Writ Appeal No.1861 of 2013, High Court of Kerala at Ernakulam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 19TH DAY OF DECEMBER 2013/28TH AGRAHAYANA, 1935 WA.No. 1861 of 2013 () IN WP(C).19431/2013 -------------------------------------------- WP(C) 19431/2013 of HIGH COURT OF KERALA APPELLANTS/RESPONDENTS 8 TO 13 IN WP(C): ------------------------------------------------------------------ 1. K.H. ABDUL MAJEED, S/O.HASSAN, ILLICKAL HOUSE, VAIKOM MUHAMMED BASHEER (VMB) ROAD, PATHADIPALAM, CHANGAMPUZHA NAGAR P.O., KOCHI 682 033. 2. NOORJAHAN, W/O.ABDUL MAJEED, ILLICKAL HOUSE, VAIKOM MUHAMMED BASHEER (VMB) ROAD PATHADIPALAM, CHANGAMPUZHA NAGAR P.O., KOCHI 682 033. 3. K.H.MOHAMMEDALI, S/O.HASSAN, ILLICKAL HOUSE, VAIKOM MUHAMMED BASHEER (VMB) ROAD, PATHADIPALAM, CHANGAMPUZHA NAGAR P.O., KOCHI 682 033. 4. K.H.ABDUL SALAM, S/O.HASSAN, ILLICKAL HOUSE, VAIKOM MUHAMMED BASHEER (VMB) ROAD, PATHADIPALAM, CHANGAMPUZHA NAGAR P.O., KOCHI 682 033. 5. K.H.LAILA, (ASYA), W/O.KUNJUMUHAMMED, KANDAYATH MADHOM, OPPOSITE SALAFI MASJID, ANIKKAD JUNCTION, KUTTAMASSERY, THOTTUMUGHAM, ALUVA 683 105, ALSO HAVING ADDRESS AT D/O.HASSAN, ILLICKAL HOUSE, VAIKOM MUHAMMED BASHEER (VMB) ROAD, PATHADIPALAM, CHANGAMPUZHA NAGAR P.O., KOCHI 682 033. 6. K.H.SAUDA, W/O.MUHAMMED, CHENNAMPILLY HOUSE, P.K.B. NAGAR, COCHIN UNIVERSITY P.O., ALSO HAVING ADDRESS AT D/O.HASSAN, ILLICKAL HOUSE, VAIKOM MUHAMMED BASHEER (VMB) ROAD, PATHADIPALAM, CHANGAMPUZHA NAGAR P.O., KOCHI 682 033. BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.M.P.RAMNATH SRI.P.RAJESH (KOTTAKKAL) RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 7 & 14 TO 26 IN W.P.(C): ---------------------------------------------------------------------------------------------------------- 1. N.A. SHAREEFA, 24/203, W/O.KADER PILLA, ANJIKKATHU HOUSE, VMB ROAD, PATHADIPPALAM, COCHIN 682 033. 2. A.K.NAZEER, 24/203, S/O.KADER PILLA, ANJIKKATHU HOUSE, VMB ROAD, PATHADIPPALAM, COCHIN 682 033. 3. NOPUSHAD A.K., 24/203, S/O.KADER PILLA, ANJIKKATHU HOUSE, VMB ROAD, PATHADIPPALAM, COCHIN 682 033. 4. SHIMITHA, W/O.NOUSHAD, ANJIKKATHU HOUSE, VMB ROAD, PATHADIPPALAM, COCHIN 682 033. 5. STATE OF KERALA, REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 6. THE LAND REVENUE COMMISSIONER, O/O.LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, PIN 695 033. 7. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, COCHIN 682 030. 8. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM 695 014. 9. THE ADDITIONAL DIRECTOR OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM 695 014. 10. THE ADDITIONAL DIRECTOR GENERAL OF POLICE (INTELLIGENCE) POLICE HEAD QUARTERS, THIRUVANANTHAPURAM 695 014. 11. THE ADDITIONAL DIRECTOR GENERAL OF POLICE (INTELLIGENCE) POLICE HEAD QUARTERS, THYKKAD, THIRUVANANTHAPURAM 695 014. 12. THE INSPECTOR GENERAL OF POLICE, KOCHI RANGE, O/o. INSPECTOR GENERAL OF POLICE, SHANMUGHAM ROAD, COCHIN 682 031. 13. THE DIRECTOR, VIGILANCE & ANTI CORRUPTION BUREAU, VIKAS BHAVAN P.O., PIN 695 033. 14. SABU, VILLAGE OFFICER, THRIKKAKARA NORTH VILLAGE, PIN 682 014. 15. MURAD, SPECIAL VILLAGE OFFICER, NOW IN KANAYANNUR TALUK OFFICE, TAX SESSION, KOCHI 682 011. 16. SUNILAL, NEW TAHSILAR, FORT KOCHI, TALUK OFFICE, FORT KOCHI 682 001. 17. KRISHNAKUMARI, ADDL. TAHSILDAR, FORT KOCHI, TALUK OFFICE, KOCHI 682 011. 18. SALEEMRAJ S., S/O.SAYEED, FLAT NO.16 PALAYAM POLICE QUARTERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM 695 033 (EX GUN-MAN, O/o. THE CHIEF MINISTER, STATE OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 033. 19. SHAMSHAD, W/O.SALEEMRAJ, FINANCE II, LAND REVENUE, COMMISSIONER, PUBLIC OFFICE BLDG., THIRUVANANTHAPURAM 695 033. 20. DILEEP K.K., S/O.KAMALADHARAN, KOOHAPPILLI HOUSE, RING COLONY, T.D.SANNIDHI ROAD, NEAR KARUNAKUDAM TEMPLE, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM 695 033. 21. THE DIRECTOR, CENTRAL BUREAU OF INVESTIGATION, CBI HEAD QUARTERS, TRIVANDRUM 695 001. 22. IDEAL ZONAL OFFICE, CIRCLE OFFICE, MERCY ESTATE, 2ND FLOOR, RAVIPURAM, M.G.ROAD, KOCHI 682 015. 23. P.T.MATHEW, GENERAL MANAGER, BSNL, KALATHIPARAMBIL ROAD, KOCHI 682 016. 24. NODAL OFFICER, VODAFONE CELLULAR LTD., ANGEL ARCADE, 4TH FLOOR, CUSAT JUNCTION, KOCHI 682 022. 25. ZONAL MANAGER, BHARATHI AIRTEL LTD., S.I.AVENUE, N.H.BYEPASS, KUNDANOOR JUNCTION, MARADU P.O., KOCHI 682 034. 26. THE DIVISIONAL ENGINEER (LEGAL ENFORCEMENT AUTHORITY) BSNL., TELEPHONE EXCHANGE BLDG., PANAMPILLY NAGAR, ERNAKULAM, KOCHI 682 036. R23 & 26 BY ADV. SRI.MATHEWS K.PHILIP,SC, BSNL R1-R4 BY ADV. SRI.DINESH R.SHENOY R18 & 19 BY ADV. SRI.B.RAMAN PILLAI (SR.) R18 & 19 BY ADV. SRI.R.ANIL R18 & 19 BY ADV. SRI.M.SUNILKUMAR R18 & 19 BY ADV. SRI.SUJESH MENON V.B. R18 & 19 BY ADV. SRI.T.ANIL KUMAR R18 & 19 BY ADV. SRI.MANU TOM R18 & 19 BY ADV. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) R18 & 19 BY ADV. SRI.M.VIVEK BY GOVT.PLEADER SHRI. TOM JOSE BY SRI.P.CHANDRASEKHARA PILLAI, S.C., C.B.I. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------Writ Appeal No.1861 of 2013 ----------------------------------------------Dated 19[th] December, 2013.** ## **J U D G M E N T** ## **K.T.Sankaran, J.** Respondents 8 to 13 in W.P.(C) No.19431 of 2013 are aggrieved by the interim order dated 23[rd] October, 2013 passed by the learned Single Judge. Respondents 1 to 4 in the Writ Appeal are the writ petitioners. Hereinafter, the parties are referred to, as per their rank in the Writ Petition. 2. The writ petitioners claim title and possession in respect of an extent of 99 cents in Survey No.651/8A, 651/8B and 651/8C of Thrikkakara North Village. Respondents 1 to 7 in the Writ Petition are the State of Kerala and the officials of the Revenue and Police Department and Vigilance and AntiCorruption Bureau. 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 2 Writ Appeal No.1861 of 2013 duty on 17.2.2012. Allegations are also made against her. Respondent No.20 is a private party who does not claim any right in the property. Respondent No.21 is the Director of Central Bureau of Investigation. 3. The writ petitioners traced their title to the property as follows : The property was outstanding in the possession of Thekkesamooha Madom in Jenmom right. In 1088 M.E., Lakshmana Ayyer of Thekkesamooha Madom granted a lease of the property in favour of Ahammed Pareeth. In 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.1064 of 1102 M.E. A partition took place in the family of Aliyar Kunju in the year 1114 M.E. and the property in question was allotted to Hamsa Koya, son of Aliyar Kunju, who sold his rights in the property to Muhammed, 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 3 Writ Appeal No.1861 of 2013 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. It is also alleged that mutation was effected as per the allotment made in the partition deed and the subsequent transfers made as between the legal representatives of Kadar Pillai. The writ petitioners stated that the original Thandaper numbers were 8826 and 8597 and after the 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. 4 Writ Appeal No.1861 of 2013 4. Respondents 8 and 10 to 13 in the writ petition filed O.S.No.617 of 2007 on the file of the Court of the Subordinate Judge of 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 of 2007, in collusion and connivance with respondents 18, 19 and 20 presented fabricated documents before the civil court. On the basis of a complaint filed by the writ petitioners, Crime No.1003 of 2007 was registered at Kalamassery Police Station for the offences punishable under Sections 465, 468, 469 and 471 read with Section 34 of the 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 of 2007. 5. Respondent No.8 filed O.S.No.744 of 2010 on the file of the Court of the Munsiff, Ernakulam to set aside document No.8782 of 2004 executed by the first petitioner to the second petitioner in respect of a portion of the property in dispute. 6. There was an earlier suit filed as O.S.No.222 of Writ Appeal No.1861 of 2013 5 1981 on the file of the Court of the Additional Munsiff, 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. It is stated that in the said suit, Muhammed contended that he had transferred only the jenmom right as per the 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 held that the properties belonged to Kadar Pillai exclusively. 7. While the civil suits were pending before the civil courts, on 21.6.2011, respondent No.11 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 6 Writ Appeal No.1861 of 2013 necessary action as per rules. On 21.6.2011, the Additional Tahsildar forwarded that petition to the Village Officer, Thrikkakara North. On 24.6.2011, the Village Officer, Thrikkakkara 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 also stated in the report that the old records and re-survey records do not tally. On 28.6.2011, the Additional Tahsildar issued a direction to the Village Officer to stop accepting basic tax and to issue notice to the parties. On 28.7.2011, the Additional Tahsildar withdrew the order directing the Village Officer not to accept basic tax. On 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, Writ Appeal No.1861 of 2013 7 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 stated that till the disposal of the civil suits, all proceedings in the Revenue Department in respect of the lands concerned should be stopped. On receipt of Ext.P15 report, the Commissioner of Land Revenue issued Ext.P18 letter dated 4.1.2012 to respondent No.11 stating that in view of the pendency of civil and criminal cases in respect of the disputed property, Revenue Department could not take any action on the petition filed by respondent No.11. 8. The matter should have come to an end by the issue of Ext.P18. But, the proceedings were again initiated by 8 Writ Appeal No.1861 of 2013 the contesting respondents. Respondent No.11 submitted a petition dated 14.3.2012 (Ext.P19) to the Minister for Revenue, reiterating his earlier contentions. It would appear that the Government forwarded Ext.P19 petition to the Commissioner of Land Revenue. The letter reads as follows : “................................................................................................. ......................................................................” On receipt of the letter dated 9.4.2012 from the Government, the Commissioner of Land Revenue issued Ext.P20 letter dated 18.4.2012 to the District Collector, Ernakulam to submit a report, after verifying the records. The District Collector was also directed to furnish information with respect to six questions mentioned in Ext.P20. On receipt of Ext.P20, the District Collector directed the Additional Tahsildar to submit a report. The Additional Tahsildar (respondent No.17) issued Ext.P24 report dated 11.7.2012 containing almost the same details which were furnished by his predecessor in office in Ext.P15. The District Collector, in turn, sent Ext.P25 report to the Commissioner of Land Revenue. 9 Writ Appeal No.1861 of 2013 9. 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 notice dated 4.10.2012 issued by the Village Officer. 10. The writ petitioners alleged that the Revenue officials re-opened the matters, which were already closed, which led ultimately to the cancellation of Thandapers, only at the influence of respondent No.18, the Gunman (now under suspension) of the Chief Minister of Kerala with the active assistance of respondent No.19, wife of respondent No.18. The writ petitioners contended that they were even denied an 10 Writ Appeal No.1861 of 2013 opportunity of being heard by the Revenue officials and everything was done in a hurry and that too, when the civil suits were pending. In the Writ Petition, the petitioners alleged as follows : “31. Respondents 8 to 13 & 20 in collusion and conspiracy with respondents 18 and 19 bribed, compelled and influenced, respondents 14 and 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 the petitioners 116 cents of valuable land situated in Thrikkakara North Village in Sy.No.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 18[th] respondent is a Gun Man in the office of the Chief Minister of State of Kerala and his personal influence in the highest political and administrative echelons of Government of Kerala as notoriety. Though the petitioners had filed numerous complaints, Exhibits P28 to P32 before the highest officers of the State, even today, not even a crime is registered and no investigation has been conducted or even initiated against respondents 8 to 20. In the face of such tremendous political influence, filing of an ordinary complaint before the police will be absolutely useless, as ordinary police officers, even upto the level of Commissioner, will be helpless in the face of notoriety, influence and power wielded by 18[th] respondent.” 11. The reliefs prayed for in the Writ Petition are 11 Writ Appeal No.1861 of 2013 ## the following : “(a) A writ of mandamus or any other appropriate writ, order or direction, directing State Government to recommend an investigation into this matter by the 21[st] respondent and also direct the 21[st] respondent to depute a senior officer to constitute a team and to investigate the various offences and illegal acts committed by respondents 8 to 20 and to take appropriate further action according to law 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 for the purpose of conducting a comprehensive enquiry into the offences and illegal acts committed by respondents 8 to 20 and to initiate appropriate action under the criminal law to arrest, try and punish the offenders and to submit reports before this Court on the progress of the enquiry, from time to time, till final report is filed before the concerned Criminal Court, as per law. (b) Grant such other reliefs as are deemed fit and proper in the facts and the circumstances of the case.” 12. The 4[th] respondent, the Director General of Police, filed a counter affidavit, in which it was stated that the petitioners submitted a representation before the leader of opposition and it was forwarded to the 4[th] respondent as per 12 Writ Appeal No.1861 of 2013 letter dated 5.7.2013. In that representation, it was stated that the property in question is worth `25 crores and the 11[th] respondent and his cohorts had conspired together with the Revenue officials including the Village Officer, Tahsildar, District Collector and Land Revenue Commissioner to grab the property belonging to the writ petitioners. The 4[th] respondent, as per letter dated 5.7.2013, forwarded the complaint (Ext.P31) to the Principal Secretary to the Government, Home Department for appropriate action. The 4[th] respondent also forwarded the complaint to the Government, as imputations were made against several Revenue officials. The first petitioner had filed a complaint to the Inspector General of Police, Kochi and it was forwarded to the Deputy Commissioner of Police, Kochi City for enquiry and necessary action. The 4[th] respondent further stated in the counter affidavit that on receipt of Ext.P31 complaint, Crime No.1646 of 2013 was registered for the offences punishable under Sections 468, 471, 511 and 420 of the Indian Penal Code at Kalamassery Police Station. The 4[th] respondent, by the order dated 3.10.2013, transferred Crime 13 Writ Appeal No.1861 of 2013 No.1646 of 2013 for further investigation by CBCID and the Additional Director General of Police (Crimes) was directed to personally supervise the case. The 4[th] respondent stated in paragraph 7 of the counter affidavit 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.” ## 13. In Ext.P31 complaint submitted by the first petitioner to the Inspector General of Police, she alleged thus : “Former Gunman of Chief Minister Salim Raj is the brother of Noorjahan, the wife of K.H. Abdul Majeed. After Sri.Ommen Chandy became the Chief Minister, “Super Chief Minister” Salim Raj, Abdul Majeed, his wife Noorjahan, Abdul Salam, Muhammadali, Dileep and C.K. Jayaram S/o.Kesavan Vaidyar, Kesav Nivas, Pettaparambil, Palarivattom, Kochi conspired with the Thrikkakkara Village Officer Sabu, Special Village Officer Murad, former Additional Tahsildar of Kanayannoor Taluk Sunilal, Krishnakumari, Head Clerk of Ernakulam District Collectorate, Shamsad of Land Revenue Commissionerate fabricated false records, destroyed the original records, issued false orders and 14 Writ Appeal No.1861 of 2013 reports by misusing the official position with intention to cheat us attempted to usurp our land.” 14. Respondents 8 to 13, in their counter affidavit 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 that since the said Gunman is distantly related to the 9[th] respondent, the petitioners are trying to drag him also to the case. Respondents 8 to 13 contended that the writ petitioners have no title to the property and that the jenmom rights in respect of the property (to an extent of 78 cents) vested in respondents 8 to 13 and family as per registered sale deed Nos.2907 of 1966 and 1988 of 1967 of the Sub Registrar's Office, Edappally executed by Elangalloor Swaroopam to Hassan, the predecessor-in-interest of respondents 8 to 13. Respondents 8 to 13 contended that fraud was committed by 15 Writ Appeal No.1861 of 2013 the petitioners and they were also instrumental for falsification of Revenue records. 15. The learned Single Judge passed an interim order dated 23[rd] October, 2013, after hearing all the parties concerned, and issued the following directions : “7. In the facts and circumstances noticed by this Court, 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 Collectorate 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. 8. The Principal Secretary shall independently and in a fair manner enquire the matter connected with this case and submit the report without giving room for any complaints. Interference from any side including higher officers and Ministers, if any, shall be seriously viewed. It is made clear that none of the persons who are wielding powers in the State and others 16 Writ Appeal No.1861 of 2013 shall interfere with the enquiry ordered and in case any interference is found to have been made, such instances will be dealt with seriously. None of the counsel of the parties herein are permitted to appear before the Principal Secretary. The Principal Secretary shall peruse and evaluate the pleadings and documents produced by the parties before this Court. The Principal Secretary is free to summon any parties for the purpose of eliciting the facts if he is of the opinion that such facts are to be elicited from them. The Principal Secretary shall submit the report within a period of 15 days from the date of receipt of a copy of this order.” 16. In compliance with the interim order dated 23[rd] October, 2013, G.Kamala Vardhana Rao, IAS, Secretary, Revenue, Government of Kerala submitted a detailed report dated 8.11.2013. The Secretary, Revenue had gone through the original Revenue records of Thrikkakara North Village Office, note files of the District Collectorate, Ernakulam and the office files of the Commissioner of Land Revenue. He also heard the petitioners and contesting respondents. He had also taken the depositions from the officials of Village Office, Taluk Office, Collectorate and the Office of the Commissioner of Land Revenue. The Secretary, Revenue, submitted in his report, a 17 Writ Appeal No.1861 of 2013 detailed chronology of the file movements in different offices. The findings and observations contained in the report of the Secretary, Revenue include the following findings : “II. This issue was not handled in a normal and regular manner by the Revenue officials. x x x x x x x x x x x x x x **==> picture [137 x 7] intentionally omitted <==** VII. There is a clear procedural error committed by the section in the office of the Commissioner of Land Revenue in dealing with this issue. ........................... The concerned section should have brought all the facts and figures to the notice of the Commissioner of Land Revenue before issuing directions to the subordinate offices. .................................................................... X. To understand the circumstances which led to the creation of a misleading report by the Village Officer, Thrikkakara North and the Additional Tahsildar, Kanayannur Taluk and “unknown” influences on the Revenue Officials in the Village Office, respondents 14 to 17 and the officials dealing in the section of office of Commissioner of Land Revenue and the involvement of respondent 18 and 19 in this case, I strongly recommend a detailed police investigation to bring out the truth” 18 Writ Appeal No.1861 of 2013 17. The learned counsel appearing for the writ petitioners (respondents 1 to 4 in the Writ Appeal) contended that the Writ Appeal has practically become infructuous since the Secretary, Revenue, Government of Kerala, submitted report dated 8.11.2013, much before filing of the Writ Appeal on 9.12.2013. Sri.K.Ramakumar, the learned senior counsel appearing for the appellants submitted that the learned Single Judge was not justified in passing the interim order and it had led to several other consequential orders. It is also submitted that the rights of the appellants were prejudicially affected by the interim order and therefore, they are entitled to challenge the correctness of the same in Writ Appeal, notwithstanding the report having been submitted by the Secretary, Revenue, in the meanwhile. 18. In view of the contentions raised by the appellants, we thought that the Writ Appeal could be disposed of on the merits. Accordingly, detailed arguments were heard. 19. Sri.K.Ramakumar, the learned senior counsel appearing for appellants (respondents 8 to 13 in the Writ 19 Writ Appeal No.1861 of 2013 Petition) submitted that Ext.P26 order dated 4.9.2012 passed by the Commissioner of Land Revenue, was challenged by the writ petitioners in W.P.(C) No.23244 of 2012 and the matter could be settled in that Writ Petition. He also submitted that as seen from the counter affidavit of the 4[th] respondent, a crime was registered on the basis of the petition filed by the writ petitioners and the investigation of the same was transferred to CBCID. In these circumstances, there can be no justification for praying for a CBI enquiry. The learned senior counsel also contended that the writ petitioners did not make a demand for making a CBI enquiry and having not made such a demand, the writ petitioners are not entitled to maintain a writ of mandamus. The learned senior counsel relied on the decisions of the Supreme Court in **Secretary v. Sahngoo Ram Arya** (2002) 5 Supreme Court Cases 521 and **Rajasthan State** ## **Industrial Development and Investment Corporation and** **another** v. Diamand & Gem Development Corporation Limited and another (2013) 5 Supreme Court Cases 470. The learned senior counsel also submitted that the allegation of fraud is 20 Writ Appeal No.1861 of 2013 made by the writ petitioners and it cannot be decided in a writ proceeding. He relied on the decision of the Supreme Court in State of U.P. v. Pramod Kumar Shukla (2008)12 SCC 267. Sri.Ramakumar also submitted that Kalamassery Police had registered crime No.1928 of 2013 against the writ petitioners for the offences punishable under Sections 465, 468 and 471 of the Indian Penal Code on 3.10.2013 on the allegation that without getting patta, the writ petitioners paid land Revenue. The learned counsel submitted that the writ petitioners themselves being accused in a crime, they are not entitled to invoke the extraordinary jurisdiction of this Court for the reliefs which they claim. 20. It is seen from the order impugned that the learned Advocate General graciously submitted that the Government will assist the Enquiry Officer in all respects to conduct the enquiry in a fair and proper manner. The learned Judge also recorded the submission of the learned Advocate General that the Government have no objection in ordering CBI enquiry. 21 Writ Appeal No.1861 of 2013 21. Sri.S.Sreekumar, the learned senior counsel appearing for respondent No.17 submitted that respondent No.17 assumed charge as Additional Tahsildar only on 28.5.2012 and she submitted Ext.P24 report based on Ext.P15 report submitted by the Tahsildar on an earlier occasion. It is also submitted that respondent No.17 had referred to Ext.P18 order passed by the Commissioner of Land Revenue, in Ext.P24 report. It is submitted by Sri.S.Sreekumar that the Additional Tahsildar has not committed any foul play in submitting Ext.P24 report and she only followed the report submitted by her predecessor and which was apparently accepted by the Commissioner of Land Revenue in Ext.P18 order. The learned senior counsel submitted that based on the report submitted by the Secretary, Revenue, respondent No.17 was suspended from service. Sri.S.Sreekumar submitted, relying on the decisions of the Supreme Court in **Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund** (AIR 2008 Supreme Court 901) and **State of A.P. v. Star Bone Mill & Fertiliser Co.** (2013) 9 SCC 319) that the Revenue record is not a document of title 22 Writ Appeal No.1861 of 2013 and that the decision of the civil court would be final and conclusive. It is, therefore, submitted that whatever change was made in the Revenue records, that would not ultimately affect the civil rights of the parties and the final decision always would be that of the civil court. 22. In reply, the learned counsel appearing for the writ petitioners submitted that before ordering CBI enquiry, the High Court should be satisfied that there are prima facie materials for ordering such an enquiry. It is submitted that for that purpose, the learned Single Judge thought it fit to call for a detailed report from the Secretary, Revenue, Government of Kerala. Sri.Dinesh R.Shenoy, relied on the decisions of the Supreme Court in **Secretary v. Sahngoo Ram Arya** (2002) 5 Supreme Court Cases 521, **State of Punjab v. Davinder Pal Singh Bhullar** (AIR 2012 Supreme Court 364), **Disha v. State of Gujarat** ( AIR 2011 Supreme Court 3168) and **Nirmal Singh Kahlon v. State of Punjab** (AIR 2009 Supreme Court 984). 23. Sri.Shenoy submitted that under Rule 3 of the 23 Writ Appeal No.1861 of 2013 Transfer of Registry Rules, 1966 (for short, 'the Rules'), a Thandaper can be transferred only when either of the following three contingencies occur, namely, (i) there was a voluntary transfer of title; or (ii) a transfer by decree of civil court or Revenue sales; or (iii) transfer due to succession. None of these contingencies occurred justifying cancellation of the Thandaper, as was done, based on Ext.P26 letter issued by the Commissioner of Land Revenue. 24. On going through the records, we entertained a doubt as to whether the whole episode originated due to the letter issued by the Commissioner of Land Revenue on 4.9.2012 (Ext.P26) while the Commissioner, Land Revenue had taken a diametrically opposite view in Ext.P18 order dated 4.1.2012. We requested the learned Government Pleader to submit on these aspects. The learned Government Pleader submitted that the Commissioner of Land Revenue could invoke his power under Rule 20 of the Rules. Rule 20 of the Rules reads as follows : 20. (i) It shall be open to the Board of Revenue, if sufficient 24 Writ Appeal No.1861 of 2013 grounds exist, to take on its file and dispose of any transfer of registry case pending before a District Collector. (ii) The Board of Revenue may, if it is satisfied that sufficient grounds exist, either on its own motion or otherwise revise, cancel or alter any decision or order passed by any authority subordinate to it within a period of ten years from the date of such decision. (iii) The Government may, if it is satisfied that sufficient grounds exist, either on its own motion or otherwise revise, cancel or alter any decision or order passed by any authority subordinate to it at any time or otherwise any decision or order passed by the District Collector, within a period of three months from the date of such decision.” (The powers of the Board of Revenue are vested in the Commissioner of Land Revenue as per S.R.O.No.530 of 1998 issued in exercise of the powers conferred by sub-section (1) of Section 4 of the Kerala Board of Revenue Abolition Act, 1996.) 25. Sub Rule (i) of Rule 20 of the Rules will not evidently apply since no case was pending before the District Collector. Sub Rule (ii) of Rule 20 also would not apply in the case since the Commissioner of Land Revenue had already decided not to invoke that sub rule and passed Ext.P18 order stating that the Department of Revenue could not interfere in 25 Writ Appeal No.1861 of 2013 the case as the matter was pending before civil court. Having held so, the Commissioner of Land Revenue had no jurisdiction to review that order since such a power of review was not conferred upon him. It is true that Ext.P19 petition dated 14.3.2012 was submitted by respondent No.11 to the Minister for Revenue and the Government issued a letter dated 9.4.2012 to the Commissioner of Land Revenue to submit a report. Instead of submitting such a report, the Commissioner of Land Revenue directed cancellation of Thandaper, ignoring his own order dated 4.1.2012. Evidently, the power of revision of the Government under Sub Rule (iii) of Rule 20 was not being exercised. The prayer in Ext.P19 petition submitted by respondent No.11 to the Government was to issue a direction to the Commissioner of Land Revenue to review his order. It cannot be assumed that the Government asked for a report from the Commissioner of Land Revenue for the purpose of enabling him to review his own order while as per law, the Commissioner of Land Revenue had no such jurisdiction. 26. Evidently, no revision was filed before the 26 Writ Appeal No.1861 of 2013 Government and the Government did not invoke its revisional jurisdiction under sub rule (iii) of Rule 20 of the Rules. 27. 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. Meanwhile, criminal cases were also initiated against both parties. 28. We are of the view that the Commissioner of Land Revenue exercised a jurisdiction not vested in him under law. 29. It is well settled that Revenue records are not documents of title and the civil court, while deciding the question of title in respect of immovable property, is not bound to consider the question of title based on land Revenue records alone. On the other hand, if the civil court finds title to immovable property in favour of a particular party, that decision would be binding on the Revenue officials in respect of any matter touching upon entries in revenue records. In the 27 Writ Appeal No.1861 of 2013 present case, when the civil suits were pending, drastic changes were made to the Land Revenue records, detrimental to the interests of the writ petitioners and that too, without affording an opportunity of being heard to them. The 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. 30. The submission made by respondent No.17 that since the decision of the civil court would be final, any change made in the Revenue records would have no consequence, is without merit. Many transactions in respect of immovable property take place based on the entries in the Revenue records and payment of Revenue in respect of the land. A prospective purchaser would look into the Revenue records to see whether the seller has title to the land sought to be purchased. There may be cases where the seller may be having leasehold right and it could even be an oral lease 28 Writ Appeal No.1861 of 2013 followed by the issue of a purchase certificate. Revenue records assume much importance in the matter of sale of immovable properties or mortgage of immovable properties, or in the matter of taking loans from commercial banks. The prospective buyers or financial institutions would not search and find out civil court decree, but they will look into only Revenue records, documents of title, encumbrance certificate etc. Any change made in the Revenue records when civil suit is pending in respect of that property, and that too, without hearing the affected parties, would cause much prejudice to the rightful owners of immovable properties. It is not a solace to them that finally, the civil court will pass a decree in their favour and thereafter, entries in the Revenue records would be corrected. By that time, several change of hands would take place in respect of the properties. 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. 29 Writ Appeal No.1861 of 2013 31. It is common knowledge that in recent years, several instances of land grabbing at the instance of land mafia were reported. In such instances, they take the aid of Revenue records and the changes made in such records to suit their convenience. Not only that the rights of the rightful owners would be defeated in such transactions, but the rights of the innocent purchasers also would be defeated. It is important to notice that the Secretary of Revenue, Government of Kerala, in his report noticed that the Commissioner of Land Revenue in a revision filed before him on 19.5.2011 issued notice to the parties, heard them on different dates and passed a final order on 21.5.2013. All the procedural formalities were complied with by the Commissioner of Land Revenue in that case. It is also reported by the Secretary, Revenue that such a procedure was not adopted by the Commissioner of Land Revenue in the present case. There is no case for the Government Pleader that any notice was issued by the Commissioner of Land Revenue to the affected parties before issuing Ext.P26. It is true that W.P. (C) No.23244 of 2012 filed by the writ petitioners challenging 30 Writ Appeal No.1861 of 2013 Ext.P26 issued by the Commissioner of Land Revenue is pending disposal. The findings and observations made in this judgment may probably be decisive in W.P.(C) No.23244 of 2012, but that is not a ground to shirk our responsibility to deal with the contentions put forward by the parties in this Writ Appeal. When specific contentions have been put forward in this Writ Appeal, in support of the interim order passed by the learned Single Judge and when the appellants challenge the interim order passed by the learned Single Judge, necessarily we are bound to look into the contentions put forward by the parties, notwithstanding the pendency of another Writ Petition challenging Ext.P26. 32. The learned Single Judge, in our view, was justified in passing the order impugned in this Writ Appeal. The report submitted by the Secretary, Revenue would show that grave irregularities were committed by Revenue officials and that a detailed enquiry is necessary in respect of the same. The parties cannot be denied relief on technicalities and the learned Single Judge thought that a comprehensive enquiry is required 31 Writ Appeal No.1861 of 2013 before deciding the question whether the main relief sought for in the Writ Petition should be granted. We do not find any error in the order passed by the learned Single Judge. Accordingly, the Writ Appeal is dismissed. It is made clear that by making the findings and observations as above, we were not dealing with the challenge against Ext.P26 dated 4.9.2012 passed by the Commissioner of Land Revenue, but we were dealing with the arguments put forward by the parties on the main issue involved in the Writ Appeal. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)