR, FORT KOCHI TALUK OFFICE, FORT KOCHI-682 001. 17. KRISHNAKUMARI, ADDITIONAL TAHSILDAR, TALUK OFFICE, KOCHI-682 011. WP(C).No. 19431 of 2013 (D) 18. SALEEMRAJ. S., S/O. SAYEED, FLAT NO.16, PALAYAM POLICE QUARTERS, VIKAS BHAVAN P.O.,THIRUVANANTHAPURAM-695 033, (EX.GUN MAN, O/O. THE CHIEF MINISTER, STATE OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM). 19. SHAMSHAD, W/O. SALEEMRAJ, FINANCE II, LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-695 033. 20. DILEEP.K.K., S/O. KAMALADARAN, 35/3219D, KOOTHAPPILLIL HOUSE, RING COLONY,T.D. SANNIDI ROAD, NEAR KARANAKUDAM TEMPLE, THAMMANAM, KOCHI-682 019. 21. THE DIRECTOR, CENTRAL BUREAU OF INVESTIGATION, CBI HEAD QUARTERS, NEW DELHI-110 001. * ADDL. R22 TO R25 IMPLEADED ADDL. R22. IDEA ZONAL OFFICE, CIRCLE OFFICE, MERCY ESTATE, 2ND FLOOR, RAVIPURAM, M.G. ROAD, COCHIN-682 015. ADDL. R23. P.T.MATHEW, GENERAL MANAGER, BSNL, KALATHIPARAMBIL ROAD, COCHIN-682 016. ADDL. R24. NODAL OFFICER, VODAPHONE CELLULAR LTD., ANGEL ARCADE, 4TH FLOOR, KUSAT JUNCTION, COCHIN-682 022. ADDL. R25. ZONAL MANAGER, BHARATHI AIRTEL LIMITED, SI AVENUE, NH BYEPASS, KUNDANNOOR (JUNCTION), MARADU P.O., KOCHI-682 304.
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* ARE IMPLEADED AS ADDL. R22 TO R25 AS PER ORDER IN I.A. NO.11441/2013 DATED 23/10/2013. ** ADDL. R26 IMPLEADED ADDL. R26. THE DIVISIONAL ENGINEER, (LEGAL ENFORCEMENT AUTHORITY), BSNL, TELEPHONE EXCHANGE BUILDING, PANAMPILLY NAGAR, ERNAKULAM, COCHIN-682 036. ** IS IMPLEADED AS ADDL. R26 AS PER ORDER IN I.A. NO.12139/2013 DATED 23/10/2013. WP(C).No. 19431 of 2013 (D) ***ADDL. R27 IMPLEADED ADDL. R27. EDAPPALLY ELANGALLOOR SWAROOPAM, REPRESENTED BY SANKARARAJA, AGED 80, S/O.VASUDEVARAJA, 401, ELANGALLOOR SWAROOPAM, EDAPPALLY, ERNAKULAM DISTRICT. *** ADDL. R27 IS IMPLEADED AS PER ORDER DATED 06/01/2014 IN I.A. NO.259/2014. R1 TO R7 BY GOVT. PLEADER MR.P.A. MOHAMMED SHAH. R8 TO R13 BY ADVS. SRI.M.P.RAMNATH, SRI.P.RAJESH (KOTTAKKAL). R14 & R15 BY ADV. SRI.G.SREEKUMAR (CHELUR). R16 BY ADVS. SRI.T.K. AJITHKUMAR, SRI.C.P.SAJI. R17 BY SRI.S.SREEKUMAR, SENIOR ADVOCATE. ADV. SRI.P.MARTIN JOSE R18 & R19 BY ADVS. SRI.B.RAMAN PILLAI, SRI.GEORGE PHILIP, SRI.R.ANIL, SRI.M.K.SUMODH, SRI.SUJESH MENON V.B., SRI.MANU TOM, SRI.THOMAS ABRAHAM (NILACKAPPILLIL), SRI.T.ANIL KUMAR. R20 BY ADVS. SRI.J.SHERRIFF, SRI.N.K.SUBRAMANIAN, SRI.S.ANANTHAKRISHNAN. R21 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I. ADDL. R22 & R25 BY ADVS. SRI.SANTHOSH MATHEW, SRI.SATHISH NINAN, SRI.ARUN THOMAS, SRI.JENNIS STEPHEN. ADDL. R23 & R26 BY ADV. SRI.MATHEWS K.PHILIP,SC, BSNL. ADDL. R24 BY ADV. SRI.P.SATHISAN. ADDL. R27 BY ADVS. SRI.NAGARAJ NARAYANAN, SRI.SAIJO HASSAN, SRI.PRATHAP PILLAI, SRI.BENOJ C AUGUSTIN, SRI.SEBIN THOMAS, SRI.VIVEK V. KANNANKERI, SMT.J.KASTHURI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-03-2014, ALONG WITH WP(C).NO. 19462 OF 2013, THE COURT ON 28-03-2014 DELIVERED THE FOLLOWING: rs. WP(C).No. 19431 of 2013 (D) APPENDIX PETITIONER'S EXHIBITS:-
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P1 TRUE PHOTOCOPY OF SALE DEED NO.1186/1957, EDAPPALLY S.R.O. P2 TRUE PHOTOCOPY OF LETTER DATED 18/09/2007 ISSUED BY THE PUBLIC INFORMATION OFFICER,THRIKKAKARA NORTH VILLAGE WITH ANNEXURES. P3 TRUE PHOTOCOPY OF BASIC TAX RECEIPT NO.2968354 DATED 17/01/2012 IN THE NAME OF THE FIRST PETITIONER. P4 TRUE PHOTOCOPY OF BASIC TAX RECEIPT NO.2968352 DATED 17/01/2012 IN THE NAME OF THE 3RD PETITIONER. P5 TRUE PHOTOCOPY OF BASIC TAX RECEIPT NO.2968353 DATED 17/01/2012 IN THE NAME OF THE 4TH PETITIONER. P6 TRUE PHOTOCOPY OF BASIC TAX RECEIPT NO.4766947 DATED 09/06/2011 IN THE NAME OF THE 2ND PETITIONER. P7 TRUE PHOTOCOPY OF POSSESSION CERTIFICATE DATED 22/12/2011 ISSUED BY THE VILLAGE OFFICER, THRIKKAKARA NORTH VILLAGE. P8 TRUE PHOTOCOPY OF FIR NO.1003/2007, KALAMASSERY POLICE STATION. P9 TRUE PHOTOCOPY OF THE ORDER DATED 27/06/2013 IN CRL. R.P.NO.74/2011, SESSIONS JUDGE, ERNAKULAM. P10 TRUE PHOTOCOPY OF LETTER NO.S6-13205/2010 DATED 18/09/2010 ISSUED BY THE ADDITIONAL TAHSILDAR. P11 TRUE PHOTOCOPY OF JUDGMENT DATED 09/07/2010 IN S.A.136/1994, HIGH COURT OF KERALA. P12 TRUE PHOTOCOPY OF REPORT DATED 24/06/2011 NO.141/2011 SUBMITTED BY THE 14TH RESPONDENT. P13 TRUE PHOTOCOPY OF LETTER DATED 28/07/2011 ISSUED BY THE ADDL. TAHSILDAR, KANAYANNUR. P14 TRUE PHOTOCOPY OF THE LETTER AND EXTRACT OF THANDAPER REGISTER PRODUCED BY THE 11TH RESPONDENT, ISSUED BY THE 14TH RESPONDENT. P15 TRUE PHOTOCOPY OF REPORT NO.S6-9096/11 DATED 12/12/2011 ISSUED BY THE 16TH RESPONDENT. ...........2- WP(C).No. 19431 of 2013 (D) P16 TRUE PHOTOCOPY OF TAX RECEIPTS NO.22 PRODUCED BY THE 2ND PETITIONER BEFORE THE 16TH RESPONDENT. P17 TRUE PHOTOCOPY OF TAX RECEIPTS NO.67 PRODUCED BY THE 2ND PETITIONER BEFORE THE 16TH RESPONDENT P18 TRUE PHOTOCOPY OF LETTER NO.LRB8-34440/11 DATED 04/01/2012 ISSUED BY THE 2ND RESPONDENT. P19 TRUE PHOTOCOPY OF REPRESENTATION DATED 14/03/2012 SUBMITTED BY THE 11TH RESPONDENT BEFORE THE MINISTER FOR REVENUE. P20 TRUE PHOTOCOPY OF LETTER NO-LRB8-34440/11 DATED 18/04/2012. P21 TRUE PHOTOCOPY OF REPORT NO.244/11 DATED 21/01/2012 PREPARED AND SUBMITTED BY THE RESPONDENTS 14 & 15 P22 TRUE PHOTOCOPY OF THE COMPLAINT DATED 27/09/2012 FILED BY EDAPPALLY SWAROOPAM. P23 TRUE PHOTOCOPY OF DOCUMENT NO.1064/1102ME. P24 TRUE PHOTOCOPY OF THE REPORT DATED 11/07/2012 SUBMITTED BY THE 17TH RESPONDENT. P25 TRUE PHOTOCOPY OF THE LETTER DATED 16/07/2012 SUBMITTED BY THE 3RD RESPONDENT.
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P26 TRUE PHOTOCOPY OF ORDER DATED 04/09/2012 ISSUED BY THE 2ND RESPONDENT. P27 TRUE PHOTOCOPY OF THE ORDER DATED 06/06/2013 IN WP(C).NO. 23244/2012, HIGH COURT OF KERALA. P28 TRUE PHOTOCOPY OF PETITION DATED 13/06/2013 FILED BEFORE THE HON'BLE HOME MINISTER (WITHOUT ANNEXURES). P29 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 21/06/2013 BEFORE THE HON'BLE HOME MINISTER (WITHOUT ANNEXURES). P30 TRUE PHOTOCOPY OF THE COMPLAINT DATED 21.06.2013 BEFORE THE CHIEF MINISTER. P31 TRUE PHOTOCOPY OF THE COMPLAINT DATED 01.07.2013 SUBMITTED BY THE PETITIONER BEFORE THE INSPECTOR GENERAL OF POLICE, KOCHI RANGE. P32 TRUE PHOTOCOPY OF THE LETTER DATED 16.07.2013 RECEIVED FROM THE OFFICE OF THE LEADER OF THE OPPOSITION WITH ANNEXURE. P33 TRUE PHOTOCOPY OF LETTER S6-90961/10 DATED 19.06.2013. ..........3/- WP(C).No. 19431 of 2013 (D) P34 TRUE PHOTOCOPY OF THE COMPLAINT SUBMITTED TO THE PETITIONERS BEFORE THE DEPUTY COLLECTOR, REVENUE DATED 20.07.2013 (WITHOUT ANNEXURES). P35 TRUE PHOTOCOPY OF THE COVERING LETTER AND CERTIFIED EXTRACT OF THE SETTLEMENT REGISTER OF THRIKKAKARA PAKUTY ISSUED FROM THE CENTRAL ARCHIVES, THIRUVANANTHAPURAM. P36 TRUE PHOTOCOPY OF THE NEWS REPORT IN THEMADHYAMAM DAILY DATED 19.06.2013. P37 TRUE PHOTOCOPY OF THE NEWS REPORT IN THE CLEAR MADHYAMAM DAILY DATED 16.06.2013. P38 TRUE PHOTOCOPY OF THE NEWS REPORT IN THE HINDU DAILY DATED 30.06.2013. P39 TRUE PHOTOCOPY OF THE NEWS REPORT IN THE SUNDAY EXPRESS DAILY DATED 30.06.2013. P40 TRUE PHOTOCOPY OF THE NEWS REPORT IN THE CLEAR MATHRUBHUMI DAILYDATED 30.06.2013. P41 TRUE PHOTOCOPY OF THE NEWS REPORT IN THE DESABHIMANI DAILY DATED 30.06.2013. P42 TRUE PHOTOCOPY OF THE NEWS REPORT IN THE MATHRUBHUMI DAILY DATED 19.06.2013. P43 TRUE PHOTOCOPY OF THE NEWS REPORT IN THE DESABHIMANI DAILY DATED 19.06.2013. P44 TRUE PHOTOCOPY OF THE NEWS REPORT IN THE JANMABHUMI DAILY DATED 19.06.2013. P45. COPY OF THE SALE DEED NO.3080/1989, EDAPPALLY S.R.O. P46. COPY OF THE SALE DEED NO.4910/1986, EDAPPALLY S.R.O. P47. COPY OF THE THANDAPER NO.4174 OF THRIKKAKARA NORTH VILLAGE. P48. COPY OF THE THANDAPER NO.5161 OF THRIKKAKARA NORTH VILLAGE. P49. COPY OF THE THANDAPER NO.1869 OF THRIKKAKARA NORTH VILLAGE. P50. COPY OF THE THANDAPER NO.8826 OF THRIKKAKARA NORTH VILLAGE.
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P51. COPY OF THE THANDAPER NO.4273 OF THRIKKAKARA NORTH VILLAGE. P52. COPY OF THE REPLY LETTER DATED 06/03/2013, TOGETHER WITH COPY OF THE THANDAPER NO.7 RECEIVED FROM THE VILLAGE OFFICER, THRIKKAKARA. ..........4/WP(C).No. 19431 of 2013 (D) P53. COPY OF THE SETTLEMENT REGISTER OF THRIKKAKARA VILLAGE ISSUED FROM THE CENTRAL SURVEY OFFICE, THIRUVANANTHAPURAM. P54. COPY OF THE REPLY DATED 15/11/2012 ISSUED BY THE VILLAGE OFFICER, THRIKKAKARA NORTH VILLAGE. P55. COPY OF THE PARTITION DEED NO.2727/1114 ME. P56. COPY OF THE PATTACHIT NO.2335/1116 ME. P57. COPY OF THE SALE DEED NO.871/1960. P58. COPY OF THE SALE DEED NO.872/1960. P59. COPY OF THE PARTITION DEED NO.362/1982. P60. COPY OF THE REPLY DATED 26/08/2013 ISSUED TO THE 2ND PETITIONER UNDER THE RIGHT TO INFORMATION ACT WITH REGARD TO THE TRANSFER OF THE 19TH RESPONDENT TO THE OFFICE OF THE LAND REVENUE COMMISSIONER. P61. COPY OF THE JUDGMENT DATED 23/12/1986 IN O.S. NO.222/1981, IIND ADDITIONAL MUNSIFF COURT, ERNAKULAM. P62. COPY OF THE DECREE DATED 13/11/1962 IN O.S. NO.697/1959 MUNSIFF COURT, ERNAKULAM. P63. COPY OF THE COMPLAINT DATED 04/10/2011 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE TAHSILDAR, KANAYANNUR TALUK, WITH ACKNOWLEDGMENT. P64. COPY OF THE OFFICE NOTES IN FILE NO.LRB8 34440/11, LAND REVENUE COMMISSIONER. P65. COPY OF THE LETTER DATED 19/07/2013 ADDRESSED BY THE LAND REVENUE COMMISSIONER TO THE PRIVATE SECRETARY, REVENUE MINISTER AND THE SECRETARY FOR REVENUE. P66. COPY OF THE DECREE DATED 19/02/1966 IN O.S. NO.513/1964, MUNSIFF COURT, ERNAKULAM. P67. COPY OF THE LETTER DATED 20/11/2013 RECEIVED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT. P68. COPY OF THE F.I.R. NO.1928/2013, KALAMASSERY POLICE STATION. P69. COPY OF THE NEWS REPORT IN TIMES OF INDIA DATED 06/10/2013. P70. COPY OF THE NEWS REPORT IN METRO NEWS DATED 06/10/2013. P71. COPY OF THE APPLICATION DATED 28/11/2012 SUBMITTED BY THE 2ND PETITIONER. .........5/- WP(C).No. 19431 of 2013 (D) P72. COPY OF THE INITIAL REPLYDATED 22/12/2012 REFUSING THE INFORMATION. P73. COPY OF THE REPLY DATED 12/02/2013. P74. COPY OF THE BASIC TAX REGISTER OF SY.NO.651/8A, B AND C. P75. COPY OF THE COMPLAINT FILED BY US BEFORE THE ASSISTANT COMMISSIONER OF POLICE, THRIKKAKARA DATED 01/07/2013. P76. COPY OF THE ORDER OF SUSPENSION DATED 12/12/2013 ISSUED TO THE 17TH RESPONDENT. P77. COPY OF THE ORDER OF SUSPENSION DATED 12/12/2013 ISSUED TO THE 14TH
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RESPONDENT. P78. COPY OF THE MEMO OF CHARGES DATED 23/12/2013 ISSUED TO SRI.PRASANNA KUMAR, ASSISTANT COMMISSIONER, LAND REVENUE. P79. COPY OF THE MEMO OF CHARGES DATED 20/12/2013 ISSUED TO SMT.B. JAYASREE, JUNIOR SUPERINTENDENT, COLLECTORATE, ERNAKULAM. P80. COPY OF THE MEMO OF CHARGES DATED 20/12/2013 ISSUED TO SRI.V.M.MUHAMMED BASHEER, DEPUTY COLLECTOR (LR), COLLECTORATE, ERNAKULAM.
RESPONDENT'S EXHIBITS:EXT.R4A COPY OF THE COVERING LETTER NO.345/LO/2013 RECEIVED ON 05/07/2013. EXT.R4B COPY OF THE LETTER DATED 05/07/2013 ADDRESSED TO THE PRINCIPAL SECRETARYTO GOVERNMENT. EXT.R4C COPY OF THE COMPLAINT SUBMITTED BEFORE THE OPPOSITION LEADER BY SMT.N.A. SHAREEFA. EXT.R4D COPY OF THE ORDER NO.D2/93914/13 DATED 03/10/2013. EXT.R(8)-1 COPY OF THE CERTIFIED COPY OF THE DOCUMENT NO.1064/1102 ME (1927 AD) SRO ALANGAD (NOW ALUVA) ALONG WITH READABLE COPY. EXT.R(8)-2 COPY OF THE CERTIFIED COPY FROM REGISTRAR'S OFFICE OF THE PATTA CHIT DEED NO.2909/1102 (ME) SRO ALANGAD (NOW ALUVA) ALONG WITH A READABLE COPY OF THE SAME, EXECUTED BY ALIYARU KUNJU @ BAVA FAVOURING ELANGALLOOR SWAROOPAM. ...........6/- WP(C).No. 19431 of 2013 (D) EXT.R(8)-3 COPY OF THE REGISTERED SALE DEED NO.2907/1966 SRO EDAPPALLY EXECUTED BY ELANGALLOOR SWAROOPAM TO HASSAN OF THE JENMAVAKASAM IN RESPECT OF 15.98 ARES IN SURVEY NO.651/8B. EXT.R(8)-4 COPY OF THE REGISTERED SALE DEED NO.1988/1967 SRO EDAPPALLY EXECUTED BY ELANGALLOOR SWAROOPAM TO HASSAN OF THE JENMAVAKASAM IN RESPECT OF 15.600 ARES (SURVEY NO.651/8C). EXT.R(8)-5 COPY OF THE RELEVANT PORTION OF WP(C).NO. 23244/2012 (PLEADINGS PORTION ALONE) FILED BY PETITIONERS, PENDING BEFORE THIS HON'BLE COURT. EXT.R(8)-6 COPY OF THE RELEVANT PLEADING PORTION OF THE COUNTER AFFIDAVIT FILED BY THE 11TH RESPONDENT HEREIN (6TH RESPONDENT IN THAT WRIT PETITION) IN WP(C).NO. 23244/2012 PENDING BEFORE THIS HON'BLE COURT. EXT.R(8)-7 COPY OF THE WRITTEN SUBMISSION DATED 03/07/2013 FILED BY THE 11TH RESPONDENT HEREIN BEFORE THE LAND REVENUE COMMISSIONER AT THE HEARING ON 04/07/2013. EXT.R(8)-8 COPY OF THE THANDAPER REGISTER EXTRACT IN THANDAPER NO.5161 IN THE NAME OF JOHN, S/O.PAPPACHAN. EXT.R(8)-9 COPY OF THE THANDAPER REGISTER EXTRACT IN THANDAPER NO.4174 IN THE NAME OF VELAYUDHAN AND THANKAPPAN SON OF KUTTAN. EXT.R(8)-10 COPY OF THE RE-SURVEY THANDAPER REGISTER EXTRACT OF RE-SURVEY THANDAPER NUMBER 4273 OF MANI, S/O.VALLON. EXT.R(8)-11 COPY OF THE RE-SURVEY THANDAPER REGISTER EXTRACT OF RE-SURVEY
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THANDAPER NUMBER 1869 OF THANKAPPAN AND VELAYUDHAN, SONS OF KUTTAN. EXT.R(8)-12 COPY OF THE ENTIRE WRITTEN SUBMISSIONS DATED 03/07/2013 WITH ALL ANNEXURES THEREWITH FILED BY THE 11TH RESPONDENT HEREIN BEFORE LAND REVENUE COMMISSIONER AT THE HEARING ON 04/07/2013. EXT.R(8)-13 COPY OF THE ENTIRE COUNTER AFFIDAVIT WITH EXHIBITS FILED BY THE 11TH RESPONDENT HEREIN AS 6TH RESPONDENT IN WP(C).NO. 23244/2012 IS PENDING BEFORE THIS HON'BLE COURT. EXT.R(8)-14 COPY OF THE COMPLAINT DATED 26/08/2013 FILED BY THE 8TH RESPONDENT HEREIN BEFORE THE COMMISSIONER OF POLICE, ERNAKULAM WITH RECEIPT OF FABRICATED EXT.P16 AND ALLIED MATTERS WITH ALL RECORDS. ...........7/- WP(C).No. 19431 of 2013 (D) EXT.R(8)-15 COPY OF THE RECEIPT DATED 27/08/2013 ISSUED FROM THE CITY POLICE COMMISSIONER'S OFFICE FOR RECEIVING EXT.R(8)-14 COMPLAINT. EXT.R17A COPY OF THE WRITTEN SUBMISSION DATED 26/10/2013 SUBMITTED BY THE 17TH RESPONDENT BEFORE THE SECRETARYTO GOVERNMENT, REVENUE DEPARTMENT. EXT.R17B COPY OF THE COMPLAINT DATED 21/06/2011 FILED BY THE 11TH RESPONDENT BEFORE THE 3RD RESPONDENT. EXT.R17C COPY OF THE REPORT DATED 24/09/2011 SUBMITTED BY THE VILLAGE OFFICER. EXT.R17D COPY OF THE LETTER NO.L3-28138/12 DATED 04/06/2012 ISSUED BY THE DISTRICT COLLECTOR, ERNAKULAM. EXT.R17E COPY OF THE LETTER DATED 27/09/2011 ISSUED BY THE DEPUTY COLLECTOR, VIGILANCE TO THE 17TH RESPONDENT. EXT.R17F COPY OF THE STATEMENT OF THE PARTIES RECORDED BY THE 17TH RESPONDENT. EXT.R17G COPY OF THE WP(C).NO. 23244/2012 DATED 04/10/2012 FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT. EXT.R17H COPY OF THE NOTICE ISSUED BY THE OFFICE OF THE LAND REVENUE COMMISSIONER TO THE 17TH RESPONDENT. EXT.R27A COPY OF THE G.O. (RT) NO.134/73/ED DATED 07/05/1973 ISSUED BY THE GOVERNMENT. EXT.R27B COPY OF THE WP(C).NO. 23244/2012 FILED BY THE PETITIONERS DATED 04/10/2012 WITHOUT EXHIBITS. EXT.R27C COPY OF THE REPRESENTATION DATED 04/10/2011 OF THE 2ND PETITIONER BEFORE THE TAHSILDAR. EXT.R27D COPY OF THE HEARING NOTE WAS OBTAINED BY THIS RESPONDENT FROM THE COUNTER AFFIDAVIT OF THE 6TH RESPONDENT IN WP(C).NO. 23244/2012. EXT.R27E COPY OF THE REPRESENTATION WAS OBTAINED BY THIS RESPONDENT FROM THE COUNTER AFFIDAVIT OF THE 6TH RESPONDENT IN WP(C).NO. 23244/2012. EXT.R27F COPY OF THE REPRESENTATION DATED 09/08/20123 SUBMITTED BY THE 2ND PETITIONER BEFORE THE ADDL. TAHSILDAR. EXT.R27G COPY OF THE PLAINT IN O.S. NO.222/1981 ON THE FILE OF THE MUNSIFF
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COURT, ERNAKULAM.
//TRUE COPY// rs. P.S.TO JUDGE
"C.R" HARUN-UL-RASHID, J. -----------------------W.P.C Nos.19431 & 19462 Of 2013 ---------------------Dated this the 28th day of March, 2014. JUDGMENT Both writ petitions are filed seeking CBI investigation. 2. Though the writ petitioners in both writ petitions are different, the facts and relief sought for are similar, common questions of fact and law arises for consideration and therefore, both cases were heard jointly and a common judgment is passed. The writ petitions were heard on 25.11.13, 3.12.13, 16.12.13, 19.12.13, 2.1.14, 3.1.14, 6.1.14, 7.114, 8.1.14, 9.1.14, 10.1.14, 15.1.14, 16.1.14, 20.1.14, 30.1.14, 31.1.14, 10.2.14, 11.2.14, 18.2.14, 19.2.14, 25.2.14, 26.2.14, 4.3.14, 11.3.14, 12.3.14 & 13.3.2014. 3. The petitioners in W.P.(C) No.19431/13 claim title and possession in respect of an extent of 116 cents in Survey No. 651/8A, 651/8B and 651/8C of Thrikkakara North Village. Respondents 1 to 7 are the State of Kerala and the Officials of the Revenue, Police Department and Vigilance and Anti- Corruption Bureau respectively. Respondents 8 to 13, who are the party respondents, are the contesting parties. Respondents 14 to 17 are Revenue officials. Respondent No.18 is the Gunman (now under suspension) of the Chief Minister of Kerala, against whom various allegations have been made. Respondent No.19 is the wife of respondent No.18. Respondent No.19 was working in Survey Department and she was transferred to the office of the Commissioner of Land Revenue on 17.1.2012 and she joined duty on 17.2.2012. Allegations are made against her. Respondent No.20 is a private party. Respondent No.21 is the Director of Central Bureau of Investigation. 4. The petitioners in W.P.(C).No.19431/2013 traced their title to the property as follows:- The property was outstanding in the possession of Thekkesamooha Madam in Jenmom right. In 1088 M.E., Lakshmana Ayyer of Thekkesamooha Madom granted lease of the property in favour of Ahammed Pareeth. In the year 1103 M.E. Kunjan
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Marakkar, son of Ahammed Pareeth, got a renewal of the lease from Lakshmana Ayyer. The jenmom right of the property was transferred by the jenmy to Aliyar Kunju as per document No. 106 of 1102 M.E. A partition took place in the family of Aliyar Kunju in the year 1114 M.E and the property in dispute was allotted to Hamsa Koya, son of Aliyar Kunju, who sold his rights in the property to Muhammed, another son of Kunjan Marakkar, as per sale deed No. 1186 of 1957 (Ext.P1). Even before that Kunjan Marakkar had attorned to Hamsa Koya and the lease was renewed in favour of Kunjan Marakkar as per document No.2335 of 1116 M.E. In the year 1960, Muhammed, son of Kunjan Marakkar, sold the property to his brother Kadar Pillai. Kadar Pillai is the husband of writ petitioner No.1 and father of the other writ petitioners. Out of the extent of 1.16 acres, which Kadar Pillai got as per the sale deed of 1960, he transferred an extent of 49 cents to his wife, the first petitioner as per document No.872 of 1960. Kadar Pillai died in 1980 and the properties were partitioned among his legal representatives, as per document No.362 of 1982. Mutation was effected as per the allotment made in the partition deed and the subsequent transfers were made between the legal representatives of Kadar Pillai. The petitioners state that the original Thandaper numbers were 8826 and 8597 and after mutation effected as per the partition deed of 1982, the Thandaper number was changed as T.P.No.9074. It is also stated that after resurvey, the Thandaper number is 2127 and later, the Thandaper was changed as 9365 to 9367 on the basis of the partition deed and subsequent transfers. 5. Respondents 8 and 10 to 13 in the writ petition filed O.S.No.617 of 2007 on the file of the Sub Court, Ernakulam against the writ petitioners to cancel partition deed No.362 of 1982. According to the writ petitioners, the plaintiffs in O.S.No.617/2007, in collusion and connivance with respondents 18, 19 and 20 presented fabricated documents before the civil court. On the basis of the complaint filed by the writ petitioners, Crime No.1003/2007 was registered by the Kalamassery Police Station for the offences punishable under Sections 465, 468, 469 and 471 read with Section 34 of Indian Penal Code. It is seen from the counter affidavit filed by respondent No.4 that final report was filed on 9.1.2009 in Crime No.1003/2007. 6. Respondent No.8 filed O.S.No.744/2010 before the Munsiff Court, Ernakulam to set aside document No.8782/2004 executed by the first petitioner to the second petitioner in respect of a portion of the property in dispute. 7. There was an earlier suit filed as O.S.No.222/1981 on the file of the Additional Munsiff Court, Ernakulam for partition. It is submitted by the learned counsel for the writ petitioners that the said suit was filed by Muhammed, son of Kunjan Marakkar against writ petitioners 1 to 3 for partition of tenancy rights. In the said suit, Muhammed contended that he had transferred only the jenmom right as per sale deed of 1960 to his brother Kadar Pillai, the predecessor-in-interest of the writ petitioners and that he had not transferred the tenancy rights to Kadar Pillai. This contention was negatived by the civil court, which was finally disposed of in S.A No.136 of 1994 by the High Court as per Ext.P11 judgment. In Ext.P11, this Court finally held that the properties belonged to Kadar Pillai exclusively.
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8. While the civil suits were pending before the civil courts, on 21.6.2011, respondent No.11(Abdul Salam) filed a petition before the District Collector, alleging that the writ petitioners fraudulently got the Thandapers registered in their names and paid land Revenue. On 21.6.2011, the District Collector forwarded that petition to the Tahsildar, Kanayannoor for taking necessary action as per Rules. On the same day, the Additional Tahsildar forwarded that petition to the Village Officer, Thrikkakara North. On 24.6.2011, the Village Officer, Thrikkakara North sent Ext.P12 detailed report to the Taluk Office, stating that the land in question belonged to Elangalloor Swaroopam and Pattayam was not obtained by Kadar Pillai or his successors. It was also reported that in respect of 12 cents of land, the Thandaper originally stood in the name of one Vallon Mani. It was stated in the report that the old records and re- survey records do not tally. On 28.6.2011, the Additional Tahsildar issued a direction to the Village Officer to stop accepting basic tax and to issue notice to the parties. On 28.7.2011, the Additional Tahsildar withdrew the order directing the Village Officer not to accept basic tax. Aggrieved by the said direction dated 28.7.2011, respondent No.11 (Abdul Salam) filed a petition before the Commissioner of Land Revenue, requesting not to accept basic tax from the petitioners and not to issue any possession certificate to them. On 9.8.2011, the Commissioner of Land Revenue forwarded the said petition to the District Collector, Ernakulam and the Tahsildar, Kanayannoor for urgent report. The Additional Tahsildar endorsed the letter to the Village Officer for submitting report. On 24.9.2011, the Village Officer reported that the properties stood in the name of the writ petitioners and that pattayam was not obtained. The Village Officer reiterated the stand taken by him earlier. On 12.12.2011, the Tahsildar submitted Ext.P15 report to the Commissioner of Land Revenue stating that the matter is subjudice as suits are pending before the civil courts. He also reported that till the disposal of the civil suits, all proceedings in the Revenue Department in respect of the lands concerned should be stopped. On receipt of Ext.P15 report, the Commissioner of Land Revenue issued Ext.P18 letter dated 4.1.2012 to respondent No.11 stating that in view of the pendency of civil and criminal cases in respect of the disputed property, Revenue Department could not take any action on the petition filed by respondent No.11. 9. The matter should have come to an end by the issue of Ext.P18. But, the proceedings were again initiated by the contesting respondents. Respondent No.11 submitted another petition dated 14.3.2012 (Ext.P19) to the Minister for Revenue, reiterating his earlier contentions. The Government forwarded Ext.P19 petition to the Commissioner of Land Revenue. 10. On receipt of the letter dated 9.4.2012 from the Government, the Commissioner of Land Revenue issued Ext.P20 letter dated 18.4.2012 to the District Collector, Ernakulam to submit a report, after verifying the records. The District Collector was also directed to furnish information with respect to six questions mentioned in Ext.P20. On receipt of Ext.P20, the District Collector directed the Additional Tahsildar to submit a report. The Additional Tahsildar (respondent No.17) issued Ext.P24 report dated 11.7.2012 containing almost the same details which were furnished by his predecessor in office in Ext.P15. The District Collector, in
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turn, sent Ext.P25 report to the Commissioner of Land Revenue. 11. It would appear that the office of the Commissioner of Land Revenue made a note that as per the letter dated 9.4.2012 issued by the Government, the Commissioner of Land Revenue was expected to submit a report to the Government. However, the Commissioner of Land Revenue issued Ext.P26 letter to the District Collector to cancel Thandaper Nos.9365, 9366, 9367 and 21007, and to report compliance of the same. On receipt of Ext.P26, the District Collector forwarded the same to the Additional Tahsildar, the Additional Tahsildar to the Village Officer and finally the Thandapers were cancelled by the Village Officer. 12. The petitioners allege that the Revenue officials reopened the matters, which were already closed, which led ultimately to the cancellation of Thandapers, at the influence of respondent No.18, the Gunman (now under suspension) of the Chief Minister of Kerala with the active assistance of his wife respondent No.19. The petitioners contend that they were even denied an opportunity of being heard by the Revenue officials and everything was done in a hurry and that too, when the civil suits are pending. In the writ petition (Edappally case), the petitioners alleged as follows: "31. Respondents 8 to 13 & 20 in collusion and conspiracy with respondents 18 & 19 bribed, compelled and influenced, respondents 14 to 17 to forge and fabricate false documents, reports and records, including concoction of false Thandaper in the name of one Vallon Mani, for the purpose of defeating the title of the petitioners over 116 cents of valuable land situated in Thrikkakara North Village in Sy.Nos.651/8A, 8B, and 8C at Pathadippalam. This was to defeat the title of petitioners to cause undue enrichment for respondents 8 to 13 & 20 through misuse and abuse of official position & powers by respondents 14 to 19. The 18th respondent is a Gunman in the office of the Chief Minister of State of Kerala and his personal influence in the highest political and administrative echelons of Government of Kerala as notoriety. Though the petitioners had filed numerous complaints, Exhibits P28 to P32 before the highest officers of the State, even today, not even a crime is registered and no investigation has been conducted or even initiated against respondents 8 to 20. In the face of such tremendous political influence, filing of an ordinary complaint before the police will be absolutely useless, as ordinary police officers, even upto the level of Commissioner, will be helpless in the face of notoriety, influence and power yielded by the 18th respondent". 13. The Statement in Ext.P31 complaint assumes relevance in the context. It is stated thus: "The former Gunman of Chief Minister, Salim Raj is the brother of Noorjahan(R9), that she is the the wife of K.H.Abdul Majeed (R8), that after Sri. Ommen Chandy became the Chief Minister, "Super Chief Minister" Salim Raj, Abdul Majeed, his wife Noorjahan, Abdul Salam(R11), Muhammadali (R10), Dillep(R20) and C.K.Jayaram(R6) conspired with Thrikkakkara Village Officer Sabu, Special Village
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Officer Murad, former Additional Tahsildar of Kanayannoor Taluk, Sunilal, Krishnakumari, Head clerk of Ernakulam District Collectorate, Shamsad (R19) of Land Revenue Commissionerate, fabricated false records, destroyed the original records, issued false orders and reports by misusing the official position with intention to cheat the petitioners and attempted to usurp our land". Counter affidavits were filed by respondent No.4, respondents 8 to 13 jointly, R20, R16, R17, R14, R18 & R19 jointly, R26 & R27. Additional counter affidavit was filed by respondents 8 to 13 jointly and R17 & R14. A statement was filed by the 24th respondent and 1st respondent. 14. The 4th respondent in paragraph 7 of the counter affidavit stated thus: "It is submitted that the verification of records produced by the complainant and the records of the Village Office and Taluk Office etc, connected with the ownership of the land, is going on. The investigation so far conducted in this case makes it clear that a very detailed investigation is necessary to find out the exact fact regarding the allegations by examining and fortifying documents related to ownership and transfer of the property for the last several years." 15. The party respondents 8 to 13 in their counter affidavits inter alia stated that the writ petition is an abuse of the process of law and it was an "attempt to media sensitize and cover up the misdeeds and fraud committed by the petitioners, in the wake of some political issues in which various government functionary's names have been dragged by the media including allegedly the gunman of the Chief Minister etc". It is also stated therein that since the gunman is distantly related to the 9th respondent, the petitioners are trying to drag him also to the case. The respondents 8 to 13 also contended that the writ petitioners have no title to the property and that the jenmom rights in respect of the property (to an extent of 78 cents) vested in respondents 8 to 13 and their family as per registered sale deed Nos.2907/1966 and 1988/1967 of SRO, Edappally executed by Elangalloor Swaroopam to Hassan, the predecessor- in-interest of respondents 8 to 13. Suit by respondents 8 to 13 as plaintiffs numbered as O.S.No.617/2007 on the file of the Sub Court, Ernakulam is filed against the present petitioners for cancellation of the partnership deed alleged to have been falsely executed in the petitioners' family including the properties of the respondents. Learned counsel for respondents 8 to 13 Sri.M.P.Ramanathan on the strength of document No.2907/66 and 1988/67 produced as Exts.R8(3) & R8(4) contended that they have purchased the jenmom right from Elangallor Swaroopam and therefore petitioners in the writ petition have no right over the property. It appears that as per Ext.R8(3) and (4), respondents obtained jenmom right over the property. There is no mention about the persons who are in possession and enjoyment of the property. It cannot be disputed that the petitioners are in possession and enjoyment of the property by virtue of Ext.R8(1) patta chittu of 1064/1102 ME (1924 AD) of SRO, Alangad executed by the predecessor-in-interest of the petitioners, Sri.Aliyar Kunju in favour of Elangalloor Swaroopam. Ext.R8(1) is a deed of transfer of lease executed by Rama Lakshmana Iyer in favour of Sri.Aliyar Kunju, who is the predecessor-in-interest of the petitioners. Ext.R8(2) is the patta chit No.2909/1102 ME of SRO, Alangad. Aliyar Kunju, who got tenancy assignment right as per Ext.R8(1), executed another patta chit in favour of Elangalloor Swaroopam registered as document No.2909/1102 ME. Certified copy of the said patta chit is marked as Ext.R8(2). The documents referred to above are documents of transfer of leasehold rights. Respondents 8 to 13 are claiming jenmom right over
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the property to an extent of 78 cents by virtue of registered sale deed No.2907/66 and 1988/1967 of SRO, Edappally executed by Elangalloor Swaroopam to the predecessor of respondents 8 to 13. The said documents were produced along with counter affidavit filed by respondents 8 to 13 as Ext.R8(3) and (4). Going by the document, the predecessors of respondents 8 to 13 do not get possession of the properties. At that time the properties were outstanding with the predecessors-ininterest of the petitioners. Petitioners, by virtue of said deeds, are in possession and enjoyment of the properties right from 1102 ME (1924 AD) and continuing their possession till date. Learned counsel Sri.M.P.Ramanathan contended that petitioners and their predecessors only had leasehold right and never got assignment of jenmom/ownership rights and were paying taxes as lessees. According to the petitioners misusing and misrepresenting thandaper numbers put for the purpose of collecting leasehold tax, have fraudulently mis-represented the same thandaper numbers for jenmavakasam. Learned counsel submits that in the prior deeds of petitioners namely, document Nos.871/1960 of SRO, Edappally and 872/1960 of SRO, Edappally, it is fraudulently and falsely stated that the property is comprised in pattayam No.5681. It is said in that context, the Revenue authorities required production of the pattayam or deed of purchase of jenmavakasam, as no such pattayam exists nor deed of purchase of jenmavakasam exists, they were unable to produce the documents. The learned counsel also submits that a look at Ext.R8(1) deed No.1064/1102 ME (1927) of SRO, Alangad would show that it is a deed of sale whereby the leasehold right of Lakhsmana Iyer is sold to Aliyar Kunju. The learned counsel also placed reliance on Ext.R8(2) ethirpattacheetu executed by Aliyar Kunju @ Bava in favour of jenmi/lessor from whom the lease is taken and registered as document No.2909/1102 ME clearly stating that, what Aliyar Kunju has got as per Ext.R8(1) is a venpatta avakasam (lease) and the deed is in reiteration of fresh terms of lease. The learned counsel also contends that the petitioner wilfully suppressed Ext.R8(2) lease deed as it fully exposed petitioners false claim of jenmavakasam having been purchased. It is contended that the disputed property belongs to Elangalloor Swaroopam vaka or pnadaram vaka only and that the jenmom right of the properties to an extent of 78 cents is vested in these respondents and their family obtained by registered sale deed No.2907/1966 and 1988/1967 of SRO, Edappally executed by Elangalloor Swaroopam to the predecessors of respondents. The said documents are marked as Exts.R8(3) and R8(4). According to the counsel, after perusing the revenue records and after considering all the facts, the revenue authorities directly cancelled illegal thandaper numbers which is the subject matter of W.P.(C).No.23244/2012. The learned counsel also placed reliance on Ext.R8(10) copy of the re-survey thandaper register extract of re-survey thandaper No.4273 of Mani, S/o.Vallon and Ext.R8(11) copy of the re-survey thandaper register extract of re-survey thandaper No.1869 of Thankappan and Velayudhan and contended that when re-survey was implemented, the thandaper of Mani, S/o.Vallon bearing No.8826 in which he paid tax inclusive of the year 1991 was given a new thandaper No.4273, co-related with the new thandaper number of Velayudhan and Thankappan to their remaining properties given as 1869. According to the learned counsel the report of the Revenue Secretary is unreliable, incorrect and only to be brushed aside. The two reports submitted by the Revenue Secretary in the two writ petitions would show that Revenue Secretary had gone through the records
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forwarded by the Registrar General of this Court including the original Revenue records of respective Village Offices, Taluk Offices, note files of the office of the District Collectors concerned and the office files of the Commissioner of Land Revenue and additional information provided by the petitioners as well as the respondents. I do not find that any sustainable reasons are made out for not placing reliance on the findings and observations of the Revenue Secretary. 16. The learned senior counsel, Sri.K.Ramakumar, who is appearing for respondents 8 to 13 in W.P.(C).No.19431/2013 (Edappally case) contended that the State Government had constituted a special investigation team for the investigation into the crimes and in the circumstances prayer for CBI investigation has become infructuous. The learned senior counsel also pointed out that in the complaints marked as Exts.P28-31 there is no prayer for investigation by outside agency and therefore, the writ petition filed seeking CBI investigation is an afterthought. In this connection the learned counsel for the petitioners appearing in both cases Sri.Dinesh R. Shenoy invited the attention of this Court to the reply affidavit filed by the petitioners dated 19.12.2013. In the reply affidavit the claim of the 4th respondent that prompt and effective action had been taken by the respondents is denied. It is pointed out that direction was issued by this court in both writ petitions to seize telephone records of the party respondents and the revenue records concerned for the purpose of preserving the evidence. Since the persons who have committed the crime were continuing in the same position, it is submitted that the said direction was not complied with and at the same time the 4th respondent and State filed W.A.Nos.1208/2013 and 1364/2013 within a day challenging the order directing seizure and preservation of the evidence. It is submitted that even though there was no order affecting the rights of the State or the 4th respondent and the police force the State was not an aggrieved party at all, yet they have challenged the order before the Division Bench. They obtained an order of stay. The second portion of the order directing seizure of the revenue records was not stayed by the Division Bench. It is said that the said order was not complied with till date by the police or official respondents. Ext.R4(b) is the true copy of the letter dated 5.8.2013 issued by the Additional Director General of Police forwarding the representation submitted by the petitioners before the opposition leader to the Home Department for appropriate action. It is submitted by the counsel for the petitioners that Ext.R4(b) letter did not see the light of the day till 9.10.2013 after this Court had been forced to make scathing remarks on the 4th respondent. It is also pointed out that vigilance enquiry was initiated only after the order passed by this court on 28.10.2013 in Edappally case. It is contended that even though Crime No.1646/2013 is said to have been registered on 17.8.2013, this has also not seen the light of the day. Petitioners also produced copy of the FIR No.1928/2013 of Kalamassery Police Station. The newspaper reports in this regard are also produced as Exts.P69 & P70. It is further stated in the reply affidavit that after petitioners have filed complaint before the Additional Director General of Police and pursuant thereto and the huge hue and cry in the State media over the turn of events, investigation was withdrawn from the Deputy Commissioner of Police and handed over to his junior, Assistant Commissioner of Police, Thrikkakara. Later, since it was found improper, the case was ordered to be handed over to
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Kottayam Crime Branch CBCID. It is pointed out that no steps have been taken by any investigating team to investigate the matter. It is also pointed out that no proper investigation is being conducted. It is clear from the fact that even the direction in Ext.R4(b) was not complied with. As per Ext.R4(b) it was directed to file a preliminary report within seven days and investigation report within 30 days. It is submitted that no such report have been filed in the case even today establishing clearly the fact that the investigation is not proceeding properly and is being diverted due to unseen influences and political interference. It is seriously alleged that obviously the investigation by the State Police is stultified by the high influences working for the party respondents. It is also submitted that investigation is being made not into the allegations in the complaint and the truth and genuineness of the same but into the title of the parties, which is totally uncalled for and beyond the scope of investigation, which is regarding manipulation, forgery, destruction of records in the Department of Revenue and submission of deliberate false reports. It is also alleged that in the normal course, the police follows the method of tracing telephone records of the accused. It is said that nothing of that has been sought or attempted in this case. The contention of the learned senior counsel Sri.K.Ramakumar that the State Government had constituted a special investigation team for the investigation into the crimes and in the circumstances prayer for CBI investigation has become infructuous is without any basis so far the State Government had not constituted a Special Investigation Team for investigation. It is true that the 4th respondent by order dated 3.10.2013 transferred Crime No.1646/2013 for further investigation by the CBCID. The Superintendent of Police, CBCID, Economic Offence Wing-II, Kottayam took over investigation in the matter. Going by the statement filed by the 4th respondent and stated by the Superintendent of Police, CBCID, it is seen that no Special Investigation Team was constituted to conduct the investigation. The prayer for CBI investigation has become infructuous is without any substance. Writ petitions are filed for a direction to the CBI to depute a senior officer to constitute a team and to investigate the various offences and illegal acts committed by respondents and others or at any rate to constitute a Special Investigation Team under the leadership of an officer not below the rank of Inspector General of Police. The prayer denotes that for any reason CBI investigation cannot be ordered, the petitioners prayed that at any rate Special Investigation Team may be constituted for the investigation. Petitioners denied the claim of the 4th respondent that prompt and effective action had been taken by the police. It is pointed out that the direction issued by this Court in both writ petitions to seize telephone records of the party respondents and the revenue records concerned for the purpose of preserving the evidence is not complied with. It is also pointed out by the learned counsel Sri.Dinesh R.Shenoy that no action was taken in response to Ext.R4(b) letter, that the recommendation by the 4th respondent was kept in cold storage for over three months speaks the volumes of influences and political reach of the party respondents. Vigilance enquiry was initiated only after passing of the order by this Court dated 28.10.2013 though several complaints were filed narrating the gravity of the offences committed. The Crime No.1646/2013 was registered only on 17.8.2013 i.e., only during the pendency of the writ petition. The learned counsel also pointed out the conduct of the Deputy Commissioner of Police who has
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commenced investigation, that he directed the Kalamassery Police to register case against the petitioners on the basis of false complaints filed by some other party respondents. It is submitted that the petitioners have filed complaints before the Additional Director General of Police, pursuant thereto and due to the huge hue and cry in the state media over the turn of events, investigation was withdrawn from the Deputy Commissioner of Police and handed over to his junior, Assistant Commissioner of Police, Thrikkakara. Later since it was found improper, case was handed over to Kottayam Branch CBCID. Due to the aforesaid turn of events, petitioners alleged that obviously investigation by the State Police is stultified by the high officials working for the party respondents. 17. The learned Senior Government Pleader Sri.Muhammed Shah referred to paragraph 5 & 6 of the statement filed by the 4th respondent in W.P.(C).No.19431/2013. In paragraph 5 & 6 it is inter alia stated that Ext.P31 complaint was received by the 6th respondent only on 11.7.2013 and immediately it was forwarded to the Deputy Commissioner of Police, Kochi City for enquiry and necessary action vide endorsement No. 131/7464/13 dated 15.7.2013. The Deputy Commissioner of Police, while conducting enquiry recorded the statement of the petitioners 1 & 2 on 17.8.2013 and that since the statement of the 2nd petitioner revealed commission of cognizable offence, the Deputy Commissioner of Police forwarded the statement to the Station House Offier, Kalamassery for registering a crime and investigation of the case. In paragraph 6 of the statement it is stated that Crime No.1646/2013 was registered for the offences punishable under Section 468, 471, 511 & 420 IPC by the Kalamassery Police Station. It is also suggested by the Additional Director General of Police, South Zone, that for ensuring credible, effective and impartial investigation the case requires to be transferred to a Special Investigation Officer of the CBCID. Accordingly, the 4th respondent by order dated 3.10.2013 transferred Crime No.1646/2013 for further investigation by the CBCID. The Additional Director General of Police (Crimes) was directed to personally supervise the case and a Superintendent of Police was directed to investigate the case. The investigating officer questioned the Village Officer, Special Officer and recorded detailed statement from the complainant. It is further stated that investigation so far conducted in this case makes it clear that a very detailed investigation is necessary to find out the exact fact regarding the allegations by examining and fortifying the related ownership and transfer of property for the last several years. 18. The learned senior counsel Sri.K.Ramakumar relied on the decisions of the Apex Court in Sakkiri Vasu v. State of UP and others (2008 (2) SCC 409) and Secretary, Minor Irrigation & Rural Engineering Services, UP and others v. Sahngoo Ram Arya and another (2002(5) SCC 521). In the first decision the Apex Court observed thus: "We often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to his alternating remedy, first under Section 154(3) and Section 36 Cr.P.C before the police officers concerned, and that is of no avail, by approaching
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the Magistrate concerned under Section 156(3) Cr.P.C". In the second decision referred above, the Apex Court held thus: "While the High Court has power under Article 226 to direct an enquiry by CBI, a decision to direct an enquiry by CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency. The same cannot be done as a matter of routine or merely because a party makes some such allegations. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an enquiry by CBI. While directing an enquiry by CBI, the High Court must record a prima facie finding as to the truth of such allegations with reference to the reply filed". The learned senior counsel also relied on the judgment of the Apex Court reported in Saraswati Industrial Syndicate Limited etc. v. Union of India (1975 SC 460) and contended that CBI investigation shall be ordered only if preceded by demand. Placing reliance on the decision reported in Aleque Padamsree and others v. Union of India and others (2007 (6) SCC 171) the learned senior counsel contended that whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. The course available, when the police does not carry out the statutory requirements under Section 154 and that in case the police officials fails to do so, the modalities to be adopted are as set out in Section 190 r/w Section 200 of the Code of Civil Procedure. It is open to any person aggrieved by the inaction of the police officials in registering the FIR, the modalities to be adopted and observed are in terms of the aforesaid provisions. 18(a). The learned senior counsel Sri.S.Sreekumar appearing on behalf of the 17th respondent in Edappally case denied the allegations against her in the writ petition. It is contended that the allegation that the 17th respondent and others had created false documents, misleading reports and caused the Thandaper of the petitioner cancelled is false. He also denied the allegation of the petitioners that 17th respondent colluded and misused her official position under the influence of respondents 8 to 13 and 18 to 20. The learned senior counsel also contended that the petitioners failed to prove any prima facie case to warrant police enquiry that the remedy available to the petitioners is to approach the criminal court with a private complaint if their grievances are turned down by the police. Placing reliance on the decision reported in Secretary, Minor Irrigation & Rural Engineering Services, UP and others v. Sahngoo Ram Arya and another (2002(5) SCC 521) the learned senior counsel contended that to direct an enquiry by CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency, and the same cannot be done as matter of routine or merely because a party makes some such allegations. 18(b). The learned counsel for the 27th respondent in Edappally case Sri.Nagaraj Narayanan placing reliance on Ext.R8 (1) document No.1064/1927
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(1102ME) and Ext.R8(2) document No.2909/1927 produced by respondents 8 to 13 contended that Elangalloor Swaroopam is the jenmom right holder of the disputed property and continues to be the jenmom right holder of 38 cents in said survey numbers and jenmom right over 78 cents land was conveyed by Swaroopam to Hassan, Illickal House, who is the predecessor-in-interest of respondents 8 to 13 vide deed Nos.1988/1967 and 2907/1966 of Edappally SRO. The learned counsel submits that the land claimed by the petitioners belongs to the Swaroopam and the Swaroopam has never transferred the jenmom right to the petitioners or to their predecessors-in-interest nor any documents were produced by them to show the transfer of jenmom right from this respondent to the petitioners or their predecessors-in-interest. It is also pointed out that the documents produced by the petitioners would clearly reveal that 6th respondent has only transferred the leasehold right to the predecessors-in-interest of the petitioners. It is submitted that Ext.R8(2) patta chit deed No.2909/1102 (ME) executed by Aliyar Kunju in favour of Swaroopam is willfully suppressed by the petitioners. Placing reliance on Ext.R8(2) it is pointed out that Aliyar Kunju clearly recited that the said lease covered by document No.Ext.R8(1) document 1064/1102 (ME) is the leased property and that he executed the document in favour of Swaroopam admitting himself as lessee and that he agreed to remit the lease amount due to the Swaroopam promptly and in case of default he will pay interest to the Swaroopam. It is also pointed out that in Ext.R8(2) there is a recital that the land belongs to the Swaroopam. 19. This Court vide interim order dated 23.10.2012 directed the Principal Secretary to Government, Revenue Department, to conduct an independent and fair enquiry in the matter and to submit a report without giving room for any complaints. In the interim order this Court observed after discussing the facts and circumstances in detail thus: " This Court is of the view that before passing final order in this matter, an enquiry will have to be conducted regarding the alleged foul play, falsification, forgery, committed in regard to the records maintained by the Revenue Department. I direct the Principal Secretary to Government, Department of Revenue, Government of Kerala to conduct a comprehensive enquiry into the matter immediately as aforesaid and submit a report covering the involvement, if any, of respondents 8 to 20 and others. The principal Secretary shall also enquire and report specifically the involvement of respondents 18 & 19 and the role played by them in the office of the Collectorates concerned, Office of the Land Revenue Commissioner, Office of respondents 14 to 17, other offices and the involvement of any others in the helm of affairs of the State". This order was passed in W.P. (C)No.19431/2013. Similar interim order was passed in the connected W.P.(C) No.19462/2013. 20. The Secretary, Department of Revenue, submitted detailed reports. The Secretary had gone through the original Revenue records of respective Village Offices, Taluk Offices, note files of the office of the RDO, Trivandrum, note files of the District Collectors concerned and the files of the Commissioner of Land Revenue. He also heard petitioners and contesting respondents. He had taken statements of the officials of Village Offices, Taluk Offices, Collectorate and Office
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of the Commissioner of Land Revenue. 21. The gist of the report of the Revenue Secretary in W.P.(C).No.19431/2013 (Edappally case) is summarised under the head 'observations' in page 26. It is stated that; "As per the documents bearing numbers 2727/1939 [Annexure XV], 1186/1957 [Annexure XXV], 871/1960 [Annexure XXVI] and 872/1960 [Annexure XXVII] Sri. Kadir Pillai and 1st petitioner Smt. Shereefa acquired properties admeasuring 116.000 cents in survey numbers 651/8A, 651/8B and 651/8C. Moreover as per the judgment in O.S.No.222/1981 of the Additional Munsiff Court, Ernakulam, A.S.No.110/1987 of the Additional Sub Court-III Ernakulam and finally High Court in S.A.No.136/1994 on 9.7.2010 categorically stated that "the lower appellate Court was correct in holding that the properties belong to Late Kadir Pillai exclusively". Smt. Shareefa, Nazer & Noushad and Smt. Shimitha are the patta holders as per Rule 15 of the Transfer of Registry Rules. Copy of Thandaper number 9074 [Annexure XXXV] shows that the Thandaper was created from Thandaper No.8826 through TR 402/83. Since 9074 belonged to Smt. Shereefa, Thandaper 8826 can only belong to none other than Sri. Kadir Pillai. While lineage of the properties in question is considered there is no other option but to believe that the Tax paid receipt is genuine unless and until proved otherwise". Under the head findings and observations at page 41, the following findings were entered by the Revenue Secretary. "The reports furnished by the Village Officer, Thrikkakara North Village dated 24.6.2011 and 24.9.2011, the reports furnished by the Additional Tahsildar, Kanayannur Taluk on 12.12.2011 and 11.7.2012 are partly devoid of facts available in the Revenue records and highly misleading". It is further reported in the same page that "the Village Officer, Thrikkakkra North Village and Additional Tahsildar, Kanayannur Taluk should be responsible for submitting a report based on distorted information which lead to wrong decision making by superior authorities". "Both the Village Officer as well as the Additional Tahsildar have misinterpreted the Revenue Rules pertaining to Settlement Register and the entires of Thandaper No. 8826 which is shown in the name of Mr.Vallon Mani. The Thandaper No. 8826 as mentioned earlier, was originally in the name of Mr.Kadir Pillai which became "soonya thandaper"" . "The Junior Superintendent and the Deputy Collector (LR) in the office of the Collectorate, Ernakulam have not examined and verified the report submitted by the Additional Tahsildar before sending their remarks to the office of the Commissioner of Land Revenue". "However, the orders are issued by the Office of the Commissioner of Land Revenue stating that the Thandaper numbers in the name of the petitioners should be cancelled in accordance with law. Again at this point, Additional Tahsildar and the Village Officer have failed in following the prescribed Rules before cancellation of the Thandaper which are in the name of the petitioners". "Additional Tahsildar has committed procedural irregularity by not following the Rules as contemplated in the Transfer of Registry Rules, 1966, soon after the receipt of the direction from the District Collector, Ernakulam". I strongly see a proactive involvement of the Additional Tahsildar in this entire issue. Under what circumstances and "pressures", she acted upon certainly needs a comprehensive police investigation. 22. In Writ Appeal No.1861/2013 filed against the interim order in W.P.
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(C).No.19431/2013 directing the Secretary to Government, Revenue Department to enquire and report, the Division Bench held that; "We entertained a doubt as to whether the whole episode originated due to the letter issued by the Commissioner of Land Revenue on 4.9.2012(Ext.P26) while the Commissioner, Land Revenue had taken a diametrically opposite view in Ext.P18 order dated 4.1.2012. Going by any interpretation, the Commissioner of Land Revenue had no jurisdiction at all to issue a letter like Ext.P26, which according to us created the whole difficulty in the matter and dragged the parties to various courts and forums and that the Commissioner of Land Revenue exercised a jurisdiction not vested in him under law. The Division Bench found that cancellation of Thandaper was done by, or as directed by an authority, which had no power at all to do so, after that authority found in Ext.P18 order that pending decision of the civil court, the Department of Revenue cannot intervene in the matter". It was held that: "Tinkering with entries in the Revenue records would be an effective tool in the hands of land mafia and grabbers of immovable property. The Revenue officials should not aid such land grabbers and land mafia, by arrogating to themselves jurisdiction which they do not possess". The Division Bench also noticed that; "In recent years several instances of land grabbing at the instance of land mafia were reported and that in such instances, they take the aid of Revenue records and the changes made in such records to suit their convenience. It was observed that the rights of the rightful owners would be defeated in such transactions, but the rights of the innocent purchasers also would be defeated". 23. Exts.P28 to P32 are the complaints lodged by the petitioners before the highest officers in the State in W.P.(C). No.19431/2013. In the complaints it is specifically stated that the respondents 8 to 13 and 20 in collusion and conspiracy with respondents 18 & 19, bribed, compelled and influenced respondents 14 to 17 to forge and fabricate false documents, reports and records including concoction of false Thandaper in the name of Vallon Mani for the purpose of defeating the title of the petitioners over 116 cents of valuable land situated in Thrikkakkara North Village in Sy.Nos.651/8A, 8B & 8C at Pathadippalam. It was also stated that respondents made an attempt to defeat the title, to cause undue enrichment for respondents 8 to 13 and 20 through misuse and abuse of official position and powers of respondents 14 to 19. Serious allegations are raised against the Gunman of the Chief Minister of State of Kerala. It is alleged that the 18th respondent is the Gunman in the office of the Chief Minister of Kerala and his personal influence in the highest political and administrative echelons of Government of Kerala is known to all persons. It is stated in the complaints and in the writ petition that though numerous complaints were lodged before the highest officers of the State, even today, not even a crime is registered and no investigation has been conducted or initiated against respondents 8 to 20. In the writ petition it is stated that on the face of such tremendous political influence filing of an ordinary complaint before the police will be absolutely useless as ordinary police officers, even up to the level of Commissioner, will be helpless in the case of notoriety, influence and power wielded by the 18th respondent. 24. The connected writ petition namely, W.P.(C). No.19462/2013 was filed for
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similar reliefs on the basis of similar allegations. The petitioners claimed title over 12.27 acres of land in Sy.Nos.1279, 1280, 1281 to 1288 of Kadakampally Village, Thiruvananthapuram Taluk. Petitioners are aggrieved by the alleged willful inaction on the part of the official respondents 1 to 5 to take action in the matter of criminal offences committed by respondents 6 to 32 by forging and fabricating false Thandaper Nos.1602 and 3587 of Kadakampally Village in the name of Abdul Rehman Kunju, the predecessor of respondents 8 to 25, and the creation of false and fabricated documents including sale deeds in respect of 12.27 acres of land in Sy.Nos.1203, 1204, 1232, 1236, 1238, 1240, 1241, 1270, 1279 to 1288, 1388, 1409 of Kadakampally Village. The allegation is that respondents 8 to 25 had manipulated and created false Thandaper No.1602 through forgery and falsification of records in collusion with respondents 29 to 31. It is also alleged that respondents 6, 7 & 26 to 28 are new entrants in the conspiracy, forgery, false creation of Thandaper No.3587 and that due to the tremendous political influence of respondent No.26, the Gunman in the Office of the Chief Minister of Kerala, the official respondents are not taking any action whatsoever. It is stated that not even a crime has been registered so far in spite of the very serious nature of the allegations and in spite of the evidence on record which conclusively proved the forgery, fabrication and falsification of records indulged by respondents 6 to 28 and 32 for the purpose of knocking off 45.50 acres of property in the survey numbers mentioned above which belongs to almost 170 people including the 12.27 acres of land which stood in the name of the petitioners. 25. The petitioners in W.P.(C).No.19462/2013 traced their title to the property as follows: An extent of 12.27 acres of land in the above mentioned survey numbers was obtained by the petitioners as per registered Otti Transfer Deed No.2882/1969 of SRO, Thiruvananthapuram and Certificate of Purchase issued in S.M.No.12/1980 of Land Tribunal, Thiruvananthapuram. The properties were mutated to the name of the petitioners and they are paying the land tax eversince 1980. Petitioners produced copies of Certificate of Purchase, Otti Transfer Deed of 1969 and Land Tax Receipts dated 21.5.2008 which are marked as Exts.P1 to P4 respectively. According to the petitioners, the land had originally belonged to the jenmies, M/s.Kuvakara Madom as per the settlement register which was maintained during the regime of Maharaja of Travancore. They had created tenancy in favour of the joint family of one Kanakku Padmanabha Pillai and Kanakku Madhavan Nair by way of Otti and Kuzhikkanam. Petitioners produced copy of relevant pages of settlement register as Ext.P5. Paragraph 6 of the writ petition narrates the devolution of right in favour of the petitioners. Paragraph 6 reads as follows: "6. As per Partition Deed No.2509/1101 ME, of Thiruvananthapuram SRO, the said lands, along with Otti liability, devolved upon Shri.Madhavan Nair. In the meanwhile, the jenmom rights in the property had been brought to sale in O.S.No.38/1120 on 15.11.1950 and was purchased by Mr.Narayana Potti Shambhu Potti in court auction. On 7.8.1951, the sale was confirmed in his favour. Delivery of possession was obtained through process of court on 19.8.1954. The said Madhavan Nair and his wife transferred the tenancy rights over the said property to the name of Shri.Vasudevan Pillai and Vasu Pillai, nephews of Krishna Pillai, as per registered Otti No.2313/1960, Thiruvananthapuram SRO. Later, the jenmom rights have been
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purchased by Shri.K.P.Ramachandran Nair, father of the petitioners from the legal heirs of Narayana Potti Shambhu Potti as per registered sale deed No.2019/1968 of Thiruvananthapuram SRO. He paid the balance of mortgage amount as directed by the Sub Court, Thiruvananthapuram in O.S.No.94/68 and released the mortgage and paid tax in his own name. Thereafter, the petitioners had purchased the otti rights in the property from the aforesaid Vasudevan Pillai and Vasu Pillai, as per Document No.2882/69 and later purchased the jenmom rights also as per proceedings in S.M.No.12/1980 dated 14.5.1980 and Certificate of Purchase dated 8.8.1980. They had effected mutation of the properties to their own names also and paying tax thereon in T.P.No.10150". Out of 12.27 acres, the petitioners sold 4.38 acres with various third parties. A perusal of the encumbrance certificate received by them shows that the remaining 7.40 acres of land is mortgaged by the petitioners to the Canara Bank, Thiruvananthapuram. It is pleaded that to the utter shock and surprise to the petitioners it is seen from the encumbrance certificate that in addition to the various transactions entered into by the petitioners, some agreements were seen registered in respect of Exts.P1 to P4 properties in favour of respondents 6 & 7 fraudulently and without any authority, starting from 14.3.2012 onwards with respondents 8 to 25 fraudulently claiming title to the property and purporting to execute agreements for sale of the property to the name of respondents 6, 7 and others. It is contended that respondents 8 to 25 have no title or ownership over the subject properties and no possession also. The sale agreements have been registered by respondents 8 to 25 in favour of respondents 6 & 7 referring to a partition deed said to have been executed in the family of respondents 7 to 25 in 2006 as partition deed No.2677/2006 of Karakulam SRO. The sale agreements have been executed with reference to the said partition deed and Thandaper No.3587 of Kadakampally Village. It is stated in the writ petition that the 15th respondent had in collusion with the other party respondents created a sale deed in favour of one Praveen executed by his mother Fathima, and thereafter, arranged re-sale of the property having an extent of 1.47 acres in Sy.No.1270 and 15 cents in Sy.No.1282 of Kadakampally Village to his own name as per sale deed No.2617/2008 of Thiruvananthapuram SRO. It is contended that later, through fraud, he obtained mutation of the property to his own name. Various complaints have been filed before the revenue authorities. The copy of the partition deed issued by the State Public Information Officer under the Right to Information Act reveals that page No.9 is a fabrication and insertion, which is typed out in a different font and has obviously been inserted in the document at a subsequent stage, which could have been only at the time of fabrication just prior to the submission before the revenue authorities in connection with mutation of the properties. In the copy of the partition deed obtained by the petitioners from the revenue authorities, it is noticed that the 9th page is significantly different; that the font of the print is different and Thandaper No.3587 is not seen included among the Thandaper numbers mentioned in the said document and the signatures at the bottom of the page are also different, obviously, pointing to the fact that Ext.P7 partition deed produced along with application of 15th respondent for mutation of properties is a fabricated and forged one. The petitioners also produced copy of the partition deed obtained under the Right to Information Act as Ext.P8. It is seen that page No.9 in Exts.P7 & P8 are significantly different, clearly evidencing the fabrication which has been
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carried out by the signatories therein for the purpose of applying for mutation of the properties by the 15th respondent. It is also complained that the entry of Thandaper No.3587 is obviously a fabrication and forgery in the name of deceased Abdul Rehman Kunju, predecessor of respondents 8 to 25. It is contended that the 32nd respondent has created false documents, false Thandaper number involving 45.54 acres of prime land in collusion with respondents 6 to 28 and that a mere perusal of Ext.P9 Thandaper Register will clearly show the clandestine manner in which it has been prepared. It is also stated that the predecessors of respondents 8 & 25 had in an identical fashion managed to revive and recreate a 'zero' Thandaper with 1602 and to get included therein several acres of property comprised in Sy.Nos.1203, 1204, 1240, 1241, 1270, 1409, 1279, 1290 and 1388 of Kadakampally Village and created several false documents. Petitioners allege that Ext.P7 partition deed No.2677/2006 is a fraudulent document. It is registered at Karakulam SRO, far away from Kadakampally and Thiruvananthapuram SRO. For the purpose of registration of the document at Karakulam SRO, one cent of land is added as an item among the 19.96 acres in Kadakampally Village. The Principal Secretary also reported that the said partition deed produced by the party respondents before the Tahsildar for the purpose of mutation to their name is a clear forgery and fabrication. Ext.P9 is the copy of thandaper No.3587. The Revenue Secretary reported that the original thandaper holder of 3587 was one Krishna Panicker and the thandaper became blank only on 16.8.1984. Abdul Rehman Kunju passed away on 20.1.1978, much earlier and obviously the present thandaper 3587 is said to be a forgery and fabrication, as a dead person could not have come back to submit an application for mutation. The Revenue Secretary also reported that there is no reference to any proceedings, as per which property was brought into thandaper No.3587 from a parent thandaper. This is inevitable if the thandaper had been genuine. The remarks column would show that thandaper is brought into existence on the basis of a reference to a decree in O.S.No.85/1971. As I said earlier, the said suit itself had been withdrawn and as such there cannot be any decree directing creation of new thandper. The role of involvement of outsiders and private individuals in creation of false thandaper No.3587 is also reported by the Revenue Secretary in paragraph 10 at page 37 of his report. In 2005, four documents were seen executed at SRO, Varkala in respect of 5.50 acres of land in Sy.No.1285 & 1284 of Kadakampally Village by respondents 9 to 15 to the names of their own family members, referring to a false thandaper No.1602. All the documents namely, document Nos.2833, 2834, 2835 and 2836 of 2005 are created on the same day in respect of properties in Kadakampally Village in Varkala SRO instead of Thiruvananthapuram SRO. The Principal Secretary reported that thandaper No.1602 was one which was pasted just after 1601 and that appears to be forged one and it needs to be investigated by an appropriate agency. The learned counsel for the petitioners in Kadakampally case contend that the transfer of registry to the name of the 15th respondent is illegal, that thandaper No.3587 shows that it is a fake one, as the name holder did not have possession and as connected documents did not have the said thandaper number and that Ext.P8 (Ext.P7) documents of 2677/2006 and Ext.P7 partition deed is a fabricated one and liable to be cancelled and that all these matters should be investigated by an appropriate agency to unravel the commission of offences.
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26. The foul play and manipulations alleged were brought to the notice of revenue authorities by filing complaints. The matter was investigated by the Sub Collector, Thiruvananthapuram. He passed an order setting aside the mutation effected in four cases and recommended disciplinary action against the Village Officer concerned and respondents 29 to 31. No action was initiated against respondents 8 to 25 or 29 to 31 under criminal law. It is alleged that Thandaper No.1602 had been recreated falsely in the name of very same Abdul Rehman Kunju in whose name new Thandaper No.3587 has been created through the same modus operandi, referring to the non- existent decree in O.S.No.85/1971 and a non-existent Thandaper. Petitioners have also submitted complaints before respondents 1 to 5. They are deeply aggrieved as there has been no action taken even in spite of clear and categoric findings in Ext.P11 and the obvious evidence available regarding the fraud, forgery and falsification of records with regard to Thandaper No.3587 of Kadakampally Village. The petitioners allege that the obvious and patent inaction on the part of the authorities is obviously due to the high position of the 26th respondent and his connections arising from having been the Gunman in the office of the Chief Minister and consequential connections available to him which he is using to delay and subvert the investigation in the cases. 27. Petitioners further contend that since the investigation required is very wide, complicated and on account of the high social and official status and the political influence and connection of the accused, an ordinary remedy by way of complaints before the police or before the authorities will not suffice and will not serve any purpose. The writ petition is filed highlighting the fabrication of false records, submission of knowingly false, fraudulent and malicious reports by respondents 2932, at the instance of, and instigation of, respondents 6 to 28 with the 26th respondent misusing and abusing his official capacity and influence as Gunman in the office of the Chief Minister and the facilities available therein including telephone, for the purpose of causing officers in the subordinate level of Revenue Department to fabricate and forge documents and to raise a false claim to the valuable property belonging to the petitioners. It is submitted that though the petitioners submitted several complaints before the Deputy Collector (Vigilance), South Zone and before respondents 1 to 5 about serious offences committed under the provisions of the Prevention of Corruption Act and various provisions of Indian Penal Code, no action was ever taken by respondents 1 to 5 and the revenue authorities. Copies of various complaints, reports and representations submitted before the police and revenue authorities are produced in the writ petition. 28. The Deputy Collector, Vigilance, South Zone has conducted a detailed enquiry and prepared a report on 1.7.2013, a copy of which is marked as Ext.P22. In Ext.P22 it is reported that the 'zero' Thandaper No.3587 had been written in the name of Abdul Rehman Kunju in respect of 45.54 acres of land even without possession or title documents. The creation of the false Thandaper No.1602 and the cancellation thereof is also noticed in the report and as also the creation of a sale deed in favour of the 15th respondent, mutation of the properties to his name, without compliance and in violation of the Transfer of Registry Rules in collusion with 32nd respondent, the then Village Officer. Various leading newspapers and medias
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reported the said facts; newspaper reports are marked as Exts.P24 to P30. Exts.P36 to P44 are the newspaper reports in Edappally case. 29. It is submitted that the disputed property having an extent of 45.45 acres in Kadakampally Village is worth at least Rs.250 Crores. The properties are situated within the Thiruvananthapuram Corporation limits. 30. In Kadakampally case, belatedly, the revenue authorities have moved as per Exts.P22 and P23 orders, but, no action was seen seen taken to investigate the criminal offences committed by the party respondents and others or to initiate criminal prosecution on account of the alleged illegal influence of the 26th respondent and the money power and influence of respondents 6 to 25. Complaints were filed alleging serious crimes before the Circle Inspector of Police, Thiruvananthapuram dated 18.12.2012, before the Commissioner of Police dated 14.2.2013 & 10.4.2013 and before the Minister for Home dated 9.7.2013 and before respondents 1 to 4 on 9.7.2013. Even now, it is alleged that there is no response from the authorities. Copies of the complaints are marked as Exts.P31 to P34. 31. Petitioners have furnished telephone numbers of respondents 6, 26 & 28 in paragraph 34 of W.P.(C). No.19462/2013. It is alleged that the telephone records and voice tapes of respondents 6 to 32 will reveal the collusive and conspiracy between those respondents and the fraud and offences committed by them. 32. The 4th respondent, the Director, Vigilance and Anti Corruption Bureau, filed a detailed statement in Kadakampally case. Counter affidavits were also filed by respondents 6 & 7, respondents 10, 13, 14 & 15, respondents 26 & 27, 28, 33, 35, 37 & 38 in W.P.(C).No.19462/2013. The 36th respondent filed a statement. 33. In the statement filed by the 4th respondent it is inter alia stated that the President, Kadakampally Village Land Owners' Action Council filed a complaint dated 23.2.2013 before the Government alleging very same criminal acts as mentioned in the writ petition. The Government had initiated vigilance enquiry as per order dated 23.5.2013 and the same is pending. It is also reported that more than 150 families are residing in the land who claim title as per the documents held by them and that they have also paid land tax up to 20.12.2013. It is also stated that for widening of Aamiyazhanchan Thodu, a portion of the above 45.50 acres of land was acquired and compensation was given to the persons now in possession by the land acquisition authorities. It is stated that inclusion of land in dispute in Thandaper No.3587 was obtained illegally. It is reported that the reasons for effecting mutation of 1.47 acres of land in the name of Ashraf (R15) also requires to be enquired into detail. It is reported that the scope of vigilance enquiry is limited to the involvement of Government Officials into the alleged illegal acts alleged to have been done by them to help the persons claiming to have title over the property. 34. All the party respondents denied the allegation of commission of any offence under the IPC and PC Act. All of them contended that they have not fabricated any documents whatsoever and denied the claim of title of the petitioners. The
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contesting party respondents claimed that they along with others are having absolute ownership rights over 45.54 acres of land comprised in various survey numbers of Kadakampaly Village and that the present claims are cooked up for political gains motivated at the behest of politicians for media coverage and cheap publicity. It is also stated that the allegations were part of civil dispute and the same is pending in O.S.No.85/1971 before the Principal Sub Court, Thiruvananthapuram. It is stated that receiver appointed by the court in the civil suit has already taken possession of the properties, that certain items of the properties scheduled to the plaint has already taken possession by some of the sharers and the remaining properties are under the process of being taken over by the receiver. 35. In the counter affidavit filed by respondents 10, 13 & 14 it is stated that the allegations raised by the petitioners were investigated by Crime Records Bureau, Thiruvananthapuram as Crime No.47/2007 of Varkala Police Station. Copy of the Final Report in Crime.No.47/2007 is produced as Ext.R10(e). In the Final Report it is stated that the disputed property is in the possession and enjoyment of the complainants and that they are remitting the tax. It is further reported that the grievance of the complainants can be ventilated before the civil court. It is for the petitioners to approach the civil court and establish their title over the properties. Stating that the allegations raised are of civil nature the Dy.S.P, Crime Records Bureau submitted a refer report before the Judicial First Class Magistrate Court, Varkala. The said complaint was filed by some other persons who claim title over the properties in different survey numbers in Kadakampally Village. The facts stated are in respect of crime registered in 2007 and not about the present crime. 36. The 15th respondent is A.M.Ashraf. Respondents 19 to 25 are his sisters. He filed counter on behalf of respondents 19 to 25 as well. In the counter they claimed title to the disputed property of 45.54 acres of land. The learned counsel for respondents 16 to 21 Sri.Vakkom Vijayan support the case of the 15th respondent. 37. In the counter affidavit filed by the General Manager, Vodafone, the additional 36th respondent, it is inter alia stated that as per the licence condition this respondent needs to maintain records pertaining to call details and the like exchanged on the net work for one year and same needs to be destroyed thereafter unless otherwise directed by Government of India (Clause 41.17 of the licence conditions). It is stated that from the achieves they could retrieve and retain data base for a period of 12 months preceding the intimation and communication of the order. It is stated that all the call details and all the short message details without the text message are maintained for the above period as prescribed by Government of India. There is no voice recording of the customers as it is not permitted by law and due to technical non-feasibility as well. It is stated that in compliance of Section 5(2) of the Indian Telegraph Act and the Indian Telegraph Rules 1951 as amended, the appropriate authorities specified therein can by order intercept or detain or retrieve and enable voice recording through their own system. It is also stated that the call particulars and message particulars without any text of the message for the period of one year had been retained in compliance of the orders
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of this Court and future call details and message details without text of the message, shall also be retained until further orders from this Court. 38. In the counter affidavit filed by the 38th respondent, Divisional Engineer (LEA), Office of the Nodal Officer, BSNL, Ernakulam it is inter alia stated that the call details of BSNL customers as given in paragraph 34 of the writ petition are available only with effect from 1.11.2012 as on 6.11.2013 and have been preserved. In the counter affidavit it is also marked the mobile numbers with address as per BSNL system records, the CDR of which have been preserved with effect from 1.11.2012. 39. The findings and observations in the report dated 15.11.2013 of the Revenue Secretary in W.P.(C).No.19462/2013 (Kadakampally case) is summarised as follows: Paragraph 7B at page 28 reported that "T.P.No.1602 has been created before the execution of the documents on 29.6.2005". "T.P.No.1602 was one which was pasted just after T.P.No.1601 with the remittance details of Thandaper No.1601 (Annexure XVII) as observed from the office copy of the Land Tax Receipt (Annexure-XVIII). In other words, T.P.No.1602 appears to be a forged one as rightly alleged by the petitioner". "Copy of the partition deed No.2677/2006 submitted before the Tahsildar, Thiruvananthapuram by the 15th respondent is a fabricated document (page 33)". "Unless and until otherwise proved, it can be observed beyond any doubt that the forged document was submitted by A.M.Ashraf (15th respondent) himself and how and when he forged the same needs to be investigated by appropriate agency". "The suspected T.P.No.3587 in the name of Abdul Rehman Kunju did not figure in any of the registered documents mentioned above, except the forged one submitted by Ashraf along with his petition. This may also be investigated further by an appropriate agency to understand the mysterious linkages". "In the document No.1003/2012 dated 9.3.2012 (Annexure- XXVI) the seller is Smt.Suhra Beevi and buyers are C.K.Jayaram and K.H.Abdul Majeed, who are respondents 6 & 7 respectively. In this document T.P.No.3587 is mentioned. The recitals in the documents reveals that the buyers were only the land brokers who would help Suhra Beevi to alienate 11.75 acres of land in item No.I; 45.00 cents in item No.II, 2.00 acres in item number III and 15.00 cents in item number IV. It is found that the said document is defective and how such a document got registered at the Principal SRO, Thiruvananthapuram as per Registration Act, 1908 warrants further investigation". Paragraph 10 at page 37 reads as follows: (page 35-36) "a. There has been consistent effort from respondent No.15, Sri.A.M.Ashraf and others since 2008 to mislead revenue authorities by presenting documents which were not valid. b. It is noticed that, over the period the Revenue officials and the Registration officials have crated false Thandaper No.3587 and deeds in the name of Sri.Abdul Rahman Kunju. c. The fabrication was in favour of a deceased person may be to avert action from authorities if caught red handed. d. It is also seen in the Village records that, the hand writing in the records do not tally with the handwriting of the then Revenue officials present. The then Village Man, Mr.Sujan has orally mentioned that "one private individual, Mr.Harikumar, S/o.Subbaiya Pillai was a regular visitor to the Village Office who had access to Village records". This was confirmed by one Mr.Satish Kumar who was a clerk at the office of revenue Division Officer, Thiruvananthapuram during the period. This may also be further
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investigated by an appropriate agency." On a perusal of the whole issue the following things can be noticed: "A. the Thandaper No.3587 is seen created after 2008 as it was lying blank (Soonya Thandaper) since 1984. B. Original Thandaper holder of 3587 was Sri.Krishnapanicker, S/o.Issakki Chami Panicker of Thoppuvilakathu Veedu, Kannamoola, which became blank on 16.8.1984 pursuant to PV 10056/84. C. Before 3587 was assigned to the above person, it was in the name of Sri.Sankaran Madhavan of Karikkakam. D. At least for the last 72 years, Thandaper No.3587 was not in the name of current Thandaper holder (suspicious) Sri.Abdul Rahman Kunju." Page 42-43 under the head findings and observations the following findings are recorded. "T.P.No.1602 is fabricated and should be cancelled. From T.P.No.1602, other T.P.Nos.34722, 34846, 34847, 34848 were created which were subsequently cancelled by the Sub Collector, Thiruvananthapuram by order dated 27.6.2009. T.P.No.3587 is fabricated and should be cancelled. T.P.No.3587 is seen created after 2006 in the name of the person who demised in 1979. The officials from the Village Office, Kadakampally have created this Thandaper surely in connivance with the outsiders. This aspect needs to be enquired in detail by an appropriate investigating agency. However, the above Thandaper Number can be cancelled straightway by the RDO, Thiruvananthapuram, since there are no claimants for this Thandaper Number. At least for the last 72 years, Thandaper No. 3587 was not in the name of current Thandaper holder Sri.Abdul Rehman Kunju. The lands which are currently included in Thandaper No. 3587 was never in possession of either Abdul Rehman Kunju or his legal heirs. The lands which are currently included in Thandaper No.3587 was never in possession of the Advocate Receiver, Sri.P.K.Thomas, who was appointed as per the direction in O.s.No.85/1971. The creation of Thandaper bearing No.3587 is not as per Rules contemplated in Rule 3(b) (i) and 14(1) of the Transfer of Registry Rules. But Thandaper No.44954 which is created from 3587 is illegal and the action of the then Village Officer Sri.P.M.Subramanian Pillai is against Rules. Page No.9 of the document submitted by the 15th respondent before the Tahsildar is a fabricated one. It is different in Sub Registrar office copy and the copy submitted before the Tahsildar, Thiruvananthapuram for effecting Transfer of Registry. Copy submitted before the Tahsildar is by 15th respondent Ashraf. He alone can be held responsible for fabricating page No.9 of the document unless and until proved otherwise. Cancellation of documents, if any, can be done only through a competent civil court. This aspect should also be investigated by an appropriate investigating agency". 40. On the basis of the news item appeared on 8.5.2013 and continuously thereafter that there was an attempt to grab 45.50 acres by creating false documents, Government had ordered vigilance enquiry. The Department after due enquiry found more or less the same facts and recorded findings similar to the report submitted by the Revenue Secretary in W.P.(C). No.19462/2013. 41. The Secretary, Revenue, Government of Kerala, in both comprehensive enquiry reports in the two writ petitions entered clear and unambiguous findings in a fair and objective manner. The Secretary examined the allegations raised by the petitioners and respondents, perused the revenue records, other documents and
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depositions of officials and others. The reports established the fact that the revenue records maintained in both villages were fabricated, new Thandaper records were created by the revenue officials fraudulently in conspiracy with some of the respondents and others leading to social chaos. It is reported that the circumstances leading to the mischiefs, the persons involved behind the fabrication and the involvement of revenue officials can be known by a deeper investigation by an appropriate agency. 42. The extent of property involved in Kadakampally Village is 45.54 acres and in Edappally North Village is 1.16 acres of land (actual extent after re-survey is identified as 99 cents). The reduction in the extent is disputed and is the subject matter of complaint pending before the revenue authorities. The enquiry report reveals about the manipulations, creation of false Thandaper, forgery and falsification of records in collusion with the party respondents. Both properties are lying within the Corporation limits of Thiruvananthapuram and Cochin. On a moderate estimate, it is averred that the properties are worth more than 250 Crores and 25 Crores respectively. 150 persons are in possession of the disputed extent of 45.54 acres in Kadakampally Village including the petitioners. They are claiming title by virtue of different title deeds and they are paying land tax. A portion of the said properties was acquired by the Government. The present land owners claimed compensation and compensation was granted to them. There was no claim by the contesting respondents or by the receiver appointed in the suit O.S.No.85/1971. The Revenue Secretary also reported that the lands included in Thandaper No.3587 was never been in the possession of the Advocate Receiver Sri.P.K.Thomas. He was appointed as receiver in O.S.No.85/1971. Ext.P41 is the true copy of the relevant pages of Kerala Gazette dated 27.5.1980 which is a notification issued under Section 3(1) of the Kerala Land Acquisition Act pertaining to the acquisition of properties in Sy.Nos.1270, 1271, 1273 and 1274 and other survey numbers which form part of 45.54 acres. Ext.P42 is the sale deed executed on 9.5.1983 by the petitioners in favour of George Kutty Thomas. Ext.P43 is the copy of the letter dated 29.5.2010 issued by the Special Tahsildar (LA), Thiruvananthapuram. Ext.P44 is the copy of the judgment dated 5.2.1998 in L.A.R.No.110/1990 of the II Additional Sub Court, Thiruvananthapuram. The claimants are found to be the actual owners of the property in possession of the acquired land including the assignees from the petitioners. No person claimed title, possession or compensation under Abdul Rehman Kunju. The acquisition was initiated against the owners who are the persons in the possession of the properties. Ext.P45 is the notice under Section 9(3) issued in L.A.C.No.116/1980 and Ext.P46 is the award dated 23.2.1981 in L.A.C.No.116/80. Ext.P47 and P48 are also relating to the same acquisition. None of the respondents nor the receiver have submitted any claim or objection in the land acquisition proceedings or sought to claim compensation. The acquired land now vested with the Government consequent to acquisition having an extent of 1.5 acres in the disputed survey numbers is also included in the fraudulent Thandaper No.3587 alleged to have been created by respondents 6 to 32 through fraud and collusion. 43. It is alleged by the petitioners that the 15th respondent in Kadakampally case in collusion with the other party respondents have created a sale deed in favour of one Praveen and arranged for re-assignment of the said land having an extent of
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1.47 acres in Sy.No.1270 and 15 cents in Sy.No.1282 of Kadakampally Village to his own name as per sale deed No.2617/2008 of Thiruvananthapuram SRO. He obtained mutation of this property to his name. In the said context, the petitioners applied for copy of the partition deed No.2677/2006 dated 19.8.2006. In page No.9 of the said document Thandaper Number is inserted in the 3rd line from the bottom. From the reports it is seen that page No.9 is a fabrication and insertion which is typed out in a different font and has obviously been inserted in the document at a subsequent stage which could have been only at the time of fabrication just prior to the submission of documents before the revenue authorities in connection with mutation. Ext.P7 is the copy of the partition deed No.2677/2006 dated 19.8.2006 issued from the Taluk Office by the State Public Information Officer under the Right to Information Act. Petitioners obtained another copy of the partition deed. The said copy is marked as Ext.P8. Page No.9 in Ext.P8 is significantly different, in that the font of the print is different and Thandaper No.3587 is not seen included among the Thandaper numbers mentioned in the said document and the signatures at the bottom of the page are also different, pointing out to the fact that earlier document produced along with application of 15th respondent for mutation of properties was a fabricated and forged one. Ext.P9 is the copy of the statement of the Additional Tahsildar in W.P.(C).No.8720/2012 and copy of the Thandaper register of T.P.No.3587. The Thandaper register shows that T.P.No.3587 was a '0' Thandaper. There was no land left in the said Thandaper which has been recreated subsequently. In the counter affidavit filed on behalf of the Government in W.P. (C).No.8720/2012, filed by the mother of the 15th respondent, it is stated that the petitioner therein did not have possession or title to the properties and that no land involved in the decree of O.S.No.85/1971 stand in the name of the plaintiff in Kadakampally case as per Village records and that the properties were not in her possession. It was also stated that the petitioner therein is not the land holder of the plaint schedule property. Ext.P15 is the copy of the counter affidavit. 44. Learned counsel for the 15th respondent Sri.Balagovindan contended that the property having an extent of 45.54 acres originally belonged to one Subramanya Rue of Koovakkara Madom, that he received consideration of Rs.2,51,967/- from Kochu Pillai Moosa, that Subramanya Rue executed a document as OttiKuzhikkannam in favour of Kochu Pillai Moosa mortgaging the entire extent. Kochu Pilla Moosa is the great grandfather of the mother of the 15th respondent. It is submitted that the document of 1097, marked as Ext.R15(b), being an OttiKuzhikkannam deed as defined under the Land Reforms Act, his predecessors became the cultivating tenants since the properties were in the possession of receiver with effect from 28.5.1969. According to him, at the time of commencement of Land Reforms Act, the properties were under custodia legis and that the claim of the petitioners in respect of the properties mentioned in Ext.R15(b) is therefore misconceived. Similar contentions were raised by respondents 10, 13 and 14. It is also pointed out that in the Pauper Suit No.13/1960, later numbered as O.S.No.67/1961 on the file of the Sub Court, Thiruvananthapuram and subsequently transferred to the District Court and re-numbered as O.S.No.4/1965, a decree was passed. A copy of the decree is marked as Ext.R15(d). It is contended that the entire mortgage along with Kuzhikkanam right got transferred to the predecessor of the 15th respondent.
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O.S.No.4/1965 was filed in the year 1960 for partition as a Pauper Suit. Subsequently, another suit for partition was also filed between the members of the family of the contesting respondents before the Sub Court, Attingal as O.S.No.14/1969. In the said suit a receiver was appointed for plaint 'A' and 'B' schedule items. Properties in dispute are also scheduled in the suit claiming title by virtue of Ottikuzhikkanam deed of 1097. It is submitted that on the basis of the order of the Sub Court in O.S.No.14/1969 Adv.Sri.T.M.Mohammed Shafi was appointed as the receiver-cum-commissioner. Later the present receiver Sri.P.K.Thomas assumed charge. 45. Ext.R15(b) is the copy of the document executed by Subramanian Rue in favour of Kochu Pilla Moosa in the year 1097. The judgment in A.S.No.82/1973 on the file of this Court arising from the judgment in O.S.No.85/1971 on the file of the Principal Sub Court, Thiruvananthapuram is produced and marked as Ext.P10. On a verification of Ext.P10 judgment it is seen that the said suit has been withdrawn as per the judgment dated 20.2.1980 in A.S.No.82/1973. Therefore, it is evident that no decree exists in O.S.No.85/1971. O.S.No.85/1971 was a suit for partition. O.S.No.4/1965 was filed by one of the members of the tharavad, who is the 12th defendant in O.S.No.14/1969. It is stated that O.S.No.85/1971 was compromised out of court due to the influence of the karanavar and that the suit was withdrawn by the other members of the tharavad. The petition for appointment of receiver in O.S.No.14/1969 (O.S.No.85/1971) was allowed and a receiver was appointed for the schedule items which are not in the possession of any of the parties to the suit. There was no occasion for the receiver appointed in O.S.No.85/1971 to take possession of the present disputed property. The contesting respondents failed to produce the so called report of the receiver taking possession of the property. In the facts and circumstances of the case, since the properties are in the possession of mortgagees, it may not be possible for the receiver to take possession of 45.50 acres. The mortgagees or their successors are not parties to both suits. The order passed by the Sub Court, Attingal dated 28.7.1969 in I.A.No.1094/1969 in O.S.No.14/1969 is produced and marked as Ext.R15(j). Copy of the judgment dated 31.7.1972 in O.S.No.85/1971 on the file of the Principal Sub Court, Thiruvananthapuram is produced and marked as Ext.R10(b). In O.S.No.85/1971 on the file of the Sub Court, Thiruvananthapuram as many as five items of properties were scheduled. The suit namely, O.S.No.4/1965 of District Court, Thiruvananthapuram (originally filed as Pauper Suit No.13/1960) was also dismissed as withdrawn. Thus, the two suits filed by the members of the family for partition did not end in adjudication of their claim and both suits were withdrawn. 15th respondent and other party respondents who are the family members claimed right by virtue of Ext.R15(b) document of 1097. The learned counsel for the 15th respondent Sri.Balagovindan argued at length in support of his contention that their predecessor Kochu Pilla Moosa acquired mortgage right over 45.54 acres. 45(a). I have read Ext.R15(b) document carefully. On the date of execution of Ext.R15(b) OttiKuzhikkannam it is seen that the jenmi has no possession over the disputed property. The property was outstanding with two mortgagees. At the time of execution of Ext.R15(b), the period of mortgage was not over. Jenmi of the property received certain amounts from Kochu Pilla Moosa. It is agreed by both
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sides that after the expiry of the period of mortgage, the jenmi shall redeem the mortgage from the mortgagees and further agreed to put Kochu Pilla Moosa in possession of the properties. The properties were outstanding on mortgage with Kanakku Padmanabha Pillai and Easwari Narayana Pillai. Though Ext.R15(b) document was executed, the properties remained in possession of mortgagees. Since the jenmi was not in possession of the properties in dispute there was no occasion for the jenmi to transfer possession of the property to Kochu Pilla Moosa. Either the jenmi or Kochu Pilla Moosa or predecessors had taken any measures to redeem the property from the mortgagees. The mortgagees continued their possession and enjoyment after the expiry of the term of mortgage. The two suits referred earlier were filed for partition between the members of the family. In the suits the disputed property is also included as items claiming that the family members of Kochu Pilla Moosa has got absolute title over the property. There was no adjudication in the suit and both suits were dismissed as withdrawn. There was no prayer for redemption in both suits. It is not known for what purpose the properties in the possession of mortgagees were also included in the suit for partition and separate possession. Till this point of time the predecessors-in-interest of Kochu Pilla Moosa had filed any suit against the mortgagees or their successors. Since the properties never came into the hands of Kochu Pilla Moosa or his predecessors at any point of time, they cannot contend that they are cultivating tenants entitled to assignment. Possession of the property was outstanding on the mortgagees and the mortgagees continue to possess and enjoy the properties. I have perused Ext.R15(b) document of 1097. It is styled as an otti kuzhikkanam. None of the mortgage holders are parties to the document. Properties remained outstanding in the name of the original mortgagees. The original of the document will show that it enumerates the innumerable debts, liabilities and mortgages created by members of Koovakara Madom and then, after stating that such amounts are retained with Moosa Haji to be paid to the executant as and when he asks for the same for clearing off the said liabilities, the deed evidenced payment of only an amount of 27,366/- panams out of the total amount of 2,51,967/- and < panam, which is the sum total of the liabilities enumerated in the said document and the above said payment of 27,366/- panams alone is recorded as received by the executant of the document. The contesting respondents have no case that the document of 1097 is a document of superior mortgage. It is not disclosed as to whether the jenmi of document No.1899/1097 had ever taken any steps to redeem the mortgage from the predecessors of the petitioners or he had ever got possession of the same so as to handover the same to Moosa Haji or Abdul Rehman Kunju. In these circumstances, the contention raised by the contesting respondents including the 15th respondent that they are the title holders of the property by virtue of Ext.R15(b) document of 1097 appears to be untenable. 46. As regards Edappally Village, besides six buildings there is a three storied building in the property. Respondents 8 & 11 submitted objections before the 2nd respondent based on a report submitted by respondents 14 & 15. The said respondents raised a contention that Thandaper No.8826 did not belong to the petitioners' family and it stood in the name of Vallon Mani. Ext.P14 is the copy of the letter and extract of Thandaper register issued by the 14th respondent. It is
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submitted by the petitioners that on the basis of Ext.P14, the 16th respondent deliberately and falsely reported that the claim of the petitioner in Thandaper No.8826 was false and tax for the year 1969 and 1971 had been received wrongly. It is alleged that respondents 14 & 15 fraudulently reported that old village records and re- survey records do not tally and 16th respondent at the instance of the party respondents 8 to 13 accepted the same ignoring all documents produced by the petitioners. Ext.P1 is the copy of the sale deed No.1186/1957 of Edappally SRO. Ext.P15 is the copy of the report dated 12.12.201 issued by the 16th respondent and Ext.P16 and P17 are the tax receipts produced by the 2nd petitioner before the 16th respondent. Taking note of all these facts the 2nd respondent, the Land Revenue Commissioner, in the first instance, has issued a letter to the parties that since so many court proceedings are pending the Revenue Department cannot take any further action in the matter. Copy of the said letter is marked as Ext.P18. The 11th respondent being not satisfied, again filed Ext.P19 representation before the Minister for Revenue. It is alleged that through the agency of the 18th respondent caused Ext.P18 proceedings to be reviewed and reopened, a power which is absent in the 2nd respondent. It is alleged by the petitioners that on account of the illegal manipulations by respondents 8, 11 & 18 to 20 and the influence exerted by them at the Government level, the proceedings were reopened by the 2nd respondent immediately. Copy of the letter dated 18.4.2012 issued from the office of the Land Revenue Commissioner is marked as Ext.P20. Ext.P20 letter was issued to the 3rd respondent with a questionnaire. It is alleged in the writ petition that the questionnaire was couched in carefully planned language with an intention to get a positive report on some points alone favourable to respondents 8 to 13 and 18 to 20. It is also averred that in the meanwhile respondents 14 & 15 have created another report dated 21.1.2012 suggesting that the lands had been recorded in the name of the petitioners for the first time only after resurvey as per Thandaper No.2127. 17th respondent, the Additional Tahsildar repeated the allegations made in the earlier report submitted by respondents 14 & 15 and forwarded the same to the 3rd respondent District Collector. The said report is marked as Ext.P24. It is alleged that the District Collector simply copied the same and submitted the same as his report before the Land Revenue Commissioner. Ext.P25 is the copy of the letter dated 16.7.2012 submitted by the District Collector to the Land Revenue Commissioner. The District Collector did not conduct any hearing or enquiry. He forwarded Ext.P25 letter to the 2nd respondent. The 2nd respondent Land Revenue Commissioner without notice to the petitioners straight away accepted the report forwarded by the 17th respondent. The report stating that the land was vested in the Government under Section 72 of the Land Reforms Act was accepted straight away by cancellation of Thandaper standing in the name of the petitioners. Ext.P26 is the copy of the order dated 4.9.2012 issued by the 2nd respondent. In Ext.P26, the 2nd respondent also ordered cancellation of all the Thandaper numbers and further directed the District Collector to submit a report after cancelling the Thandaper number of the petitioners. The order issued by the 2nd respondent namely, Ext.P26 is under challenge in W.P.(C).No.23144/2012 and is pending. 47. Serious allegations are raised against the party respondents. According to the petitioners, respondents 13 & 14 in the place of the original Thandaper standing in
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the name of the 1st petitioner since 1960 falsely incorporated a new Thandaper prepared in the name of Vallon Mani even without his knowledge or application and thus falsified and fabricated false records at the instance of respondents 8 to 13 and 18 to 20. It is alleged that the official respondents 14 to 17 also collided with the party respondents, through such abuse and misuse of their official position, that they have demanded and taken huge amounts as bribe from respondents 8 to 13 and 18 to 20 and also on account of the undue influence exerted by Salim Raj, the exgunman of the Chief Minister created false records to make it appear that the properties that had belonged to the petitioners family in their absolute possession for the past 86 years, were vested in Government to knock off the said property through fraudulent manipulations. Petitioners in Kadakampally Village raised similar allegations that respondents 8 to 25 in collusion with respondents 29 to 31 and others had created false Thandaper for 45.54 acres of land in Kadakampally Village fabricating and falsifying the original documents to create a false title by incorporating a false Thandaper No.3587 in the records of Kadakampally Village and committed forgery. 47(a). In Edappally case, the learned counsel for the petitioners pointed out that Exts.P3 & P4 are the copies of the basic tax receipts in the name of the 1st petitioner & 2nd petitioner respectively and Exts.P5 & P6 are the copies of the basic tax receipts in the name of the 4th petitioner and 2nd petitioner respectively. The learned counsel Sri.Dinesh R. Shenoy contends that the fact that Thandper No.8826 was in existence even earlier is evident from Exts.P2(3) & (4) which show that portions of properties from Thandaper No.8826 were transferred to Thandaper No.9097 and 9007 as early as in 1983. It is also pointed out that Kader Pillai, the Thandaper holder of 8826 expired only in 1996, such that Thandaper No.8826 was not a zero Thandaper in 1990, when Ext.P50 is purported to have been created in the name of Mani, pointing to the obvious fraud and forgery in this matter and the fact that the original Thandaper No.8826 was destroyed for creating Ext.P20. Ext.P20 is the copy of the letter No.LRB8-34440/11 dated 18.4.2012 and Ext.P50 is the copy of the Thandaper No.8826 of Thrikkakkara North Village. The learned counsel also submits that the contention that the properties in Sy.No.651/8A, 8B & 8C were the properties belonging to Elangalloor Swaroopam is without any basis. It is submitted that all the properties of Elangalloor Swaroopam in Thrikkakkara North Village are recorded in Thandaper No.7 of Thrikkakara North Village and the said thandaper never contained Sy.No.651/8A, 8B & 8C. Petitioners also produced copy of the reply letter dated 6.3.2013 together with copy of Thandper No.7 received from the Village Office, Thrikkakara as Ext.P52. Petitioners produced copy of the settlement register of Thrikkakara North Village as Ext.P53. Ext.P53 would show that properties in Sy.No.651/8A, 8B & 8C are never included in Thandaper No.7. It is contended that Exts.P35 & P53 shows that the said properties never belonged to Elangalloor Swaroopam. Ext.P35 is the certified extract of the settlement register of Thrikkakara Pakuty issued from the Central Archives, Thiruvananthapuram. It is further submitted that in fact the reply issued by the Village Officer will show that the decision to say that the petitioners' father did not have title to the property was taken on the basis of some entry in two documents of title and an encumbrance certificate dated 1.12.2010 and not on the basis of any village records and without reference to the settlement register which had been presented before the Village Officer. According to the learned counsel it is clearly
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points to the dubious methods adopted by the contesting respondents. Copy of the said reply dated 15.11.2012 is marked as Ext.P54. It is also pointed out that in the settlement register the inam of the two items of properties is pandaravaka pattam and third item is Cheranelloor swaroopam and in respect of Sy.No.651/8A and 8C the pattadar shown is the owner. The learned counsel also placed reliance on Ext.P22 document (Ext.R8(a)). Placing reliance on the copy of the patta chit No.2909/1102 ME of SRO, Alangad produced as Ext.R8(2), the learned counsel for the petitioners pointed out that Ext.R8(2) is in respect of 16 acres of land and that the said items are different and distinct properties from the properties in dispute. It is also pointed out in the settlement register the extent of property shown is 2.32 cents whereas the properties in dispute is 116 cents. The learned counsel also placed reliance on Ext.P62 decree obtained by Elangalloor Swaroopam in O.S.No.697/1959 filed for arrears of pattam. The suit was dismissed against the 10th defendant Muhammed. It is also submitted that the property in dispute is not scheduled in O.S.No.697/1959. In the said circumstances, it is contended that the Swaroopam cannot turn around and contend that they are the title holders of the properties. The learned counsel also pointed out that the ultimate aim of the aforesaid manipulation, fabrication and destruction of official records were an attempt to enable the respondents 8 to 13 to fraudulently knock off the valuable properties belonging to the petitioners having an extent of 1.16 acres and containing five buildings worth well over 25 crores. It has been expressly pleaded in the two reply affidavits filed by the petitioners that the present "investigation" by the State is totally dis-satisfactory and the force intended only to help the actual culprits including respondents 2 and 8 to 20 and their conspirators to escape liability. Petitioners expressly stated in paragraph 20 of the writ petition that they did not seek to raise the issue as to the title to the properties or to such adjudication or canvass any relief in respect of title dispute in the present writ petition. The writ petition is only filed in respect of the alleged criminal offences committed by respondents. 47(b). The learned counsel also placed attention to the settlement register Ext.P35 which would show that Sy.No.651/8A & 8B is standing in the name of Kesava Sambla and Narayana Sambla as pattadar holder of patta No.392 and 8C as pandaravaka pattom, pandaravaka Sree Pandarakaryam Cheyvar. The counsel also pointed out that Ext.P52 produced along with reply affidavit which is a thandaper account of Elangalloor Swaroopam No.7 contains no reference to Sy.No.651/8A, 8B or 8C. It is submitted that ethirpattacheettu No.2909/1102 ME produced by respondents 8 to 13 as Ext.R8 (12) contains five items of properties and that the properties mentioned in item No.I is different from item No.6 in sale deed No.1064/1102 ME. There is difference in kara, name and boundaries. The counsel also contend that in the decree in O.S.No.697/1959 of Munsiff Court, Ernakulam filed by Elangalloor Swaroopam against Muhammed and others for arrears of pattom, Sy.Nos.651/8A, 8B & 8C were not included in the schedule. It is submitted that if the disputed property belongs to Swaroopam, no doubt, it would have been included. Ext.P62 shows that the suit against Muhammed was dismissed. It is also pointed out that O.S.No.513/1964 on the file of the Munsiff Court, Ernakulam filed by Muhammed Kavungapadath, son of another wife of Kunjan Marakkar claiming partition of the disputed property evidences undisputed possession and title of petitioners' predecessors. It is also contended that in the sale deed No.2906/1966
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executed by 27th respondent in favour of Illikkal Hassan, who is predecessor of respondents 8 to 13 purporting to assign jenmom rights in the disputed survey numbers, it is pointed out that Swaroopam thandaper did not even contain this property. It is further contended that even at the time of execution of sale deed No.1988/1967 in favour of Illikkal Hassan, the properties stand in the name of Kadir Pillai and Shereefa and not in the name of Elangalloor Swaroopam as evident from Exts.P2 and P74 and further shows that the aforesaid two sale deed are the result of the fraud practiced by the predecessors of respondents 8 to 13. It is also pointed out that if the sale deeds are genuine they may have been with respect to the remaining portion of the properties in same survey numbers. The total extent in the Sy.Nos.651/8A, 8B & 8C is having 232 cents and the petitioners are claiming title only in respect of 116 cents. The counsel submitted that Ext.P12 report submitted by the Village Officer, Thrikkakara North Village to the effect that the properties stood in the name of Elangalloor Swaroopam, that no pattayam had been obtained by the petitioners and there was a mistake in the thandaper that old thandaper No.8826 stood in the name of Vallon Mani, that Tax had been wrongly received in 1969 & 1971 etc. is a false report and the same was prepared behind the back of the petitioners without notice to them and without even verifying the original documents. It is also pointed out that the report was prepared in the handwriting of the 15th respondent and was signed by the 14th respondent, which are marked as Exts.P71 & P73. In the circumstance, it is said that both 14th and 15th respondents are equally culpable. Respondents 14 & 15 submitted another report in tune with Ext.P12 report with reference to an encumbrance certificate, without hearing the petitioners and without verifying the original documents. It is not disputed by any of the parties that the 19th respondent, wife of 18th respondent gunman, obtained a request transfer to the office of the 2nd respondent on 17.2.2013. The counsel submits that on 18.4.2012 a carefully crafted questionnaire as desired by the draftsman is forwarded to the District Collector from the office of the Land Revenue Commissioner (Ext.P20). It is alleged that the questionnaire was crafted in such a way that only answers favourable to 11th respondent could be sent back and the scope of enquiry is limited within the parameters of those questions alone. The counsel for the petitioners Sri.Shenoy also pointed out that 17th respondent was aware that the thandaper in the number is created newly in 1990 long after thandaper No.8826 had become a '0' thandaper in 1982 after the death of Kadir Pillai and partition deed No.362/82, that the property is not part of thandaper No.7 standing in the name of Swaroopam and that there is nothing to even suspect that tax was received wrongly from the petitioners in 1969 and 71. It is also pointed out that on the basis of the report of the Additional Tahsildar on 16.7.2012 the Land Revenue Commissioner, without hearing, straightaway ordered that all the thandaper numbers standing in the name of the petitioners should be cancelled and to submit report to him (Ext.P26). Report of the Principal Revenue Secretary reveal the manipulations made in the office of the Land Revenue Commissioner to issue such orders. 47(c). In Kadakampally case, petitioners produced additional documents with a petition to receive the documents on 25.2.2014. The said petition is I.A.No.3070/2014. The additional documents produced are Exts.P55 to P60. Ext.P55 is the copy of the petition dated 5.6.2008 in I.A.No.2739/2008 in O.S.No.4/1965 filed before the II Additional Sub Court, Thiruvananthapuram. Petitioners are
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defendants 55, 56, 66, 61, 63, 64 and 65. Direction was sought for to the counter petitioner/receiver Sri.T.K.Thomas to hand over possession of the petition A, B & C schedule properties to the petitioners therein. Ext.P56 is the objection filed by the receiver. In Ext.P56 objection it is categorically stated by the receiver that the properties of the petitioners are not seen taken possession by him as per any of the available orders with him. Ext.P57 is the order dated 10.7.2008 in the same I.A. It is stated in the order that the advocate receiver is not certain whether he has taken possession of the properties. The receiver himself filed Ext.P56 objection stating that petition A, B & C schedule properties are not taken possession. In spite of that court passed Ext.P57 oder directing to hand over possession of petition A, B & C schedule properties to the petitioner forthwith since the properties in O.S.No.85/1971 and O.S.No.4/1965 are one and the same. Petitioners also produced Ext.P58, copy of the application dated 11.8.2008 filed before the receiver. Ext.P58 application was filed by one of the defendants who is the 33rd respondent herein before the receiver. In Ext.P58 application at page 9 many items of properties including petition A, B & C schedule properties are shown. Ext.P59 is the copy of the report dated 2.1.2009 submitted by the advocate receiver. The receiver submitted the report stating that he hereby handover possession of properties after obtaining kychit from him. Ext.P60 is the copy of the kychit showing that Abdul Rehman Kunju Nazimuddin 33rd respondent received possession of 45.20 Acres in the suit. The dispute is between defendants and respondents 8 to 21 herein. The learned counsel submits that at that point of time the properties were in the possession of third parties. At no point of time notice was issued to them. Now the 33rd respondent claims title to the property which includes the acquired land belonging to the Government and the Aamiyazhanchan thodu. From the aforesaid facts, it is clear that the court passed order directing the receiver to handover properties over which he says he has no possession that too having an extent of more than 45.20 acres and thereafter the very same receiver files an obviously false report stating that he has hereby handed over the said properties of 45.20 acres of land after receiving kychit from him. It is submitted that the 33rd respondent files an absolutely false kychit claiming falsely that he has obtained surrender of and is taking possession of said 45.20 acres of land. According to the counsel, Exts.P55 to P60 documents prove that all the stories of custodia legis, possession of the receiver, delivery by the receiver etc. are all false, fraudulent and totally malafide. There is much substance in the contention raised by the counsel for the petitioners. 48. Several complaints were lodged by the petitioners in both writ petitions. It is stated that on account of the tremendous influence, political interference and misuse of money power at the instance of the 18th respondent, others and the position of the 19th respondent (in W.P.(C).No.19431/2013) in the Revenue Department, such complaints were unattended. Complaints have been repeatedly filed seeking investigation of the criminal acts of collusion, fraud, fabrication of records and conspiracy of party respondents in both cases and misuse of power of officials including the office of the Chief Minister. Ext.P28 is the complaint dated 13.6.2013 in Edappally case filed before the Home Minister. Exts.P29 is the complaint dated 21.6.2013 submitted before the Minister for Home. Identical complaints were filed before respondents 1 to 7 also. Complaint dated 21.6.2013
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filed before the Chief Minister is marked as Ext.P30. It is stated that complaints have been filed before the Director General of Police also. Similar complaints were filed by the petitioners in Kadakampally case before the police authorities and revenue authorities. It is alleged that no action was taken to investigate the criminal offences committed by the party respondents or to initiate criminal prosecution, on account of the illegal influence of the 26th respondent and the money power and influence of respondents 6 to 25 in W.P.(C).No.19462/2013. On 14.2.2013 complaints have been filed before the Commissioner of Police. On 7.7.2013 complaints have been filed before respondents 1 to 4. The complaint dated 18.12.2012 lodged before the Circle Inspector of Police is marked as Ext.P31. Ext.P32 is the copy of the complaint dated 14.2.2013 filed before the Commissioner of Police, Thiruvananthapuram. Ext.P33 is the copy of the complaint dated 10.4.2013. The complaint dated 9.7.2013 filed before the Minister for Home is marked as Ext.P34. It is said that identical complaints are filed before respondents 1 to 4 on the same date of lodging Ext.P34 complaint. 49. Respondents 6 & 7 in W.P.(C).No.19462/2013 (Kadakampally case) entered into five registered agreements purporting to purchase 12.25 acres of land from Muhammed Fathima, 8th respondent Nizar Ahammed, 9th respondent Salma Beevi, 17th respondent Chandrakumar, eight children of Muhammed Fathima and others and the price fixed is 13,37,00,000/-. The advance paid is Rs.11 Lakhs. The properties are portions of 45.50 acres standing in Thandaper Nos.3587 and other numbers. Admittedly, the 6th respondent C.K.Jayaram, a real estate agent, and K.H.Abdul Majeed, the 7th respondent are not at all affluent enough to purchase the vast extent of 12.27 acres of land. C.K.Jayaram is a real estate agent doing business on a small scale and Abdul Majeed is hailing from an ordinary middle class family. It is reported by the Revenue Secretary in the report that the intending buyers C.K.Jayaram and Abdul Majeed were only land brokers who would help Suhra Beevi to alienate 11.75 acres of land in item No.I; 45 cents in item No.II, 2.00 acres in item No.III and 15.00 cents in item No.IV. It is further reported that it is not known how such documents got registered at the Principal Sub Registrar Office, Thiruvananthapuram as per Registration Act, 1908 warrants further investigation (page 35-36 of the report). On a moderate estimate, the properties for which agreements were executed having its location within the Corporation limits is worth more than 5 Lakhs per cent. For purchasing 12.27 acres of land an amount of more than 60 Crores is required. Advance amount paid is only 10 Lakhs. For purchasing the property worth more than 60 Crores, it is totally unbelievable that the owners of the property will accept 10 Lakhs as advance. In the fair value notification produced along with the statement filed by the petitioners dated 6.1.2014 , the fair value of the commercial plot in Kadakampally Village is 10 Lakhs per are and residential plot with PWD road frontage 4.94 Lakhs per Are and with Panchayath road frontage 4,32,200/- per Are. It is pointed out that there are 10 metre wide roads and 108 apartments were constructed by the Confident Group besides 71 houses situated in the property. The property consists of two big apartment complexes and residential flats owned by Confident Group. The main road leading to the city is lying at a 10-12 metres distance. The road passing through
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the properties leads to the National Highway, KIMS Hospital and other institutions. 50. The agreements itself seems to be not genuine as the same is executed with oblique motives. Sellers are Muhammed Fathima and her children who are party respondents 8 to 15 and 19 to 25 and 17 & 18 who are third persons. The agreement includes the property claimed by the petitioners in Sy.Nos.1279- 1288. Due to the serious complaints levelled against the parties, the parties desisted from enforcing the agreements. The period fixed for execution of the sale deed was 11 months. The other two agreements referred are agreement No.1031/2012 executed on 16.3.2012 covering portions of 11.75 acres and agreement No.1034/2012 dated 16.8.2012 covering portions of 15.12 acres. The party respondents created the sale deeds in 2005 & 2006 and applied for mutation. They created the sale deed in favour of others. An extent of 5.50 acres in Sy.No.1602 was sold to four person in 2005 and vide five sale deeds they purported to sell 7.35 acres to others. The two documents executed as aforesaid in 2005 & 2006 are registered in the SRO, Varkala and Pothencode respectively. Partition deed in favour of the party respondents was registered in the SRO, Thiruvananthapuram. The intention behind the registration of the documents in respect of 5.50 acres and 7.35 acres before the SRO, Varkala and SRO, Pothencode is not known. Registration of different sale deeds before different SRO other than Thiruvananthapuram may be for concealing the transaction from the real owners of the property. Three sale deeds were executed by the 15th respondent A.M.Ashraf during the period 2012-13. Allegation of the petitioners is that the agreements were executed at the behest of the land Mafia gang lead by Salim Raj, respondent No.26, the then Gunman in the office of the Chief Minister, who is stated to be the Chief of the Mafia group. Salim Raj requested Dr.Ashok Kumar, who is one of the associates of the petitioners, in the month of December, 2012 to arrange a meeting. It was agreed that Salim Raj, the prospective vendees and Dileep, who is the 28th respondent will meet Dr.Ashok Kumar at his residence. The meeting took place at the residence of Dr.Ashok Kumar. A few days later, Salim Raj wanted another meeting and the place of meeting was fixed at the Government Guest House, Thycaud, Thiruvananthapuram. Salim Raj, Jayaram and others were present at the Government Guest House, Thycaud. The said meeting was with the power of attorney holder of the petitioners Sri.S.Balu. It is stated in the complaint marked as Ext.P21 that the gang members told the complainant that they have already obtained ownership over the land and there is no need for any further discussion in the matter. They told to Sri.S.Balu that they know how to get the land for which they paid advance. Again another meeting was arranged at the office of Dr.Ashok Kumar at Poojappura. It is stated in Ext.P21 complaint that Salim Raj, Abdul Majeed, Dileep, Ashok Kumar and the power of attorney holder of the petitioners Sri.S.Balu were present. In the discussion the gang members conveyed their decision to take over the land with or without the co-operation of the petitioners. They also informed the petitioners that it will not be possible to trade the land to anybody else other than them. When the petitioners refused to agree with the attitude, Salim Raj offered to withdraw their claims if the complainant surrender 50% of the land. Ext.P15 is the counter affidavit filed by the 2nd respondent in W.P.(C).No.8720/2012 filed by Muhammed Fathima. The counter affidavit was filed by the deputy Tahsildar, Taluk Office, Thiruvananthapuram. In
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the counter affidavit it is inter alia stated that the report of the Village Officer, Kadakampally reveals that the petitioners in W.P.(C).No.8720/2012 are not in possession of any of the lands comprised in the disputed survey numbers and other survey numbers of Kadakampally Village. It is further stated that the land is in the possession of various other persons and no land comprised in the said survey numbers stand in the name of the petitioners as per the Village records and hence the Village Officer cannot receive land tax from the petitioners. W.P. (C).No.8720/2012 stands dismissed. It is clear from the circumstances that the attempt of the gang is to grab the properties on the strength of manipulated and false entries in the revenue records and to offer some amounts to the persons who are the owners of the land so as to get release of their right in their favour. It seems that the conduct of respondents 8 to 25 is to knock off the property for a small price by threatening the persons in possession of the property on the strength of falsified revenue records. 51. In the report of the Deputy Director, Vigilance, South Zone dated 1.7.2013 it is stated that there was an attempt to grab 45.54 acres of land worth crores of rupees, that about 200 families, who are the real owners of the property are unable to remit the land tax, that complaints will have to be investigated and strict actions shall also have to be taken against the officers who are responsible for the same. During June, 2013 and continuously thereafter various newspapers and medias reported the attempt of land grabbing and the creation of fake title deeds by the Gunman of the Chief Minister, Salim Raj and his gang. Exts.P24 to P30 are the copies of the newspaper reports in Kadakampally case. It is reported that the former Gunman of the Chief Minister and his gang by using their influence and clout attempted to deprive the properties from the owners at Edappally and Kadakampally. It is reported that the forged documents drawn up by revenue officials have lead to the Land Revenue Commissioner's decision and that this was made possible by the influence wielded by Salim Raj and his wife, who is employed in the office of the Land Revenue Commissioner. It is also reported that the Chief Minister's office was misused by Salim Raj and that the original documents in the Revenue Department were destroyed by the officials in the Village Office with the assistance of staffs of the District Collector's office. 52. The materials produced and examined would prima facie reveal involvement of officers of the highest level as well. Source of income for the purchase of vast extent of land which is very valuable lying within the Corporation limits and the persons behind the purchase are areas to be investigated. Several crores of rupees are involved in the deal. The investigating agency will have to investigate and book the persons who are financing the deal. Fabrication of revenue records, commission of forgery, falsification and destruction of records and documents for the purpose of knocking off vast extent of property would prima facie reveal that criminal offences have been committed by persons wielding high influence in the administration of the State. It is not known till now for whose behalf and whose benefit the properties are attempted to be purchased from persons who are alleged to have no title to the property. In all probability the persons behind the screen are mighty persons wielding influence in the political administration of the State. A full
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fledged investigation is necessarily to be conducted to reveal the role of Salim Raj, the former Gunman of the Chief Minister, his wife, who are respondents in the two writ petitions, party respondents and other big wigs, whose names have not so far come to lime light. 53. The learned counsel for the petitioners in W.P.(C). No.19462/2013 submitted that in spite of various complaints namely, Exts.P31 to 34 lodged raising very serious allegations against the officials of the Revenue Department, Salim Raj the suspended Gunman of the Chief Minister, his wife and others, till date, no crime was registered. In the statement filed on behalf of the 4th respondent, Director, Vigilance and Anti Corruption Bureau, it is inter alia stated that the 4th respondent had initiated vigilance enquiry in relation to the allegations raised in respect of 45.54 acres and the same is in full swing. 4th respondent reported that at present more than 150 families are residing in the land who claim title as per documents held by them and that they have also paid land tax up to 2012-13. It is stated that inclusion of land in Thandaper No.3587 is a patent illegality. The 4th respondent also stated that the scope of vigilance enquiry is limited to the involvement of Government Officials into the illegal acts alleged to have been done by them to help the persons claiming to have title over the property. From the statement it is clear that the police is not taking any action, registering cases or to investigate the very serious allegations raised in the complaint. 54. In the light of the statement of the 38th respondent that call details for one year period is only available, the Kerala Police may not be able to retrieve the voice records and tapes for the period beyond one year. It is pointed out that CBI alone can retrieve such records beyond the period of one year up to a period of three years to unearth the collusive affair, conspiracy, fraud and other offences committed alleged to have been taken place during 2011-13. 55. Petitioners contend in Kadakampally case that they are the co-owners of 12.27 acres of land in Sy.No.1279, 1280, 1281 to 1288 of Kadakampally Village. They obtained the property as per the registered Otti Transfer Deed No.2882/1969 of SRO, Thiruvananthapuram. Their father, who purchased the jenmom right, had assigned the jenmom right to the petitioners. The properties were mutated to the name of the petitioners and they are paying the land tax thereon eversince 1980. Ext.P2 is the Otti transfer Deed No.2882/1969. Ext.P35 is the prior Otti assignment deed of the year 1960. Sale deed No.2019/1968 executed by the jenmies of the property in favour of K.P.Ramachandran Nair, who is the father of the petitioners is marked as Ext.P36. Ext.P37 is the judgment in O.S.No.38/1120 of the District Court, Thiruvananthapuram in which the property in dispute has been brought to sale. Petitioners also produced photocopy of the letter dated 23.7.2011 issued by Sri.T.K.Thomas, receiver in O.S.No.85/1971, as Ext.P38. In Ext.P22 report dated 1.7.2013, prepared by the Deputy Collector, South Zone, Vigilance and in the report submitted by the Revenue Secretary, it is stated that the receiver does not have physical possession of the property in Kadakampally Village. From the materials on record it is seen that neither the receiver nor the legal heirs of Abdul Rehman Kunju ever had possession of the disputed properties in Kadakampally Village. Learned
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counsel for the petitioner drew my attention to page No.14 Point No.3 in Ext.P22 report wherein it was reported that the direction in Ext.P10 judgment to give effect to A4 partition agreement, the compromise agreement does not refer to any items in the disputed property scheduled in Kadakampally Village. 56. As per the settlement register maintained during the regime of Maharaja of Travancore the disputed land belonged to the jenmies, M/s.Koovakkara Madom. They had created Otti right in favour of joint family of one Kanakku Padmanabha Pillai and Madhavan Nair, Vaiyakalathu Veedu by way of Otti and Kuzhikkanam. The relevant pages of settlement register is produced and marked as Ext.P5. Later, by virtue of partition deed No.2509/1101 ME of SRO, Thiruananthapuram, the lands along with Otti liability devolved upon Madhavan Nair. It is the case of the petitioners that rights in the property has been brought to sale in O.S.No.38/1120 on 15.11.1950 and was purchased by Narayana Potti Shambu Potti in court auction. Sale was confirmed on 7.8.1951 and delivery of possession was obtained through the process of court on 19.8.1954. As per registered Otti No.2313/1960 of SRO, Thiruvananthapuram, Madhavan Nair and his wife transferred the Otti rights over the said property to the name of Vasudevan Pillai and Vasu Pillai. Later, jenmom rights have been purchased by K.P.Ramachandran Nair, father of petitioners from the legal heirs of Narayana Potti Shambu Potti as per sale deed No.2019/1968 of SRO, Thiruvananthapuram marked as Ext.P36. It is submitted that the father of the petitioners paid the balance mortgage amount as directed by the Sub Court, Thiruvananthapuram in O.S.No.94/1968 and released the mortgage and paid tax and the petitioners have purchased the Otti rights in the property from the aforesaid Vasudevan Pillai and Vasu Pillai as per document No.2882/1969 marked as Ext.P2. Petitioners had effected mutation of the properties to their own names also and paying tax thereon in T.P.No.10150. None of the parties had approached any civil court till date for declaration of title and for related reliefs. After hearing both sides, I make it clear that this Court has not entered any finding regarding the title to the properties. Aggrieved party or parties are at liberty to approach the civil court to establish title over the properties, if so advised. 57. Crime No.1646/2013 registered by the Kalamassery Police Station was transferred for further investigation to the CBCID vide order dated 5.10.2013 and is renumbered as Crime No.349/Cr/EOW-II/KTM/13. The Superintendent of Police, CBCID, EOW-II, Kottayam had taken over investigation. Crime No.1646/13 was registered only on 17.8.13, i.e., after the filing of the writ petition and after the publication of newspaper and media reports continuously from the June, 2013 raising hue and cry on the attempts of land grabbing and creation of fake title deeds. On 18.8.13, the Superintendent of Police, Kalamassery Police Station recorded the statement of the 2nd petitioner in Edappally case. The 2nd petitioner named several person including Salim Raj, the Gunman of the Chief Minister, his wife, who is working at the Revenue Commissionarate and several revenue officials. In Ext.P28 complaint dated 13.6.2013 lodged before the Home Minister, the 2nd petitioner named several persons including the gunman of the Chief Minister, Salim Raj, District Collector, Land Revenue Commissioner and several others. In another complaint dated 21.06.2013 submitted to the Home Minister all
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the names mentioned in Ext.P28 complaint has been repeated. In Exts.P28 & P29 complaints, the 2nd petitioner named 12 persons including named Tahsildar, Additional Tahsildar, District Collector and Land Revenue Commissioner. In Ext.P30 complaint dated 21.6.2013 filed by the petitioners to the Chief Minister the very same names were repeated alleging that all of them are involved in the controversy. Besides these, Ext.P31 complaint was also lodged before the Inspector General of Police, Kochi Range, Ernakulam dated 1.7.2013. On a perusal of the FIR registered by the Kalamassery Police Station and CBCID, it is seen that the case was registered against the Village Officer, Staff of Thrikkakara North Village Office and three private persons. Though repeatedly complaints have been received by various authorities and in spite of recording of the statement of the petitioners it is seen that till date, apart from five persons, the police had not implicated any of the higher officials against whom specific allegations are made in all the complaints lodged before the Chief Minister, Home Minister, Inspector General of Police and others. Though serious allegations are levelled against several persons in respect of a deal involving several crores of rupees, originally, the case was investigated by the Assistant Commissioner of Police, Thrikkakara for the period from 5.9.2013 till 9.10.2013. The crime was transferred to CBCID by order dated 5.10.2013 and the Commissioner of Police commenced investigation from 10.10.2013. The Assistant Commissioner of Police recorded the statement of the 2nd petitioner on 4.10.2013. The statement contains the details of the allegations of forgery, fraud, falsification of records and other criminal acts committed by named persons and others. So far no investigation has been directed as to who are the real persons behind the deal and as to for and on whose behalf the revenue officials are involved in the alleged conspiracy. Investigation will have to be directed as to the source of income or the persons who are behind the deal and regarding investment of several crores of rupees in connection with the purchase of land. The learned counsel for the petitioners submits that on 17.8.2013, highly belatedly, the Deputy Commissioner of Police recorded the statement of the 1st petitioner, a pardanashin lady and a formal statement from the 2nd petitioner saying that it was for the purpose of forwarding a report to the inspector General and that further statement would be recorded later. According to the petitioner, but, apparently this was only an eyewash based on the incomplete and vague statement recorded from the 1st petitioner, a totally useless and farcical FIR had been recorded, implicating only a few Village Officials and three among the party respondents. The other accused, particularly respondents 2, 6 to 20, etc. are not added as accused even today. The counsel also pointed out that instead of investigating the criminal offences in both cases including the allegation with regard to the offences of manipulation of official records, creation of false records and report and destruction of original records like thandaper No.8826, the police enquiry is being deliberately diverted to conduct an enquiry into the title of the petitioners viz-a-viz the title of respondents 8 to 13. The police has not taken any steps to question either the then Land Revenue Commissioner or the other officials involved, reported by the Principal Secretary to be involved in the incidents or the respondents 8 to 13, or to add any of them as accused in the crime, clearly evidencing that the investigation is totally dissatisfactory, deliberately misdirected and aimed at creating a clout, confusion and to sweep the entire issue under the carpet, rather than to identify or to take action
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against the real offenders. It is also pointed out that police has not been bothered even to place any requisition for seizure of the telephone records of the accused persons also. The writ petition itself was filed in Edappally case finding that no proper and fair investigation has been initiated by the police. The writ petition in Kadakampally case was filed complaining that in spite of several complaints, including Exts.P31 to P34, not even a crime is registered by the police though mass corruption and conspiracy involving higher officials and big wigs are brought to the notice of the police. The enquiry in Kadakampally case by the Vigilance Department is also highly belated only after the filing of the writ petitions. The public interest involved is evident from the fact that even the land which had been acquired by the Government for the purpose of widening of Aamiyazhanchan thodu having an extent of 2= acres of land in various survey numbers is also now included in the fraudulent thandaper No.3587 proving a fraudulent attempt to knock off valuable properties belonging to the Irrigation Department (State of Kerala) also through such forgery and fabrication. The fact is that even though respondents 8 to 25 tried to take shelter behind a plea of civil dispute, there is no suit filed by them before any civil court against petitioners nor is any suit filed by petitioners against the respondents. The party respondents have not filed any suit for declaration, redemption of mortgage or recovery of possession before any court of law even today. I have referred in this judgment the Pauper Original Petition No.13/1960 renumbered as O.S.No.4/1965 and O.S.No.14/1969 re-numbered as O.S.No.85/1971. Admittedly the said suits are allowed to be withdrawn without any reservations stating only that the parties have decided to abide by an out of court settlement they had entered into even prior to the filing of the said suit. In the said suits, the petitioners or their predecessors are not parties. Thus, it is clear that till date no suit was however filed or pending for redemption of mortgage or for recovery of possession. Petitioners claim right over the properties under assignees of legal heirs of original otti holders. 58. I have also verified the vigilance enquiry reports, both preliminary and final, submitted by the Vigilance and Anti Corruption Bureau pursuant to the interim directions issued by this Court. The reports of the Vigilance and Anti Corruption Bureau reveals the involvement of several persons in the alleged conspiracy and other criminal acts. The Vigilance enquiry Report also recommends a detailed investigation. On a perusal of the Case Diary of CBCID, EOW-II, Kottayam, it is seen that no progress has been made though they have re-numbered the crime and said to have started investigation on 10.10.2013. 59. The well founded apprehension expressed by the petitioners in both writ petitions is that at the instance of Salim Raj, the suspended Gunman of the Chief Minister, and at the intervention of the office of the Chief Minister, the official respondents were not taking any action in spite of the proven falsification and fabrication of records by some of the officers in the Revenue Department including respondents 29 to 32 in collusion with respondents 6 to 28 in W.P.(C).No.19462/2013 and respondents 8 to 13, 20 and respondents 18 & 19 in W.P. (C).No.19431/2013. It is highlighted that since there is absolute inaction on the part of police officials in taking action on the complaints and representations made by the petitioners, no
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purpose will be served by waiting any longer and proper enquiry has to be conducted into the gross abuse of power, political connection and other extraneous influences involved in the case, petitioners have to approach this Court under Article 226 of the constitution of India. 60. The learned counsel Sri.M.P.Ramanathan on behalf of the intending buyers fairly conceded that the so called buyers have no means to pay Rs.13.37 Crores agreed to be paid as consideration to the sellers. It is not known from where the source of income come and who are the big wigs who wanted to invest several crores of rupees in the deal. From the very facts and circumstances, it is not believable or conclude that the Gunman of the Chief Minister, who is only a police constable, will be able to invest so much of funds for purchase of the property. This is not a case where the properties attempted to be purchased are with funds invested or to be invested by some persons having means. The materials in the case would prima facie show that the party respondents have created false documents, forged and falsified Thandaper of the properties, bribed, compelled and influenced officials and fabricated false documents in the name of certain persons to facilitate purchase of the property from such persons including persons who are not in possession and enjoyment of the property for the last several decades. It is evident from the circumstances that though the agreements for sale executed are for purchase of 12.27 acres out of 45.50 acres, it is a first step as there is the possibility of entering into more agreement for purchase of balance properties. It appears that there is widespread collusion and conspiracy among the party respondents and revenue officials to defeat the title of the petitioners so as to cause undue enrichment for party respondents and others through misuse and abuse of official position. In the aforesaid circumstances, there is every justification for the petitioners to come forward and say that if the investigation is carried out by the police personnel of the Kerala State, the petitioners and their family members would be highly prejudiced, that the investigation would not come to an end with proper findings and if the investigation is allowed to be carried out by them, investigation will be namesake and in that circumstances it would be fit and proper that the petitioners and other similarly affected persons should be assured that an independent agency should look into the matter that would lend the final outcome of the investigation, credible, however faithfully the local police may carry out the investigation, particularly when serious allegations have been made against the higher revenue officials, Chief Minister's Office and police officials. It is well settled that when higher officials of the State were allegedly involved in the crime the interest of justice would be better served if the investigation is directed to be carried out by the CBI Authorities and in that case CBI Authorities would be an appropriate authority to investigate the case. It is settled principle of law that in a case where the police had not acted fairly and acted in a partisan manner to shield real culprits, it would be proper and interest of justice will be served if such investigation is handed over to the CBI authorities or an independent agency. 61. In the background of the allegation that the police is totally ineffective in two cases, this Court finds that the investigation carried out so far is incomplete apart from suspicious in the background of alleged involvement of big wigs in the political
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and administrative sectors. On an evaluation of the facts and circumstances of the case, this Court is of the view that these are extra ordinary cases and that the petitioners are fully justified in approaching this Court seeking extra ordinary jurisdiction for a direction to entrust the investigation to a special agency like the CBI. 62. The legal principles relating to CBI Enquiry is well settled. The Constitution Bench of the Apex Court considered the scope of Article 32 and 226 of the Constitution of India in relation to the investigations to be conducted by the CBI. The Constitutional Court specifically considered the question that a direction to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State is valid and whether any Act of the Parliament exclude or curtail the powers of Constitutional Courts with regard to the enforcement of fundamental rights and other issues. In the decision reported in State of West Bengal v. Committee for Protection of Democratic Rights (2010(3) SCC 571) the Apex Court held that a direction of the High Court to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid and that no Act of the Parliament exclude or curtail the powers of Constitutional Court with regard to the enforcement of fundamental rights and other issues. The matter was discussed and principles laid down in the context of Section 6 of the Delhi Special Police Establishment Act, 1946. The Apex Court held that; "When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure. A direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, the Apex Court and High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. Despite wide powers conferred by Articles 32 & 226 of the Constitution, while passing any order, the Courts must bear in mind certain self- imposed limitations on the exercise of these
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Constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra- ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights". The very same principle was restated in State of Maharashtra v. Farook Mohammed Kasim Mapkar and others (2010 (8) SCC 582). 63. In the decision in Narmada Bai v. State of Gujarat and others (2011(5) SCC 79) the Apex Court held that "if majesty of rule of law is to be upheld and if it is to be ensured that guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed, it is desirable to entrust investigation to CBI". The Apex Court held in the facts of the said case that no matter how faithfully and honestly the local police may carry out the investigation, the same will lack credibility as allegations were directed against them. This Court, therefore, thought it both desirable and advisable, in the interest of justice, to entrust the case to the CBI so that it must complete the investigation at an early date. The court further held that in appropriate cases, the court is empowered to handover investigation to an independent agency like CBI even when the charge sheet has been submitted. 64. A Division Bench of this Court in the decision reported in George Muthoot M.G. v. State of Kerala and others [2010(1) KHC 329 (DB)] reiterated the principles of law governing the subject. This Court held that in order to assure the victims of heinous crime an assurance of fair, proper, impartial and complete investigation and to restore faith, it is just and proper to direct the CBI to conduct investigation particularly when gross allegations are made against jurisdictional investigating agency justifiable and as such interest of justice would be better served if CBI investigates the case. 65. The Apex Court in the decision reported in State of Punjab v. Davinder Pal Singh Bhullar and others (AIR 2012 SC 364) held as follows: "The Court can direct CBI investigation only in exceptional circumstances where the Court is of the view that the accusation is against a person who by virtue of his post could influence the investigation and it may prejudice the cause of complainant, and it is necessary so to do in order to do complete justice and make the investigation credible". 66. In Sakkiri Vasu v. State of UP and others (supra) the dead body of the son of the appellant was found on 23.8.2003 at Mathura Railway Station. GRP, Mathura investigated the matter and gave a detailed report on 29.8.2003 stating that the
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death was due to an accident or suicide. The Army officials at Mathura also held two courts of enquiry and both times submitted the report that the deceased had committed suicide at Mathura Junction. The Apex Court observed that there was an investigation by GRP, Mathura and also two courts of enquiry was held by the Army officials and they found that it was a case of suicide and hence the High Court rejected the prayer for CBI enquiry. It is true that in that case the Apex Court held that the remedy lies under Section 36 and 154(3) Cr.P.C before the police officers concerned, and if that is of no avail, under Section 156(3) Cr.P.C before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C and not by filing a writ petition or a petition under Section 482 Cr.P.C. The Apex Court was of the opinion that High Court should not encourage the practice of persons rushing to the High Court to file writ petition or a petition under Section 482 Cr.P.C. High Court should not encourage the practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to his alternating remedy, first under Section 154(3) and Section 36 Cr.P.C before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned under Section 156(3). There was investigation firstly by GRP, Mathura and gave a detailed report. Subsequently, Army officials of Mathura also held two courts of enquiry. Both times submitted a report that the deceased had committed suicide at the railway track. In the peculiar circumstance of that case the Apex Court held that the remedy lies under Section 36 and 154(3) and alternatively under Section 156(3) or under Section 200 Cr.P.C. The principles laid down in that decision is not applicable to the facts of the present case. 66(a). The dictum laid down by the Apex Court in the decision reported in Saraswati Industrial Syndicate Limited etc. v. Union of India (1975 SC 460) was relied on by the learned Senior Counsel Sri.K.Ramakumar. In the said case the Apex Court quoted with approval the general rule in Halsbury's Laws of England (3rd Edition, Vol.13 p.106): "As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal." The principle of law was declared by the Apex Court while dealing with a notification dated 28.6.1967 issued by the Central Government under Clause 7 of the Sugar (Control) Order, 1966 fixing ex-factory prices for sugar factories specified in the notification. The writ petition was filed for quashing the impugned notification and appropriate orders in the nature of mandamus. The said decision was rendered by the Apex Court in the context of examining a notification and in the realm of administration of law. The said principles cannot be applied to the facts of the present case. 66(b). The decision reported in Aleque Padamsree and others v. Union of India and others (2007(6) SCC 171) was relied on by learned senior counsel Sri.K.Ramakumar and Sri.S.Sreekumar. In that case the allegation was that the speeches made by respondents 5 & 6 were likely to disturb the communal harmony in the country and the likely result of such inflammatory speeches was to create hatred in the minds of citizens against the persons belonging to minority
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communities. The basic grievance is that though commission of offence punishable under the Indian Penal Code was disclosed in the report lodged by the two persons, the police officials did not register the FIR and therefore, the petition was filed under Article 32 of the Constitution of India seeking direction to the police to register the cases and wherever necessary accord sanction in terms of Section 196 Cr.P.C. In that case it was contended before the Apex Court that on a bare reading of the complaint lodged it appears that no offence was made out and whenever a complaint is lodged automatically and in a routine manner FIR is not to be registered. In any event, it is submitted that petition under Article 32of the Constitution is not a proper remedy. In that context, the Apex Court held that whenever a complaint is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR and that in case the police officials failed to do so, the modalities to be adopted are under Section 190 r/w Section 200 Cr.P.C. The said decision is also not applicable squarely on the facts of the present case. The grievance of the petitioners in the present writ petitions are different. Their apprehension is that since office of the Chief Minister and other higher officials are involved in the case, they will not get any justice from the Kerala Police and therefore invoking ordinary remedy provided under the Cr.P.C will not serve ends of justice. The learned counsel are not justified in relying on the aforesaid decisions. Those decisions were rendered on entirely different situations. It may not be proper for this Court to apply the said principles to the facts of this case for the purpose of declining relief to the petitioners. 67. The Apex Court has repeatedly cautioned all the courts in the country that the extra ordinary power in issuing directions to the CBI to conduct investigation in a case must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. 68. From the aforesaid facts and reply affidavits filed in the cases make it clear that the petitioners in both cases are thoroughly dissatisfied with the investigation commenced, that they do not have faith in the investigation by the State Police including CBCID and they press for granting their prayer for CBI investigation into the offences alleged. The involvement of respondents 18 & 19 is also prima facie evident from the meetings the 18th respondent held with the representative of the petitioners and the involvement of respondents 18 & 19 is clear also from manipulations done in the office of the Land Revenue Commissioner, immediately after the transfer of the 19th respondent to that office in February, 2012 and the frequent interference in the office of higher officials as evidenced by Annexure-XI report of the Revenue Secretary. Highly belatedly FIR has been registered implicating only three of the party respondents and two officials of the lower level in the Village Office in Edappally case. Subsequent to the registration of FIR, though petitioners produced innumerable documents and other materials showing the involvement of 18th respondent, Land Revenue Commissioner, Assistant Land
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Revenue Commissioner, two Additional Tahsildars, respondents 8 to 13, 19 & 20, none of them are even now included in the array of the accused. The materials perused disclose that the alleged accused are very powerful and influential persons including the State authorities like officers of the Land Revenue Commissioner, Private Secretaries to the Ministers, gunman of the Chief Minister of the State and others. 69. Taking into account the totality of the circumstances, this Court is refrained from expressing any opinion on the allegations made by the petitioners, but, thought it wise to have the incident investigated by an independent agency like CBI so that it may bear credibility. This Court also felt that no matter how faithfully and honestly the local police may carry out the investigation, the same will lack credibility as allegations were directed against highest revenue officials, office of the Chief Minister and others. If the majesty of the rule of law is to be upheld and if it is to be ensured that the guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed, it is desirable to entrust the investigation to CBI. 70. The prima facie materials from the fact finding reports tabled by the Revenue Department Officials points to the serious criminal offences as observed in the pleas from the petitioners. There are serious allegations of party respondents colluding and conspiring with Revenue Department Officials in forging and fabricating false documents and records including the concoction of false thandaper for the purpose of defeating the title of the petitioners. The properties are located in two different districts and within the limits of Corporation of Thiruvananthapuram and Cochin. In both cases the allegations are raised against Salim Raj, the Gunman (now under suspension) in the office of the Chief Minister and he is described as the gang leader of the land mafia. It is evident from the records that he and his associates have held multiple meetings with the land owners and had pressurised them to part with the land. There are also complaints in the Kadakampally case that the gunman had threatened the petitioners with dire consequences if they denied the demands. Moreover, the same team is involved in both incidents and the method of operation is also same. It has also been submitted that a criminal case has been registered by the Chevayoor Police (Kozhikode) against Salim Raj in 2013 in connection with a kidnapping case. The learned counsel for the petitioners also submits that other personal staff of the Chief Minister is involved in a cheating case popularly known as 'Saritha's case' and that another personal staff is under suspension for similar reasons. All the incidents observed above have evoked shock and surprise among the people of Kerala. The alleged involvement of the members of the personal staff of the Chief Minister's office in criminal acts has come to the attention of this Court at multiple instances. The above incidents show that the authorities at the helm of affairs of the administration in the State have not been prudent and responsible in appointing personal staff with integrity and character. The Chief Minister's office should be a model institution serving the people of the State. The above incidents have raised serious questions on the functioning of the Chief Minister's office for which the Chief Minister is answerable to the State. Prima facie evidence of the presence of unscrupulous elements among the personal staff in the Chief Minister's
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Office and the associated criminal activities in these cases call for a thorough and independent investigation into the crime and the associated activities involving personal staff in the Chief Minister's Office. 71. For the reasons and observations made by this Court in paragraphs 45 to 54, 58 to 62 and 66 to 70 this Court is convinced that the materials on record is sufficient to direct investigation by CBI. The power under Article 226 can be exercised only in cases where there is sufficient materials to come to a prima facie conclusion that there is a need for such enquiry. I find that a direction for investigation is necessarily to be issued since offences are made out prima facie by several persons including higher officials and persons who are capable of wielding high influence and pressure in the field of administration. The State Government had expressed no objection in ordering investigation by CBI. In the result, the writ petitions are allowed. This Court direct the police officers who are in charge of investigation and the revenue officials to hand over all the case records including vigilance enquiry report to the CBI which shall commence further investigation and complete the same within a period of nine months from the date of taking over the investigation. The CBI shall register FIR in Kadakampally case since no FIR was registered pursuant to Exts.P31 to P34 complaints. CBI shall investigate the case from all angles, take assistance of the petitioners, Revenue Intelligence, Vigilance and Anti Corruption Bureau, Police, other agencies and submit a final report to the jurisdictional court and is at liberty to peruse all documents produced in the cases including the reports of the Secretary to Government, enquiry reports of Vigilance and Anti Corruption Bureau, report of Revenue Intelligence etc. Registry shall send copy of this judgment to the Director, CBI and the Secretary, Ministry of Home Affairs, New Delhi forthwith. It is made clear that findings and observations made in this judgment is only for the purpose of deciding the issue whether investigation is to be handed over to the CBI or not and shall not be construed as an expression of opinion on the question of title to the properties. There will be a direction to the Registry to send back the vigilance reports in sealed packets. HARUN-UL-RASHID, Judge. bkn/-
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N.A. Shareefa Vs State of Kerala

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N.A. Shareefa Vs State of Kerala

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4/3/2014

Kerala Law: N.A. Shareefa Vs. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

//TRUE COPY// rs. P.S.TO JUDGE

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

Kerala Law: N.A. Shareefa Vs. State of Kerala

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