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) ---------------------------SHAREEFA, versus STATE OF KERALA,

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 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 re-survey, 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.

::5::

W.P.(C).No.19431 & 19462 of 2013

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.

::6::

W.P.(C).No.19431 & 19462 of 2013

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

::7::

W.P.(C).No.19431 & 19462 of 2013

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

::8::

W.P.(C).No.19431 & 19462 of 2013

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

::9::

W.P.(C).No.19431 & 19462 of 2013

details which were furnished by his predecessor in office in

Ext.P15. The District Collector, in 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 re-

opened 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

::10::

W.P.(C).No.19431 & 19462 of 2013

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

::11::

W.P.(C).No.19431 & 19462 of 2013

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 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.

::12::

W.P.(C).No.19431 & 19462 of 2013

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

::13::

W.P.(C).No.19431 & 19462 of 2013

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

::14::

W.P.(C).No.19431 & 19462 of 2013

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 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

::15::

W.P.(C).No.19431 & 19462 of 2013

possession of the properties. At that time the properties were

outstanding with the predecessors-in-interest 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

::16::

W.P.(C).No.19431 & 19462 of 2013

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

::17::

W.P.(C).No.19431 & 19462 of 2013

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 forwarded by the Registrar General of

::18::

W.P.(C).No.19431 & 19462 of 2013

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

::19::

W.P.(C).No.19431 & 19462 of 2013

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

::20::

W.P.(C).No.19431 & 19462 of 2013

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

::21::

W.P.(C).No.19431 & 19462 of 2013

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 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

::22::

W.P.(C).No.19431 & 19462 of 2013

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

::23::

W.P.(C).No.19431 & 19462 of 2013

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

::24::

W.P.(C).No.19431 & 19462 of 2013

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 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.

::25::

W.P.(C).No.19431 & 19462 of 2013

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

::26::

W.P.(C).No.19431 & 19462 of 2013

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

::27::

W.P.(C).No.19431 & 19462 of 2013

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 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

::28::

W.P.(C).No.19431 & 19462 of 2013

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.

::29::

W.P.(C).No.19431 & 19462 of 2013

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

::30::

W.P.(C).No.19431 & 19462 of 2013

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 (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

::31::

W.P.(C).No.19431 & 19462 of 2013

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

::32::

W.P.(C).No.19431 & 19462 of 2013

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

::33::

W.P.(C).No.19431 & 19462 of 2013

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 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

::34::

W.P.(C).No.19431 & 19462 of 2013

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

::35::

W.P.(C).No.19431 & 19462 of 2013

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.(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

::36::

W.P.(C).No.19431 & 19462 of 2013

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

::37::

W.P.(C).No.19431 & 19462 of 2013

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

::38::

W.P.(C).No.19431 & 19462 of 2013

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 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

::39::

W.P.(C).No.19431 & 19462 of 2013

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

::40::

W.P.(C).No.19431 & 19462 of 2013

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.

::41::

W.P.(C).No.19431 & 19462 of 2013

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 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

::42::

W.P.(C).No.19431 & 19462 of 2013

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

::43::

W.P.(C).No.19431 & 19462 of 2013

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

::44::

W.P.(C).No.19431 & 19462 of 2013

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 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,

::45::

W.P.(C).No.19431 & 19462 of 2013

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

::46::

W.P.(C).No.19431 & 19462 of 2013

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,

::47::

W.P.(C).No.19431 & 19462 of 2013

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

::48::

W.P.(C).No.19431 & 19462 of 2013

unravel the commission of offences.

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

::49::

W.P.(C).No.19431 & 19462 of 2013

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

29-32, 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

::50::

W.P.(C).No.19431 & 19462 of 2013

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

::51::

W.P.(C).No.19431 & 19462 of 2013

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 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

::52::

W.P.(C).No.19431 & 19462 of 2013

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

::53::

W.P.(C).No.19431 & 19462 of 2013

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

::54::

W.P.(C).No.19431 & 19462 of 2013

contended that they have not fabricated any documents

whatsoever and denied the claim of title of the petitioners. The

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

::55::

W.P.(C).No.19431 & 19462 of 2013

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

::56::

W.P.(C).No.19431 & 19462 of 2013

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

::57::

W.P.(C).No.19431 & 19462 of 2013

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 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:

::58::

W.P.(C).No.19431 & 19462 of 2013

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

::59::

W.P.(C).No.19431 & 19462 of 2013

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 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

::60::

W.P.(C).No.19431 & 19462 of 2013

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.

::61::

W.P.(C).No.19431 & 19462 of 2013

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

::62::

W.P.(C).No.19431 & 19462 of 2013

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 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.

::63::

W.P.(C).No.19431 & 19462 of 2013

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

::64::

W.P.(C).No.19431 & 19462 of 2013

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

::65::

W.P.(C).No.19431 & 19462 of 2013

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 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

::66::

W.P.(C).No.19431 & 19462 of 2013

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

::67::

W.P.(C).No.19431 & 19462 of 2013

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

::68::

W.P.(C).No.19431 & 19462 of 2013

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.

O.S.No.4/1965 was filed in the year

::69::

W.P.(C).No.19431 & 19462 of 2013

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

::70::

W.P.(C).No.19431 & 19462 of 2013

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

::71::

W.P.(C).No.19431 & 19462 of 2013

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

::72::

W.P.(C).No.19431 & 19462 of 2013

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 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

::73::

W.P.(C).No.19431 & 19462 of 2013

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.

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

::74::

W.P.(C).No.19431 & 19462 of 2013

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

::75::

W.P.(C).No.19431 & 19462 of 2013

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 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

::76::

W.P.(C).No.19431 & 19462 of 2013

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

::77::

W.P.(C).No.19431 & 19462 of 2013

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

::78::

W.P.(C).No.19431 & 19462 of 2013

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 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

ex-gunman of the Chief Minister created false records to make it

appear that the properties that had belonged to the petitioners

::79::

W.P.(C).No.19431 & 19462 of 2013

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.

::80::

W.P.(C).No.19431 & 19462 of 2013

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.

::81::

W.P.(C).No.19431 & 19462 of 2013

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 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

::82::

W.P.(C).No.19431 & 19462 of 2013

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

::83::

W.P.(C).No.19431 & 19462 of 2013

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

::84::

W.P.(C).No.19431 & 19462 of 2013

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 executed by 27th respondent in favour of

::85::

W.P.(C).No.19431 & 19462 of 2013

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

::86::

W.P.(C).No.19431 & 19462 of 2013

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

::87::

W.P.(C).No.19431 & 19462 of 2013

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

::88::

W.P.(C).No.19431 & 19462 of 2013

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 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

::89::

W.P.(C).No.19431 & 19462 of 2013

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

::90::

W.P.(C).No.19431 & 19462 of 2013

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.

::91::

W.P.(C).No.19431 & 19462 of 2013

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 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

::92::

W.P.(C).No.19431 & 19462 of 2013

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

::93::

W.P.(C).No.19431 & 19462 of 2013

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

::94::

W.P.(C).No.19431 & 19462 of 2013

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 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

::95::

W.P.(C).No.19431 & 19462 of 2013

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

::96::

W.P.(C).No.19431 & 19462 of 2013

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.

::97::

W.P.(C).No.19431 & 19462 of 2013

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 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

::98:: W.P.(C).No.19431 & 19462 of 2013

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

::99:: W.P.(C).No.19431 & 19462 of 2013

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

::100:: W.P.(C).No.19431 & 19462 of 2013

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 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.

::101:: W.P.(C).No.19431 & 19462 of 2013

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,

::102:: W.P.(C).No.19431 & 19462 of 2013

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

::103:: W.P.(C).No.19431 & 19462 of 2013

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 In

Sri.T.K.Thomas, receiver in O.S.No.85/1971, as Ext.P38. 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 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

::104:: W.P.(C).No.19431 & 19462 of 2013

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.

::105:: W.P.(C).No.19431 & 19462 of 2013

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

::106:: W.P.(C).No.19431 & 19462 of 2013

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 the names mentioned in Ext.P28 complaint has been repeated. In Exts.P28 & P29 complaints, the 2nd petitioner

::107:: W.P.(C).No.19431 & 19462 of 2013

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

::108:: W.P.(C).No.19431 & 19462 of 2013

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

::109:: W.P.(C).No.19431 & 19462 of 2013

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

::110:: W.P.(C).No.19431 & 19462 of 2013

investigation is totally dis-satisfactory, 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 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

::111:: W.P.(C).No.19431 & 19462 of 2013

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 re-numbered 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

::112:: W.P.(C).No.19431 & 19462 of 2013

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

::113:: W.P.(C).No.19431 & 19462 of 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 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

::114:: W.P.(C).No.19431 & 19462 of 2013

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

::115:: W.P.(C).No.19431 & 19462 of 2013

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

::116::

W.P.(C).No.19431 & 19462 of 2013

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 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

::117::

W.P.(C).No.19431 & 19462 of 2013

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

::118::

W.P.(C).No.19431 & 19462 of 2013

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 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

::119::

W.P.(C).No.19431 & 19462 of 2013

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

::120::

W.P.(C).No.19431 & 19462 of 2013

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

::121::

W.P.(C).No.19431 & 19462 of 2013

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 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

::122::

W.P.(C).No.19431 & 19462 of 2013

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

::123::

W.P.(C).No.19431 & 19462 of 2013

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

::124::

W.P.(C).No.19431 & 19462 of 2013

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 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

::125::

W.P.(C).No.19431 & 19462 of 2013

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

::126::

W.P.(C).No.19431 & 19462 of 2013

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

::127::

W.P.(C).No.19431 & 19462 of 2013

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 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.

::128::

W.P.(C).No.19431 & 19462 of 2013

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

::129::

W.P.(C).No.19431 & 19462 of 2013

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

::130::

W.P.(C).No.19431 & 19462 of 2013

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 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.

::131::

W.P.(C).No.19431 & 19462 of 2013

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

::132::

W.P.(C).No.19431 & 19462 of 2013

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/-